VAN DYKE v. PIEDMONT CI ADMINISTRATION AND MEDICAL et al

Filing 3

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 08/11/2014, that in forma pauperis status is granted for the sole purpose of entering this Order and Recommendation.RECOMMENDED that this action be filed and dismissed sua sponte without prejudice to Plaintiff filing a new complaint, on the proper § 1983 forms, and accompanied by the $400.00 filing fee.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

PROPHET PRO SE WRITER
PREACHER SAINT ATTORNEY
AT LAW MR. DENNIS ROGER
VANDYKE,
Plaintiff,
v.
PIEDMONT CI ADMINISTRATION
AND MEDICAL, et al.,
Defendant(s).

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1:14CV668

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.

Plaintiff’s claims are rambling and incoherent to the point of being
incomprehensible.

2.

Pursuant to the Prison Litigation Reform Act, Plaintiff may no longer proceed
in forma pauperis in this Court unless he is under imminent danger of serious
physical injury. The Act provides that:
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section if the
prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of
the United States that was dismissed on the grounds that it is

frivolous, malicious, or fails to state a claim upon which relief
may be granted, unless the prisoner is under imminent danger of
serious physical injury.
28 U.S.C. § 1915(g). As recently noted by the United States District Court for
the Western District of North Carolina, Plaintiff has had three or more cases
dismissed on the grounds that they were frivolous. Van Dyke v. Thornburg,
Case No. 1:14-cv-160-FDW (W.D.N.C., June, 30, 2014) (unpublished). At
various points in his current submission, Plaintiff makes claims of danger,
although they either point to past, rather than current, conditions, or are too
vague and conclusory to successfully circumvent the three strikes bar.
Consequently, the Complaint should be dismissed, but without prejudice to Plaintiff
filing a new complaint, on the proper § 1983 forms, which corrects the defects of the present
Complaint. If Plaintiff obtains the required $400.00 filing fee, he should request the proper
forms for filing his Complaint from the Clerk’s Office and then file his Complaint on those
forms, along with the filing fee.
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.

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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 forms, and accompanied
by the $400.00 filing fee.
This, the 11th day of August, 2014.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

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