Boyd v. Spencer

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI GREENVILLE DIVISION

DEAN C. BOYD PLAINTIFF Vv. CIVIL ACTION NO. 4:22-CV-00145-GHD-DAS BARRY SPENCER, ET AL. DEFENDANTS

ORDER DISMISSING CASE WITHOUT PREJUDICE This matter comes before the Court, sua sponte, for consideration of dismissal. On July 11, 2022, Plaintiff Dean C. Boyd, proceeding pro se, filed the instant action challenging the conditions of his confinement pursuant to 42 U.S.C. § 1983. Doc. #1. Plaintiff initiated this action in the Federal District Court for the Southern District of Mississippi. See id The matter was transferred to this District upon a finding that Plaintiff had filed his complaint in the wrong venue. See Doc. #7. In the instant complaint, Plaintiff alleges that, sometime in September 2020, he was assaulted during a physical therapy session while housed at the Mississippi State Penitentiary (“MSP”). Doc. #1. Plaintiffnames Barry Spencer (identified as the physical therapist) and James Glisson (identified as a medical doctor) as defendants. /d. Plaintiff, however, has already filed an identical suit alleging the same conduct and naming the same individuals as defendants. See Boyd v. Spencer, et al., 4:21-cv-00035-GHD- JMV, Doc, #1, That action is currently pending before this Court, and summonses have been issued for named Defendants.' See id. at Doc. # 24,

* The earlier-filed case was dismissed on August 31, 2021, see Doc. #s 12, 13, but reopened on May [0, 2022, following an order vacating and remanding by the Fifth Circuit Court of Appeals. See Doc. # 22.

As the claims asserted in the instant case are duplicative of those already pending before this Court, they should be dismissed as duplicative litigation. “[A]n action may be dismissed [] if it duplicates claims raised by the same plaintiff in previous or pending litigation.” Emmett v. Hawthorn, 459 F. App’x 490, 491 (Sth Cir, 2012) (citation omitted). A district court has “broad discretion” in dismissing a complaint as duplicative. See Blakely v. Evans, 574 F. App’x 420, 420 (Sth Cir. 2014), Plaintiff is entitled to “one bite at the litigation apple —but not more.” Pittman y. Moore, 980 F, 2d 994, 995 (Sth Cir. 1993), Plaintiff is warned that duplicative filings are generally considered malicious and counted as “strikes” under 28 U.S.C. § 1915 (e) and (g). See Emmett, 459 F. App’x 490, 491; Pittman, 980 F.2d 994, 995. The Court, however, will not impose a strike in this instance given the circumstances surrounding the procedural history of the two cases. Accordingly, the instant case is hereby DISMISSED without prejudice to the Plaintiff's prosecution of his duplicative pending suit, 4:21-cv-00035-GHD-JMV. go SO ORDERED this, the Mrasy of September, 2022. □ de amlean SENIOR U.S. DISTRICT JUDGE