BROWN v. JOHNSON

Filing 4

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 01/07/2015,that in forma pauperis status is granted for the sole purpose of entering this Order and Recommendation. The Clerk is instructe d to send Plaintiff § 1983 and § 2241 forms, instructions, an application to proceed in forma pauperis, and a copy of pertinent parts of Federal Rule of Civil Procedure 8 (i.e., Sections (a) & (d)). RECOMMENDED that this action be filed and dismissed sua sponte without prejudice to Plaintiff filing a new complaint, on the proper § 1983 or § 2241 forms, which corrects the defects cited above. (Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CHARLES DUANE BROWN,
Plaintiff,
v.
SHERIFF TERRY JOHNSON,

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1:14CV645

Defendant(s). )
ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, a prisoner of the State of North Carolina, submitted a civil rights action
pursuant to 42 U.S.C. § 1983, together with an application to proceed in forma pauperis.
The form of the Complaint is such that serious flaws make it impossible to further process
the Complaint. The problems are:
1.

The filing fee was not received nor was a proper affidavit to proceed in
forma pauperis submitted, with sufficient information completed or signed
by Plaintiff, to permit review. Plaintiff submitted an in forma pauperis
application but did not disclose the amount of deposits into his prisoner
trust fund account during the last six months as required on the form.

2.

Plaintiff has not named proper defendants. Plaintiff names Sheriff Terry
Johnson as the only Defendant, but does not make any allegations against
Johnson or even mention him in the factual portion of his Complaint.
Plaintiff must name the persons who are actually responsible for the alleged
violations of his constitutional rights.

3.

Plaintiff’s claims are somewhat unclear, but it appears that he seeks to have
the Court intervene in an ongoing state criminal matter. If so, this is not a
proper claim under § 1983. Instead, he would have to raise such a claim in
a petition for habeas corpus under 28 U.S.C. § 2241. Plaintiff should also
be aware that it is not ordinarily proper for the Court to intervene in pending
state court criminal matters.

4.

Plaintiff seeks his release from jail as relief. This is not an appropriate
form of relief under § 1983.
Consequently, the Complaint should be dismissed, but without prejudice to

Plaintiff filing a new complaint, on the proper § 1983 or § 2241 forms, which corrects the
defects of the present Complaint. To further aid Plaintiff, the Clerk is instructed to send
Plaintiff new § 1983 and § 2241 forms, instructions, an application to proceed in forma
pauperis, and a copy of pertinent parts of Federal Rule of Civil Procedure 8 (i.e., Sections
(a) & (d)).
In forma pauperis status is granted for the sole purpose of entering this Order and
Recommendation.
IT IS THEREFORE ORDERED that in forma pauperis status is granted for the
sole purpose of entering this Order and Recommendation. The Clerk is instructed to
send Plaintiff § 1983 and § 2241 forms, instructions, an application to proceed in forma
pauperis, and a copy of pertinent parts of Federal Rule of Civil Procedure 8 (i.e., Sections
(a) & (d)).

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IT IS RECOMMENDED that this action be filed and dismissed sua sponte without
prejudice to Plaintiff filing a new complaint, on the proper § 1983 or § 2241 forms, which
corrects the defects cited above.
This, the 7th day of January, 2015.
/s/ Joi Elizabeth Peake
United States Magistrate Judge

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