United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Bristow Marchant United States Magistrate Judge.
a civil action filed by the Plaintiff, Insun Kim, pro se, and
is before the Court for pre-service review. See28U.S.C.§
1915(e)(2)(B); In re Prison Litigation Reform Act,
105 F.3d 1131, 1134 (6th Cir.l997)[pleadings by non-prisoners
should also be screened]. Under established local procedure
in this judicial district, a careful review has been made of
the pro se complaint herein pursuant to the procedural
provisions of § 1915 and in light of the following
precedents: Denton v. Hernandez. 504 U.S. 25 (1992);
Neitzke v. Williams. 490 U.S. 319 (1989); Haines
v. Kerner. 404 U.S. 519 (1972); Nasim v. Warden.
Maryland House of Corr.. 64 F.3d 951 (4th Cir. 1995) (en
banc); and Todd v. Baskerville. 712 F.2d 70 (4th
1915 permits an indigent litigant to commence an action in
federal court without paying the administrative costs of
proceeding with the lawsuit. However, to protect against
possible abuses of this privilege, the statute allows a
district court to dismiss the case upon a finding that the
action "is frivolous or malicious, " "fails to
state a claim on which relief may be granted, " or
"seeks monetary relief against a defendant who is immune
from such relief." 28 U.S.C. § 1915(e)(2)(B). A
finding of frivolousness can be made where the complaint
"lacks an arguable basis either in law or in fact."
Denton v. Hernandez. 504 U.S. at 31. Hence, under
§ 1915(e)(2)(B), a claim based on a meritless legal
theory may be dismissed sua sponte. Neitzke v.
Williams. 490 U.S. 319. Further, while this court is
also required to liberally construe pro se documents, holding
them to a less stringent standard than those drafted by
attorneys, Erickson v. Pardus. 551 U.S. 89, 94
(2007)(quoting Estelle v. Gamble. 429 U.S. 97, 106
(1976)), the requirement of liberal construction does not
mean that the court can ignore a clear failure in the
pleading to allege facts which set forth a claim currently
cognizable in a federal court. Weller v. Dep't of
Soc. Servs.. 901 F.2d 387 (4th Cir. 1990). Such is the
action arises out of an automobile accident that occurred on
September 7, 2014, and the Defendant's purported improper
handling of Plaintiff s claim. Plaintiff previously brought
suit against Defendant Progressive Northern Insurance Company
(Progressive) in the Charleston County Court of Common Pleas,
which granted Progressive's motion to dismiss on July 14,
2016. Kim v. Progressive N. Ins. Co.. 2016-CP-l
00674 (S.C.C.P. July 14, 2016)(judgment filed the following
day). Records from the Court of Common Pleas for Charleston
County indicate that, in its motion to dismiss, Progressive
argued that Plaintiff failed to state facts sufficient to
constitute a cause of action against it as South Carolina law
prohibits third-parties from bringing a direct action against
an insurer for damages caused by the insured,  See Charleston
County Public Index,
?County= 10&CourtAgency= 1
0002&Casenum=2016CP1000674&CaseType=V (last visited
Feb. 6, 2017).
15, 2016 (the day after the judgment was filed in the state
court case), Plaintiff filed a lawsuit in this court,
alleging that Progressive failed to pay damages resulting
from the automobile accident on September 7, 2014. Plaintiff
claimed she suffered personal injuries based on the actions
of another driver insured by Progressive, and that
Progressive refused to settle her claims against the company.
On September 23, 2016, the Honorable Richard M, Gergel,
United Stated District Judge, dismissed that action with
prejudice, finding that the action was precluded by the
doctrine of res judicata. See Kim v. Progressive N. Ins.
Co.. No. 2:16-2561-RMG, 2016 WL 5346938 (D.S.C. Sept.
present action, Plaintiff again alleges that Progressive
acted in bad faith as to her claims against the company
concerning the September 7, 2014 automobile accident. In the
"Statement of Claim" portion of her Complaint form,
It is ongoing since the date September the 7th 2014, [t]he
Plaintiff is in pain of teeth ache, entire headache[, ]
backache. However, the defendant knowingly disregard[ed]
the Plaintiffs right to claim for bodily injury totally. The
defendant forget to do the duty of rele[a]se the payment to
the Plaintiff purposley [sic].
ECF No. 1 at 5. In the "Relief section of her Complaint,
Plaintiff is in pain of teeth ache headache entire, back pain
and all body part even now. The Defendant acted on bad
faith pure evil, tyger river. The total amount for pu[i]tive
money damages is 22 million 100 thousand dollars.
