McNair v. City of Rocky Mount et al

Filing 10

ORDER adopting Report and Recommendations regarding 4 Memorandum and Recommendations. The plaintiff's complaint is hereby DISMISSED in its entirety. Signed by District Judge Terrence W. Boyle on 5/9/2013. (Rudd, D.)

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA EASTERN DIVISION No. 4:13-CV-58-BO ANTHONY L. MCNAIR, Plaintiff, v. CITY OF ROCKY MOUNT, LOUISE W. FLANAGAN, and WILLIAM A. WEBB, Defendants. ) ) ) ) ) ) ) ) ORDER This cause comes before the Court on the memorandum and recommendation of United States Magistrate Judge James E. Gates regarding frivolity review of plaintiffs complaint pursuant to 28 U.S.C. § 1915(e)(2). Plaintiffhas objected to the memorandum and recommendation (M&R), and the matter is ripe for review. For the reasons discussed below, the Court adopts the M&R and dismisses plaintiffs complaint. BACKGROUND Plaintiff filed this action alleging that defendants "did conspired unconstitutionally depriving [plaintiff] of human rights to enslave him from a life live by commit illegal and unlawfully acts (2005-2013)." The M&R concludes that, although plaintiffs complaint is not barred by a prefiling injunction currently in place, plaintiff has failed to state any claim upon which relief may be granted, Fed. R. Civ. P. 12(b)(6), and recommends that this matter be dismissed. DISCUSSION A claim proceeding in forma pauperis may be dismissed at any time if it is frivolous. 28 U.S.C. § 1915( e )(2)(B)(i). A complaint is frivolous if"it lacks an arguable basis either in law or fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). To make a frivolity determination, a court may designate a magistrate judge "to submit ... proposed findings of fact and recommendations" for the disposition of a variety of motions. 28 U .S.C. § 636(b )(1 )(B). A district court is required to review de novo those portions of an M&R to which a party timely files specific objections or where there is plain error. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149-50 (1985). De novo review is not required when an objecting party makes only general or conclusory objections that do not direct a court to a specific error in the magistrate judge's recommendations. Orpiano v. Johnson, 687 F.2d 44,47 (4th Cir. 1982). Further, when "objections to strictly legal issues are raised and no factual issues are challenged, de novo review may be dispensed with." !d. The recommendation that this matter be dismissed is based upon plaintiffs complete failure to make a short and plain statement of his claims, Fed. R. Civ. P. 8(a)(2), and the resulting failure to give defendants notice of the claims plaintiff is attempting to assert against them. Conley v. Gibson, 355 U.S. 41,47 (1957), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). Plaintiffs objections to the M&R point to no specific error in Judge Gates' recommendation, but rather make numerous contentions regarding human rights in general. Further, plaintiffs bare statements in his objections that defendants conspired "to enslave [plaintiff] human rights as a sex offender, with a sexual assault charge for almost 9 years" and conspired to "enslave [plaintiff] with prisoner case laws" provides no further factual 2 enhancement upon which the Court could find that plaintiff has stated a claim for relief. Bell At!. Corp., 550 U.S. at 557. Because plaintiff has made no specific objections, the Court has reviewed the M&R for plain error and finds none. Even upon reviewing plaintiffs complaint de novo, however, the Court finds that dismissal of this action as frivolous is appropriate. CONCLUSION For the foregoing reasons, the Court ADOPTS the M&R [DE 4]. Accordingly, for the reasons discussed therein, plaintiffs complaint is hereby DISMISSED in its entirety. SO ORDERED, this _j__ day of May, 2013. ~0~ UNITED STATES DISTRICT JUDGE 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?