Bailey v. Barefoot et al

Filing 10

ORDER ADOPTING 3 MEMORANDUM AND RECOMMENDATION: The plaintiff's Motion to Proceed in forma pauperis is DENIED under the "three strikes" rule, and the plaintiff's complaint is DISMISSED as frivolous. The clerk is directed to enter judgment accordingly and close the file. Signed by US District Judge Terrence W. Boyle on 1/23/2014. Copy mailed to pro se 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-470-BO
ROBERT GENE BAILEY,
Plaintiff,
V.

J. BAREFOOT, et al.,
Defendants.

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ORDER

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This matter is before the Court on the Memorandum and Recommendation ("M&R") of
United States Magistrate Judge William A. Webb [DE 3]. For the following reasons, the Court
ADOPTS the M&R. Plaintiffs application to proceed in forma pauperis [DE 2] is DENIED. The
matter is DISMISSED.

BACKGROUND
Plaintiff, a North Carolina resident, brings this action against various employees of the
North Carolina Division of Motior Vehicles Licence and Theft Bureau alleging fraud and
perjury. On October 17, 2013, Magistrate Judge Webb recommended that plaintiffs motion to
proceed in forma pauperis be denied and that the complaint be dismissed. [DE 3]. Plaintiff
objects to the M&R. [DE 5].

DISCUSSION
A district court is required to review an M&R de novo if the defendant specifically
objects to it or in cases of clear error. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 14950 (1985). The district court is only required to make a de novo determination of those specific
findings to which the defendant has actually objected. See Camby v. Davis, 718 F.2d 198, 200

(4th Cir. 1983). Here, the plaintiff has filed an objection to the Magistrate Judge's
recommendation that rambles on generally as to why his claim is not frivolous. However,
plaintiff does not object to Magistrate Judge Webb's finding that plaintiff has violated the "threestrikes" statute 28 U.S.C. § 1915(g). Plaintiff also does not object to the finding that the instant
action appears to be identical to previous claims raised by the plaintiff in Bailey v. Ingram, et al.,
No. 5:09-00370-F (Oct. 9, 2009). Further plaintiff does not object to the finding that no
allegation of danger or threat of serious injury as to overcome the gate-keeping provisions of §
1915(g) has been asserted. Finding no objection to the specific findings of the M&R, this Court
considers whether the M&R is "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A).
The Court finds no clear error in the Magistrate Judge's decision, and therefore adopts the M&R.
CONCLUSION
For the foregoing reasons, the Court ADOPTS the Magistrate Judge's recommendations,
DENIES plaintiffs motion to proceed in forma pauperis under the "three-strikes" rule, and
DISMISSES plaintiffs claim as frivolous. The clerk is directed to enter judgment accordingly
and close the file.

SO ORDERED,
this

r-.3

day of January, 2014.

T RRENCE W. BOYLE
UNITED STATES DISTRICT JUD

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