McClendon, Juyrone v. DuPage County Jail , 227 F. App'x 510 ( 2007 )

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                      NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 28, 2007*
Decided July 5, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 06-1429
JUYRONE MCCLENDON,                           Appeal from the United States District
Plaintiff-Appellant,                     Court for the Northern District of Illinois,
Eastern Division.
v.
No. 06 C 0206
DUPAGE COUNTY JAIL, et al.,
Defendants-Appellees.                    George W. Lindberg,
Judge.
ORDER
Juyrone McClendon alleges that police officers in DuPage County, Illinois,
twice arrested him without cause, first in May 2003 and again in September 2004.
At the time of both incidents, McClendon was facing drunk-driving charges in the
Circuit Court of DuPage County. According to McClendon, the first arrest, by police
*
The defendants were not served with process in the district court and are
not participating in this appeal. After an examination of the appellant's brief and
the record, we have concluded that oral argument is unnecessary. Thus, the appeal
is submitted on the appellant's brief and the record. See Fed. R.App. P. 34(a)(2).
No. 06-1429                                                                      Page 2
in Downers Grove, was prompted by a warrant issued on the mistaken belief that
he missed a court appearance. McClendon was held overnight in the county jail and
released the next day after the mistake was discovered. The second arrest, by
police in Bolingbrook, apparently occurred because another, valid arrest warrant for
failure to appear was not cancelled a month earlier after the warrant was executed
and McClendon was released on bond. This time he spent the weekend in the
county jail before the error came to light.
This appeal arises from the second of two suits McClendon has brought under

42 U.S.C. § 1983

 based on these facts. In December 2004 he filed a complaint
naming as defendants the DuPage county jail, the state’s attorney and the public
defender’s office for the county, and the clerk of the circuit court. In that case Judge
Der-Yeghiayan denied McClendon leave to proceed in forma pauperis and then
dismissed the complaint in December 2005 when McClendon did not pay the filing
fee. The court concluded that McClendon was not indigent and that his claims did
“not appear to be meritorious.” McClendon did not appeal this dismissal; instead,
in January 2006 he filed another complaint raising the identical claims and naming
the same purported defendants along with the county probation office. Once again
McClendon sought leave to proceed in forma pauperis using an application that was
substantially the same as the one he filed with Judge Der-Yeghiayan. Judge
Lindberg—unaware of the prior suit and application because McClendon failed to
disclose them—screened the complaint under

28 U.S.C. § 1915

(e)(2), denied leave to
proceed in forma pauperis, and dismissed the action. The court reasoned that the
statute of limitations had run as to any claim arising from the arrest in May 2003,
and that McClendon’s allegations about the September 2004 arrest failed to state a
claim.
McClendon appeals the second dismissal. In his appellate brief he finally has
disclosed the earlier suit; McClendon apparently argues that his present claim
about the May 2003 arrest is not time-barred because that same claim was brought
within the statute of limitations in his first lawsuit. But McClendon
misunderstands the effect of his prior complaint. A litigant whose case was
dismissed under § 1915(e)(2)(B)(ii) is not precluded from filing a paid complaint that
makes the same allegations. If, however, a litigant files a second complaint
identical to the one already deemed frivolous, again seeking to proceed in forma
pauperis and without showing a change in financial circumstances, the repeated
attempt is precluded. See Hudson v. Hedge,

27 F.3d 274

, 276 (7th Cir. 1994)
(“Hudson did not pay the docket fee to commence his second case; instead he sought
once again to proceed in forma pauperis, and that request is barred by any
standard.”); see also Denton v. Hernandez,

504 U.S. 25

, 34 (1992); Flowers v.
Columbia Coll. Chi.,

397 F.3d 532

, 535 (7th Cir. 2005); Gladney v. Pendleton Corr.
Facility,

302 F.3d 773

, 775 (7th Cir. 2002). Thus, the district court was right to
deny McClendon permission to proceed in forma pauperis. We need not review
No. 06-1429                                                                  Page 3
Judge Lindberg’s analysis of the merits of McClendon’s suit; McClendon’s attempt
to pursue the same complaint without paying the filing fee per Judge Der-
Yeghiayan’s instructions or informing Judge Lindberg about those instructions is
reason enough to affirm the court’s decision. See Campbell v. Clarke,

481 F.3d 967