1 Spears v. McCotter, 766 F.2d 179 (5th Cir.1985). United States Court of Appeals,

Fifth Circuit.

No. 92-2688

Summary Calendar.

Wesley Lynn PITTMAN, Plaintiff-Appellant,

v.

K. MOORE, et al., Defendants-Appellees.

Jan. 8, 1993.

Appeal from the United States District Court for the Southern District of Texas.

Before GARWOOD, JONES, and EMILIO M. GARZA, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellant Pittman filed a pro se in forma pauperis § 1983 complaint against TDC-IJ prison

o fficials alleging four general claims: retaliatory punishment for his filing a lawsuit; the conduct of

an improper strip search and sexual harassment; unnecessary use of excessive force; and denial of

access to the courts. The district court, upon conducting a S pears hearing 1

, ascertained from Pittman

that his claims were the same as those currently pending before another district court in the Southern

District of Te xas. On this basis, the district court concluded that the instant case was "malicious"

because it constituted repetitive litigation, and the court dismissed Pittman's complaint pursuant to

28 U.S.C. § 1915(d). We affirm.

In Wilson v. Lynaugh, 878 F.2d 846, 849 (5th Cir.), cert. denied, 493 U.S. 969, 110 S.Ct.

417, 107 L.Ed.2d 382 (1989), this court held that in forma pauperis complaints may be dismissed as

frivolous if they seek to relitigate claims that allege substan t ially t he same facts arising from a

common series of events which have already been unsuccessfully litigated by the plaint iff. 878 F.2d

at 850. W

ilson did not discuss dism issal of pauper complaints that are duplicative of still-pending

lawsuits filed by the same plaint iff, but it essentially held that pauper status does not entitle a plaint iff

to avoid the ordinary rules of res judicata. Under § 1915(d), a pauper's complaint may be dismissedif the district court is "satisfied that the action is frivolous or malicious." The court here held that it

is "malicious" for a pauper to file a lawsuit that duplicates allegations of another pending federal

lawsuit by the same plaintiff. We agree.

In forma pauperis plaint iffs have no preferred status as litigants in respect to the procedures

with which they must comply. A district court would be fully justified in dismissing a non-pauper

complaint that is duplicative of prior federal court litigation then being pursued by the same plaint iff.

The court might alternatively consolidate the two actions, but it need not do so. Either of these steps

may be taken with regard to IFP lawsuits. Ordinarily, as occurred here, the district court confronted

with the later-filed action should dismiss it in favor of the case that was filed earlier. When declaring

that a successive in forma pauperis suit is "malicious" the court should insure that the plaint iff obtains

one bite at the litigation apple—but not more.

Because of the basis of the dismissal, it sho uld have been without prejudice to Pittman's

prosecution of the duplicative pending suit (including any assertions therein of any of the claims in

the instant suit)—the duplicative pending suit being Civil Action No. G-88-169, Pittman v. Lynaugh,

Southern District of Texas—and we modify the judgment accordingly.

For these reasons, the judgment is hereby MODIFIED so that th e dismissal is without

prejudice as aforesaid to appellant's prosecution of said cause No. G-88-169, and is otherwise with

prejudice, and the judgment as so modified is AFFIRMED.

MODIFIED, and AFFIRMED as MODIFIED.