Marner v. Jones et al

Filing 7

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 3/4/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02678-GPG
ZACHARY MARNER,
Plaintiff,
v.
TERRY JONES, Police Chief, City of Aurora, Colorado in his professional and individual
capacities;
DANIEL OATES, Police Chief, City of Aurora, Colorado in his professional and
individual capacities;
STEVEN EVANS, Officer, City of Aurora, Colorado in his professional and individual
capacities;
MICHAEL QUIRK, Officer, City of Aurora, Colorado in his professional and individual
capacities;
JUSTIN FLOWERS, Officer, City of Aurora, Colorado in his professional and individual
capacities;
ALAN JOHNSON, Officer, City of Aurora, Colorado in his professional and individual
capacities;
TARA FARCAS, in her individual capacity; and
R.D. THOMPSON, Officer, City of Aurora, Colorado in his professional and individual
capacities;
Defendants.

ORDER OF DISMISSAL

Plaintiff, Zachary Marner, initiated this action on December 10, 2015, by
submitting pro se a Complaint (ECF No. 1) pursuant to 42 U.S.C. § 1983. He has been
granted leave to proceed in forma pauperis under 28 U.S.C. § 1915.
On January 28, 2016, Magistrate Judge Gordon P. Gallagher issued an order to
directing Mr. Marner to show cause, in writing, within thirty (30 days), why the instant
action should not be dismissed as duplicative of the claims Plaintiff asserted in Zachary
Marner v. Anna Lokshina, et al., Civil Action No. 15-cv-00991-LTB (D. Colo. May 11,

2015). Mr. Marner did not file any response within the time allowed.
The Court must construe Mr. Marner’s filings liberally because he is representing
himself. 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 should not be the pro se litigant’s
advocate. Hall, 935 F.2d at 1110.
Because Mr. Marner has been granted leave to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915, the Court must dismiss the action if Mr. Marner’s claims
are frivolous or malicious. See 28 U.S.C. § 1915(e)(2)(B)(I). 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. See Neitzke v. Williams,
490 U.S. 319, 327-28 (1989). For the reasons stated below, the Court will dismiss this
action.
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).
“[G]enerally, a suit is duplicative if the claims, parties, and available relief do not
significantly differ between the two actions.” Park v. TD Ameritrade Trust Co., Inc., No.
11-1157, 461 Fed. App’x 753, 755 (10th Cir. Feb. 14, 2012) (unpublished) (quoting
Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir.1993)) (internal quotation
marks and citation omitted). A duplicative suit may be dismissed for reasons of “wise
judicial administration.” Serlin, 3 F.3d at 223 (quoting Ridge Gold Standard Liquors v.
Joseph E. Seagram, 572 F. Supp. 1210, 1213 (N.D. Ill. 1983) (citing Colorado River
Water Conservation District v. United States, 424 U.S. 800, 817 (1976)); Curtis v.
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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, Case No. 00-1130,
2001 WL 661086 at *1 and n.1 (10th Cir. June 13, 2001) (stating that the court has the
authority to dismiss “repetitious litigation reasserting virtually identical causes of
action”). 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).
The Complaint in the instant action and the Complaint in Civil Action No. 15-cv00991-LTB assert nearly identical claims under § 1983 for violations of the First
Amendment, Fourth Amendment, Sixth Amendment, and Fourteenth Amendment as
well as a defamation claim. Furthermore, the Complaints seek identical relief in the
form of money damages and declaratory and injunctive relief. Although the Complaint
in this action includes some additional Defendants, and some related factual and
conclusory allegations that were not alleged in Civil Action No. 15-cv-00991-LTB, those
minor differences are not a sufficient basis to maintain claims that were previously
litigated and dismissed on the merits. Because the claims, parties, and available relief
do not significantly differ between the two actions, the Court finds that the instant action
should be dismissed as duplicative of Civil Action No. 15-cv-00991-LTB in the interest
of “wise judicial administration.” Serlin, 3 F.3d at 223; Park, 461 Fed. App’x 755.
Finally, the Court certifies pursuant to 28 U.S.C. § 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
(1962). If Plaintiff files a notice of appeal he must also pay the full $455 appellate filing
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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 this action is DISMISSED as duplicative of Zachary Marner v.
Anna Lokshina, et al., Civil Action No. 15-cv-00991-LTB (D. Colo. May 11, 2015). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. Plaintiff may file a motion in the Tenth Circuit.
DATED at Denver, Colorado, this

4th day of

March

, 2016.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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