   Case: 08-10997       Document: 00511170695          Page: 1    Date Filed: 07/13/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            July 13, 2010
                                       No. 08-10997
                                                                            Lyle W. Cayce
                                                                                 Clerk



STEPHEN ALLARD,

                                                   Plaintiff-Appellant
versus

QUINLAN PEST CONTROL COMPANY, INC.,

                                                   Defendant-Appellee.




                    Appeal from the United States District Court
                         for the Northern District of Texas
                                  No. 3:05-CV-584




Before DAVIS, SMITH and HAYNES, Circuit Judges.
PER CURIAM:*


       The district court dismissed Stephen Allard’s in forma pauperis suit as
malicious. We reverse and remand.




       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                       No. 08-10997

                                               I.
       There is a complicated procedural history involving two lawsuits. Allard
was incarcerated at the Hunt County Jail (“HCJ”) from July 2000 until October
2001. In August 2002, he brought a lawsuit (“the 2002 lawsuit”) in forma pau-
peris (“IFP”) against Curtis Neal, an HCJ jailer, and Don Anderson, the sheriff
of Greenville, Texas, alleging injuries from unsanitary and unsafe conditions at
the jail. Among his complaints, Allard alleged that exterminators sprayed pesti-
cides on the floor where he and other prisoners slept.
       Allard claims he was diagnosed with a thyroid condition in March 2003.
In the 2002 lawsuit and the present action, he attributed that injury to pesticide
exposure.1
       The district court dismissed the 2002 lawsuit for failure to exhaust admin-
istrative remedies. We reversed in part, holding that Allard could continue to
seek relief for injuries discovered after his transfer from HCJ, including the
thyroid condition. Allard v. Anderson (“Allard I”), 260 F. App’x 711 (5th Cir.
2007), cert. denied, 129 S. Ct. 128 (2008).
       In February 2005, Allard moved to amend his pleadings in the 2002 law-
suit to “conform to new evidence.” By that time, however, the case was pending
on appeal, so the district court lacked jurisdiction. Id. at 716 (citing Griggs v.
Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam); Sierra
Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 578 (5th Cir.
1996)). Allard’s motion, moreover, did not identify new evidence or new parties
to the suit; rather, it reiterated his allegations about the conditions at HCJ. The
district court denied the motion as both untimely and frivolous and directed the
clerk not to accept future filings from Allard without leave of court.


       1
         The first mention of the alleged thyroid injury appears to have come in Allard’s appel-
late brief in the 2002 lawsuit. We recognized the allegation as part of his complaint on that
appeal. See Allard v. Anderson (“Allard I”), 260 F. App’x 711, 712 (5th Cir. 2007).

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                                      No. 08-10997

      On March 24, 2005, Allard filed a second suit (“the 2005 lawsuit”)SSthe in-
stant actionSSnaming the same two defendants as in the 2002 lawsuit, Neal and
Anderson, and Michael Vice and Randy White, two other HCJ jailers, and Quin-
lan Pest Control Company, Inc. (“Quinlan”),2 the company that had sprayed pes-
ticides at the jail. All the defendants in the 2005 lawsuit except for Quinlan
were voluntarily dismissed.
      The district court dismissed the 2005 lawsuit, just as it had done with the
2002 lawsuit, for failure to exhaust administrative remedies. No process was
served on the defendants. Allard appealed, and for a time both lawsuits were
pending before this court. After we reversed in part and affirmed in part the
2002 lawsuit, Allard I, 260 F. App’x 711, Allard petitioned for certiorari with re-
spect to the portions of our decision affirming the district court. The district
court administratively closed the case pending the Supreme Court’s review of the
petition.3
      While the 2002 lawsuit was pending before the Supreme Court, we re-
versed in part the dismissal of the 2005 lawsuit. Allard v. Quinlon Pest Control
Co. (“Allard II”), 283 F. App’x 308 (5th Cir. 2008). On remand, the district court
again dismissed the 2005 lawsuit sua sponte, finding it duplicative and therefore
malicious under the IFP screening provisions at 28 U.S.C. § 1915(e)(2)(B)(i). Al-
lard appeals that dismissal. Quinlan still has not been served with process.


