United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. Litkovitz United States Magistrate Judge.
an inmate in custody at the Warren Correctional Institution,
has filed a motion for leave to proceed in forma
pauperis, in connection with a pro se petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
(Doc. 1). In the petition, petitioner challenges his August
2013 state court conviction in case number B-1302369 in the
Hamilton County Court of Common Pleas. (See Doc. 1,
Petition at PageID 13).
October 20, 2017, prior to filing the instant petition,
petitioner filed a motion for leave to proceed in forma
pauperis in connection with a separate, identical habeas
petition challenging his Hamilton County conviction. See
Bronson v. Warden, No. 1:17-cv-701 (S.D. Ohio Oct. 20,
2017) (Black, J.; Bowman, M.J.) (Doc. 1).
Supreme Court has recognized that "considerations of
'[w]ise judicial administration, giving regard to
conservation of judicial resources and comprehensive
disposition of litigation, '" have given rise to the
"general principle" that duplicative litigation in
the federal court system is to be avoided. Colorado River
Water Conservation Dist. v. United States, 424 U.S. 800,
817 (1976). A district court, therefore, has the inherent
power to dismiss an action when it is duplicative of another
action pending in the federal court. See Green v.
Quarterman, No. Civ. A. H-08-553, 2008 WL 2489840, at *2
(S.D. Tex. June 18, 2008) (citing Remington Rand
Corp.-Delaware v. Bus. Sys. Inc., 830 F.2d 1274, 1275-76
(3rd Cir. 1987)) (and Supreme Court cases cited therein);
Chrysler Credit Corp. v. Marino, 63 F.3d 574, 578
(7th Cir. 1995) (quoting Serlin v. Arthur Andersen &
Co., 3 F.3d 221, 223 (7th Cir. 1993)) ("A federal
suit may be dismissed for 'reasons of wise judicial
administration . . . whenever it is duplicative of a parallel
action already pending in another federal court."').
case, because the two habeas petitions filed by petitioner
are identical, the instant later-filed petition should be
dismissed as duplicative of the petition now pending before
Judge Black. See, e.g., Davis v. United States Parole
Comm % No. 88-5905, 1989 WL 25837, at *1 (6th Cir. Mar.
7, 1989) (the dismissal of a later-filed habeas petition as
duplicative of a pending petition "was proper, " in
a case where the petitioner did "not dispute the
district court's finding that the .. . petition [was]
'essentially the same' as the earlier
petition"); see also Cummings v. Rapelje, No.
11-cv-10239, 2011 WL 346480, at *1 (E.D. Mich. Feb. 3, 2011)
(and cases cited therein) (in holding that a habeas petition
was subject to dismissal as duplicative of the
petitioner's "still pending first habeas petition,
because both cases seek the same relief, " the district
court stated that "[a] suit is duplicative, and thus
subject to dismissal, if the claims, parties, and available
relief do not significantly differ between the two
actions"); Ware v. Wolfenbarger, No. 2:07-cv-l
1006, 2007 WL 908004, at * 1-2 (E.D. Mich. Mar. 23, 2007)
(dismissing as duplicative a later-filed habeas petition,
which "challenge[d] the same conviction and raise[d] the
same claims and ma[de] the same arguments as the petition in
the case pending before" another district judge).
it is hereby RECOMMENDED that
petitioner's petition for a writ of habeas corpus (Doc.
1) be summarily DISMISSED without prejudice
to petitioner's prosecution of the duplicative habeas
petition which is currently pending before the Court in the
case entitled Bronson v. Warden, No. 1:17-cv-701
(S.D. Ohio Oct. 20, 2017) (Black, J.; Bowman, M.J.) (Doc. 1).
Cf. Pittman v. Moore, 980 F.2d 994, 995 (5th Cir.
1993) (modifying the judgment so that the dismissal was
without prejudice to the adjudication of the remaining
pending action); Green, supra, 2008 WL 2489840, at
*2 (the dismissal of the duplicative habeas petition was
IS THEREFORE RECOMMENDED THAT:
Petitioner's petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 be
DISMISSED without prejudice.
certificate of appealability should not issue with respect
any Order adopting this Report and Recommendation to dismiss
the instant habeas corpus petition on the procedural ground
of duplicativeness. Under the first prong of the applicable
two-part standard enunciated in Slack v. McDaniel,
529 U.S. 473, 484-85 (2000), "jurists of reason"
would not find it debatable whether this Court is correct in
its procedural ruling.
respect to any application by petitioner to proceed on appeal
in forma pauperis, the Court should certify pursuant
to 28 U.S.C. § 1915(a)(3) that an appeal of any Order
adopting this Report and Recommendation would not be taken in
"good faith, " and, therefore, should
DENY petitioner leave to appeal in forma
pauperis upon a showing of financial necessity.
See Fed. R. App. P. 24(a); Kincade v.
Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).
to Fed.R.Civ.P. 72(b), WITHIN 14 DAYS after
being served with a copy of the recommended disposition, a
party may serve and file specific written objections to the
proposed findings and recommendations. This period may be
extended further by the Court on timely motion for an
extension. Such objections shall specify the portions of the
Report objected to and shall be accompanied by a memorandum
of law in support of the objections. If the Report and
Recommendation is based in whole or in part upon matters
occurring on the record at an oral hearing, the objecting
party shall promptly arrange for the transcription of the
record, or such portions of it as all parties may agree upon,
or the Magistrate Judge deems sufficient, unless the assigned
District Judge otherwise directs. A party may respond to
another party's objections WITHIN 14