FIORE v. FAYCO et al

Filing 2

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 05/19/2015, 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 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 UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ROBERT JOSEPH FIORE, II,
Plaintiff,
v.
DONNA FAYCO, et al.,

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1:15CV53

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. 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.
2. Plaintiff does not appear to state any viable claim for relief. Plaintiff alleges that
his former girlfriend placed her ten-year-old daughter between them in bed, with
the girl’s head toward the foot of the bed while Plaintiff slept, and that his
girlfriend did this despite knowing that Plaintiff was nude at the time. Plaintiff
alleges that his girlfriend then later filed child rape charges against Plaintiff.
Plaintiff contacted the Rowan County Department of Social Services about the
incident. That agency investigated and sent Plaintiff a letter, which he attaches to
his Complaint, stating that “[t]here was sufficient evidence to substantiate the
report,” but that “[t]he children are no longer at risk; therefore, this case will be
closed.” Plaintiff complains that the investigation did not result in a loss of
custody for his former girlfriend, and further complains that the letter implies that
“the threat is no longer in the home,” thereby implying that he was the “threat.”
He attempts to state claims against supervisors at the Department of Social
Services. However, Plaintiff does not explain what federal constitutional or

statutory right he would have to any investigation into the safety and welfare of
another person’s child. Moreover, to the extent he disputes factual assertions that
are part of the present state charges against him, that state criminal case is
proceeding, and those matters are not properly before this Court.
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 in forma pauperis, and a copy
of pertinent parts of Fed. R. Civ. P. 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 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)).
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, which
corrects the defects cited above.
This, the 19th day of May, 2015.
/s/ Joi Elizabeth Peake
United States Magistrate Judge

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