IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

BOBBY SMITH, JR., #207658, :

:

Plaintiff, :

:

vs. : CIVIL ACTION 09-00466-CG-B

:

WARDEN JERRY FERRELL, et al., :

:

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff Bobby Smith, Jr., an Alabama prison inmate

proceeding pro se and in forma pauperis, filed a Complaint under 42

U.S.C. § 1983. This action has been referred to the undersigned

for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and

Local Rule 72.2(c)(4). Based upon a careful review of the record,

it is recommended that this action be dismissed with prejudice,

prior to service of process, because it is duplicative of another

action on the Court’s docket. 

I. Nature of Proceedings. 

Upon a review of Plaintiff’s original Complaint (Doc. 1), the

Court directed Plaintiff to file a new Complaint because his

original Complaint was not on the Court’s required form for actions

alleging § 1983 violations. Plaintiff was advised that his new

Complaint would supersede his original Complaint. (Doc. 3). In

response thereto, Plaintiff filed the instant Amended Complaint.

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The Complaint form contains the following question: Have

you filed any other lawsuits in state or federal court dealing

with the same or similar facts involved in this action. 

Plaintiff provided a negative response to the question. (Doc. 4,

p. 3)

2

(Doc. 4). 

In Plaintiff’s handwritten original Complaint, he lists in the

style of the case four Defendants, namely, Warden Jerry Ferrell,

Warden Walter Myers II, Lieutenant Gwendolyn Givens, and Captain

Hetrick. (Doc. 1 at 1). Plaintiff’s claims against these

individuals are based on an incident in which Plaintiff contends he

was assaulted by officers on June 11, 2009. Plaintiff detailed his

allegations against these individuals in his original Complaint.

However, when Plaintiff re-filed his Complaint, on August 21, 2009,

on the Court’s required form, Jerry Ferrell is the only individual

Plaintiff listed as a Defendant although Plaintiff was advised

that his amended Complaint would supersede his original Complaint.

(Doc. 4 at 6). Moreover, none of the allegations in Plaintiff’s

amended Complaint are connected to Defendant Ferrell.

In screening Plaintiff’s amended Complaint pursuant to 28

U.S.C. § 1915(e)(2)(B) (Doc. 4), the Court examined its docket and

found that Plaintiff has pending before this Court two other

actions based on the alleged August 21, 2009 assault although

Plaintiff did not reference these actions in the space provided for

such on the Court’s complaint form1. In the action styled Smith v.

Givens, CA 09-0448-CG-M, Plaintiff’s Complaint contains similar

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Plaintiff named as Defendants Gwendolyn Givens, Timothy

McCorvey, and officers Knight, Williams and Sellers.

3

On his Complaint form in CA 09-0466-CG-M, Plaintiff

indicates that he has also filed an action in state court in

Escambia County against Lieutenant Givens and Officers McCorvey,

Knight, Williams and Sellers. 

3

allegations but does not provide as much detail as the allegations

contained in Plaintiff’s original Complaint in the present action.

(Doc. 1). The Complaint in CA 09-0448-CG-M was mailed to

Defendants Givens and officer Knight,2 and they executed and

returned the waiver of service of summons. (Docs. 8 & 10).3

Another action filed by Plaintiff and pending on the Court’s

docket, namely Smith v. Ferrell, CA 09-0588-CG-C closely tracks the

allegations contained in Plaintiff’s original Complaint in the

instant action, CA 09-0466-CG-B, and names as Defendants Jerry

Ferrell, Gwendolyn Givens, Albert Knight, and Timothy McCorvey. CA

09-0588-CG-C is before the Court for screening pursuant 28 U.S.C.

§ 1915(e)(2)(B). In that action, Plaintiff alleges that Defendant

Ferrell did not show leadership for his officers (Doc. 1 at 4) and

that Defendants Ferrell, Myers, and Hetrick were present after

Plaintiff got up from being beaten but they did not rush to stop

the beating even though they heard it on the radio. (Id. at 9).

Plaintiff also alleges that Defendant Ferrell failed to discipline

Defendant Givens for her actions. (Id. at 10). 

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II. Analysis.

“As part of its general power to administer its docket, a

district court may stay or dismiss a suit that is duplicative of

another federal court suit.” Curtis v. Citibank, 226 F.3d 133, 138

(2d Cir. 2000); see Colorado River Water Conservation Dist. v.

United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d

483 (1976) (“It is well established that ‘as between federal

district courts, . . . the general principle is to avoid

duplicative litigation.’”) (citation omitted). The considerations

behind this principle are “(w)ise judicial administration, giving

regard to conservation of judicial resources and comprehensive

disposition of litigation.” Id. (parenthesis in original). 

“[T]he general rule is that a suit is duplicative of another

suit if the parties, issues and available relief do not

significantly differ between the two actions.” I. A. Durbin, Inc.

v. Jefferson Nat’l Bank, 793 F.2d 1541, 1551 (11th Cir. 1986).

