Opinion
1:21CV488
11-29-2021
XAVAR TYLER, Plaintiff, v. DYLAN W. GREENWOOD, et al., Defendants.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
JOI ELIZABETH PEAKE, 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.
It also appears that Plaintiff is attempting to challenge a state court criminal conviction or sentence. If so, a § 1983 action is not a proper method for such a challenge. Instead, Plaintiff must file a petition for a writ of habeas corpus under 28 U.S.C. § 2254 after exhausting any available state court remedies. If Plaintiff seeks to file under § 2254, 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.
Plaintiff also submitted a Motion [Doc. #3] seeking an appearance in court in this case. There is no basis for setting a hearing in this case, and the Motion will be denied.
IT IS THEREFORE ORDERED that In forma pauperis status is granted for the sole purpose of entering this Order and Recommendation.
IT IS FURTHER ORDERED that Plaintiff's Motion [Doc. #3] seeking an appearance in court is denied.
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 if required.