Verner-Buchowski v. Beary

Filing 3

ORDER dismissing case as malicious; clerk is directed to close the case. Signed by Judge Gregory A. Presnell on 12/7/2009. (TKW)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION EVA VERNER-BUCHOWSKI, Plaintiff, v. SHERIFF KEVIN BEARY, Defendant. ___________________________________ ORDER OF DISMISSAL Plaintiff, a prisoner of the State of Florida proceeding pro se, initiated this action by filing a civil rights complaint pursuant to 42 U.S.C. 1983. Because Plaintiff is a prisoner seeking redress from a governmental entity or employee, the Court must review the complaint to determine whether it is frivolous or malicious. Pursuant to 28 U.S.C. section 1915A(b), the Court is required to perform a judicial review of certain civil suits brought by prisoners: (b) Grounds for Dismissal.--On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or seeks monetary relief from a defendant who is immune from such relief. Case No. 6:09-cv-1966-Orl-31GJK (2) Thus, the Courts are obligated to screen prisoners' civil rights complaints as soon as practicable and to dismiss those which are frivolous or fail to state a claim for relief. Cuoco v. Spears, No. 96 Civ. 1624 (PKL), 1996 WL 284948 (S.D.N.Y. May 29, 1996). In addition, 28 U.S.C. section 1915(e) directs the court to dismiss actions which are frivolous or malicious. A complaint is frivolous if it is without arguable merit either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Cofield v. Alabama Public Service Com'n, 936 F.2d 512 (11th Cir. 1991); Prather v. Norman, 901 F.2d 915 (11th Cir. 1990). However, the Court must read the plaintiff's pro se allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519 (1972); Miller v. Stanmore, 636 F.2d 986, 988 (5th Cir. 1981). It appears that the facts supporting Plaintiff's civil rights claims in the instant complaint are the same as those pled in another previously filed action in this Court, which was dismissed. The previous case, case number 6:09-cv-1600-Orl-31DAB, was dismissed as frivolous on September 23, 2009. Duplicative or repetitious litigation of virtually identical causes of action is subject to dismissal under 28 U.S.C. section 1915 as malicious. See Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988). An in forma pauperis complaint that merely repeats pending or previously litigated claims may be considered abusive and dismissed under section 1915. Id. Since Plaintiff's claims are duplicative of claims that she raised in a prior action that was previously dismissed in this Court, the instant action will be dismissed. Accordingly, it is ORDERED AND ADJUDGED as follows: 1. This case is DISMISSED as malicious. -2- 2. The Clerk of the Court is directed to close this case. DONE AND ORDERED in Chambers in Orlando, Florida this 7th day of December, 2009. Copies to: sa 12/7 Eva Verner-Buchowski

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