UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

DANIEL BRONSON, Case No. 1:17-cv-722
Petitioner,
Bertelsman, J.
vs. Litkovitz, M.J.

WARDEN, WARREN
CORRECTIONAL INSTITUTION,

Respondent.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DANIEL BRONSON, Case No. 1:17-cv-722

Petitioner,

Bertelsman, J.

vs. Litkovitz, M.J.
WARDEN, WARREN REPORT AND
CORRECTIONAL INSTITUTION, RECOMMENDATION

Respondent.

Petitioner, an inmate in custody at the Warren Correctional Institution, has filed a motion
for leave to proceed in forma pauperis, in connection with a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). In the petition, petitioner challenges his August
2013 state court conviction in case number B-1302369 in the Hamilton County Court of
Common Pleas. (See Doc. 1, Petition at PageID 13).

On October 20, 2017, prior to filing the instant petition, petitioner filed a motion for leave
to proceed in forma pauperis in connection with a separate, identical habeas petition challenging
his Hamilton County conviction. See Bronson v. Warden, No. 1:17-cv-701 (S.D. Ohio Oct. 20,
2017) (Black, J.; Bowman, M.J.) (Doe. 1).

The Supreme Court has recognized that “considerations of ‘[w]ise judicial
administration, giving regard to conservation of judicial resources and comprehensive
disposition of litigation,” have given rise to the “general principle” that duplicative litigation in
the federal court system is to be avoided. Colorado River Water Conservation Dist. v. United
States, 424 U.S. 800, 817 (1976). A district court, therefore, has the inherent power to dismiss
an action when it is duplicative of another action pending in the federal court. See Green v.

Quarterman, No. Civ. A. H-08-553, 2008 WL 2489840, at *2 (S.D. Tex. June 18, 2008) (citing


Remington Rand Corp.-Delaware v. Bus. Sys. Inc., 830 F.2d 1274, 1275-76 (3rd Cir. 1987)) (and
Supreme Court cases cited therein); Chrysler Credit Corp. v. Marino, 63 F.3d 574, 578 (7th Cir.
1995) (quoting Serlin v, Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir. 1993)) (“A federal
suit may be dismissed for ‘reasons of wise judicial administration . .. whenever it is duplicative
of a parallel action already pending in another federal court.’”).

In this case, because the two habeas petitions filed by petitioner are identical, the instant
later-filed petition should be dismissed as duplicative of the petition now pending before Judge
Black. See, e.g., Davis v. United States Parole Comm’n, No. 88-5905, 1989 WL 25837, at *1
(6th Cir. Mar. 7, 1989) (the dismissal of a later-filed habeas petition as duplicative of a pending
petition “was proper,” in a case where the petitioner did “not dispute the district court’s finding
that the . . . petition [was] ‘essentially the same’ as the earlier petition”); see also Cummings v.
Rapelje, No. 11-cv-10239, 2011 WL 346480, at *1 (E.D. Mich. Feb. 3, 2011) (and cases cited
therein) (in holding that a habeas petition was subject to dismissal as duplicative of the
petitioner’s “still pending first habeas petition, because both cases seek the same relief,” the
district court stated that “[a] suit is duplicative, and thus subject to dismissal, if the claims,
parties, and available relief do not significantly differ between the two actions”); Ware v.
Wolfenbarger, No. 2:07-cv-11006, 2007 WL 908004, at *1-2 (E.D. Mich. Mar. 23, 2007)
(dismissing as duplicative a later-filed habeas petition, which “challenge[d] the same conviction
and raise[d] the same claims and ma[de] the same arguments as the petition in the case pending
before” another district judge).

Accordingly, it is hereby RECOMMENDED that petitioner’s petition for a writ of
habeas corpus (Doc. 1) be summarily DISMISSED without prejudice to petitioner’s prosecution

of the duplicative habeas petition which is currently pending before the Court in the case entitled
2


Bronson v. Warden, No. 1:17-cv-701 (S.D. Ohio Oct. 20, 2017) (Black, J.; Bowman, M.J.) (Doc.
1). Cf Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993) (modifying the judgment so that the
dismissal was without prejudice to the adjudication of the remaining pending action); Green,
supra, 2008 WL 2489840, at *2 (the dismissal of the duplicative habeas petition was “without

prejudice”).

IT IS THEREFORE RECOMMENDED THAT:

1. Petitioner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be
DISMISSED without prejudice.

2. A certificate of appealability should not issue with respect any Order adopting this
Report and Recommendation to dismiss the instant habeas corpus petition on the procedural
ground of duplicativeness. Under the first prong of the applicable two-part standard enunciated
in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), “jurists of reason” would not find it
debatable whether this Court is correct in its procedural ruling."

3. With respect to any application by petitioner to proceed on appeal in forma pauperis,
the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting
this Report and Recommendation would not be taken in “good faith,” and, therefore, should
DENY petitioner leave to appeal in forma pauperis upon a showing of financial necessity. See
Fed. R. App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).

Date: wh lz Bien a Abthoe

Karen L. Litkovitz
United States Magistrate Judge

' Because the first prong of the Slack test has not been met, the Court need not address the second prong of Slack as
to whether “jurists of reason” would find it debatable whether petitioner has stated a viable constitutional claim in

the duplicative petition. See Slack, 529 U.S. at 484.
aI