Broad discretion is given trial courts “in determining whether to

stay or dismiss litigation in order to avoid duplicating a

proceeding already pending in another federal court.” Id. 

Upon review of Plaintiff’s pending actions, it is clear that

Plaintiff’s claim against Defendant Ferrell in the instant action

are based on the same incident and include the same allegations

lodged against Defendant Ferrell and others in CA 09-0588-CG-C.

Admittedly, in Plaintiff’s superseding Amended Complaint in the

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present action, he has failed to identify a claim against the sole

Defendant, Warden Ferrell. Plaintiff’s failure to articulate a

claim against Warden Ferrell is curious in that Plaintiff’s

original Complaint, which was not on the Court’s required form,

references Defendant Ferrell and makes specific allegations against

him. 

Plaintiff’s failure to identify a claim against Warden Ferrell

in his Amended Complaint might indicate his intent to seek to hold

Defendant Ferrell liable for the actions of his subordinates.

However, such a claim is not recognized in a § 1983 action. Monell

v. Dep’t of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036,

56 L.Ed.2d 611 (1978) (a defendant cannot be held liable on the

basis of respondeat superior or vicarious liability for a

constitutional violation that is caused by another). Section 1983

imposes liability only when one person causes injury to another.

Id. at 692, 98 S.Ct. at 2036.

In light of Plaintiff’s pro se status, and the Court’s limited

resources, the undersigned is unable to discern a reason for

developing the present action further, i.e., by attempting to

discern Plaintiff’s intent regarding Defendant Ferrell, because

Plaintiff has two other actions proceeding in this Court based on

the same alleged assault and as noted supra, Defendant Ferrell is

named as a Defendant in one of them, namely CA 09-0588-CG-C.

Accordingly, the present action should be dismissed because

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Plaintiff’s claim against Defendant Ferrell is duplicative of

another pending action. Dickerson v. Burnette, 2008 WL 4155272 at

*1 (S.D. Ga. Sept. 9, 2008) (observing the action was dismissed

because some claims were duplicative of those in another action and

other claims were unexhausted); cf. Mathis v. Hughes, 2008 WL

3891514, at *1 (M.D. Ala. Aug. 20, 2008) (finding the complaint

indistinguishable from other actions by plaintiff pending on the

docket and dismissed the complaint as malicious under 28 U.S.C. §

1915(e)(2)(B)(I)).

III. Conclusion.

For the reasons set forth above, it is recommended that this

action be dismissed as duplicative. This Report and Recommendation

should not be construed as a ruling on whether Plaintiff has stated

a claim against Defendant Ferrell. 

The instructions that follow the undersigned’s signature

contain important information regarding objections to the Report

and Recommendation of the Magistrate Judge.

DONE this 4th day of February, 2010.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

Case 1:09-cv-00466-CG-B Document 10 Filed 02/04/10 Page 6 of 8
4 Effective December 1, 2009, the time for filing written

objections was extended to “14 days after being served with a

copy of the recommended disposition[.]” FED.R.CIV.P. 72(b)(2).

7

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within fourteen days of the date of service

of this document, file specific written objections with the clerk

of court. Failure to do so will bar a de novo determination by

the district judge of anything in the recommendation and will bar

an attack, on appeal, of the factual findings of the magistrate

judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d

736, 738 (11th Cir. 1988). The procedure for challenging the

findings and recommendations of the magistrate judge is set out

in more detail in SD ALA LR 72.4 (June 1, 1997), which provides,

in part, that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing

a “Statement of Objection to Magistrate Judge’s

Recommendation” within ten days4

 after being served

with a copy of the recommendation, unless a different

time is established by order. The statement of

objection shall specify those portions of the

recommendation to which objection is made and the basis

for the objection. The objecting party shall submit to

the district judge, at the time of filing the

objection, a brief setting forth the party’s arguments

that the magistrate judge’s recommendation should be

reviewed de novo and a different disposition made. It

is insufficient to submit only a copy of the original

brief submitted to the magistrate judge, although a

copy of the original brief may be submitted or referred

to and incorporated into the brief in support of the

objection. Failure to submit a brief in support of the

objection may be deemed an abandonment of the

objection.

A magistrate judge’s recommendation cannot be appealed to a

Court of Appeals; only the district judge’s order or judgment can

be appealed.

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2. Opposing party’s response to the objection. Any opposing

party may submit a brief opposing the objection within fourteen

(14) days of being served with a copy of the statement of

objection. Fed. R. Civ. P. 72; SD ALA LR 72.4(b). 

3. Transcript (applicable where proceedings tape recorded). 

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the

magistrate judge finds that the tapes and original records in

this action are adequate for purposes of review. Any party

planning to object to this recommendation, but unable to pay the

fee for a transcript, is advised that a judicial determination

that transcription is necessary is required before the United

States will pay the cost of the transcript.

DONE this 4th day of February, 2010.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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