Nowden v. Cox et al

Filing 11

OPINION and ORDER OF DISMISSAL UNDER 28 U.S.C. §§ 1915A & 1915(e)(2)(B): All claims in this case are DISMISSED WITH PREJUDICE under authority of 28 U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(i). (see order) (Ordered by Senior Judge Terry R Means on 1/29/2019) (tln)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
CHARLES CLEVELAND NOWDEN,
TDCJ-ID No. 01780278,

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Plaintiff,
v.
O.D.COX, Et Al..
Defendants.

CIVIL ACTION No. 4:17-CV-689-Y

OPINION and ORDER OF DISMISSAL
UNDER 28 U.S.C. §§ 1915A & 1915(e)(2)(B)
This

case

is

before

the

Court

for

review

of

pro-se-

inmate/plaintiff Charles Cleveland Nowden’s complaint under the
screening provisions of 28 U.S.C. §§ 1915A and 1915(e)(2)(B).

I.

BACKGROUND/COMPLAINT
Nowden has filed a form civil-rights complaint with attachment

pages

seeking

recovery

from

government

officials

for

alleged

violations of his rights under the Fourth and Fourteenth Amendments
to the Constitution. (Complaint (doc. 1) at 3–5.) Nowden names as
defendants O.D. Cox, criminal investigator, Tarrant County Sheriff’s
Department; R. Rodriguez, Tarrant County Special Operations Unit;
John Doe, confidential informant, Tarrant County Special Operations
Unit; and Eugene M. Grant Jr., magistrate judge. (Complaint (doc.
1) at 3.) Nowden recites that in August 2007, Investigator Cox, with
the

assistance

of

confidential

informant

Doe,

along

with

Investigator Rodriguez, obtained search warrants from Magistrate
Eugene M. Grant Jr. to seize property located within a warehouse at

5851 East Rosedale Street, in Fort Worth, Texas, and to arrest him.
(Complaint (doc. 1) at 4–5; 8–15, Exhibits A and B.) Nowden also has
provided as an attachment a copy of an August 20, 2017 “Officer’s
Return and Inventory Search Warrant” listing the seizure of over 120
appliances and several pieces of other valuable items. (Complaint
(doc. 1) at 16–20.) Nowden petitions this Court to issue an order
directing the return of the seized property, or to be compensated
for what he alleges is a loss of 4 million dollars in value of that
seized property. (Complaint (doc. 1) at 4.)

II.

SCREENING UNDER § 1915A and § 1915(e)(2)(B)
As noted, as Plaintiff is a prisoner seeking redress from an

officer or employee of a governmental entity, his complaint is subject to preliminary screening under 28 U.S.C. § 1915A. See Martin
v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998)(per curiam). Because
he is proceeding in forma pauperis, his complaint is also subject
to screening under § 1915(e)(2)(B). Both § 1915(e)(2)(B) and §
1915A(b) provide for sua sponte dismissal of the complaint, or any
portion thereof, if the Court finds it is frivolous or malicious,
if it fails to state a claim upon which relief may be granted, or
if it seeks monetary relief against a defendant who is immune from
such relief.
A complaint is frivolous when it “lacks an arguable basis
either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325
(1989). A claim lacks an arguable basis in law when it is “based on

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an indisputably meritless legal theory.” Id. at 327. A complaint
fails to state a claim upon which relief may be granted when it
fails to plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007); accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To
avoid dismissal for failure to state a claim, plaintiffs must allege
facts sufficient to “raise the right to relief above the speculative
level.” Twombly, 550 U.S. at 555. Mere “labels and conclusions” nor
“a formulaic recitation of the elements of a cause of action”
suffice to state a claim upon which relief may be granted. Id.

III. ANALYSIS
A.
Duplicative Lawsuit
In his complaint, Nowden failed to inform the Court that he
previously sought relief arising from the same facts and events made
the basis of this case in Nowden v. Doe, Et Al., No. 4:15-CV-745-A
(N.D. Tex.). In that case Nowden asserted the same underling factual
events, and asserted the same claims against defendants O.D. Cox,
R. Rodriguez, and John Doe. See Nowden v. Doe, Et Al., No. 4:15-CV845-A (October 5, 2015 Complaint (doc.1)).1 In that complaint,
Nowden asserted several different claims against several defendants,
but included a sixteen-paragraph section sub-titled “False Search
Warrant and Arrest Warrant.” (Id. (doc. 1) at 11-14, ¶¶ 96–111.)
Upon review of that complaint under the § 1915A screening provision,

1

The Court takes judicial notice of the records of this the Northern District
of Texas in this prior suit. See Fed. R. Evid. 201 (b)(2).

