United States District Court, S.D. Ohio, Western Division, Dayton
H. Rice District Judge
REPORT AND RECOMMENDATION  THAT: (1)
PLAINTIFF'S COMPLAINT BE DISMISSED WITHOUT PREJUDICE; AND
(2) THIS CASE BE TERMINATED ON THE COURT'S
MICHAEL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
civil case is before the Court for a sua sponte
review of the complaint filed by pro se Plaintiff
Richard Lee Simkins, III pursuant to 28 U.S.C. §
1915(e)(2). Doc. 1-1. Plaintiff filed a motion for leave to
proceed in forma pauperis (“IFP”) (doc.
1), which the Court granted by separate order. The Court,
however, held service of the complaint pending a review under
§ 1915(e)(2). It is appropriate for the Court to conduct
this review sua sponte prior to issuance of process
“so as to spare prospective defendants the
inconvenience and expense of answering such
complaints.” Neitzke v. Williams, 490 U.S.
319, 324 (1989).
accordance with 28 U.S.C. § 1915(e)(2), this Court must
perform an initial review of the instant action. McGore
v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 1997).
Upon review, the Court must dismiss any case it determines is
“frivolous or malicious, ” fails to state a claim
upon which relief can be granted, or seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2)(B). Courts, including the Sixth Circuit,
have concluded that “[a] duplicative action is subject
to dismissal for frivolity or malice under §
1915(e)[.]” Hudson v. Hood, No. 17-1455, 2018
WL 5294849, at *1 (6th Cir. Aug. 28, 2018); see also
Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988).
This is so even where the defendants in a newly filed action
differ from those named in an earlier filed suit. See
English v. Runda, No. 88-6302, 1989 WL 51408, at *1 (6th
Cir. May 18, 1989); see also Bailey, 846 F.2d at
allegations set forth by Plaintiff in the complaint here are
largely the same allegations he asserts in a separately filed
civil action that remains pending before the Court. See
Simpkins v. Grandview Hosp., No. 3:18-CV-309, 2019 WL
3083349, at *1 (S.D. Ohio May 17, 2019), report and
recommendation adopted in part, rejected in part, No.
3:18-CV-309, 2019 WL 3369440 (S.D. Ohio July 26, 2019)
(hereinafter referred to as “the 2018 case”).
Although the complaint in this case names a number of
different Defendants than were named in the 2018 case, the
allegations asserted here arise from the same facts and
circumstances presented in that action. See id.;
see also doc. 1-1 at PageID 12-31. Because
Plaintiff's complaint here is duplicative of the 2018
case, and because the claims and parties against whom
Plaintiff seeks to assert claims here could potentially be
joined by the filing of an amended complaint in that case,
the undersigned concludes that, based on the foregoing
authority, this case should be dismissed without prejudice.
the undersigned RECOMMENDS that: (1) this
case be DISMISSED WITHOUT PREJUDICE; and (2)
this action be TERMINATED on the Court's
docket. The Clerk is ORDERED to mail a copy
of this Report and Recommendation to all named Defendants.
to Fed.R.Civ.P. 72(b), any party may serve and file specific,
written objections to the proposed findings and
recommendations within FOURTEEN days after
being served with this Report and Recommendation. This period
is not extended by virtue of Fed.R.Civ.P. 6(d) if served on
you by electronic means, such as via the Court's CM/ECF
filing system. If, however, this Report and Recommendation
was served upon you by mail, this deadline is extended to
SEVENTEEN DAYS by application of
Fed.R.Civ.P. 6(d). Parties may seek an extension of the
deadline to file objections by filing a motion for extension,
which the Court may grant upon a showing of good cause.
objections filed shall specify the portions of the Report and
Recommendation 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 of 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.
may respond to another party's objections within
FOURTEEN days after being served with a copy
thereof. As noted above, this period is not extended by
virtue of Fed.R.Civ.P. 6(d) if served on you by electronic
means, such as via the Court's CM/ECF filing system. If,
however, this Report and Recommendation was served upon you
by mail, this deadline is extended to SEVENTEEN
DAYS by application of Fed.R.Civ.P. 6(d).
to make objections in accordance with this procedure may
forfeit rights on appeal. See Thomas v. Arn, 474
U.S. 140, 153-55 (1985); United States v. Walters,
638 F.2d 947, 949-50 (6th Cir. 1981).
 Attached hereto is a NOTICE to the
parties regarding objections to this Report and