United States District Court, E.D. Louisiana
DALE G. BENJAMIN
REPORT AND RECOMMENDATION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE
Dale G. Benjamin, is a prisoner currently incarcerated in the
Orleans Justice Complex (“the Orleans jail”) in
New Orleans, Louisiana. He filed this complaint pro se and in
forma pauperis pursuant to 42 U.S.C. § 1983 against
Orleans Parish Sheriff Marlin Gusman.
alleges that he has been denied constitutionally adequate
medical care for a variety of physical conditions while
incarcerated in the Orleans jail. Among other things, he
complains that his medical care in the jail has been
inadequate for a spider bite, acid reflux, hip and neck pain,
vomiting, difficulty eating and a fractured wrist caused when
he fell after being given shoes that did not fit. In the
relief section of his form complaint, he states: “I
want the court to award me for my “pain and
suffering.” Record Doc. No. 1 (Complaint at ¶ V,
prisoner's pro se complaint for alleged civil rights
violations must be screened by the court as soon as
practicable after docketing, regardless whether it has also
been filed in forma pauperis. 28 U.S.C. § 1915A(a);
Lewis v. Estes, 242 F.3d 375, 2000 WL 1673382, at *1
(8th Cir. 2006); Shakur v. Selsky, 391 F.3d 106, 112
(2d Cir. 2004); Martin v. Scott, 156 F.3d
578, 579-80 (5th Cir. 1998). Such complaints by prisoners
must be dismissed upon review if they are frivolous,
malicious or fail to state a claim upon which relief can be
granted. 28 U.S.C. § 1915A(b)(1); Shakur, 391
F.3d at 113; Carr v. Dvorin, 171 F.3d 115, 116 (2d
federal court may dismiss a claim in forma pauperis ‘if
satisfied that the action is frivolous or
malicious.'” Moore v. McDonald, 30 F.3d
616, 620 (5th Cir. 1994) (quoting former 28 U.S.C. §
1915(d), now incorporated in 28 U.S.C. § 1915(e), as
amended). Duplicative and repetitive lawsuits are malicious
for purposes of 28 U.S.C. § 1915(e)(2)(B)(i) and must be
dismissed for that reason. Potts v. Texas, No.
08-41177, 2009 WL 3806073, at *1 (5th Cir. Nov. 13, 2009)
(citing Pittman v. Moore, 980 F.2d 994, 994-95 (5th
Cir. 1993); Bailey v. Johnson, 846 F.2d 1019, 1021
(5th Cir. 1988)).
Courts may appropriately dismiss an in forma pauperis action
as frivolous, when the action “seek[s] to relitigate
claims which allege substantially the same facts arising from
a common series of events which have already been
unsuccessfully litigated by the in forma pauperis
plaintiff.” . . . In Pittman, the Fifth
Circuit Court of Appeals noted that Wilson [v.
Lynaugh] “essentially held that pauper status does
not entitle a plaintiff to avoid the ordinary rules of res
judicata.” The Circuit then agreed that a complaint is
malicious when it “duplicates allegations of another
pending federal lawsuit by the same plaintiff.” Reading
Pittman and Wilson in conjunction, it is
clear that the Court may dismiss an action as malicious when
the complaint raises claims that would be barred by the
principles of res judicata, whether or not the prior
litigation has ended unsuccessfully for the plaintiff.
It is well-settled that “res judicata bars all claims
that were brought or could have been brought based on the
operative factual nucleus.” A complaint is thus
malicious when it “duplicates allegations of another
pending federal lawsuit by the same plaintiff” or when
it raises claims arising out of a common nucleus of operative
facts that could have been brought in the prior litigation.
McGill v. Juanita Kraft Postal Serv., No.
3:03-CV-1113-K, 2003 WL 21355439, at *1-2 (N.D. Tex. June 6,
2003) (Ramirez, M.J.) (quoting Wilson v. Lynaugh,
878 F.2d 846, 85 (5th Cir. 1989); Pittman, 980 F.2d
at 994, 994-95; Ellis v. American Express Life Ins.
Co., 211 F.3d 935, 938 n.1 (5th Cir. 2000)), report
& recommendation adopted, 2003 WL 21467745 (N.D.
Tex. June 18, 2003) (Kinkeade, J.); accord Parker v. Fort
Worth Police Dep't, 980 F.2d 1023, 1026
(5th Cir. 1993).
case, plaintiff's Section 1983 complaint, construed
broadly,  must be dismissed as malicious and
duplicative under 28 U.S.C. § 1915(e)(2)(B)(i). Benjamin
has asserted claims against Sheriff Gusman in the captioned
complaint that are virtually identical to the claims asserted
in an earlier filed case in this court. Dale G. Benjamin
v. Marlin Gusman, C.A. No. 17-7014 “F” (5).
In the earlier case, an order was entered on September 29,
2017, requiring the Compliance Director of the Orleans jail
to have Benjamin medically evaluated, to provide any
recommended treatment and to provide the court with a report
in connection with its screening review of Benjamin's
medical care claims. Id., Record Doc. No. 10. In
this case, Benjamin is merely reasserting the same claims
against the same defendant that have already been asserted
and are being actively addressed in his earlier filed case in
this court. Thus, his current complaint must be dismissed as
duplicative and malicious.
of the foregoing reasons, IT IS RECOMMENDED
that plaintiffs complaint asserting claims pursuant to 42
U.S.C. § 1983 be DISMISSED WITH
PREJUDICE as duplicative and malicious under 28
U.S.C. § 1915(e)(2)(B)(i).
party's failure to file written objections to the
proposed findings, conclusions, and recommendation in a
magistrate judge's report and recommendation within
fourteen (14) days after being served with a copy shall bar
that party, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the district
court, provided that the party has been served with notice
that such consequences will result from a failure to ...