Raymond Gearhart v. Dr. Sarrazine, et al

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Diana E. Murphy and Lavenski R. Smith. (UNPUBLISHED) Granting [4090221-2] motion to proceed on appeal in forma pauperis filed by Appellant Mr. Raymond Gearhart. [4122869] [13-3031]--[Edited 02/11/2014 by LMT]

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United States Court of Appeals For the Eighth Circuit ___________________________ No. 13-3031 ___________________________ Raymond Gearhart lllllllllllllllllllll Plaintiff - Appellant Robert George lllllllllllllllllllll Plaintiff v. Sarrazine, Dr.; Elizabeth Weiner, Dr.; Shawn Rice, Dr.; Williams, Counselor; Linda Sanders, Warden; Rhodes, Officer lllllllllllllllllllll Defendants - Appellees ____________ Appeal from United States District Court for the Western District of Missouri - Springfield ____________ Submitted: January 23, 2014 Filed: February 11, 2014 [Unpublished] ____________ Before WOLLMAN, MURPHY, and SMITH, Circuit Judges. ____________ PER CURIAM. Appellate Case: 13-3031 Page: 1 Date Filed: 02/11/2014 Entry ID: 4122869 Raymond Gearhart appeals the district court’s preservice dismissal as duplicative of his complaint under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). We grant his renewed motion for leave to proceed in forma pauperis on appeal. As to the merits of the district court’s order, we agree that the claims arising from the forced administration of medications are duplicative, as there was another pending Bivens suit filed by Gearhart that raised the same claims. Therefore those claims were properly dismissed--whether under 28 U.S.C. § 1915(e)(2)(B) or 28 U.S.C. § 1915A. See Moore v. Sims, 200 F.3d 1170, 1 1 7 1 ( 8 t h C i r . 2 0 0 0 ) ( p e r c u r i a m) ( d e n o v o r e v i e w o f § 1915(e)(2)(B) dismissal); Cooper v. Schriro, 189 F.3d 781, 783 (8th Cir. 1999) (per curiam) (de novo review of § 1915A dismissal); Aziz v. Burrows, 976 F.2d 1158, 1158-59 (8th Cir. 1992) (affirming § 1915 dismissal on ground that courts may dismiss duplicative complaint raising issues directly related to issues in other pending action by same party). However, we find that the claims arising from defendant Officer Rhodes’s alleged assault on Gearhart was improperly dismissed, see Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004) (pro se complaints must be liberally construed), because only one of the four cases the district court identified as duplicative was still pending when the instant dismissal order was entered, and the complaint in that pending action contained no such claim. We thus reverse the dismissal of that claim and remand for further proceedings. In all other respects, we affirm. ______________________________ -2- Appellate Case: 13-3031 Page: 2 Date Filed: 02/11/2014 Entry ID: 4122869

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