Konrath v. Huneryager

Filing 4

OPINION AND ORDER: This case is DISMISSED as malicious pursuant to 28 U.S.C. § 1915A(b)(1). The dismissal is without prejudice to Konrath's prosecution of his claims in Case No. 3:16-CV-623. Signed by Judge Rudy Lozano on 10/12/2016. cc: Konrath (tc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
GREGORY A. KONRATH,

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Plaintiff,
vs.
ERIC HUNERYAGER,
Defendant.

CAUSE NO. 3:16-CV-667

OPINION AND ORDER
Gregory Konrath, a pro se prisoner, filed a complaint against
his former criminal defense attorney, Eric Huneryager. (DE 1.)
Konrath

alleges

ineffective

Attorney

assistance

of

Huneryager
counsel

provided
and

also

constitutionally
committed

legal

malpractice during his representation of Konrath from July 2014
through September 2015. (DE 1). Pursuant to 28 U.S.C. § 1915A, the
court must review the 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. The court applies the same standard as
when deciding a motion to dismiss under FEDERAL RULE

OF

CIVIL PROCEDURE

12(b)(6). Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir.
2006).
Konrath has recently become an overactive litigator. In the
past three months, he has initiated 38 lawsuits. Of those, six,
including this one, have been brought against Attorney Huneryager.

Konrath v. Huneryager, 3:16-CV-474 (N.D. Ind. closed Aug. 5, 2016);
Konrath v. Huneryager, 3:16-CV-489 (N.D. Ind. closed Aug. 17,
2016); Konrath v. Huneryager, 3:16-CV-539 (N.D. Ind. closed Sept.
22, 2016); Konrath v. Huneryager, 3:16-CV-623 (N.D. Ind. filed
Sept. 12, 2016); Konrath v. Huneryager, 3:16-CV-679 (N.D. Ind.
filed Oct. 5, 2016). Upon review of these cases, this is not the
first time Konrath has made these allegations against Attorney
Huneryager. And, while Konrath has voluntarily dismissed three of
these cases, three remain pending.
Notably, Konrath’s claims against Huneryager in this case are
the same as those currently pending before Judge Philip P. Simon in
Konrath v. Huneryager, 3:16-CV-623 (N.D. Ind. filed Sept. 12,
2016). It is malicious for Konrath to file this lawsuit when he
already has a duplicative case pending. See Pittman v. Moore, 980
F.2d 994, 994-95 (5th Cir. 1993) (it is malicious for a plaintiff
with in forma pauperis status to file a lawsuit that duplicates
allegations

of

another

pending

lawsuit

brought

by

the

same

plaintiff) and Lindell v. McCallum, 352 F.3d 1107, 1109 (7th Cir.
2003) (suit is “malicious” for purposes of Section 1915A if it is
intended to harass the defendant or is otherwise abusive of the
judicial process). There is simply no basis for Konrath to pursue
two identical cases. This case will be dismissed so that he can
pursue these claims against Attorney Huneryager solely in 3:16-CV623.

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For

these

reasons,

this

case

is

DISMISSED

as malicious

pursuant to 28 U.S.C. § 1915A(b)(1). The dismissal is without
prejudice to Konrath’s prosecution of his claims in Case No. 3:16CV-623.
DATED: October 12, 2016

/s/RUDY LOZANO, Judge
United States District Court

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