Young v. Bureau of Prisons

Filing 6

ORDER dismissing this action with prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 7/22/14. (dkals, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 14-cv-01998-BNB TIMOTHY DOYLE YOUNG, Plaintiff, v. BOP, Defendant. ORDER OF DISMISSAL Plaintiff Timothy Doyle Young, a federal prisoner currently housed in the State of Colorado, originally filed a civil complaint in the United States District Court for the Northern District of California (Northern District of California). See Young v. BOP, No. 12-cv-03313-THE (N.D. Cal. Sept. 13, 2012). In an order entered on the docket in Case No. 12-cv-03313-THE, the Northern District of California determined that venue in Case No. 12-cv-03313-THE lies in the United States District Court for the District of Colorado and ordered the action transferred to this Court pursuant to 28 U.S.C. § 1406(a). See id. at ECF No. 6. This Court did not receive electronic notification of the transferred case and was not aware of the transferred case until recently when the Northern District of California sent a copy to this Court of a pleading Plaintiff filed with the Northern District of California in Case No. 12-cv-03313-THE, on June 23, 2014. Subsequently, this Court contacted the Northern District of California and informed the court of its failure to electronically notify this Court of the transferred case. On July 18, 2014, this Court received the transfer order and related filings from the Northern District of California and opened this case. As part of this Court’s review pursuant to D.C.COLO.LCivR 8.1(b), this Court has determined that the submitted documents are deficient. The Court, however, will refrain from directing Plaintiff to cure any deficiencies and will dismiss the case for the following reasons. Plaintiff filed a second civil complaint in the Northern District of California, Young v. BOP, No. 12-cv-04575-SBA (N. D. Cal. Sept. 13, 2012), within six weeks after he filed Case No. 12-cv-03313-THE, that also was ordered transferred to this Court on the same day as Case No. 12-cv-03313-THE. The Court has compared the complaints in both cases and finds Plaintiff’s claims in Case No. 12-cv-3313-THE are repetitive of the claims stated in Case No. 12-cv-04575-SBA. 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). This Court addressed Plaintiff’s claims in this Court in Case No. 12-cv-02456, but dismissed the action because Plaintiff, like he has done in multiple previous cases, failed to cure certain deficiencies. Plaintiff repeatedly claims prison staff will not provide him with Court-approved forms for filing his claims in this Court. Plaintiff’s claims, however, have been found to be incredible and abusive. Young v. United States, No. 14-cv-00073-LTB, ECF No. 20 (D. Colo. Apr. 22, 2014). Plaintiff, therefore, had the opportunity to proceed with his claims in Case No. 12-cv02456 in this Court but elected not to do so. Because this action is repetitive of Case No. 12-cv-02456, and was subject to 2 dismissal as frivolous when it should have been transferred to this Court in September 2012, the Court will now dismiss this action as repetitive and legally frivolous. The Court acknowledges the order in Young v. United States, No. 14-cv-00073LTB, ECF No. 24 (D. Colo. Apr. 22, 2014), that imposes filing restrictions on Plaintiff. Because the order imposing restrictions was entered after this case was filed, the Court will refrain from addressing filing restrictions and monetary sanctions. The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order is not taken in good faith, and in forma pauperis status is denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Plaintiff files a notice of appeal he must pay the full $505.00 appellate filing fee or file a motion to proceed in forma pauperis in the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24. Accordingly, it is ORDERED that the action is dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(I) as legally frivolous. It is FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. DATED at Denver, Colorado, this 22nd day of July , 2014. BY THE COURT: s/Lewis T. Babcock LEWIS T. BABCOCK, Senior Judge United States District Court 3

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