Stepp v. King (INMATE2)

Filing 4

REPORT AND RECOMMENDATIONS that this case be DISMISSED with prejudice prior to service of process in accordance with the provisions of 28 U.S.C. §1915(e)(2)(B)(i); Objections to R&R due by 5/18/2009. Signed by Honorable Wallace Capel, Jr on 5/5/2009. (cc, )

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION ____________________________ M IC H A E L STEPP, P l a in tif f , v. * * * 2:09-CV-383-WHA (WO) A L A B A M A ATTORNEY GENERAL, * T R O Y KING * D e f e n d a n t. ____________________________ R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE M ic h a el Stepp is an inmate incarcerated at the Jefferson County Jail. He files this 42 U .S .C . 1983 action against Alabama Attorney General Troy King challenging the constitutionality of matters associated with the Alabama Community Notification Act, Ala. Code 1975 15-20-20 et seq. (1975, as amended), and its application to him as a sex offender. In f ilin g this action, Plaintiff requests preliminary injunctive relief "and any other relief." (Doc. N o . 1.) I . DISCUSSION U n d e r 28 U.S.C. 1915(e), a court is authorized to allow indigent litigants to proceed in forma pauperis without paying administrative costs of proceeding with a civil or criminal a c tio n , or appeal therein. The statute, however, protects against abuses of this privilege by a llo w in g a district court to dismiss a case "at any time if the court determines that . . . the a c t i o n or appeal . . . is frivolous or malicious." 28 U.S.C. 1915(e)(2)(B)(i). Similarly, u n d er 28 U.S.C. 1915A, courts are required, before docketing (or as soon as practicable), to "screen" the complaint. 28 U.S.C. 1915A(a). Upon this screening, "the court shall . . . d i sm is s the complaint, or any portion of the complaint, if the complaint . . . is frivolous, m aliciou s, or fails to state a claim upon which relief may be granted." 28 U.S.C. 1915A(b). A complaint permitted to proceed in forma pauperis which merely "repeats pending o r previously litigated claims may be considered abusive and dismissed under the authority o f section 1915[e]" as "malicious." Bailey v. Johnson, 846 F.2d 1019, 1021 (5 th Cir. 1988) (c itatio n s omitted); see also Cato v. United States, 70 F.3d 1103, 1105 n.2 (9 th Cir. 1995). " A litigant whose filing fees and court costs are assumed by the public, unlike a paying litig a n t, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive la w s u its ." Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U .S . 319, 324 (1989)). In determining whether a dismissal is warranted, there is no specific test to follow. R a th e r, courts are "vested with especially broad discretion." Green v. McKaskle, 788 F.2d 1 1 1 6 , 1119 (5 th Cir. 1986). Courts generally look to the identity of the parties, the legal and f a c tu a l claims, and the relief sought to determine if the complaint is repetitive or malicious. See Bailey, 846 F.2d at 1021. The complaint filed in this case is virtually indistinguishable from a complaint re c en tly filed by Plaintiff with the United States District Court for the Northern District of A laba m a . See Stepp v. Reach, et al., Civil Action No. 2:09-CV-569-IPJ (N. D. Ala.); see 2 a ls o Stepp v. Reach, Civil Action No. 2:08-CV-HGD (N.D. Ala. 2008).1 The court has c o n sid e re d each aspect of Plaintiff's litigation and determines that his complaint is repetitive. It merely repeats the same claims against the same defendant as presented to the United S ta te s District Court for the Northern District of Alabama in Stepp v. Reach, et al., 2:09-CV5 6 9 -IP J (N.D. Ala.), which is presently pending on Plaintiff's claims for relief. In light of th e foregoing, it is clear that the complaint filed by Plaintiff in the present cause of action is m a lic io u s and it is, therefore, subject to dismissal under 28 U.S.C. 1915(e)(2)(B)(i). See g e n e r a lly Curtis v. Citibank, N.A, 226 F.3d 133, 138 (2 n d Cir. 2000) ("as part of its general p o w e r to administer its docket, a district court may stay or dismiss a suit that is duplicative o f another federal court suit"). I I . CONCLUSION A c c o r d in g ly, it is the RECOMMENDATION of the Magistrate Judge that this case b e DISMISSED with prejudice prior to service of process in accordance with the provisions o f 28 U.S.C. 1915(e)(2)(B)(i). It is further O R D E R E D that the parties are DIRECTED to file any objections to the said R e c o m m e n d a tio n on or before May 18, 2009. Any objections filed must specifically identify th e findings in the Magistrate Judge's Recommendation to which a party objects. Frivolous, co n clus ive or general objections will not be considered by the District Court. The parties are 1 Available at 3 a d v is e d that this Recommendation is not a final order of the court and, therefore, it is not a p p e a la b le . F a ilu re to file written objections to the proposed findings and recommendations in the M a g i s tr a t e Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11 th Cir. 1981) ( en banc), adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on S e p te m b e r 30, 1981. D o n e this 5th day of May, 2009. / s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. UNITED STATES MAGISTRATE JUDGE 4

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