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Forsythe v. Dothan City Jail

DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA SOUTHERN DIVISION
Jul 26, 2012
CIVIL ACTION NO. 1:12-CV-97-TMH (M.D. Ala. Jul. 26, 2012)

Opinion

CIVIL ACTION NO. 1:12-CV-97-TMH

07-26-2012

GREGORY FORSYTHE, Plaintiff, v. DOTHAN CITY JAIL, et al., Defendants.


[WO]


RECOMMENDATION OF THE MAGISTRATE JUDGE


I. INTRODUCTION

This 42 U.S.C. § 1983 action is pending before the court on a complaint filed by Gregory Forsythe ["Forsythe"], an indigent inmate presently confined in the Houston County Jail. In the complaint, Forsythe references an incident which occurred during his confinement at the Dothan City Jail on October 2, 2010. Specifically, Forsythe asserts Sgt.Parker, an officer at the city jail, failed to protect him from attack by fellow inmates on the aforementioned date. Complaint - Doc. No. 1 at 2-3.

Upon review of the instant complaint and in light of the previous decision entered in Forsythe v. City of Dothan, et al., Civil Action 1:10-CV-1063-ID-WC (M.D. Ala. 2011), the court concludes this case is due to be summarily dismissed as malicious in accordance with the provisions of 28 U.S.C.§ 1915(e)(2)(B)(i).

The court granted Forsythe leave to proceed in forma pauperis. Court Doc. No. 3. A prisoner allowed to proceed in forma pauperis will have his complaint screened under the provisions of 28 U.S.C. § 1915(e)(2)(B) which requires this court to dismiss a prisoner's civil action prior to service of process if it determines that the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

II. DISCUSSION

The present complaint is indistinguishable from the complaint previously filed by the plaintiff in Forsythe v. City of Dothan, et al., Civil Action 1:10-CV-1063-ID-WC (M.D. Ala. 2011). A federal court is empowered to dismiss a prisoner's in forma pauperis complaint as malicious where earlier and later complaints are substantially identical. Cato v. United States, 70 F.3d 1103, 1105 n. 2 (9th Cir. 1995) (in forma pauperis complaint that merely repeats pending or previously litigated claims may be considered abusive and summarily dismissed as either frivolous or malicious under § 1915); McWilliams v. State of Colo., 121 F.3d 573, 574 (10th Cir. 1997); Pittman v. Moore, 980 F.2d 994, 994-995 (5th Cir. 1993); Van Meter v. Morgan, 518 F.2d 366, 368 (8th Cir. 1975); Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir.1988) (in forma pauperis complaint repeating same factual allegations asserted in earlier case is subject to dismissal as duplicative). "Dismissal of the duplicative lawsuit ... promotes judicial economy and the comprehensive disposition of litigation." Adams v. California, 487 F.3d 684, 692 (9th Cir. 2007).

In the prior cause of action, this court dismissed the case with prejudice because Forsythe bypassed the administrative remedy procedure provided by the jail and the remedy no longer existed. Forsythe v. City of Dothan, et al., Civil Action No. 1:10-CV-1063-ID (M.D. Ala. 2011) - Recommendation of the Magistrate Judge at 2-5, adopted as final judgment of the court by order of July 29, 2011 (Doc. No. 17). The circumstances warranting dismissal are unchanged. Consequently, the complaint filed by Forsythe in the instant cause of action is malicious and dismissal of such complaint prior to service of process is therefore appropriate under 28 U.S.C. § 1915(e)(2)(B)(i). Cato, 70 F.3d at 1105; Bailey, 846 F.2d at 1021.

III. CONCLUSION

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that the plaintiff's complaint be summarily dismissed as malicious pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B)(i). It is further

ORDERED that on or before August 9, 2012 the parties may file objections to the Recommendation. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive or general objections will not be considered by the District Court. The parties are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable.

Failure to file written objections to the proposed findings and advisements in the Magistrate Judge's Recommendation shall bar the party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings in the Recommendation accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.

___________

WALLACE CAPEL, JR.

UNITED STATES MAGISTRATE JUDGE


Summaries of

Forsythe v. Dothan City Jail

DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA SOUTHERN DIVISION
Jul 26, 2012
CIVIL ACTION NO. 1:12-CV-97-TMH (M.D. Ala. Jul. 26, 2012)
Case details for

Forsythe v. Dothan City Jail

Case Details

Full title:GREGORY FORSYTHE, Plaintiff, v. DOTHAN CITY JAIL, et al., Defendants.

Court:DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA SOUTHERN DIVISION

Date published: Jul 26, 2012

Citations

CIVIL ACTION NO. 1:12-CV-97-TMH (M.D. Ala. Jul. 26, 2012)