Thompson v. Dobbs et al

Filing 10

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 11/19/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02947-GPG
MAURICE LAJUAN THOMPSON
Applicant,
v.
TASHA DOBBS, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Maurice LaJuan Thompson, is a prisoner currently detained at the
Mesa county Detention Facility in Grand Junction, Colorado. On October 30, 2014, he
filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254
(ECF No. 1) and a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 2).
On November 5, 2014, Magistrate Judge Boyd N. Boland entered an order
directing Mr. Thompson to show cause within thirty days why the Application and action
should not be dismissed as repetitive of Thompson v. Gurley, Civil Action No. 14-cv02806-BNB (D. Colo. Oct. 14, 2014), which is another habeas corpus action pending in
this court. On November 14, 2014, Mr. Thompson submitted three documents titled
“Temporary Injunction” (ECF No. 7), “Summons Order” (ECF No. 8), and “Brief of
Authority” (ECF NO. 9) apparently in response to the November 5 order.
The Court must construe Mr. Thompson’s filings liberally because he is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court does not act as an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. The Court may take judicial
notice of its own records and files that are part of the Court’s public records. See St.
Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir.
1979); see also Duhart v. Carlson, 469 F.2d 471 (10th Cir. 1972) (A court may consult
its own records to determine whether a pleading repeats pending or previously litigated
claims.)
Mr. Thompson has been granted leave to proceed pursuant to the federal in
forma pauperis statute, 28 U.S.C. § 1915. Subsection (e)(2)(B) of § 1915 requires a
court to dismiss sua sponte an action at any time if the action is frivolous, malicious, or
seeks monetary relief against a defendant who is immune from such relief. A legally
frivolous claim is one in which the plaintiff asserts the violation of a legal interest that
clearly does not exist or asserts facts that do not support an arguable claim. Neitzke v.
Williams, 490 U.S. 319, 324 (1989).
As previously stated, the November 5 order (ECF No. 5) directed Mr. Thompson
to show cause why the instant action should not be dismissed as repetitive of
Thompson v. Gurley, Civil Action No. 14-cv-02806-BNB (D. Colo. Oct. 14, 2014).
Magistrate Judge Boland warned Mr. Thompson 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); Curtis v. Citibank, N.A., 226 F.3d 133, 138
(2d Cir. 2000) (district court may dismiss a suit that is duplicative of another federal
court suit); accord Williams v. Madden, 9 F. App’x 996, 997 & n.1 (10th Cir. June 13,

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2001) (stating that the court has the authority to dismiss “repetitious litigation
reasserting virtually identical causes of action”).
In No. 14-cv-02806-BNB, Mr. Thompson filed an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 challenging the legality of his pre-trial detention
and the pending state criminal proceedings against him. In claim one, he alleges that
the state trial judge is denying him the right to a fair trial. In clam two, he alleges that he
was arrested without a valid warrant. In claim three, he contends that he has been
denied a proper hearing while he has been detained in the Mesa County Detention
Facility for over sixteen months. In the instant action, he asserts three similar claims
involving similar allegations. In claim one, he alleges that the state trial judge has
denied his motions without review of the merits. In claim two, he asserts that he was
arrested without a warrant. In claim three, he asserts that he was denied preliminary
hearings. Therefore, on November 5, Magistrate Judge Boland ordered Mr. Thompson
to show cause within thirty days why the instant action should not be dismissed as
repetitive of No. 14-cv-02806-BNB.
None of the documents Mr. Thompson filed on November 14, 2014 explain how
the claims in this action are not virtually identical to the claims asserted in his other
pending habeas corpus action. Therefore, the instant action will be dismissed pursuant
to 28 U.S.C. § 1915(e)(2)(B) as frivolous or malicious because the instant action is
repetitive of No. 14-cv-02806-BNB.
Finally, the Court certifies pursuant to § 1915(a)(3) that any appeal 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

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(1962). If Mr. Thompson files a notice of appeal he also must pay the full $505.00
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 instant action is dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B) as frivolous and malicious because the instant action is repetitive of
Thompson v. Gurley, Civil Action No. 14-cv-02806-BNB (D. Colo. Oct. 14, 2014). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this 19th

day of

November

, 2014.

BY THE COURT:

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

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