United States District Court, C.D. Illinois
December 2, 2005.
ALEX MALONE, Plaintiff,
TOM PHARES, et.al., Defendants.
The opinion of the court was delivered by: HAROLD BAKER, District Judge
This cause is before the court for merit review of the
plaintiff's complaint. The court is required by 28 U.S.C. § 1915A
to "screen" the plaintiff's complaint, and through such process
to identify and dismiss any legally insufficient claim, or the
entire action if warranted. A claim is legally insufficient if it
"(1) is frivolous, malicious, or fails to state a claim upon
which relief may be granted; or (2) seeks monetary relief from a
defendant who is immune from such relief." 28 U.S.C. § 1915A.
The plaintiff, Alex Malone, has filed his lawsuit pursuant to
42 U.S.C. § 1983 claiming that his constitutional rights were
violated at the McLean County Jail. The plaintiff has named six
defendants including Warden Tom Phares, Sheriff David Owen,
Operations Officer Jamie Kessinger, Jail Superintendent Greg
Allen, Inmate Services Officer Melinda Feller, and Administrator
This is the second time the plaintiff has filed this complaint.
The plaintiff originally filed his complaint on September 22,
2005 in the United States District Court for the Southern
District of Illinois. On October 4, 2005, the case was
appropriately transferred to the Central District of Illinois and
the plaintiff was advised of the transfer and the new case
number. See Malone v. Phares, 05-cv-1297.
On October 25, 2005, the plaintiff was informed that his
original case, 05-cv-1297, was set for a merit review hearing. On
October 26, 2005, a Deficiency Order was entered informing the
clerk that he needed to provide service forms for two of the
defendants and copies of his complaint for all defendants. On
November 14, 2005, the court conducted a merit review of the
plaintiff's original complaint and the plaintiff participated by
video conference. The court found that the plaintiff had failed
to state a claim upon which relief could be granted and dismissed
Case No. 05-cv-1297.
Also on November 14, 2005, the clerk of the court received the
complaint and a motion to proceed in forma pauperis in this case,
05-cv-1352. The plaintiff simply refiled the same complaint, and did not mention the previous complaint addressing
the same issues nor did he mention the other case number.
This case is dismissed since it is simply a copy of the
complaint already addressed by this court. Once again, the
plaintiff has failed to state a claim upon which relief can be
granted. See 05-1297, November 17, 2005 Dismissal Order.
IT IS THEREFORE ORDERED that:
1) The case is dismissed in its entirety pursuant to
28 U.S.C. § 1915A for failure to state a claim. The
case is terminated without prejudice.
2) The plaintiff must still pay the full docketing
fee of $250.00 even though his case has been
dismissed. The agency having custody of the Plaintiff
is directed to remit the docketing fee of $250.00
from the plaintiff's prison trust fund account if
such funds are available. If the plaintiff does not
have $250.00 in his trust fund account, the agency
must send 20 percent of the current balance, or the
average balance during the past six months, whichever
amount is higher; thereafter, the agency shall begin
forwarding monthly payments from the plaintiff's
trust fund account to the clerk of court each time
the plaintiff's account exceeds $10.00 until the
statutory fee of $250.00 is paid in its entirety. The
filing fee collected shall not exceed the statutory
filing fee of $250.00.
3) The plaintiff is ordered to notify the clerk of
the court of a change of address and phone number
within seven days of such change.
4) The clerk is directed to mail a copy of this
order to the plaintiff's place of confinement, to the
attention of the Trust Fund Office.
5) The motion to proceed in forma pauperis is denied
as moot. [d/e 1]
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