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the Court listed, among other claims asserted in that case, Nowden’s
claims against defendants John Doe, R. Rodriguez, and O.D. Cox., and
then determined that “plaintiff’s claims in this action be and are
hereby, dismissed with prejudice pursuant to the authority of 28
U.S.C. § 1915A(b).” Nowden v. Doe, Et Al., No.4:17-CV-745-A(N.D.
Tex. Oct. 6, 2015 Order and Judgment).
The United States Court of Appeals for the Fifth Circuit has
held that “. . . IFP complaints may be dismissed as frivolous
pursuant to [former] § 1915(d) when they seek to relitigate claims
that allege substantially the same facts arising from a common
series of events that have already been unsuccessfully litigated by
the IFP plaintiff.” Wilson v. Lynaugh, 878 F.2d 846, 850(5th Cir.
1989)(citations omitted). The Fifth Circuit earlier found no abuse
of discretion in a district court’s determination that an in-formapauperis

action

similar

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
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. 852022 (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
[former] section 1915(d).
Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988)(other

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citations omitted). Furthermore, principles of res judicata serve
to bar all claims that were brought or could have been brought based
on the same operative factual nucleus. Mcgill v. Juanita Kraft
Postal Service, No. 03-CV-1113, 2003 WL 21355439, at *2 (N.D. Tex.
June 6, 2003), rep. and rec. adopted, 2003 WL 21467745 (N.D. Tex
June 18, 2003). A complaint is thus malicious and subject to
dismissal under §§ 1915A and 1915(e)(2)(B) “when it ‘duplicates
allegations

of

another

pending

federal

lawsuit

by

the

same

plaintiff’ or when it raises claims arising out of a common nucleus
of operative facts that could have been brought in the prior
litigation.” Id.(quoting Pittman v. Moore, 980 F.2d 994, 994-95 (5th
Cir. 1993)).
Nowden’s present lawsuit includes both repetitive litigation
of the same claims he asserted against John Doe, R. Rodriguez, and
O.D. Cox, and a new claim against Magistrate Judge Eugene M. Grant
Jr. that he could have asserted in the prior lawsuit. Nowden’s
allegations and claims in this suit all arise from the same common
nucleus of operative facts asserted in the prior suit number 4:15CV-745-A, and are thus foreclosed from review in this proceeding as
duplicative and under the traditional notions of res judicata. See
generally Silva v. Stickney, No. 3:03-CV-2279-D, 2005 WL 2445433,
at *4 (N.D. Tex. Sep. 30, 2005) (“[C]ourts may appropriately dismiss
an in forma pauperis action as frivolous, when the action seeks to
relitigate claims already decided against the in forma pauperis
plaintiff or when the action seeks to raise claims that could have
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been brought on the same facts”), rep. and rec. adopted, (N.D. Tex.
October 20, 2005); see also Brown v. Thomas, No. 3:02-CV-0673-M,
2002 WL 31757616, at *3–4 (N.D. Tex. Dec. 3, 2002)(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). All of Nowden’s claims in this
suit therefore must be dismissed under 28 U.S.C. §§ 1915A(b)(1) and
1915(e)(2)(b)(i).

IV.

SANCTIONS WARNING
By a show-cause order entered in this case, the Court directed

Nowden to explain why he had failed to list any of his prior
lawsuits in the form complaint question asking for such information.
(Show Cause Order (doc. 7).) In his complaint in this action, to the
question “Have you ever filed any other lawsuit in state or federal
court relating to your imprisonment?,” and if so “describe each
lawsuit in the space below [and] if there is more than one lawsuit,
describe the additional lawsuits on another piece of paper, giving
the same information,” Nowden answer “No” and “N/A.” (Compl. (doc.
1) § I(A) and (B) at 2.) He did so, in spite of the fact that Court
records revealed that Nowden had at that time already filed numerous
cases in this district and division.2 And, he did so even though he
also swore under penalty of perjury that “all facts presented in the
complaint are true and correct,” and even though he was expressly

2

A subsequent search of the PACER court records system showed 16 different suits
filed in the United States District Court for the Northern District of Texas
under the name Charles Cleveland Nowden or Charles C. Nowden.

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warned that “[a]ny false or deliberately misleading information
provided in response to the following questions will result in the
imposition of sanctions . . . [including] monetary sanctions and/or
dismissal of this action with prejudice.” (Complaint (doc. 1) at 6.)
Nowden filed both a response and an amended response, and
between those two documents, he listed 25 different prior suits and
appeals he had filed in both state and federal courts. (Response to
Show Cause Order (doc. 7); Amended Response to Show Cause Order
(doc. 9).) In both documents, Plaintiff noted he “would like to
apologize

to

this

Honorable

Court,”

claimed

the

failure

to

acknowledge prior suits and list them was an honest mistake, and
claimed he did not intend to provide false information to the Court.
Id. Because of those representations, the Court will not impose
sanctions in this particular case. Nowden is informed, however, that
because of his failure to initially inform the Court of prior
litigation

(including

listing

case

number

4:15-CV-745-A

that

materially related to this case), and because this case was found
subject to dismissal under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A as
frivolous or malicious, Nowden is warned that if he files any
additional suit that is later found to be subject to dismissal under
§§ 1915(e)(2)(B) or 1915A, he will be subject to the imposition of
a sanction, including either a monetary assessment, a bar to filing
future suits, or both.

V.

ORDER
Therefore, all claims in this case are DISMISSED WITH PREJUDICE

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under

authority

of

28

U.S.C.

§

1915A(b)(1)

and

28

U.S.C.

1915(e)(2)(B)(i).
SIGNED January 29, 2019.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

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