Opinion
1:21CV337
04-29-2021
PEACE ELLUVASUN ALLAH CUSH-EL, Plaintiff, v. STATE OF MISSOURI INC, et al., Defendant(s).
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, a prisoner of the State of Missouri, submitted a civil rights action pursuant to 42 U.S.C. § 1983. 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. See Cush-El v. State, No. 1:16CV610 (Oct. 5, 2016, M.D.N.C.) (unpublished); Cush-El v. State, No. 1:16CV167, 2016 WL 1228626 (Mar. 28, 2016 M.D.N.C.) (unpublished); Cush-El v. State, No. 1:16CV139 (Mar. 28, 2016 M.D.N.C.) (unpublished); Cush-El v. Covington, No. 1:14CV756, 2014 WL 4955510 (Oct. 2, 2014
M.D.N.C.) (unpublished), aff'd, 598 F. App'x. 199 (4th Cir. 2015). 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. The Court also notes that the Complaint does not appear to involve persons or events related to this District and, consequently, the case does not appear to be properly filed here. If Plaintiff seeks to refile his case, he should determine the proper district for filing and file in that district after requesting the proper forms from the clerk's office of that district.
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 and in a proper district, which corrects the defects cited above and is accompanied by the applicable $402.00 filing fee.
This, the 29th day of April, 2021.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge