     Case: 12-30450       Document: 00512119052         Page: 1     Date Filed: 01/21/2013




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

                                                                            FILED
                                                                         January 21, 2013
                                       No. 12-30450
                                                                           Lyle W. Cayce
                                                                                Clerk
FREDDIE R. LEWIS,

                                    Plaintiff - Appellant,
v.

SECRETARY OF PUBLIC SAFETY AND CORRECTIONS; JACK GARNER;
KEITH; GEORGE STEVENS; MRS. MILLIE; SAWYER; JOHNSON; CLARK;
MAC; VIRGIL LEWIS,

                                    Defendants - Appellees.



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:11-CV-1844


Before HIGGINBOTHAM, SMITH, and ELROD, Circuit Judges.
PER CURIAM:*
       Freddie R. Lewis, a state prisoner proceeding pro se and in forma pauperis,
appeals the dismissal of his civil rights case. The district court concluded that
the complaint duplicated the allegations of another case currently pending
before the same district court. On this basis, the district court dismissed the
instant case as malicious. We AFFIRM.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-30450

                                             I.
       Lewis is an inmate of the Winn Correctional Center (“WCC”) in Louisiana.
In October 2009, Lewis was assigned to work at the Prison Enterprises Garment
Factory (“Garment Factory”). Upon his entry to, and exit from, the Garment
Factory each day, he was allegedly subjected to strip and body cavity searches.
In February 2010, Lewis brought a civil rights case in the United States District
Court for the Western District of Louisiana against the Secretary of Public
Safety and Corrections, the owner of the Corrections Corporation of America
(“CCA”), the WCC warden and assistant warden, and six CCA security officers.
The complaint, filed under 42 U.S.C. § 1983 and designated case number 1:10-
CV-291, alleged that the named defendants were subjecting Lewis to
unconstitutional strip and body cavity searches. Lewis sought injunctive relief
from continued strip and body cavity searches, punitive damages, and
compensatory damages for each of the 100 and “counting” allegedly
unconstitutional searches.
       In May 2010, Lewis was transferred out of his job at the Garment Factory
and was assigned to the Winn Educational Department. During his time
working in the Educational Department, Lewis was not subjected to strip or
body cavity searches. In September 2011, however, Lewis was reassigned to the
Garment Factory. Following this reassignment, Lewis alleges that he was again
subjected to strip and body cavity searches upon his entry to, and exit from, the
Garment Factory.
       In October 2011, Lewis filed the instant lawsuit, designated case number
1:11-CV-1844, against the Secretary of Public Safety and Corrections, the owner
of CCA, the WCC warden and assistant warden, and six CCA security officers.1


       1
        Timothy Keith and George Stevens were the WCC warden and assistant warden when
Lewis filed the instant complaint. At the time the earlier case was filed, Timothy Wilkinson
and Jay Tim Morgan were the WCC warden and assistant warden. Although five of the CCA
security officers named as defendants in the earlier case were also named as defendants in

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                                      No. 12-30450

In this complaint—the one before us now—Lewis alleged that, beginning in
September 2011, the named defendants were subjecting him to unconstitutional
strip and body cavity searches. The vast majority of the sixteen-page complaint
contained identical language, in identical order, as Lewis’s prior complaint. The
instant complaint, however, named the current WCC warden and assistant
warden and a new security officer as defendants, and complained only of the
searches occurring after Lewis’s reassignment to the Garment Factory in
September 2011. Lewis, once again, sought injunctive relief from continued strip
and body cavity searches, punitive damages, and compensatory damages for
each of the twenty and “counting” allegedly unconstitutional searches.
       The magistrate judge recommended that the district court dismiss this
case as malicious because it was duplicative of Lewis’s prior lawsuit, which was
then pending in the same district court.              Lewis filed an objection to the
magistrate judge’s recommendation, arguing that his instant case was not
duplicative because: (1) the break in his assignments to the Garment Factory
created two separate causes of action; (2) only six, instead of twelve, inmates are
now subjected to strip and body cavity searches at the same time in a single
room; and (3) the inmates are no longer required to remove their clothes
completely, but instead are only required to lower their clothes to their knees.
The district court conducted a de novo review and, adopting the magistrate
judge’s reasoning, dismissed this case with prejudice as malicious pursuant to
28 U.S.C. § 1915(e)(2)(B)(i). This appeal followed.
                                             II.
       Section 1915(e)(2) provides that “the court shall dismiss the case at any
time if the court determines that . . . the action or appeal . . . is frivolous or
malicious.” 28 U.S.C. § 1915(e)(2)(B)(i). A case may be dismissed as malicious



this case, Mr. Clark replaced Sgt. Flowers as a defendant in this case.

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                                       No. 12-30450

if it duplicates claims that the same plaintiff has raised in previous or pending
litigation. Pittman v. Moore, 980 F.2d 994, 994–95 (5th Cir. 1993); Wilson v.
Lynaugh, 878 F.2d 846, 850 (5th Cir. 1989). A case is duplicative if it involves
“the same series of events” and allegations of “many of the same facts as an
earlier suit.” Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988). We review
a dismissal under § 1915(e)(2)(B)(i) for abuse of discretion. Ruiz v. United
States, 160 F.3d 273, 275 (5th Cir. 1998); see also Bailey, 846 F.2d at 1021 (“[A]
district court is ‘vested with especially broad discretion’ in determining whether
. . . a dismissal [under § 1915(e)(2)(B)(i)] is warranted.” (quoting Green v.
McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986)).
       Upon our review of Lewis’s complaint, we conclude that, although there
was a break in Lewis’s service in the Garment Factory and there are minor
factual distinctions in the searches following his reassignment, the district court
did not abuse its discretion by dismissing Lewis’s case. Importantly, Lewis’s
instant case, and the earlier case that remains pending before the same district
court, are both based on the same conduct by the defendants2—subjecting Lewis
to strip and body cavity searches during his assignments to the Garment
Factory.     Unquestionably, the additional searches occurring after Lewis’s
reassignment to the Garment Factory form a convenient trial unit with the
earlier case, which involves virtually identical material facts and issues.
       Moreover, Lewis’s earlier complaint explicitly requested compensatory
damages for each allegedly unconstitutional search beginning in October 2009
and continuing until such time as the defendants ceased to conduct the searches.
Because Lewis now alleges that the defendants have not ceased conducting the


       2
         That the instant complaint names three different defendants does not change the
result. See Bailey, 846 F.2d at 1021 (affirming dismissal of a case as duplicative, even though
the plaintiff sued different defendants). Lewis may seek to amend his complaint in the first
lawsuit, under Rule 15(a)(2) of the Federal Rules of Civil Procedure, to name the three new
defendants.

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                                   No. 12-30450

strip and body cavity searches, Lewis would be able to recover for these ongoing
searches in his earlier filed case, if he is ultimately successful.
      Although we conclude that the district court did not abuse its discretion
in finding that Lewis’s complaint was duplicative, the dismissal should have
been without prejudice. We have held that “when a successive in forma pauperis
suit is duplicative, the court should insure that the plaintiff obtains ‘one bite at
the litigation apple—but not more.’” Chambers v. Stalder, 999 F.2d 1580 (5th
Cir. 1993) (quoting Pittman, 980 F.2d at 995). Therefore, Lewis’s duplicative
claim should be dismissed without prejudice to Lewis’s prosecution of his claims
in the other currently pending case.
                                        III.
       For the reasons above, the judgment is hereby MODIFIED so that the
dismissal is without prejudice to Lewis’s prosecution of case number 1:10-CV-
291, and the judgment as so modified is AFFIRMED.




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