SCIPIO v. VITEC VIDEOCOM et al

Filing 4

LETTER OPINION. Signed by Judge John Michael Vazquez on 11/21/16. (cm )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
FRANK R. LAUTENBERG

CHAMBERS OF
JOHN MICHAEL VAZQUEZ
UNITED STATES DISTRICT
JUDGE

POST OFFICE AND
COURTHOUSE
2 FEDERAL SQUARE, Rooi

417
NEWARK, NJ 07102
973-297-4851

November 21, 2016

LETTER OPINION
Re:

Scipio v. Vitec Videocom, et aL
Civil Action No. 16-03668

Dear Litigant:
The Court is in receipt of your complaint and application to proceed without prepayment
fees or costs in this matter under 28 U.S.C. § 1915. See D.E. 1.
of

Under § 1915, this Court may excuse a litigant from prepayment of fees when the litigant
“establish[esl that he is unable to pay the costs of his suit.” Walker v. People Express Airlines,
Inc., 886 F.2d 598, 601 (3d Cir. 1989). At the outset, Plaintiff sufficiently establishes his inability
to pay, and the Court grants his application to proceed in /örma pauperis without prepayment of
fees and costs.
However, when allowing a plaintiff to proceed in forma pauperis, the Court must review
complaint and dismiss the action if it determines that the action is frivolous, malicious, fails to
the
state a claim upon which relief may be granted, or seeks monetary relief against a defendant who
is immune. 28 U.S.C. § I 915(e)(2). “A complaint is frivolous if it ‘lacks an arguable basis either
in law or in fact.” Okpor v. Sedgwick CMS, No. 12-652!, 2013 WL 1145041, at *1 (D.N.J. Mar.
18, 2013) (quoting Neitzke v. WIlliams, 490 U.S. 319, 325 (1989)).
In addition, a plaintiff is not permitted to file two actions against the same defendants that
assert the same or very similar claims. See Walton i’. Eaton Corp., 563 F.2d 66, 70 (3d Cir. 1977)
(“[Plaintiff] had no right to maintain two separate actions involving the same subject matter at the
same time in the same court and against the same defendant.”); Fabics i. Cm’ ofNew Brunswick.
2025 WI. 6123513, at *j (3d Cir. Oct. 29, 2015) (dismissing a complaint that was “nearly
identical” to an earlier complaint filed under a different docket number). A court may dismiss the
complaint of a plaintiff proceeding in fomw pauperis pursuant to 28 U.S.C. § 19l5(e)(2)(B)(i)
when the plaintiff files a complaint that is “duplicative of, and related to, the same nucleus of

operative facts” as a prior complaint filed under a different docket number. Hurst v. Counselman,
436 F. App’x 58, 59-61 (3d Cir. 2011).
Here, the facts alleged in Plaintiffs complaint are closely related to, and often duplicative
of, the allegations asserted in a separate matter on the Court’s docket. Compare I 5-cv-07776 D.E.
I with 16-cv-03668 D.E. I (the “15-07776 Action” and “16-03668 Action,” respectffilly). In both
matters. Plaintiff asserts the same ten causes of actiont against the same defendants.2 The factual
allegations in the two matters vary slightly as to form, but do not differ in any material aspect.
Plaintiff may not assert the same causes of action, with the same underlying facts, against
the same defendants as a concurrently pending matter. See Walton, 563 F.2d at 70; Fabics v.
ofNew Brunswick, 2015 WL 6123513, at * I. To the extent Plaintiff wishes to pursue those claims,
he must do so in the 15-07776 Action.
In conclusion, Plaintiffs application to proceed in Jbrina pauperis is granted. For the
reasons stated above, however, the Clerk of the Court shall not file Plaintiffs complaint. An
appropriate order accompanies this opinion.

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violation of Due Process and Equal
The allegations asserted are as follows: Count One
Protection under Fourteenth Amendment of the United States Constitution; Count Two
violation of Due Process and Equal Protection of the New Jersey Constitution; Count Three
violation of 42 U.S.C. § 1983; Count Four— violation of 42 U.S.C. § 1981; Count Five
violation of New Jersey Civil Rights Act, N.J.S.A. 10:6-2 et seq. (“NJCRA”); Count Six
violation of42 U.S.C. § 1986, Count Eight
violation of 42 U.S.C. § 1985 et seq.; Count Seven
violation of the Conscientious Employee Protection Act. N.J.S.A. 34:19-I, ci seq. (“CEPA”);
violation of Title VII of the Civil Rights Act of
Defamation; and Count Ten
Count Nine
1964,42 U.S.C. 2000e. et seq. (“Title VII”).
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The defendants in both matters are the same except that in the 16-03668 Action, Plaintiff did not
assert claims against Marty Frasco, who is one of the defendants named in the 15-07776 Action.