Walker v. Stark

Filing 10

ORDER of Dismissal. ORDERED that the complaint and the instant action are dismissed. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied, by Judge Lewis T. Babcock on 12/9/11. (lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02314-BNB
EDMOND WALKER,
Plaintiff,
v.
STARK,
Defendant.

ORDER OF DISMISSAL

Plaintiff, Edmond Walker, currently is incarcerated at the Jefferson County
Detention Center in Golden, Colorado. Mr. Walker, acting pro se, filed a Prisoner
Complaint. He has been granted leave to proceed pursuant to 28 U.S.C. § 1915
without payment of an initial partial filing fee.
In his complaint, Mr. Walker alleges that Defendant Stark, a Denver police
officer, violated his constitutional rights on July 16, 2010, by confiscating his bicycle as
stolen even after he showed the officer a receipt for the purchase of the bicycle. He
asserts that he filed a complaint with the Office of Independent Monitor, which referred
his complaint to the Denver police department’s internal affairs division, but his bicycle
was not returned and allegedly is not at the police department. It is not clear whether
Plaintiff’s current incarceration at the Jefferson County Detention Center is related to the
bicycle incident.
On November 2, 2011, Magistrate Judge Boyd N. Boland ordered Mr. Walker to

show cause within thirty days why the instant action should not be dismissed as
repetitive of Walker v. Stark, No. 11-cv-01676-LTB (D. Colo. July 20, 2011), in which
Mr. Walker made similar allegations against the same Defendant. In the order
dismissing No. 11-cv-01676-LTB as legally frivolous, Mr. Walker was informed that he
had an adequate remedy available to him in state court under state law.
In the November 2 order to show cause in the instant action, Magistrate Judge
Boland informed Mr. Walker that repetitious litigation of virtually identical causes of
action may be dismissed as frivolous or malicious. See Bailey v. Johnson, 846 F.2d
1019, 1021 (5th Cir. 1988) (per curiam); Van Meter v. Morgan, 518 F.2d 366, 368 (8th
Cir. 1975) (per curiam). Magistrate Judge Boland noted that the Court may consult its
own records to determine whether a pleading repeats pending or previously litigated
claims. See Duhart v. Carlson, 469 F.2d 471 (10th Cir. 1972). Finally, Magistrate
Judge Boland pointed out in the November 2 order that the claims asserted in the
instant action appeared to be repetitive of Mr. Walker’s claims in No. 11-cv-01676-LTB,
and ordered him to show cause why this action should not be dismissed. The
November 2 order warned Mr. Walker that if he failed to show cause within thirty days
the action would be dismissed without further notice.
Mr. Walker has failed to show cause or otherwise communicate with the Court in
any way within the time allowed. Therefore, the complaint and the action will be
dismissed pursuant to § 1915 as frivolous or malicious because the asserted claims are
repetitive of the claims asserted in No. 11-cv-01676-LTB.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal

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from this order would not be taken in good faith and therefore in forma pauperis status
will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S.
438 (1962). If Mr. Walker files a notice of appeal he must also pay the full $455
appellate filing fee or file a motion to proceed in forma pauperis in the United States
Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App.
P. 24.
Accordingly, it is
ORDERED that the complaint and the instant action are dismissed pursuant to
28 U.S.C. § 1915 as frivolous or malicious because the asserted claims are repetitive of
the claims Plaintiff, Edmond Walker, asserted in Walker v. Stark, No. 11-cv-01676-LTB
(D. Colo. July 20, 2011). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this

9th

day of

December

, 2011.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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