ALLEN-BEY v. SCHIMT et al

Filing 3

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 07/31/2015, 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)). RECOMMENDED that this action be filed and dismissed sua sponte without prejudice to Plaintiff filing a new action, on the proper forms, which corrects the defects cited above. (Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JUAN FITZGERALD ALLEN-BEY

Plaintiff,
V

SONJA SCHMIT, et al,
Defendant(s).

)
)
)
)
)
)
)
)
)

l:15CY602

ORDER AND RECOMMENDATION
OF I]NITED STATES MAGIS TR ATE .TI IDGE

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:

I

Plaintiff does make sufficient factual allegations against the

named
Defendants. Plaintiff must name the persons who are actually responsible
for the alleged violations of his constitutional rights. Plaintiff claims that

the named Defendants either made mistakes with or are misinterpreting
paperwork to extend his sentence. However, Plaintiff s allegations are not
clear as to exactly what each Defendant allegedly did that violated
Plaintiff s rights or how they are misconstruing the paperwork.
2

Plaintiff seeks his release from custody, which is not available as relief
under $ 19S3. He claims that his sentences have been somehow
miscalculated. Such a claim would have to be raised in a habeas corpus
action under 28 U.S.C. ç 2254 after Plaintiff exhausts any available
remedies in the state courts. Plaintiff must exhaust his state remedies
claims before this Court can consider granting any habeas relief.

Consequently, the Complaint should be disrnissed,

Plaintiff filing

a

but without prejudice to

new action on the proper 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 informa pauperis, and a copy of pertinent
parts of Fed. R. Civ. P.8 (í.e., Sections @)

in order to

e (d)). If Plaintiff

wishes to file under ç 2254

seek his release, he should request the proper forms after exhausting his

remedies in the state courts
In

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

and

Recommendation.

IT IS THEREFORE ORDERED that

in

þrma pauperís 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 action, on the proper forms, which corrects the
defects cited above

rnir, tn3 tslday of July,2015.

We
United States Magistrate Judge

2