United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
SIM
LAKE UNITED STATES DISTRICT JUDGE.
State
inmate Lee Hamilton, Jr. (TDCJ #1132938) has filed a
Prisoner's Civil Rights Complaint under 42 U.S.C. §
1983 ("Complaint") (Docket Entry No. 1), concerning
the conditions of his confinement at the Estelle Unit in
Huntsville. Because Hamilton is an inmate who proceeds in
forma pauperis, the court is required to scrutinize the
Complaint and dismiss the case if it determines that the
action is "frivolous or malicious;" "fails to
state a claim on which relief may be granted;" or
"seeks monetary relief from a defendant who is immune
from such relief." 28 U.S.C. § 1915(e} (2) (B);
see also 28 U.S.C. § 1915A. After reviewing all
of the pleadings as required, the court concludes that this
case must be dismissed for reasons explained briefly below.
I
. Background
Hamilton
is currently incarcerated by the Texas Department of Criminal
Justice - Correctional Institutions Division
("TDCJ") at the Estelle Unit in
Huntsville.[1] He has filed this civil rights action
under 42 U.S.C. § 198 3 against the following defendants
employed by TDCJ at the Estelle Unit facility: (1) Cason
McCune; (2) Vinita Hamilton; (3) Lynette Whitfield; (4) Dr.
Ernestine Julye; (5) Nurse Brenda Butler; (6) Business
Manager Kharl Mott; (7) Major Bobby Rigsby; and (6) Warden
Tracy Hutto.[2]
Hamilton
alleges that McCune, Rigsby, Butler, and Whitfield, along
with a nurse identified as Teresa Green, have formed a plot
against him by implanting a "device" on him and
placing calls to his mother.[3] He believes that Mott, Dr. Julye,
and Warden Hutto know about the plot, but have done nothing
to stop it.[4] Hamilton wants all of the defendants to be
arrested and charged with a criminal offense.[5] He also wants his
money back.[6]
II.
Discussion
A
complaint filed by a litigant who proceeds in forma pauperis
may be dismissed as malicious under 28 U.S.C. § 1915(e)
(2) (B) if it duplicates allegations made in another federal
lawsuit by the same plaintiff. See Pittman v. Moore,
980 F.2d 994, 994 (5th Cir. 1993) (per curiam) . The
allegations made by Hamilton against McCune, Butler, Green,
and Rigsby have been made previously in another lawsuit,
which was dismissed as frivolous on July 3, 2019. See
Hamilton v. McCune, Civil No. H-19-1901 (S.D. Tex.)
(Docket Entry No. 8). In that case, Hamilton raised the
similar allegations and asked for criminal charges of
conspiracy against prison officials who had covertly
implanted a listening device on Hamil ton to intercept his
thoughts. See id.
The
Fifth Circuit has held that "a claim qualifies as
malicious if it is virtually identical to and based on the
same series of events as a claim previously brought by the
plaintiff." Shakouri v. Davis, 923 F.3d 407,
410 (5th Cir. 2019) (citing Bailey v. Johnson, 846
F.2d 1019, 1021 (5th Cir. 1988)). Because Hamilton has made
the same or similar claims previously, the court concludes
that the pending Complaint is subject to dismissal as
malicious. See, e.g., Wilson v. Lynaugh,
878 F.2d 846 (5th Cir. 1989) (duplicative claims may be
dismissed sua sponte). Accordingly, this civil action will be
dismissed pursuant to 28 U.S.C. § 1915(e) (2)(B) as
malicious .
III.
Conclusion and Order
Accordingly,
the court ORERS as follows:
1. This case is DISMISSED with prejudice as malicious
pursuant to 28 U.S.C. § 1915 (e) (2) (B).
2. The dismissal will count as a STRIKE for purposes of 28
U.S.C. § 1915(g).
The
Clerk will provide a copy of this Memorandu Opinion and Order
to the plaintiff. The Clerk will also send a copy of this
Order to (1) the TDCJ - Office of the General Counsel,
Capitol Station, P.O. Box 13084, Austin, Texas, 78711, Fax:
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