Hamilton v. McCune et al, No. 4:2019cv02259 - Document 6 (S.D. Tex. 2019)

Court Description: MEMORANDUM OPINION AND ORDER dismissing with prejudice 1 Complaint. Email sent to Manager of Three Strikes List. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

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Hamilton v. McCune et al Doc. 6 United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION LEE HAMILTON, JR., TDCJ #1132938, Plaintiff, v. CASON MCCUNE, et al., Defendants. § § § § § § § § § § August 08, 2019 David J. Bradley, Clerk CIVIL ACTION NO. H-19-2259 MEMORANDUM OPINION AND ORDER 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. Dockets.Justia.com 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: (2) Vinita Hamilton; Julye; (5) (3) Lynette Whitfield; Nurse Brenda Butler; (6) (1) Cason McCune; (4) Dr. Ernestine 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 1 Complaint, Docket Entry No. 1, p. 3. 2 Id. at 1, 3. 3 Id. at 4. 4 Id. at 3, 4. 5 Id. at 4. 6 Id. -2- 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, and Rigsby have been made previously in another Green, See lawsuit, which was dismissed as frivolous on July 3, 2019. 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 intercept his thoughts. The Fifth Hamilton to See id. 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, , Wilson v. Lynaugh, 878 F.2d 846 (5th (duplicative claims may be dismissed sua sponte). this civil action will be dismissed § 1915(e)(2)(B ) as malicious. -3- pursuant Cir. 1989) Accordingly, to 28 U.S.C. III. Conclusion and Order Accordingly, the court ORDERS 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 Memorandum Opinion and Order to the plaintiff. Order to (1) The Clerk will also send a copy of this the TDCJ - Office of the General Counsel, Capitol Station, P.O. Box 13084, Austin, Texas, 78711, Fax: 512-936-2159; and (2) the Three Strikes List at Three_Strikes@txs.uscourts.gov. SIGNED at Houston, Texas, on this 9-f"'- day of ,A"6v , 2019. UNITED STATES DISTRICT JUDGE -4-

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