Opinion
1:24CV511
07-23-2024
WALTER TIMOTHY GAUSE, Plaintiff, v. RONALD COVINGTON, et al., 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 civil rights Complaint [Doc. #1] pursuant to 42 U.S.C. § 1983 and an application to proceed in forma pauperis to the United States District Court for the Eastern District of North Carolina. He also later filed a Corrected Complaint [Doc. #6] and in forma pauperis application. The Eastern District then transferred the matter to this Court for further proceedings. Upon review, the Complaint and Corrected Complaint are such that serious flaws make it impossible to further process them. 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. In addition, the Court notes that 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 United States District Courts in both the Eastern and Western Districts of North Carolina, Plaintiff has had three or more prior cases dismissed for being frivolous, malicious, or failing to state a claim upon which relief can be granted. Gause v. Howell, No. 5:22-ct-3302-BO-RJ, (E.D. N.C. Aug. 31, 2022) (unpublished); Gause v. Driggers, No. 3:21-cv-553-MR, 2021 WL 5406878 (W.D. N.C. Nov. 18, 2021) (unpublished). Therefore, he must pay the $405.00 filing fee unless he alleges facts demonstrating that he is under imminent danger of serious physical injury. Here, Plaintiff does not allege sufficient facts to overcome the three strikes bar, but instead makes only allegations as to past events.
2. The Complaint and Corrected Complaint do not state what each listed Defendant allegedly did to violate Plaintiff's rights. Instead, they simply allege that certain events occurred and that Defendants are somehow responsible without alleging what each particular Defendant did.
Consequently, this action should be dismissed, but without prejudice to Plaintiff filing a new complaint, on the proper § 1983 forms and accompanied by the $405.00 filing fee. If Plaintiff seeks to do so, he may seek the proper forms for filing a pro se complaint from the Clerk.
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 dismissed sua sponte without prejudice to Plaintiff filing a new complaint, on the proper § 1983 forms and accompanied by the $405.00 filing fee.