ISHRAT v. JOHNSON et al

Filing 3

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 09/22/2014. ORDERED that in forma pauperis status is granted for the sole purpose of entering this Order and Recommendation. The Clerk i s instructed to send Plaintiff§ 1983 forms, instructions, an application to proceed in forma pauperis, and a copy of pertinent parts of Fed. R. Civ. P. 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 forms, which corrects the defects cited above.(Taylor, Abby)

IN THE LTNITED STATES DISTRICT ÇOURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ABDUL-KHALIQ ISHRAT,
Plaintiff,
V

SHERIFF TERRY JOHNSON, et
Defendant(s).

al,

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1:14CV800

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ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, a prisoner of the State of North Carolina, submitted a civil rights action
pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.

388 (1971). The form of the Complaint is such that serious flaws make

it impossible to

further process the Complaint. The problems are
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The Complaint alleges claims against persons or entities who appear to be
state, not federal actors. Therefore, the claims are not proper under Bivens,
but must be brought under 42 U.S.C. $ 1983.
The filing fee was not received nor was a proper affidavit to proceed ínþrma
pauperis submitted, with sufficient information completed or signed by
Plaintiff, to permit review. Plaintiff submitted a portion of an Ìn þrma
pauperis application, but failedto submitthe complete application. This is not
sufficient.

a

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Plaintiff indicates in the Complaint that he did not fully exhaust available
administrative remedies. Exhaustion is required before Plaintiffmay bring this
action. See 42 U.S.C. $ 1997e; Porter v. Nussle, 534 U.S. 516 (2002); Booth
v. Churner, 532 U.S. 73I (2001). The failure to exhaust is clear from the face
of the Complaint, and Plaintiff had an opportunity to address the issue on the

form itself and explain why he has not exhausted his available remedies. $ee
Anderson v.XYZ Conectional Health Sery$.,4Q7 F.3d 674 (4th Çir. 2005).

Plaintiff has not named proper defendants. Plaintiff must name the persons
who are actually responsible for the alleged violations of his constitutional
rights. Plaintiff names Sheriff Terry Johnson as a defendant, but makes no
allegation against him. He also names Southern Healthcare Partners, which

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appears to be a corporation, as a Defendant, but makes no allegation as to that

entity.
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. To further aid Plaintiff, the Clerk is instructed to send Plaintiff new $

1983

forms, instructions, an application to proceed ínþrma pauperis, and acopy of pertinent parts

of Fed. R. Civ. P. 8 (í.e., Sections (a) & (d))
In

þrma pauperis status is granted for the sole purpose of entering this Order

and

Recommendation

IT IS THEREFORE ORDERED that inþrma pauperís status is granted for the sole
purpose

of entering this Order and Recommendation. The Clerk is instructed to

Plaintiff $ 1983 forms, instructions,

an application to proceed

ínþrma pauperis, and a copy

of pertinent parts of Fed. R. Civ. P.8 (í.e., Sections (a) & (d)).

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send

IT IS RECOMMENDED that this action be filed and dismissed sua sponte without
prejudice to Plaintiff flrling a new complaint, on the proper $ 1983 forms, which corrects the
defects cited above.

This,

the

ay of September,2014.

Webster
oe
ted States Magistrate Judge

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