Ronald McClary v. Joseph Lightsey


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:16-ct-03052-BO Copies to all parties and the district court. [1000008060]. Mailed to: Ronald McClary. [16-7332]

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Appeal: 16-7332 Doc: 11 Filed: 01/23/2017 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-7332 RONALD MCCLARY, Plaintiff - Appellant, v. JOSEPH LIGHTSEY, Defendant – Appellee. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:16-ct-03052-BO) Submitted: January 17, 2017 Before GREGORY, Judges. Chief Judge, Decided: and MOTZ and January 23, 2017 TRAXLER, Circuit Vacated and remanded by unpublished per curiam opinion. Ronald McClary, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-7332 Doc: 11 Filed: 01/23/2017 Pg: 2 of 3 PER CURIAM: Ronald judgment McClary dismissing appeals his a civil district rights court’s complaint order as and frivolous, pursuant to 28 U.S.C. § 1915(e) (2012), for being duplicative of a pending action. For the reasons set forth below, we vacate the court’s order and remand for further proceedings. In quick succession, McClary filed three lawsuits against medical personnel at the Polk Correctional Institution. On December 16, 2014, the district court consolidated the three lawsuits. On February 8, 2016, the district court dismissed McClary’s first lawsuit without prejudice, McClary v. Lightsey, No. 5:14-ct-03039-FL, because administrative remedies. he failed to exhaust his The remaining two lawsuits are still active. On February 22, 2016, McClary filed the instant complaint in which he stated that he was “refiling” his complaint in No. 5:14-ct-03039-FL remedies. dismissed because (Electronic the complaint he exhausted Record at with 7). prejudice, his The administrative district finding court that the complaint was duplicative of one of the pending consolidated complaints. The court noted that the dismissal counted as a strike under 28 U.S.C. § 1915 (2012). A district court shall dismiss an action at any time if it determines that the action is frivolous or malicious. 2 See 28 Appeal: 16-7332 Doc: 11 U.S.C. § Filed: 01/23/2017 1915(e)(2)(B). Pg: 3 of 3 Because district courts are not required to entertain duplicative or redundant lawsuits, they may dismiss § 1915(e). 1992) them a frivolous or malicious pursuant to See Aziz v. Burrows, 976 F.2d 1158, 1158 (8th Cir. (finding allowed as that § district 1915(d), court to the precursor dismiss a to § complaint 1915(e), that was duplicative of another pending action brought by same party). Generally, lawsuits are duplicative if the parties, issues, and available relief are not different from each other. See Georgia v. McCarthy, 833 F.3d 1317, 1321 (11th Cir. 2016). Here, the district court mistakenly found that McClary’s complaint was duplicative of a pending action. The court’s confusion is excusable, given that McClary has filed a number of lawsuits with overlapping and related claims. was attempting exhausted order. his to refile a complaint administrative remedies, to we show that vacate the he had court’s We take no position on the merits of McClary’s claims. Accordingly, we vacate the district court’s judgment and remand for further proceedings. oral Because McClary argument adequately because presented in the the facts and materials legal before order and We dispense with contentions this court are and argument would not aid the decisional process. VACATED AND REMANDED 3

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