1 at 5. Along with her Complaint, Plaintiff submitted
information concerning the September 7, 2014 automobile
accident; correspondence between Plaintiff and Progressive,
correspondence from the Charleston County Clerk of Court
concerning Plaintiffs previous case (2016CP1000674) filed in
state court, and information concerning Plaintiffs previous
case (2:16- 2561-RMG) filed in this court. ECF No. 1-1.
Complaint filed in this case is subject to summary dismissal
without service of process because Plaintiff is attempting to
litigate in this action the same claims she asserted against
the same defendant (Progressive) as she previously asserted
in her lawsuit filed in the state court and in her lawsuit
filed in this court. "Under the doctrine of res
judicata, a judgment on the merits in a prior suit bars a
second suit involving the same parties or their privies based
on the same cause of action." Parklane Hosiery Co.,
Inc. v. Shore. 439 U.S. 322, 327 n. 5 (1979).
"There are three elements necessary to apply the
doctrine of res judicata: (1) a judgment on the merits in a
prior suit resolving (2) claims by the same parties or their
privies, and (3) a subsequent suit based on the same cause of
action." Coyne & Delany Co. v. Selman. 98
F.3d 1457, 1473 (4th Cir.1996) (internal citations omitted).
The three criteria for application of res judicata are
satisfied in this case. First, a final judgment has been
entered against Plaintiff on the merits in both her state
court case and the prior case she filed in this court.
Second, the factual allegations contained in the present
complaint are essentially the same as in the prior state
court case and in her prior case in this court, as Plaintiff
is again trying to sue Progressive, the insurer of the driver
of the other automobile involved in the September 7, 2014
automobile accident, in an attempt to recover money for her
alleged injuries from that accident. Plaintiff also again
alleges that Progressive acted in bad faith in not paying her
monetary damages. Third, Plaintiff is attempting to sue the
same party (Progressive) as before. As such, Plaintiffs
claims have been fully adjudicated and may not be
re-litigated, nor may Plaintiff "appeal" the
results of a federal district court decision by filing
another federal case in an attempt to obtain "another
bite of the apple." Aloe Creme Laboratories, Inc. v.
Francine Co.. 425 F.2d 1295, 1296 (5th Cir. 1970).
["The District Court clearly had the right to take
notice of its own files and records and it had no duty to
grind the same corn a second time. Once was
Plaintiffs present law suit should be summarily dismissed as
frivolous. See Brown v. South Carolina. Case No.
3:13-2983-MBS-PJG, 2014 WL 4826152, *2 (D.S.C. Sept. 24,
2014) [determining that because pro se litigant had filed
another case reasserting the same claims against the same
parties as in a prior case, "all three elements of res
judicata have been met, subjecting Plaintiffs action to
summary dismissal as frivolous"], aff'd.
589 F.App'x 190 (4th Cir. 2015); Cottle v. Bell.
No. 00-6367, 2000 WL 1144623, *1 (4th Cir. Aug. 14, 2000)
["[D]istrict courts are not required to entertain
duplicative or redundant lawsuits."]; see also
MacKinnon v. City of N.Y., 580 F.App'x 44 (2d Cir.
2014) ["[w]e have regularly upheld a district
court's authority to dismiss sua sponte a pro se
complaint on res judicata grounds"], cert
denied. 135 S.Ct. 2316 (2015); Paul v. de
Holczer. Case No.3:15-2178-CMC-PJG, 2015 WL 4545974,, *6
(D.S.C. July 28, 2015)[holding that "repetitious
litigation of virtually identical causes of action" may
be dismissed as frivolous], aff'd, 631 F.App'x 197
(4th Cir. Feb. 4, 20 3 6); Southern I foldings. Inc. v.
Horry Cty., South Carolina. Case No. 4:02-1859-RBII,
2014 WL 11071017, *6 (D.S.C. June 11, 2014) ["the many
previous grounds argued and ruled on in previous orders and
upheld on appeal lack merit and are simply
if Plaintiff is somehow attempting to remove her state court
case to this court, she may not do so by filing a complaint
here. "A complaint is not the appropriate vehicle for
removing a case from state court to federal court."
Barnard v. Plastics Reclaim Co.. No.
8:08-714-1IMH-BHH, 2008 WL 2076686, at *3 (D.S.C. May 9,
2008). Further, a state court ...