United States District Court, N.D. New York
ANTHONY BESTER Plaintiff, pro se.
DECISION AND ORDER
N. HURD, UNITED STATES DISTRICT JUDGE.
an initial review of a complaint filed pro se by plaintiff
Anthony Bester ("Bester" or "plaintiff").
Dkt. No. 1 ("Compl."). Plaintiff, who is confined
in the custody of the New York State Department of
Corrections and Community Supervision ("DOCCS") at
Attica Correctional Facility, asserts claims arising out of
his confinement at Great Meadow Correctional Facility
("Great Meadow C.F.").
action is commenced in federal district court "by filing
a complaint." Fed.R.Civ.P. 3. The filing fees must be
paid at the time an action is commenced, unless an
application for leave to proceed in forma pauperis
("IFP") is submitted to the Court. See 28
U.S.C. §§ 1914(a), 1915(a).
federal statute governing applications to proceed IFP in
federal court, the Prison Litigation Reform Act
("PLRA"), 28 U.S.C. § 1915, provides in
pertinent part that an application for IFP status must be
accompanied by "a certified copy of the trust fund
account statement (or institutional equivalent) for the
prisoner for the 6-month period immediately preceding the
filing of the complaint or notice of appeal, obtained from
the appropriate official of each prison at which the prisoner
is or was confined." 28 U.S.C. § 1915(a)(2). In
accordance with Local Rule 5.4 of the Local Rules of Practice
for the Northern District of New York
("N.D.N.Y.L.R."), a prisoner seeking IFP status in
a civil action subject to the PLRA may satisfy this
requirement by submitting a completed, signed, and certified
IFP application. N.D.N.Y.L.R. 5.4(b)(1)(A).
this action can proceed, the sufficiency of the allegations
set forth in Bester's complaint must also be considered.
In accordance with 28 U.S.C. § 1915A, the Court must
review any "complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer
or employee of a governmental entity" and must
"identify cognizable claims or dismiss the complaint, or
any portion of the complaint, if the complaint . . . is
frivolous, malicious, or fails to state a claim upon which
relief may be granted; or . . . seeks monetary relief from a
defendant who is immune from such relief." 28 U.S.C.
although the court has the duty to show liberality toward pro
se litigants, see Nance v. Kelly, 912 F.2d 605, 606
(2d Cir. 1990) (per curiam), and should exercise
"extreme caution . . . in ordering sua sponte
dismissal of a pro se complaint before the
adverse party has been served and both parties (but
particularly the plaintiff) have had an opportunity to
respond, " Anderson v. Coughlin, 700 F.2d 37,
41 (2d Cir. 1983) (internal citations omitted), the court has
a responsibility to determine whether plaintiff may properly
proceed with this action.
reviewing a complaint pursuant to 28 U.S.C. § 1915A, a
court may consider whether the claims asserted by the
plaintiff are duplicative of claims asserted in another
action against the same defendants. It is well-settled that
"[a]s part of its general power to administer its
docket, a district court may stay or dismiss a suit that is
duplicative of another federal court suit." Curtis
v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000);
see also Colorado River Water Conservation Dist. v.
United States, 424 U.S. 800, 817 (1976) ("As
between federal district courts, . . . though no precise rule
has evolved, the general principle is to avoid duplicative
power to dismiss a duplicative lawsuit is meant to foster
judicial economy and the "comprehensive disposition of
litigation." Kerotest Mfg. Co. v. C-O-Two Fire
Equip. Co., 342 U.S. 180, 183 (1952). The doctrine is
also meant to protect parties from "the vexation of
concurrent litigation over the same subject matter."
Adam v. Jacob, 950 F.2d 89, 93 (2d Cir. 1991).
district court has broad discretion in determining whether an
action should be dismissed as duplicative, and the exercise
of this power is reviewed by the Court of Appeals for abuse
of discretion. Curtis, 226 F.3d at 138. As the
Second Circuit recognized in Curtis, "simple
dismissal of the second suit is [a] common disposition
because plaintiffs have no right to maintain two actions on
the same subject in the same court, against the same
defendant at the same time." Id. at 138-39.
no precise test has been articulated for determining whether
actions are duplicative, see, e.g., Colorado River,
424 U.S. at 817, the general rule which has emerged is that a
suit is duplicative of another suit if the parties, issues
and available relief do not differ significantly between the
two actions. Thus, "[c]ourts generally look to the
identity of the parties, legal claims, factual allegations
including temporal circumstances, and the relief sought to
determine if the complaint is repetitive or malicious."
Hahn v. Tarnow, No. 06-CV-12814, 2006 WL 2160934, at
*3 (E.D. Mich. July 31, 2006).
review, this complaint is repetitive and duplicative of the
complaint in Bester v. Taylor, No. 9:18-CV-0449
(DNH/TWD) ("Bester I"), an action filed by