Opinion
1:23CV1081
12-19-2023
CORNELIUS BARNES, Plaintiff, v. JAKAYLA Z. GIBSON, et al., Defendants.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
L. Patrick Auld, United States Magistrate Judge.
Plaintiff, a prisoner 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). As noted by the Complaint (Docket Entry 2, §VIII) and the United States District Court for the Eastern District of North Carolina, see Barnes v. Coulombe, No. 5:20-CT-03263-M, 2021 WL 318314, at *2 (E.D. N.C. Jan. 8, 2021) (unpublished), appeal dismissed, No. 21-6163, 2021 WL 3204853 (4th Cri. Apr. 1, 2021) (unpublished), Plaintiff has had at least three cases dismissed on the grounds that they were frivolous or failed to state a claim upon which relief could be granted. All of the allegations against the named Defendants in the current Complaint relate to a past incident where they allegedly beat Plaintiff. The Complaint contains only vague and conclusory allegations of any ongoing harm and does not tie them to the named Defendants.
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. 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)).
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)).
IT IS RECOMMENDED that this action be filed and dismissed sua sponte without prejudice to Plaintiff filing a new complaint, on the proper § 1983 forms, which is accompanied by the applicable $402.00 filing fee.