Tyler v. Flulp

Full title: XAVAR TYLER, Plaintiff, v. DYLAN A. FLULP, et al., Defendants.

Court: United States District Court, Middle District of North Carolina

Date published: Oct 10, 2023

1:22CV945 (M.D.N.C. Oct. 10, 2023)

Opinion

1:22CV949

10-10-2023

XAVAR TYLER, Plaintiff, v. DYLAN A. FLULP, et al., Defendant(s).

JOI ELIZABETH PEAKE, UNITED STATES MAGISTRATE JUDGE

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 action pursuant to 42 U.S.C. § 1983, together with an application to proceed in forma pauperis. However, the Court cannot further process the Complaint for the following reason:

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 had over three cases dismissed on the grounds that they were frivolous prior to filing the current lawsuit. (1:19CV167; 1:19CV586; 1:20CV266; 1:20CV343.) The Complaint does not contain facts demonstrating 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 is accompanied by the applicable $402.00 filing fee. If Plaintiff believes he can meet these requirements, he should request the proper forms from the Clerk's Office.

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, which corrects the defects cited above and is accompanied by the applicable filing fee.