United States District Court, S.D. Mississippi, Northern Division
MEMORANDUM OPINION AND ORDER OF PARTIAL
LEE UNITED STATES DISTRICT JUDGE
matter is before the court sua sponte. Pro
se plaintiff Thomas Edward Campbell is incarcerated with
the Mississippi Department of Corrections, and he challenges
the conditions of his confinement. The court has considered
and liberally construed the pleadings. As set forth below,
defendant Unit Manager Benton is dismissed.
is currently incarcerated at the East Mississippi
Correctional Facility. Employed at the prison are Defendants
Unit Manager Benton, Case Manager Kelly, and Lemarcus Ruffin.
Benton is the unit manager for housing Unit 3B. Ruffin is an
investigator and gang specialist.
claims that on August 31, 2017, he was housed in Unit 3B.
Seven days later, Unit Manager Benton and Case Manager Kelly
allegedly moved him to Unit 6B, “a very violent
atmosphere w[h]ere sexual assaults are common and gang
violence is very common.” (Resp. at 1). That same day
Campbell alleges he was sexually assaulted by a gang member
inmate named Head.
contends that he then went to Investigator Ruffin's
office and reported the incident to him. According to
Campbell, Ruffin had agreed to transfer him to Unit 4,
“but when [Ruffin] went out of the room and saw . . .
[a] gangster who had” overheard their conversation,
Ruffin sent Campbell to Unit 2D, where that inmate was
housed. (Compl. at 5). As a result, Campbell claims he was
labeled a snitch on the new zone and was threatened by the
inmate who had overheard his complaint to Ruffin. Campbell
claims Ruffin “put me in the middle of a war
zone” because Campbell is suing him in another case.
Id. at 6.
filed this Complaint under 42 U.S.C. § 1983 for damages.
He claims retaliation against Ruffin. Campbell alleges a
failure to protect against Unit Manager Benton and Case
not the first time that Campbell has brought the failure to
protect claim against Benton. The same claim was brought
against her in the prior case of Campbell v.
Wheeler, civil action number 3:17cv959, which is still
pending in this court.
Prison Litigation Reform Act of 1996, applies to prisoners
proceeding in forma pauperis in this court. The
statute provides in pertinent part, “the court shall
dismiss the case at any time if the court determines that . .
. the action . . . (i) is frivolous or malicious; (ii) fails
to state a claim on which relief may be granted; or (iii)
seeks monetary relief against a defendant who is immune from
such relief.” 28 U.S.C. § 1915(e)(2)(B). The
statute “accords judges not only the authority to
dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the
complaint's factual allegations and dismiss those claims
whose factual contentions are clearly baseless.”
Denton v. Hernandez, 504 U.S. 25, 32 (1992).
“[I]n an action proceeding under [28 U.S.C. §
1915, a federal court] may consider, sua sponte, affirmative
defenses that are apparent from the record even where they
have not been addressed or raised.” Ali v.
Higgs, 892 F.2d 438, 440 (5th Cir. 1990).
“Significantly, the court is authorized to test the
proceeding for frivolousness or maliciousness even before
service of process or before the filing of the answer.”
Id. The court has permitted Campbell to proceed
in forma pauperis in this action. His Complaint is
subject to sua sponte dismissal under' 1915.
others, Campbell sues Unit Manager Benton for an alleged
attack by a fellow inmate. This claim is already pending in
the prior filed case of Wheeler. A civil action may
be dismissed if it is duplicative of another action pending
in the same court. Oliney v. Gardner, 771 F.2d 856,
859 (5th Cir. 1985). Further, it is
“‘malicious' for a pauper to file a lawsuit
that duplicates allegations of another pending federal
lawsuit by the same plaintiff.” Pittman v.
Moore, 980 F.2d 994, 995 (5th Cir. 1993). Because the
claim against Benton was first filed in Wheeler, the
claim is both duplicative and malicious. Dismissal of the
claim against Benton is without prejudice as to the other
pending lawsuit of Wheeler and is with prejudice in
all other respects. Id.
IS THEREFORE ORDERED AND ADJUDGED that, for the
reasons stated above, the claim against Defendant Unit
Manager Benton is duplicative and malicious and is dismissed
without prejudice to the prior pending lawsuit of
Campbell v. Wheeler, cause number 3:17cv959
(S.D.Miss.), and is dismissed with prejudice in all other
respects. The remainder of this case shall proceed.