Malone v. United States et al

Filing 9

OPINION AND ORDER dismissing complaint pursuant to 28 U.S.C. section 1915A. ***Civil Case Terminated. Signed by Judge Allen Sharp on 10/19/06. (sdf, )

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Malone v. United States et al Doc. 9 case 3:06-cv-00719-AS-CAN document 9 filed 10/19/2006 page 1 of 2 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION VERNADO MALONE, et al. Plaintiffs, v. UNITED STATES, et al., Defendants. ) ) ) ) ) ) ) ) ) CAUSE NO. 3:06-CV-719 AS OPINION AND ORDER Vernado Malone, a pro se prisoner, submitted a motion seeking the return of property pursuant to FED. R. CRIM P. 41(g). Pursuant to 28 U.S.C. 1915A, the court must review the merits of a prisoner complaint and dismiss it if the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. This is not the first time that Mr. Malone has brought this claim. In Malone v. United States, 3:06-CV-016 (N.D. Ind. filed January 3, 2006), he is also seeking the return of this same property. That case is still pending on appeal. It is malicious to sue the same defendant for the same cause of action while the prior claim is pending on appeal. Though Mr. Malone seeks to also sue additional governmental defendants in this case, those defendants (to the extent that they are proper parties) must be joined to that case if it is remanded, not sued separately in this one. See FED. R. CIV. P. 19. case 3:06-cv-00719-AS-CAN document 9 filed 10/19/2006 page 2 of 2 For the foregoing reasons, the claims of Vernado Malone are DISMISSED pursuant to 28 U.S.C. 1915A. IT IS SO ORDERED. ENTERED: October 19 , 2006 S/ ALLEN SHARP ALLEN SHARP, JUDGE UNITED STATES DISTRICT COURT

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