Torres v. Mclemore et al, No. 4:2022cv04197 - Document 11 (S.D. Tex. 2023)
Court Description: MEMORANDUM OPINION AND ORDER - the 1 Complaint filedby Israel Antonio Torres is DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) as duplicative and malicious...*** Email sent to Manager of Three Strikes List. (Signed by Judge Sim Lake) Parties notified.(sanderson, 4)
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Torres v. Mclemore et al Doc. 11 Case 4:22-cv-04197 Document 11 Filed on 01/30/23 in TXSD Page 1 of 4 United States District Court Southern District of Texas ENTERED January 30, 2023 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION ISRAEL ANTONIO TORRES, TDCJ #1601476, Plaintiff, v. LAVONDA J. McLEMORE, et al., Defendants. § § § § § § § § § § Nathan Ochsner, Clerk CIVIL ACTION NO. H-22-4197 MEMORANDUM OPINION AND ORDER The plaintiff, Israel Antonio Torres (TDCJ #1601476), is an inmate incarcerated by the Texas Department of Criminal Justice Correctional Institutions Division ("TDCJ"). Prisoner's Civil Rights Complaint under 42 He has filed a U.S.C. § 1983 ("Complaint") (Docket Entry No. 1) against two property officers and a grievance official at the TDCJ Central Office in Huntsville. Because Torres is a prisoner who proceeds court is required to scrutinize forma pauperis, the the claims and dismiss the Complaint 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 against a defendant who is immune from such relief." 28 U.S.C. § 1915(e) (2) (B). After considering the pleadings and the plaintiff's litigation history, the court concludes that this case must be dismissed for the reasons explained below. Dockets.Justia.com Case 4:22-cv-04197 Document 11 Filed on 01/30/23 in TXSD Page 2 of 4 I. Background Torres is currently incarcerated by TDCJ at the Michael Unit. 1 He has filed this lawsuit against two property officers: Off r Lavonda McLemore of the Allred Unit; Richard Mendez of the Montford Unit. and (2) { 1) Officer He has also sued Grievance Coordinator J. Back, who works at the Central Grievance Office in Hunt lle. 3 Torres alleges that some "commissary food" items went missing from his property following a prison transfer between the Allred Unit and the Montford Unit. 4 and 0 Torres alleges that Officer McLemore Mendez failed to make a proper inventory of his property during the trans process. 5 Torres alleges further that Back failed to provide a satisfactory response to a Step 2 Grievance that Torres fi regarding the loss of his property, which Back reportedly denied because Torres failed to list the missing items. 6 Invoking 42 U.S.C. § 1983, Torres now seeks Complaint, Docket Entry No. 1, p. 3. For purposes of ion all page numbers reference the pagination imprinted identi on each docket entry by the court's electronic case filing {"ECF") system. 1 2 Id. 3 at 4. at 3. -2- Case 4:22-cv-04197 Document 11 Filed on 01/30/23 in TXSD Page 3 of 4 reimbursement for the lost food items in the amount of $30,000.00. 7 II. Discussion Court records show that the Complaint in this case duplicates allegations made by Torres against the same defendants in another civil action filed by him previously in this district, in which he also sought compensatory damages for commissary food items that were lost or destroyed during the prison transfer process. Torres v. McLemore et al., Civil No. H-22-3994 (S.O. Tex.) Entry No. 1). In that previous case, the cla See (Docket against Officer McLemore and Officer Mendez were dismissed for failure to state a claim upon which rel could be granted under 42 U.S.C. § 1983. id. (Docket Entry No. 16, p. 7). dismissed as frivolous. His claim against Back was id. 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 Fifth Circuit has held that "a claim qualifies as malicious if it is virtually identical to and based on the same s ries 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, 7 1021 (5th Cir. 1988)). Id. at 4. -3- Because the Case 4:22-cv-04197 Document 11 Filed on 01/30/23 in TXSD Page 4 of 4 plaintiff has made the same claims in another lawsuit, the court concludes that the pending Complaint is subject to dismissal as malicious. 198 9} See, sL..9:..,_, (duplicative Wilson v. Lynaugh, 878 F.2d 846 (5th Cir. claims may be dismissed rn sponte). Accordingly, this civil action will be dismissed pursuant to 28 U.S.C. § 1915(e} (2)(B). III. Conclusion and Order Based on the foregoing, it is ORDERED that the Complaint filed by Israel Antonio Torres (Docket Entry No. 1) is DISMISSED with prejudice pursuant to 28 U.S.C. § 1915{e)(2)(B) as duplicative and malicious. The Clerk is directed to provide a copy of this Memorandum Opinion and Order to the plaintiff. The Clerk will also send a copy to the Three Strikes List at Three_Strikes@txs.uscourts.gov. SIGNED at Houston, Texas, on this 3:>""1 day of AN-., 2023. SIM LAKE SENIOR UNITED STATES DISTRICT JUDGE -4-
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