Brogdon v. Phoenix Police Department et al

Filing 7

ORDER that the Complaint and this action are dismissed without prejudice as duplicative. (Doc. 1.)Defendants' motion to dismiss is denied as moot 5 . The Clerk of Court must enter judgment accordingly. Signed by Judge Robert C Broomfield on 12/27/11.(DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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George Albert Brogdon, Jr.,
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Plaintiff,
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vs.
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Phoenix Police Department, et al.,
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Defendants.
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No. CV 11-2459-PHX-RCB (MEA)
ORDER

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Plaintiff George Albert Brogdon, Jr., who is confined in Maricopa County’s Fourth

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Avenue Jail in Phoenix, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C.

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§ 1983 in Maricopa County Superior Court, case# CV2011-01435 on August 4, 2011.1 (Doc.

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1, Complaint.) Plaintiff named the Phoenix Police Department and Phoenix Police Officers

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Lubker and Boardman as Defendants. On November 21, 2011, Defendant Boardman was

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served with the Complaint. (Id.) On December 12, 2011, all of the Defendants removed the

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case to federal court. (Id.) On December 19, 2011, the Defendants filed their Answer and

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a motion to dismiss for failure to state a claim. (Doc. 3, 5.) The Complaint facially supports

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that subject matter jurisdiction is proper in federal court and that the case was timely

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removed after service of the Complaint on Boardman. However, the Court will dismiss this

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action because it contains identical claims to those in Plaintiff’s previously-filed federal case

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Plaintiff previously filed an action raising the same claims presented in the
Complaint filed in this case. See Brogdon v. Phoenix Police Department, No. CV 11-1389PHX-RCB (MEA). In that case, the Phoenix Police Department was dismissed and
Defendants Boardman and Lubker were ordered served. See doc. 5. That case remains
pending.

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as duplicative and will deny Defendants’ motion to dismiss as moot.

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I.

Removal to Federal Court was Proper

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A defendant may remove any civil action brought in state court over which the federal

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court would have original jurisdiction. 28 U.S.C. §1441(a). That is, a civil action that could

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have originally been brought in federal court may be removed from state to federal court.

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Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). A federal court has original

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jurisdiction “of all civil actions arising under the Constitution, laws, or treaties of the United

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States.” 28 U.S.C. § 1331.

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The Complaint in this case facially supports that subject matter jurisdiction exists in

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federal court because Plaintiff alleges violations of his federal constitutional rights. 28

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U.S.C. §§ 1441, 1442. Further, a Defendant removed the action from state court within 30

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days after being served. 28 U.S.C. § 1446(b). The Court concludes this case was properly

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removed.

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II.

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Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against

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a governmental entity or officer or employee of a governmental entity.

28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if Plaintiff has raised

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claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief

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may be granted, or that seek monetary relief from a defendant who is immune from such

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relief. 28 U.S.C. § 1915A(b)(1),(2). Because this action is duplicative, it will be dismissed.

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III.

Procedural History and Complaint

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Besides the present action, Plaintiff filed another civil rights complaint alleging the

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same claims at issue in this case. See Brogdon v. Phoenix Police Department, No. CV 11-

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1389-PHX-RCB (MEA) (D. Ariz.).

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approximately one month after Plaintiff commenced CV11-1389 alleging substantially the

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same claims. Plaintiff has not provided any reason for filing duplicative case.

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IV.

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This action was filed on August 4, 2011, or

A Duplicative Action Must Be Dismissed
An in forma pauperis complaint that merely repeats pending or previously litigated
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claims may be considered abusive and dismissed under 28 U.S.C. § 1915(e).2 Cato v. United

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States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995); see also McWilliams v. State of Colorado,

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121 F.3d 573, 574 (11th Cir. 1997) (repetitious action may be dismissed as frivolous or

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malicious); Aziz v. Burrows, 976 F.2d 1158 (9th Cir. 1992) (“district courts may dismiss a

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duplicative complaint raising issues directly related to issues in another pending action

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brought by the same party”); Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988)

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(repetitious litigation of virtually identical causes of action is subject to dismissal as

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malicious). Accordingly, the Complaint and this action will be dismissed as duplicative of

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Brogdon v. Phoenix Police Department, No. CV 11-1389-PHX-RCB (MEA) (D. Ariz.).

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IT IS ORDERED:
(1)

The Complaint and this action are dismissed without prejudice as duplicative.

(Doc. 1.)

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(2)

Defendants’ motion to dismiss is denied as moot. (Doc. 5.)

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(3)

The Clerk of Court must enter judgment accordingly.

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Dated this 27 th day of December, 2011.

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Plaintiff commenced this action in Superior Court and was granted deferment or
waiver of the filing fee. See http://www.superiorcourt.maricopa.gov/docket/CivilCourtCases/
caseInfo.asp?caseNumber=CV2011-014351 (last visited Dec. 20, 2011).
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