IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOHN RICE, )

Plaintiff, )

vs. ) No. 3:05-CV-0959-P 

)

PRODUCT DEVELOPMENT )

CORPORATION, et al., )

Defendants. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The

findings, conclusions, and recommendation of the Magistrate Judge are as follows:

I. BACKGROUND

On May 11, 2005, the Court received the instant action against “Product Development

Corporation and others.” (Compl. at 1.) No process has been issued in this case. 

Plaintiff has filed a previous federal complaint against Product Development Corporation

raising the same claims that he raises in this Court. See Rice v. Product Development Corporation,

4:03-CV-931-A (N.D. Tex. filed Sept. 5, 2003). On November 20, 2003, the Fort Worth Division

of the Northern District of Texas dismissed that previous action pursuant to 28 U.S.C. § 1915(e)(2).

See id. (N.D. Tex. Nov. 20, 2003) (order dismissing action). 

II. PRELIMINARY SCREENING

The Court has permitted plaintiff to proceed in forma pauperis. 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 “frivolous or malicious” or if it “fails to state a claim upon which

 

 Case 3:05-cv-00959-P Document 8 Filed 05/25/05 Page 1 of 3 PageID 13
2

relief may be granted.” A claim is frivolous, if it “lacks an arguable basis either in law or in fact.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989). Furthermore, courts may appropriately dismiss an in

forma pauperis action as frivolous, when the action “seek[s] to relitigate claims which allege substantially the same facts arising from a common series of events which have already been unsuccessfully

litigated by the IFP plaintiff.” Wilson v. Lynaugh, 878 F.2d 846, 850 (5th Cir. 1989). 

One court has already dismissed a previous action by plaintiff against Product Development

Corporation. That action stemmed from the same set of facts and occurrences that form the basis

for the instant complaint. That plaintiff now raises claims against unidentified employees of Product

Development Corporation does not alter the previous dismissal. Because plaintiff has already

“unsuccessfully litigated” a previous action against Product Development Corporation based upon

the same set of facts and occurrences the instant action is frivolous under Wilson and 28 U.S.C. §

1915(e)(2)(B).

III. RECOMMENDATION

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

plaintiff’s complaint with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). 

SIGNED this 25th day of May, 2005. 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

 Case 3:05-cv-00959-P Document 8 Filed 05/25/05 Page 2 of 3 PageID 14
3

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 (10) 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

 

 Case 3:05-cv-00959-P Document 8 Filed 05/25/05 Page 3 of 3 PageID 15