Lurch v. Fayetteville Police Department et al

Filing 13

ORDER ADOPTING 7 MEMORANDUM AND RECOMMENDATIONS. Plaintiff's complaint is hereby dismissed in its entirety. Signed by US District Judge Terrence W. Boyle on 7/31/2013. Copy mailed to pro se plaintiff via US Mail. (Fisher, M.)

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-394-BO

ROBERT DEREK LURCH, SR.,
Plaintiff,
v.

)
)
)
)
)

ORDER

FAYETTEVILLE POLICE
)
DEPARTMENT and THE PANTRY, INC.,)
Defendants. )

This cause comes before the Court on the memorandum and recommendation of United
States Magistrate Judge William A. Webb following frivolity review of plaintiffs complaint
pursuant to 28 U.S.C. § 1915(e)(2). Plaintiffhas not 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 claims for false imprisonment, racial profiling, and
cruel and unusual punishment. Plaintiff seeks $50,000 in damages.
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). "[I]n the absence of a timely filed objection, a district court

need not conduct de novo review, but instead must only satisfy itself that there is no clear error
on the face of the record in order to accept the recommendation." Diamond v. Colonial Life &
Ace. Ins. Co., 416 F.3d 310,315 (4th Cir. 2005).

The recommendation that this matter be dismissed is based upon plaintiffs failure to
allege that his arrest lacked probable cause, his failure to state a cognizable claim against the
Fayetteville Police Department, and his failure to make any allegation regarding The Pantry.
Because plaintiff has made no objections, the Court has reviewed the M&R for plain error and
finds none. Accordingly, plaintiffs complaint is dismissed as frivolous.
CONCLUSION
For the foregoing reasons, the Court ADOPTS the M&R [DE 7]. For the reasons
discussed therein, plaintiffs complaint is hereby DISMISSED in its entirety.

SO ORDERED, this

:3 /

day of July, 2013.

UNITED STATES DISTRIC

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