Williams v. Melochick

Filing 7

ORDER adopting Report and Recommendations re 5 Memorandum and Recommendations. The court ADOPTS the recommendation of the magistrate judge as its own and hereby DISMISSES plaintiff's claim against Defendant Melochick in his official capacity, as well as any purported claim against the Wake County Sheriff's Department. Plaintiff's § 1983 claim against defendant Melochick in his individual capacity is allowed to proceed. The Clerk is directed to file the complaint and issue the summons prepared by Plaintiff. The United States Marshal is DIRECTED to serve the summons and a copy of the complaint on Defendant. Signed by Senior Judge Malcolm J. Howard on 4/25/2019. (Rudd, D.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No .
5 : 18 - CV - 254 - H
REGINALD WILLIAMS ,
Plaintiff ,
v.

ORDER

C . T . MELOCHICK 1 , in his
individual and official
capacity (Wake Co unty
Sheriff ' s Office) ,
Defendant.

This

matter

is

before

the

court

on

frivolity

review .

Plaintiff initiated this action by filing an application to proceed
in forma pauper is
Magistrate

Judge

( IFP)

and proposed complaint .

Kimberly A.

Swank

entered

plaintiff t o particularize his complaint.
fil e d

a

Askings. "

"M
otion

to

Particularize

an

United States
order

requiring

In response , plaintiff

Original

Claim

for

Greater

On December 5 , 2018 , Judge Swank entered an Order and

a Memorandum and Recommendation ("M&R") denying plaintiff ' s motion
for

counsel ,

recommending

plaintiff ' s

claim

against

Defendant

Melochick in his official capacity , as well as any purported claim

1

Plaintiff identifies Melochick as an officer of the Raleigh
Police Department in his "Motion for Federal Panel Review " (Pl .' s
Mot . Fed . Panel Rev . [DE # 1-4]) but later identifies Melochick as
a Wake Co unty Sheriff ' s Deputy in his " Motion to Particularize
Original Claim for Greater As kings . " (Pl .' s Mot . Particularize
Original Claim Greater Askings [DE #4]) .

against

the

Wake

County

Sheriff ' s

Department ,

be

dismissed

pursuant to 28 USC § 1915A(b) as frivolous or for failure to state
a claim upon which relief may be granted ,

and recommending that

his § 1983 claim against defenda nt in his individual capacity be
allowed to proceed .
Plaintiff filed objections to the M&R .

[DE #6) . Plaintiff ' s

objections show a misunderstanding of the law re l ated to official
capacity claims and a misunderstanding of the recommendation of
the M&R .

The court has carefully reviewed the M&R ,

objections ,

and other documents of record . The court finds t he objections to
be without merit and that the recommendation of Magistrate Judge
Swank is , in all respects , in accordance with the law and should
be approved .
Accordingly ,

the

court

ADOPTS

the

recommendation

of

the

magistrate judge as its own and hereby DISMISSES plaintiff ' s claim
against Defendant Melochick in h is official capa city , as well as
any purported claim against the Wake County Sher i ff ' s Department ,
pursuant to 28 USC § 1915A(b) as frivolous or for failure to state
a claim upon

whi~h

relief may be granted .

Plaintiff ' s§ 1983 claim

against defendant Melochick in his individual capacity is allowed
to proceed .
The Clerk is DIRECTED to file
summons

prepared

by

Plaintiff .

the complaint and issue the

The

2

United

States

Marshal

is

DIRECTED

to

serve

the

summons

and

a

copy

of

the

complaint

Defendant .
This

?-5~y

of April 2019 .

Malcolm
Howard
Senior United State
At Greenville , NC
#26

3

District Judge

on