Opinion
1:23CV1061
12-13-2023
RICKY BANKS, Plaintiff, v. OPEN DOOR MINISTRIES, Defendants.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Joi Elizabeth Peake, United States Magistrate Judge.
Plaintiff, a prisoner of the State of North Carolina, submitted a letter alleging violations of his rights and requesting forms for filing lawsuits based on violations of his civil rights and the Americans with Disabilities Act (ADA). Given the nature of the allegations in the letter, the Court treated the filing as a civil rights action pursuant to 42 U.S.C. § 1983. So treated, the form of the Complaint is such that serious flaws make it impossible to further process the Complaint. The problems are:
1. The filing fee was not received nor was a proper affidavit to proceed in forma pauperis submitted, with sufficient information completed and signed by Plaintiff, to permit review.
2. The Complaint is not on forms prescribed for use by this Court, nor is the information requested by such forms and necessary to process the Complaint pursuant to 28 U.S.C. § 1915A contained in Plaintiff's submission. See LR 7.1(d).
Consequently, the Complaint should be dismissed, but without prejudice to Plaintiff filing a new complaint, on the proper forms, which corrects the defects of the present Complaint. To further aid Plaintiff, the Clerk is instructed to send Plaintiff new § 1983 forms, instructions, an application to proceed in forma pauperis, and a copy of pertinent parts of Fed.R.Civ.P. 8 (i.e., Sections (a) & (d)) and a pro se “Complaint for Civil Case” form. If Plaintiff seeks to pursue claims under § 1983 against individuals acting under color of state law, he should use the § 1983 forms. If he intends to file a claim under the ADA, he may use the pro se “Complaint for Civil Case” form. Plaintiff also asserts “wrongful incarceration” and complains about his state court detention, but any challenge to detention seeking release from custody would need to be asserted as a habeas petition under 28 U.S.C. § 2241 or § 2254, and Plaintiff can request those forms from the Clerk's Office, although he should be aware that this Court does not ordinarily intervene in ongoing state criminal proceedings. For whatever type of suit he chooses to bring, Plaintiff must submit the Court's approved in forma pauperis form for prisoners.
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. The Clerk is instructed to send Plaintiff § 1983 forms, instructions, an application to proceed In forma pauperis, and a copy of pertinent parts of Fed.R.Civ.P. 8 (i.e., Sections (a) & (d)), and a pro se “Complaint for Civil Case” form.
IT IS RECOMMENDED that this action be dismissed sua sponte without prejudice to Plaintiff filing a new complaint, on the proper forms, which corrects the defects cited above.