1

 Although the face of plaintiff’s complaint appears to spell “Quinlan” as “Quinlon”, the remainder of the complaint

correctly spells it as “Quinlan”. Because the Fifth Circuit utilized the spelling from the current docket sheet when this

case was on appeal, citations to the appellate decision will use “Quinlon”. The Clerk of Court is directed to correct the

spelling on the docket sheet. 

2

 The Court previously found that this action proceeds as an individual action by plaintiff, not as a class action. The

Fifth Circuit Court of Appeals affirmed this finding. See Allard v. Quinlon Pest Control, No. 06-10753, 2008 WL 2570670,

at *1 (5th Cir. June 30, 2008) (per curiam). 

3

 Plaintiff identifies defendant Neal as “Neel”. As shown in plaintiff’s prior action concerning unsanitary conditions at

Hunt County Jail, the correct spelling is “Neal”. 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

STEPHEN ALLARD, ID # 1071335, )

Plaintiff, )

vs. ) No. 3:05-CV-0584-K (BH)

) ECF

QUINLAN PEST CONTROL,1 et al., ) Referred to U.S. Magistrate Judge

Defendants. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the District Court’s Order signed August 14, 2008, this case has been re-referred

for recommendation. The findings, conclusions, and recommendation of the Magistrate Judge are

as follows:

I. BACKGROUND

In March 2005, plaintiff filed this civil action under 42 U.S.C. § 1983 alleging violations of

his constitutional rights related to the spraying of pesticides and conditions of his imprisonment at

the Hunt County Jail (the Jail) that allegedly caused him various health problems, including a

thyroid problem.2

 (See generally, Compl.) He sues Quinlan Pest Control Company Inc.; three jailers

at the Jail (Michael Vice, Randy White, and Curtis Neal);3 and Hunt County Sheriff Don Anderson.

(Id. at 1-3.) He states that he was last incarcerated in the Jail between July 2000 and October 19,
4

 Plaintiff’s answers to the questions posed by the Court constitute an amendment to the filed complaint. See Macias

v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994). 

2

2001, but was not diagnosed with thyroid problems until March 25, 2003. (See Answer to Question

1 of Magistrate Judge’s Questionnaire (MJQ)4.) 

In June 2006, the Court dismissed this action for plaintiff’s failure to exhaust administrative

remedies. Two years later, the Fifth Circuit vacated that dismissal and remanded the case for further

proceedings based upon Jones v. Bock, 549 U.S. 199 (2007). See Allard v. Quinlon Pest Control, No.

06-10753, 2008 WL 2570670, at *1 (5th Cir. June 30, 2008) (per curiam). In August 2008, the case

was re-referred for a recommendation. No process has been issued in this case. 

II. PRIOR ACTION

In 2002, Plaintiff filed a prior action against defendants Neal and Anderson alleging “unsafe

and unsanitary cell conditions” at the Jail that caused “boils, infections, hepatitis C, and a thyroid

condition.” See Allard v. Anderson, No. 3:02-CV-1698-L (N.D. Tex. filed Aug. 2002)(Findings,

Conclusions, and Recommendation). The allegations encompassed plaintiff’s “latest incarceration

from July 20, 2000, through October 19, 2001.” Id. On November 22, 2004, the Court dismissed

the action without prejudice for plaintiff’s failure to exhaust administrative remedies. Id. (judgment).

On December 28, 2007, the Fifth Circuit Court of Appeals affirmed in part and reversed in

part that dismissal. Allard v. Anderson, 260 Fed. App’x 711, 717 (5th Cir. 2007), cert. filed No. 11260

(2008). In light of the pending petition for writ of certiorari, the District Court found “no further

reason at this time to maintain the file as an open one for statistical purposes”, and instructed the

Clerk of Court “to submit a JS-6 form to the Administrative Office, thereby removing this case from

the statistical records.” See Allard v. Anderson, No. 3:02-CV-1698-L (N.D. Tex. filed Aug. 2002)
3

(order of Mar. 21, 2008). Despite such instruction, the Court noted that “[n]othing in this order

shall be considered a dismissal or disposition of this case, and, should further proceedings in it

become necessary or desirable, any party or the court may initiate such further proceedings in the

same manner as if this order had not been entered.” Id. 

III. PRELIMINARY SCREENING

Plaintiff has been granted permission to proceed in forma pauperis (IFP). His complaint is

thus subject to sua sponte dismissal under 28 U.S.C. § 1915(e)(2). That section provides for sua

sponte dismissal, if the Court finds the complaint malicious. The Fifth Circuit “has held that it is

malicious for a pauper to file successive IFP suits that duplicate claims made in other pending or

previous lawsuits.” Humphrey v. Luna, 59 F.3d 1242, 1242 (5th Cir. 1995) (per curiam) (Table; text

on Westlaw) (citing Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993) (pending lawsuits); Bailey

v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988) (previous lawsuits)). Adding different defendants

in the successive action does not change the malicious or duplicative nature of the case. See Bailey,

846 F.2d at 1021. The Court may properly dismiss a successive action as malicious or duplicative

even when the plaintiff has named different defendants. See id.

It is clear that the claims raised in this action duplicate claims pursued in plaintiff’s prior

action. In both actions, plaintiff complains about conditions at the Hunt County Jail that resulted

in various alleged ailments, including hepatitis C and a thyroid condition. Both actions stem from

the same set of facts and occurrences. There is no apparent reason plaintiff could not have pursued

the instant claims in his previous litigation. There is no reason to allow plaintiff to pursue duplicate

litigation in two separate actions. 
4

The Court may either consolidate the two actions or dismiss the instant action without

prejudice to plaintiff pursuing his other case. See Pittman v. Moore, 980 F.2d 994, 994-95 (5th Cir.

1993). “Ordinarily,” however, the courts dismiss “the later-filed action . . . in favor of the case that

was filed earlier.” Id. at 995. In this instance, there appears to be no extraordinary reason to prompt

consolidation. The Court should dismiss the instant action as malicious within the meaning of 28

U.S.C. § 1915(e)(2)(B). Such dismissal should be without prejudice to the prosecution of the earlier

suit, but with prejudice as to the successive suit. Id.

IV. RECOMMENDATION

For the foregoing reasons, it is recommended that the District Court summarily DISMISS

this action with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). It is further recommended that

such dismissal be without prejudice to the prosecution of plaintiff’s prior suit, Allard v. Anderson, No.

3:02-CV-1698-L (N.D. Tex. filed Aug. 2002), which remains pending although it has been statistically closed while plaintiff pursues a petition for writ of certiorari. 

SIGNED this 17th day of September, 2008. 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE
5

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on plaintiff by mailing a copy to him. Pursuant to 28 U.S.C. § 636(b)(1), any party who

desires to object to these findings, conclusions and recommendation must file and serve written

objections within ten days after being served with a copy. A party filing objections must specifically

identify those findings, conclusions, or recommendation to which objections are being made. The

District Court need not consider frivolous, conclusory, or general objections. Failure to file written

objections to the proposed findings, conclusions, and recommendation within ten days after being

served with a copy shall bar the aggrieved party from appealing the factual findings and legal

conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds

of plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE