RIGGSBEE v. JONES et al

Filing 9

ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR on 9/12/2017; that the Magistrate Judge's Recommendation (Doc. 4 ) is ADOPTED. FURTHER that this action is DISMISSED pursuant to Federal Rule of Civil Procedure 41(b). A Judgment dismissing this action will be entered contemporaneously with this Order. (Sheets, Jamie)

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

AVERY M. RIGGSBEE,
Plaintiff,
v.
W. BAIN JONES, JR., et al.,
Defendants.

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1:16CV444

ORDER
This matter is before this court for review of the
Recommendation filed on August 14, 2017, by the Magistrate Judge
in accordance with 28 U.S.C. § 636(b). (Doc. 4.) In the
Recommendation, the Magistrate Judge recommends that this action
be dismissed because Plaintiff failed to comply with an Order
filed June 3, 2016, which directed Plaintiff to file a properly
signed complaint setting forth facts and reasons for particular
relief and a properly completed and signed in forma pauperis
(“IFP”) application by June 23, 2016 (see Doc. 3). The
Recommendation was served on the parties to this action on
August 14, 2017 (Doc. 5). On August 18, 2017, Plaintiff filed
documents the court construes as objections to the
Recommendation (Docs. 6, 7), as well as an IFP application (Doc.
8). Plaintiff’s belated filings, even if in proper form, were

filed almost two months following the deadline of June 23, 2017,
as established in the order of the Magistrate Judge (Doc. 3).
This court is required to Amake a de novo determination of
those portions of the [Magistrate Judge=s] report or specified
proposed findings or recommendations to which objection is made.@
28 U.S.C. § 636(b)(1). This court Amay accept, reject, or modify,
in whole or in part, the findings or recommendations made by the
[M]agistrate [J]udge. . . . [O]r recommit the matter to the
[M]agistrate [J]udge with instructions.@ Id. Among other things,
Plaintiff’s new IFP application contains a notary verification
(see Doc. 8 at 6), but neither that verification nor the
signature block actually contains a signature by Plaintiff (see
id. at 1, 6). The failure by Plaintiff to actually sign the IFP
application in the appropriate box reflecting that the form was
executed under penalty of perjury is a serious defect. See 28
U.S.C. § 1915(a) and (d).
This court has appropriately reviewed the portions of the
Recommendation to which objections were made and has made a
de novo determination which is in accord with the Magistrate

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Judge=s Recommendation. This court therefore adopts the
Recommendation.1
IT IS THEREFORE ORDERED that the Magistrate Judge=s
Recommendation (Doc. 4) is ADOPTED. IT IS FURTHER ORDERED that
this action is DISMISSED pursuant to Federal Rule of Civil
Procedure 41(b). A Judgment dismissing this action will be
entered contemporaneously with this Order.
This the 12th day of September, 2017.

____________________________________
United States District Judge

In any event, Plaintiff’s other post-Recommendation
filings continue to lack comprehensible facts and reasons to
support any particular request for relief. (See Docs. 6, 7.)
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