                                            II.
      We review a dismissal under § 1915(e)(2)(B)(i) for abuse of discretion.
Brewster v. Dretke, 587 F.3d 764, 767 (5th Cir. 2009), cert. denied, 78 U.S.L.W.
3701 (U.S. June 1, 2010). Under § 1915(e)(2)(B)(i), the court may screen and dis-

      2
          The original complaint misspelled the company’s name as “Quinlon.”
      3
        The Supreme Court eventually denied certiorari. On remand, the district court or-
dered the parties to mediation, and the case was settled.

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miss sua sponte any IFP suit that it deems “frivolous or malicious.” An action
is malicious for purposes of § 1915(e)(2)(B)(i) if it duplicates the allegations of an-
other pending federal lawsuit by the same plaintiff. Pittman v. Moore, 980 F.2d
994, 995 (5th Cir. 1993).
      Allard claims that he filed this second suit to preserve a claim against
Quinlan within Texas’s two-year limitations period. See T EX. C IV. P RAC. & R EM.
C ODE A NN. § 16.003 (2002). He argues that because the district court lacked jur-
isdiction to add Quinlan as a party in the days leading up to the limitations
deadline, he was forced to bring a newSSadmittedly duplicativeSSsuit to preserve
a claim against the company. Given his procedural quandary, Allard contends,
the district court should not have dismissed the 2005 lawsuit as malicious.
      The district court relied on Bailey v. Johnson, 846 F.2d 1019 (5th Cir.
1988), in which we held it was not an abuse of discretion to dismiss a duplicative
IFP claim against a prison doctor who was not named in an earlier lawsuit
against prison officials and medical staff. In Bailey, however, the previous suit
against prison officials had been dismissed following a Spears hearing in which
the district court concluded that the medical care Bailey received was adequate.
Specifically naming one of the doctors who had provided the care already found
to be adequate, then, added nothing, and the second case was duplicative. Here,
by contrast, the 2002 lawsuit was voluntarily dismissed following a settlement
agreement, and there has been no finding as to whether Quinlan injured Allard
by unlawfully spraying pesticides. Thus, the second case against Quinlan is not
maliciously duplicative of the first case against the HCJ defendants.
      In Pittman, 980 F.2d at 995, we held that a duplicative IFP suit should be
dismissed as malicious to “insure that the plaintiff obtains one bite at the litiga-
tion appleSSbut not more.” Because of the peculiar procedural circumstances in
the 2002 lawsuit, Allard was not given a full bite at the apple with respect to
Quinlan. Under the unique facts of this case, it was an abuse of discretion to de-

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                                        No. 08-10997

ny him that opportunity.
       We do not imply that the claim is likely to succeed.4 The district court may
decide to dismiss it as frivolous or malicious or to dispose of it on the merits after
Quinlan is served with process.
       REVERSED and REMANDED.




       4
         Indeed, we imagine that on remand the district court may want to examine some po-
tentially fatal flaws in Allard’s suit. To begin, Allard appears to be proceeding against Quin-
lan under 42 U.S.C. § 1983 without any explanation of how the company was a state actor
when it sprayed the jail cells at HCJ.

        Moreover, Allard may not have satisfied the two-year statute of limitations. He dates
the accrual of his claim against Quinlan from March 25, 2003, when he claims to have been
diagnosed with a thyroid condition. That would mean the statute of limitations ran on March
25, 2005. (In his brief, Allard incorrectly identifies his filing date as March 30, 2005, and the
statute of limitations deadline as “April 2005.” But the record shows that his second suit was
filed on March 24, 2005.)

       The only evidence proffered, however, to support that time line is an ambiguous prison
medical record. Allard highlights a note on that record, which appears to read, “Init. thyroid
ITP sched 3/25/03.” That note, he claims, is proof that he was diagnosed with a thyroid condi-
tion on March 25, 2003. But on the same medical record, another entry dated “3-4-03” ap-
pears to contain precisely the same language about “ITP” and “thyroid.”

                                               5
