Opinion
1:20CV506
11-18-2020
ROGER EARL COLEY, Plaintiff, v. FRANK L. PERRY, et al., Defendant(s).
ORDER AND RECOMMENDATION OF 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. However, it is not possible to further process the Complaint. The problem is: 1. 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). Plaintiff has had over three actions dismissed on the grounds that they were frivolous, malicious, or failed to state a claim for relief. Coley v. North Carolina, 707 F. App'x 210 (4th Cir. 2017) (dismissing appeal as frivolous); Coley v. North Carolina, No. 5:17-CT-3109, 2017 WL 6759607 (E.D.N.C. Oct. 13, 2017) (unpublished); Coley v. Honeycutt, No. 1:17CV359 (M.D.N.C. June 12, 2017) (unpublished); Coley v. Rozier, No. 1:17CV240 (M.D.N.C. Apr. 24, 2017) (unpublished). Plaintiff makes no
allegation in the present case that he is in imminent danger of serious physical injury.
Consequently, the Complaint should be dismissed, but without prejudice to Plaintiff filing a new complaint, on the proper § 1983 forms, which corrects the defects of the present Complaint. As set out above, Plaintiff may not proceed in forma pauperis unless he is under imminent danger of serious physical injury. Therefore, if he re-submits his claims on the proper forms, he must include the full $400.00 filing fee at the time of filing or make the requisite showing of imminent danger of serious physical injury.
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 complaint, on the proper § 1983 forms, which corrects the defects cited above.
This, the 18th day of November, 2020.
/s/ Joi Elizabeth Peake
United States Magistrate Judge