IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

WALLACE TAYLOR RUTHERFORD, JR., 

Plaintiff, 

V. 

PERS CENTER SALEM, OREGON; U.S. 

ATTORNEY TREATIES DEPARTMENT; 

OREGON JUSTICE DEPARTMENT 

TREATIES ATTORNEYS; and OREGON 

TREASURY DEPARTMENT, 

Defendants. 

BECKERMAN, Magistrate Judge. 

Case No. 3: 15-cv-00639-SB 

FINDINGS AND 

RECOMMENDATION 

Plaintiff Wallace Taylor Rutherford, Jr. ("Plaintiff'), filed a prose complaint against the 

above-named defendants on April14, 2015. Service ofprocess has not yet occurred. Plaintiff has 

also filed an amended application to proceed in forma pauperis. The Court grants Plaintiffs 

amended application to proceed in forma pauperis (ECF No. 8). However, for the reasons explained 

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below, the Court recommends that the district judge dismiss the complaint pursuant to 28 U.S.C. § 

1915(e)(2)(B), because it is duplicative oftwo earlier-filed actions. 

BACKGROUND 

On March 23 , 2015, Plaintiff filed a pro se complaint ("the first action") against the 

Commissioner of the Social Security Administration and Telecare Corporation in the United States 

District Court for the District of Oregon. Complaint at 1, Rutherford v. Commissioner, 3: 15-cv004 76-SB (D. Or. Mar. 23, 2015). In the first action, Plaintiff lists his state citzenship as "treaty 

paradiem [sic] enhanced benefit," and he lists the named defendants' state citizenship as "statutory 

para diem [sic] minimum benefit." !d. at 3. As to the basis for jurisdiction, Plaintiff alleges: "United 

States Congress[,] U.S. Senate[,] [and] U.S. House ofRepresentatives ratified my State of Oregon 

Public Employees Retirement System ... to change to more [sic] my Social Security and Medicare 

and Medicaid[.]" !d. at 3. Under his statement of claims, Plaintiff alleges, among other things, that 

(1) he "paid for and completed for the reason of [his] life an enhanced benefit paradiem [sic] with 

matching funds from the State of Oregon and United States of America," (2) Defendant falsified his 

"papers and benefits including [his] birth date at Oregon Department of Motor Vehicles," and (3) 

his "birth date is May 27, 1933 [and his] name [is] Mr. Akona Wayne Sosue." !d. at 3-4. 

On April 3, 2015, Plaintiff filed a second pro se complaint ("the second action") against 

"Medicare-Medica[id] Commissioner," "PERS Center Salem, Oregon," "U.S.A. Congress," and 

"Oregon Legislature Treaties." (Compl. at 1.) In the second action, Plaintifflists his state citizenship 

as "all benefits are an enhanced treaty paradiem [sic]," and he lists the named Defendants' state 

citizenship as "minimum benefits statutory paradiem [sic]." (Compl. at 3.) As to the basis for 

jurisdiction, Plaintiff alleges: "Oregon Public Employee[s] Retirement System . . . ratified by the 

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United States Congress to enhanced [sic] treaty benefits confirmed by [the] Oregon Legislature for 

enhanced treaty benefit paradiem [sic]." (Compl. at 3.) Under his statement of claims, Plaintiff (I) 

generally refers to fraud, theft, and identity theft, (2) lists several claim unknown numbers, and (3) 

alleges "theft of 401K benefits [at] k[i]nesis" and "theft of retirement benefits k[i]nesis." (Compl. 

at 3-4.) 

On April 14, 2015, Plaintiff filed a third pro se complaint ("the present action") against, 

among others, the United States of America, the Oregon Public Employees Retirement System, 

"Medicare [and] Medica[id] Services Director," "USA Congress," the Oregon Legislature, "PERS 

Treaties," and "Treaty Paradiem [sic] no copays." Complaint at 1, Rutherford v. United States, 3:15-

cv-00639-SB (D. Or. Apr. 14, 2015). In the present action, Plaintiff lists his state citizenship as 

"enhanced benefit treaty paradiem [sic]," and he lists the named defendants' state citizenship as 

"minimum benefit statutory paradiem [sic]." !d. at 3. As to the basis for jurisdiction, Plaintiff alleges: 

"I have an Oregon Public Employees Retirement [S]ystem (PERS) treaty with the United States 

Congress[,] USA Senate and USA House ofRepresentative for an enhanced benefit treaty paradiem 

[sic] and the centers for Medicare [and] Medicaid are doing a minimum benefit statutory paradiem 

[sic]." !d. Under his statement of claims, Plaintiff refers to the "use of a black list" and "kin[ e ]sis/ 

conspiracy situation," denial of certain benefits, alteration of his age, and "records saying [he 

doesn't] look that old." !d. at 3-4. 

LEGAL STANDARDS 

A district court must perform a preliminary screening of an in forma pauperis complaint and 

dismiss any claims that fail to state a claim upon which relief may be granted, are frivolous or 

malicious, or seek monetary relief against a defendant who is immune from such relief. See 28 

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U.S.C. § 1915(e)(2)(B); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (concluding 

that§ 1915(e)(2)(B) applies to non-prisoners); Preciado v. Salas, No. 1: 13-cv- 0390, 2014 WL 

127710, at *1 (E.D. Cal. Jan. 14, 2014) ("The Court is required to screen complaints brought by 

plaintiffs proceeding prose and in forma pauperis."). 

