Hoff v. Foster et al

Filing 8

ORDER by Magistrate Judge Clare R. Hochhalter denying 7 MOTION for Reconsideration re 6 Order on Motion for Leave to Proceed in forma pauperis filed by Kevin Hoff (BG) Distributed on 11/14/2023. (jb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Kevin Hoff,
Plaintiff,
vs.
Steve Foster, et al.,
Defendants.

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ORDER DENYING MOTION FOR
RECONSIDERATION
Case No. 1:23-cv-154

Plaintiff, an inmate at the North Dakota State Penitentiary (“NDSP”) initiated the abovecaptioned action in August 2023 with the submission of an application to proceed in forma pauperis
and proposed complaint. (Doc. Nos. 1 through 3). On September 27, 2023, the court issued an order
denying Plaintiff’s motion to proceed in forma pauperis and dismissing the above-captioned action
without prejudice, reasoning:
To date Plaintiff has either filed or sought leave to file nine other actions in which
he has claimed that NDSP staff: (1) have been deliberately indifferent to his medical
needs insofar as they have restricted his access to food and/or insulin, making it
difficult for him to manage his diabetes; and/or (2) denied him the ability to present
evidence and examine witnesses at disciplinary proceedings regarding his misuse of
medication and disobedience.
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“District courts may dismiss a duplicative complaint raising issues directly related
to issues in another pending action brought by the same party.” Barber v. Frakes, No.
8:21CV285, 2021WL 4748688, at *2 (D. Neb. Oct. 12, 2021) (citing Aziz v.
Burrows, 976 F.2d 1158, 1158 (8th Cir. 1992); see also Sanders v.Washington, 582
F. Supp. 3d 543, 547 (W.D. Mich. 2022) (citing cases from seven circuits for the
proposition that “[p]laintiffs generally have no right to maintain two separate actions
involving the same subject matter at the same time in the same court and against the
same defendants” and that a district court, “as part of its inherent power to administer
its docket...may dismiss a suit that is duplicative of another federal court suit.”).
Plaintiff claims in the instant action appear to be tied to the issues Plaintiff first
raised in [Hoff v. Joyce, et al., Case No. 1:22-cv-151 (“Hoff I”)]. The proposed
complaint that he lodged in this action references malpractice and thus arguably
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appears related to the issues regarding his access to insulin, his access to food, and
his ability to present evidence at disciplinary hearings regarding his continued
misuse of insulin and disobedience that also form the basis for claims in Hoff I. In
other words, the instant action and Hoff I appear to pertain to same subject matter
that Plaintiff alleges is ongoing or continuing. The court is not inclined to entertain
this second action as it would obligate Plaintiff to pay another filing fee in
installments, would result in the needless expenditure of judicial resources on issues
already before the court, and may impact Plaintiff’s ability to file actions in the
future. [FN2]
[FN2] Because Plaintiff is a prisoner, his pleadings are subject to the Prison
Litigation Reform Act (“PLRA”). The PLRA contains what is commonly referred
to as the “three strikes” provision. This provision, codified at 28 U.S.C. § 1915(g),
provides that a prisoner who has had three prior actions or appeals dismissed as
frivolous, malicious, or for failure to state a claim may not proceed in a civil action
without prepayment of fees unless he is “under imminent danger of serious physical
injury.”
(Doc. No. 6).
On October 10, 2023, Plaintiff filed what the court construes as a motion for reconsideration
of the court’s September 7, 2023, order. (Doc. No. 7). He asserts that the conduct giving rise to his
claims in this case, although ostensibly the same the conduct forming the basis for his claims in Hoff
I, occurred on a different date and time and therefore constitutes the basis for a separate and distinct
cause of action which should not be dismissed without due consideration.
The court finds no basis for reconsidering its previous order. The claim being asserted and
relief being sought in the instant case are ostensibly the same as the claims being asserted and relief
being requested in Hoff I. Here, Plaintiff claims that his testimony at an August 11, 2023,
disciplinary hearing “was falsified to hid[e] continual physical harm by staff for withholding
insulin.” (Doc. No. 3). In Hoff I, Plaintiff claims, among other things, that he was denied the
ability to present evidence at a disciplinary at hearing regarding his misuse of medication and
disobedience. See Hoff I at Doc. No. 8. In both Hoff I and the instant action he requests, among

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other things, injunctive relief.
The instant action is duplicative of Hoff I. Plaintiff’s motion for reconsideration (Doc. No.
7) is therefore DENIED.
IT IS SO ORDERED.
Dated this 14th day of November, 2023.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court

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