Freeman v. Fayetteville Police Department

Filing 8

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS from 5 Memorandum and Recommendations. Signed by US District Judge Terrence W. Boyle on 6/5/2013. Copy sent to plaintiff via US Mail. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-261-BO

MARK ELLIOTT FREEMAN,
Plaintiff,

v.
FAYETTEVILLE POLICE
DEPARTMENT,
Defendant.

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ORDER

This cause comes before the Court on the memorandum and recommendation of United
States Magistrate Judge Robert B. Jones, Jr. following frivolity review of plaintiff's complaint
pursuant to 28 U.S.C. § 1915(e)(2). Plaintiff has 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 plaintiff's complaint.
BACKGROUND
Plaintiff filed this action against the Fayetteville Police Department for allegedly
violating state and local laws, including the 1964 Civil Rights Act. Plaintiff's complaint is, at
best, difficult to comprehend as it appears to follow plaintiff's stream of consciousness and does
not clearly identify any legal issues or factual support for plaintiff's claims. As revealed in
plaintiffs opposition to the M&R, plaintiff apparently brings a civil rights action arising out of
an alleged use of excessive force by Fayetteville police officers.

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)(l); Thomas v.

Arn, 474 U.S. 140, 149-50 (1985). De novo review is not required, however, 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 identify a cause of action or assert any legal theory for relief. Plaintiffs objection to
the M&R points to no specific error in Judge Jones' recommendation, but rather contains
additional incomprehensible and disorganized allegations.
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 5]. Accordingly, for the
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reasons discussed therein, plaintiffs complaint is hereby DISMISSED in its entirety.

SO ORDERED, this

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day of June, 2013.

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BOYL~
TERRENCE W.

UNITED STATES DISTRICT JUDGE

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