A district court may dismiss a complaint as factually frivolous when the facts alleged "lack[] 

an arguable basis in law or in fact," Neitzke v. Williams, 490 U.S. 319,325 (1989), or when they 

"rise to the level of the irrational or the wholly incredible, whether or not there are judicially 

noticeable facts available to contradict them." Denton v. Hernandez, 504 U.S. 25, 33 (1992). A 

district court may also dismiss a complaint when it merely repeats the same factual allegations that 

the plaintiff asserted in a previously-filed case. See Cato v. United States, 70 F.3d 1103, 1105 n.2 

(9th Cir. 1995) ("There is no abuse of discretion where a district court dismisses under§ 1915( d) a 

complaint 'that merely repeats pending or previously litigated claims."'); Bailey v. Johnson, 846 F .2d 

1019, 1021 (5th Cir. 1988) ("In this case, Bailey's complaint repeats the same factual allegations that 

he asserted in his earlier case, although he successively sued different defendants .... We perceive 

no abuse of the district court's [broad] discretion in dismissing this case as duplicative of Bailey's 

prior litigation and subject to dismissal under section 1915( d)."). 1 

DISCUSSION 

After careful review, this Court concludes that Plaintiff's claims lack any arguable basis in 

law or in fact, and are duplicative of the frivolous claims he alleged in his earlier-filed complaints 

(the first and second actions). In all three actions, Plaintiff challenges an alleged "enhanced benefit 

1 The Cato and Bailey courts cited 28 U.S.C. § 1915(d), which is now renumbered as 28 

U.S.C. § 1915(e)(2)(B). Williams v. Fed. Dist. Ct. , No. 11-cv-3174, 2012 WL 1323707, at *1 (2d 

Cir. Apr. 18, 2012) 

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parad[igm ],"apparently related to the Oregon Public Employees Retirement System, Social Security, 

Medicare, and Medicaid, although his allegations are largely nonsensical. 

The Fifth Circuit was confronted with similar procedural circumstances in Lewis v. Secretary 

of Public Safety & Corrections, 508 F. App'x 341 (5th Cir.), cert. denied, 133 S. Ct. 2802 (2013). 

In Lewis, a state prisoner brought two prose complaints that concerned allegedly unconstitutional 

strip and body cavity searches. !d. at 342-43. The later-filed complaint named three different 

defendants, but contained language nearly identical to that of the earlier-filed complaint. !d. On 

appeal, the Fifth Circuit concluded that the district court did not abuse its discretion in dismissing 

the plaintiffs later-filed complaint as malicious, pursuant to 28 U.S.C. § 1915(e)(2)(B). !d. at 344. 

In so holding, the Fifth Circuit emphasized that the two complaints were based on the same conduct 

and, therefore, would "form a convenient trial unit with the earlier case, which involves virtually 

identical material facts and issues." !d. The fact that the later-filed complaint named three different 

defendants did not change the result, because, as the Fifth Circuit explained, the plaintiff could "seek 

to amend his complaint in the first lawsuit, under Rule 15(a)(2) of the Federal Rules of Civil 

Procedure, to name the three new defendants." !d. at 344 n.2. The Fifth Circuit did, however, modify 

the judgment entered by the district court, noting that "the dismissal should have been without 

prejudice," instead of with prejudice. !d. at 344. Specifically, the Fifth Circuit modified the judgment 

to read as follows: "[T]he judgment [of the district court] is hereby MODIFIED so that the dismissal 

is without prejudice to [the plaintiff]'s prosecution of [the earlier-filed complaint,] case number 

1:1 0-CV-291, and the judgment as so modified is AFFIRMED." !d. 

In accordance with Lewis, the Court recommends that the district judge dismiss the present 

action pursuant to § 1915( e )(2)(B), because it duplicates the frivolous claims Plaintiff alleged in the 

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first and second actions. See Lewis, 508 F. App'x at 343-44 ("A case may be dismissed as malicious 

if it duplicates claims that the same plaintiff has raised in previous or pending litigation."); id. at 344 

(explaining that a "case is duplicative if it involves 'the same series of events' and allegations of 

'many of the same facts as an earlier suit"') (citation omitted); Cato, 70 F .3d at 1105 n.2 ("There is 

no abuse of discretion where a district court dismisses under § 1915( d) a complaint 'that merely 

repeats pending or previously litigated claims."'); Bailey, 846 F.2d at 1021 (affirming dismissal of 

case as duplicative of earlier-filed action, even though plaintiff named new defendants in the second 

action). The district judge should dismiss this case, without prejudice to Plaintiff amending his 

complaint in the first action, Case No. 3: 15-cv-004 76-SB, to include any related claims or parties. 

See, e.g., Lewis, 508 F. App'x at 344. 

CONCLUSION 

For the foregoing reasons, the Court grants Plaintiffs amended application to proceed in 

forma pauperis (ECF No. 8), and recommends that the district judge dismiss Plaintiffs complaint 

pursuant to 28 U.S.C. § 1915(e)(2)(B), because it is duplicative of two earlier-filed actions. The 

Court further recommends that the district judge enter judgment dismissing this case without 

prejudice to Plaintiffs prosecution of the first-filed action, Case No. 3: 15-cv-004 76-SB. 

SCHEDULING ORDER 

The Findings and Recommendation will be referred to a district judge. Objections, if any, are 

due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, 

the Findings and Recommendation will go under advisement on that date. If objections are filed, a 

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response is due fourteen (14) days after being served with a copy of the objections. When the 

response is due or filed, whichever date is earlier, the Findings and Recommendation will go under 

advisement. 

Dated this 8th day of July, 2015. 

United States Magistrate Judge 

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