Opinion
1:21CV409
08-10-2021
DERRICK ALLEN, Plaintiff, v. DURHAM COUNTY MAGISTRATE OFFICE, et al., Defendants.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
L. Patrick Auld United States Magistrate Judge.
Plaintiff, a former pretrial detainee of the State of North Carolina, submitted a civil rights action pursuant to 42 U.S.C. § 1983 together with an application to proceed in forma pauperis. The form of the Complaint is such that a serious flaw makes it impossible to further process the Complaint. The problem is:
1. Pursuant to the Prison Litigation Reform Act, Plaintiff may no longer proceed in forma pauperis in this Court unless he is under imminent danger of serious physical injury. The Act provides that:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.28 U.S.C. § 1915(g). In this Court alone, Plaintiff has had over three cases dismissed on the grounds that they were frivolous and or failed to state a claim. See Allen v. Director of Election, No. 1:20CV1081 (M.D. N.C. May 3, 2021) (unpublished); Allen v. Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, No. 1:20CV1173, (M.D. N.C. Apr. 26, 2021) (unpublished); Allen v. Correct Care Solution(s), No. 1:21CV146 (M.D. N.C. Mar. 12, 2021) (unpublished); Allen v. Birkhead, No. 1:21CV7 (M.D. N.C. Mar. 12, 2021) (unpublished), aff'd, 851 Fed.Appx. 423 (4th Cir. 2021); Allen v. Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, No. 1:20CV978, 2020 WL 7220657 (M.D. N.C. Nov. 20, 2020) (unpublished), aff'd, 845 Fed.Appx. 287 (4th Cir. 2021). The Complaint contains no allegations even suggesting any imminent danger.
Consequently, the Complaint should be dismissed, but without prejudice to Plaintiff filing a new complaint, on the proper § 1983 forms, which is accompanied by the applicable $402.00 filing fee. If Plaintiff is prepared to pay the fee, he should request the proper forms from the Clerk of Court and use them to file his Complaint.
In forma pauperis status is granted for the sole purpose of entering this Order and Recommendation.
IT IS THEREFORE ORDERED that in forma pauperis status is granted for the sole purpose of entering this Order and Recommendation.
IT IS RECOMMENDED that this action be filed and dismissed sua sponte without prejudice to Plaintiff filing a new action, on the proper forms, which corrects the defects cited above and is accompanied by the applicable $402.00 filing fee.