Cain v. Osborne et al

Filing 8

ORDER that this action is DISMISSED WITHOUT PREJUDICE. Signed by Chief Judge Martin Reidinger on 2/7/2024. (Pro se litigant served by US Mail.) (slm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL CASE NO. 5:23-cv-00177-MR

ACQUILLA BOOZE CAIN, JR.,

)
)
Plaintiff,
)
)
vs.
)
)
M. OSBORNE, et al.,
)
)
Defendants.
)
_______________________________ )

ORDER

THIS MATTER is before the Court on initial review of the pro se
Complaint. [Doc. 1]. The Plaintiff is proceeding in forma pauperis. [Doc. 7].
I.

BACKGROUND
The pro se Plaintiff, a pretrial detainee at the Iredell County Detention

Center (ICDC), filed the instant action pursuant to 42 U.S.C. § 1983
addressing an incident that allegedly occurred at the ICDC on April 11, 2023.
[Doc. 1]. He names as Defendants M. Osborne, a shift lieutenant, and FNU
Sidburry, a detention officer. He asserts claims under the Fourth and
Fourteenth Amendments, and for “assault” for an incident when Defendant
Osborne allegedly slammed the Plaintiff to the floor of a medical exam room
while the Plaintiff was handcuffed, resulting in injuries. He seeks damages.

Before the Plaintiff initiated the instant action, he filed another § 1983
action in this Court, Civil Case No. 5:23-cv-117-KDB, in which he names the
same Defendants, asserts the same claims, and seeks the same relief.
II.

STANDARD OF REVIEW
Because the Plaintiff is proceeding in forma pauperis, the Court must

review the Complaint to determine whether it is subject to dismissal on the
grounds that it is “frivolous or malicious [or] fails to state a claim on which
relief may be granted.” 28 U.S.C. § 1915(e)(2). Furthermore, under § 1915A
the Court must conduct an initial review and identify and dismiss the
complaint, or any portion of the complaint, if it is frivolous, malicious, or fails
to state a claim upon which relief may be granted; or seeks monetary relief
from a defendant who is immune to such relief. 28 U.S.C. § 1915A.
In its frivolity review, this Court must determine whether the Complaint
raises an indisputably meritless legal theory or is founded upon clearly
baseless factual contentions, such as fantastic or delusional scenarios.
Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). Furthermore, a pro se
complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520
(1972).

However, the liberal construction requirement will not permit a

district court to ignore a clear failure to allege facts in his Complaint which

2

set forth a claim that is cognizable under federal law. Weller v. Dep’t of Soc.
Servs., 901 F.2d 387 (4th Cir. 1990).
III.

DISCUSSION
This action is so overlapping and duplicative of Civil Case No. 5:23-cv-

117-KDB that the Court cannot allow the two actions to proceed
simultaneously. Because the Plaintiff filed the proceedings in the other case
first, the Court will dismiss the instant action without prejudice.
The Plaintiff is directed to carefully review the Order of
Instructions [Doc. 3] before filing any further documents with the Court.
He is further cautioned that the repeated filing of frivolous or
duplicative actions may result in the imposition of sanctions and/or a
prefiling injunction that would limit the Plaintiff’s ability to file further
lawsuits in this Court.
IV.

CONCLUSION
In sum, this action is duplicative of Civil Case No. 5:23-cv-117-KDB.

As such, the instant action will be dismissed without prejudice.
ORDER
IT IS, THEREFORE, ORDERED that this action is DISMISSED
WITHOUT PREJUDICE.

3

IT IS SO ORDERED.

Signed: February 7, 2024

4