Kalincheva v. Neubarth

Filing 25

ORDER dismissing this action with prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 12/30/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03048-GPG
MAGDALINA KALINCHEVA, MD,
Plaintiffs,
v.
JESSE NEUBARTH, and
OTHER DEFENDANTS,
Defendants.

ORDER OF DISMISSAL

Plaintiff Magdalina Kalincheva, MD., resides in Stockton, California. Plaintiff,
acting pro se, initiated this action by filing a Complaint for Injunctive Relief Restraining
Order and Damages, a Notice of Removal of All Cases, Change of Venue and Relief,
and multiple other pleadings. In an order entered on November 17, 2014, Magistrate
Judge Gordon P. Gallagher directed Plaintiff to cure certain deficiencies if she wished to
pursue her claims. Specifically, Magistrate Judge Gallagher directed Plaintiff to file her
claims and request to proceed without prepayment of filing fees or costs on proper
Court-approved forms.
Magistrate Judge Gallagher also informed Plaintiff this Court is aware she has
filed multiple cases in at least nine different federal district courts that address the same
issues Plaintiff is attempting to raise in this action in this Court. In particular, Magistrate
Judge Gallagher found Plaintiff has filed at least three complaints in the United States
District Court for the Eastern District of California that raise the same claims and

includes for the most part the same pleadings that Plaintiff has submitted in this case.
See Kalincheva v. Neubarth, No. 14-cv-01261-LJO-JLT (E.D. Calif. Oct. 31, 2014). The
Eastern District of California dismissed Case No. 14-cv-01261-LJO-JLT as barred by
the doctrine of res judicata, because Plaintiff had previously raised the same claims in
Kalincheva v. Neubarth, No. 13-cv-01601-TLN-DAD (E.D. Calif. Feb. 21, 2014), and
Kalincheva v. Neubarth, No. 12-cv-02231-JAM-DAD (E.D. Calif. Dec. 13, 2012), and
these actions were both dismissed for failure to state a claim, a ruling on the merits.
Magistrate Judge Gallagher told Plaintiff any attempt to raise the same claims in
this Court that she has raised in other federal courts, which were dismissed on the
merits, is an abuse of the federal judicial system. Plaintiff was warned that this Court
does not tolerate such abuse and any attempt by Plaintiff to relitigate issues decided on
the merits by other federal district courts will result in the Court imposing filing
restrictions against Plaintiff in this Court.
Plaintiff, however, was given the opportunity to cure the above noted deficiencies
and to submit claims that are properly raised in this Court, and have not been dismissed
on the merits by another federal district court. On December 15, 2014, Plaintiff
submitted eight filings, two of which are complaints. The other pleadings are requests
for (1) summons; (2) injunctive relief; (3) “to find & import her future husband;” (4) email
address; and (5) removal of all cases. Plaintiff also included a proposed order
regarding her request for injunctive relief. The complaints name different defendants
but involve the same incidents surrounding a breach of contract by and divorce from
Defendant Jess Neubarth, which were at issue in Case No. 14-cv-01261-LJO-JLT, and
previously decided on the merits in Case Nos. 13-cv-01601-TLN-DAD and 12-cv-022312

JAM-DAD, in the Eastern District of California.
Because Plaintiff now has submitted a complaint addressing the same claims
that she raised in the Eastern District of California, she has failed to comply with
Magistrate Judge Gallagher’s November 17, 2014 Order, and the action is subject to
dismissal. Furthermore, “[r]epetitious litigation of virtually identical causes of action may
be dismissed under § 1915 as frivolous or malicious.” McWilliams v. Colorado, 121
F.3d 573, 574 (10th Cir. 1997) (quotation marks and alteration omitted). To determine
whether a pleading repeats pending or previously litigated claims, the Court may consult
its own records. See Duhart v. Carlson, 469 F.2d 471, 473 (10th Cir. 1972). The Court,
having reviewed the Public Access to Court Electronic Records (PACER), and
determined that this action is repetitious of Case Nos. 14-cv-01261-LJO-JLT, 13-cv01601-TLN-DAD, and 12-cv-02231-JAM-DAD, will dismiss this action as both frivolous
and malicious. The Court will entertain filing restrictions against Plaintiff if she files any
further actions in this Court that are repetitious or improper.
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, therefore, in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Plaintiff files a notice of appeal she must pay the full $505 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 action are dismissed with prejudice as legally
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). It is
3

FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that all pending motions are denied as moot.
DATED at Denver, Colorado, this 30th

day of

December

BY THE COURT:

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

4

, 2014.