Davis v. United States of America et al

Filing 5

OPINION and ORDER OF DISMISSAL UNDER 28 U.S.C. § 1915A(B)(1) and UNDER 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii): All claims in this case are DISMISSED WITH PREJUDICE as malicious under authority of 28 U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(i). [see Order for specifics] [Emailed to Betty Parker in ED/TX.] (Ordered by Judge Terry R Means on 7/6/2011) (klm) .

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
MICHAEL ANTHONY DAVIS,
(BOP # 33896-177)
VS.

§
§
§
§
§
UNITED STATES OF AMERICA, et al.§

CIVIL ACTION NO.4:11-CV-064-Y

OPINION and ORDER OF DISMISSAL UNDER 28 U.S.C. § 1915A(B)(1)
and UNDER 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii)
This case is before the Court for review of pro-se inmate and
plaintiff

Michael

Anthony

Davis’s

case

under

the

screening

provisions of 28 U.S.C. §§ 1915A and 1915(e)(2)(B). Davis has filed
a civil complaint entitled “Plaintiff’s Original Petition Seeking
Standing to Sue Defendants under the Federal Tort Claims Act in
Conjunction with the Privacy Act.” A complaint filed in forma
pauperis that lacks an arguable basis in law should be dismissed
under 28 U.S.C. § 1915.1 Under 28 U.S.C. § 1915(e)(2)(B), a district
court retains broad discretion in determining at any time whether
an in-forma-pauperis claim should be dismissed.2 Furthermore, as a
part of the PLRA, Congress enacted 28 U.S.C. § 1915A, which requires
the Court to review a complaint from a prisoner seeking relief from
a governmental entity or governmental officer or employee as soon
as possible after docketing.3 Consistent with § 1915A is prior case

1

Neitzke v. Williams, 490 U.S. 319,328 (1989). Section 28 U.S.C. § 1915(e)
requires dismissal not only when an allegation of poverty is untrue or the action
is frivolous or malicious, but also when “the action . . . fails to state a
claim on which relief may be granted; or seeks monetary relief against a
defendant who is immune from such relief.”
28 U.S.C.A. § 1915(e)(2)(A) and
(B)(West 2006).
2

See 28 U.S.C.A. § 1915(e)(2)(West 2006); Adepegba v. Hammons, 103 F.3d
383, 388 (5th Cir. 1996); see also Wesson v. Oglesby, 910 F.2d 278, 281 (5th Cir.
1990)(discussing authority to dismiss at any time under prior § 1915(d)).
3

See 28 U.S.C.A. § 1915A(a)(West 2006).

law recognizing that a district court is not required to await a
responsive pleading to conduct its § 1915 inquiry.4 Rather, § 1915
gives judges the power to “dismiss a claim based on an indisputably
meritless legal theory.”5 After review of the complaint under these
standards,

the

Court

concludes

that

Davis’s

claims

must

be

dismissed.
The Court notes first that Davis’s claims in this action are
identical to those filed and dismissed in a previous suit. In fact,
prior to filing the complaint in this Court, Davis filed the
identical complaint in the United States District Court for the
Western District of Oklahoma in Davis v. United States of America,
et al., No. Civ. 10-1136-HE. That court dismissed all of Davis’s
claims under 28 U.S.C. § 1915A(b) and § 1915(e)(2)(B).6
In reviewing a similar multiple-suit-filing scenario by an
inmate plaintiff, the United States Court of Appeals for the Fifth
Circuit

found

no

abuse

of

discretion

in

a

district

court’s

determination that an
in-forma-pauperis action identical to one previously dismissed, may
be dismissed as frivolous or malicious:
[W]e have dismissed an appeal as frivolous because it
involved a duplicative action arising from the same

4

See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995).

5

Id., citing Neitzke v. Williams, 490 U.S. 319, 327 (1989).

6

The Court takes judicial notice of the records of the United States
District Court for the Western District of Oklahoma in Davis v. United States,
et al., No. Civ. 10-1136-HE (Order and Judgment dated February 18, 2011).
Although Davis filed a notice of appeal, the United States Court of Appeals for
the Tenth Circuit dismissed the appeal as frivolous. Davis v. United States, No.
11-6072 (10th Cir. June 14, 2011).

2

series of events and alleging many of the same facts as
an earlier suit, concluding that “repetitious litigation
of virtually identical causes of action is subject to
dismissal under 28 U.S.C. § 1915(d) as malicious.” See
Robinson v. Woodfork, No. 86-3735 (5th Cir. May 22,
1987)(unpublished order)(citing McCullough v. Morgan, No.
85-2022 (5th Cir. July 3, 1985) (unpublished order) and
Hill v. Estelle, 423 F. Supp. 690 (S.D.Tex. 1976)). Other
courts have also held that an IFP complaint that merely
repeats pending or previously litigated claims may be
considered abusive and dismissed under the authority of
section 1915(d).7
Because Michael Anthony Davis’s claims in the instant case are
identical to claims already dismissed under 28 U.S.C. §§ 1915A and
1915(e)(2)(b), such claims asserted herein must be dismissed as
malicious.
Furthermore,

and

alternatively,

the

Court

concludes

that

Plaintiff’s complaint in this action must be dismissed for the
identical reasons stated by the United States District Court for the
Western District of Oklahoma in case number civil-10-1136-HE.
Therefore, all claims in this case are DISMISSED WITH PREJUDICE
as malicious under authority of 28 U.S.C. § 1915A(b)(1) and 28
U.S.C. § 1915(e)(2)(B)(i).
Alternatively, Plaintiff’s claims against defendant Couch and
his Privacy Act claims are DISMISSED WITH PREJUDICE under 28 U.S.C.
§ 1915A(b)(1) and § 1915(e)(2)(B), and Plaintiff’s Federal Tort
Claims Act claims against the United States and his claims against
the individual federal defendants are DISMISSED under 28 U.S.C. §

7

Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988)(other citations
omitted); see also Brown v. Thomas, No. 3:02-CV-0673-M, 2002 WL 31757616, at *3-4
(N.D. Tex. Dec. 3, 2002)(Lynn, J.)(adopting magistrate judge’s analysis of
Bailey, and recommendation that case should be dismissed as duplicative even
though earlier case had been dismissed without reaching merits).

3

1915A(b)(1) and § 1915(e)(2)(B)(i) WITH PREJUDICE to their being
asserted again until the Heck v. Humphrey conditions are met.8
SIGNED July 6, 2011.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

8

See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996). Although in
the Tenth Circuit, the district court’s dismissal of Davis’s claims as barred by
Heck v. Humphrey, 512 U.S. 477 (1994) was listed as without prejudice, in this,
the Fifth Circuit, Johnson direct courts to dismiss such claims “with prejudice
to their being asserted again until the Heck conditions are met.”

4