BLEVINS v. PERRY et al

Filing 15

ORDER signed by JUDGE N. C. TILLEY, JR on 10/01/2018 adopting the Magistrate Judge's Recommendation, that Plaintiff's Motion for Change of Venue [Doc. # 7 ], Motions for Disposition [Doc. # 8 , # 10 ], and Motion for Evidentiary Hearing [Doc. # 9 ], and Motion for Leave to File and Amend Evidence [Doc. # 13 ] are DENIED. FURTHER ORDERED that this action is DISMISSED sua sponte without prejudice to Plaintiff filing (a) new complaint(s) on the proper forms which correct(s) the defects cited in the Recommendation. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DENVER W. BLEVINS,
Plaintiff,
v.
FRANK PERRY, et al.,
Defendants.

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1:16CV1208

ORDER
On October 26, 2016, the United States Magistrate Judge’s
Recommendation was filed and notice was served on the parties pursuant to 28
U.S.C. § 636. Plaintiff filed objections [Doc. #5] within the time limit prescribed by
Section 636, and later filed an amendment to the objections [Doc. #6]. On June 5,
2018, he filed a Motion for Leave to File and Amend Evidence [Doc. #13.] The
Court has reviewed Plaintiff’s objections, including the aforementioned Motion to
the extent it seeks to amend Plaintiff's previously filed objections, de novo and
finds that they do not change the substance of the United States Magistrate
Judge’s Recommendation [Doc. #3], which is affirmed and adopted.
Plaintiff has also filed a Motion for Change of Venue [Doc. #7], apparently
seeking to change the venue for his state court case out of Randolph County,
North Carolina Superior Court to this Court. However, that is not an appropriate
Motion in the present § 1983 proceeding. The present § 1983 proceeding will be
dismissed without prejudice for the reasons stated in the Recommendation. To the
extent Plaintiff seeks to challenge his custodial sentence(s), he should use the

proper forms for filing a Petition under 28 U.S.C. § 2254, if he obtains
authorization to file a second or successive Petition as appropriate. Separately, to
the extent he is seeking monetary damages from the Defendants, he should file a
new complaint on the proper § 1983 forms.
Plaintiff also filed a Motion for Evidentiary Hearing [Doc. #9], but there is no
basis for an evidentiary hearing given that Plaintiff has not yet filed proper claims
on proper forms in a proper district. Finally, to the extent that Plaintiff has filed
Motions for Disposition [Doc. #8, #10], those Motions, as well as Plaintiff’s Motion
for Leave to File and Amend Evidence [Doc. #13], are moot in light of the present
Order.
IT IS THEREFORE ORDERED that Plaintiff's Motion for Change of Venue
[Doc. #7], Motions for Disposition [Doc. #8, #10], and Motion for Evidentiary
Hearing [Doc. #9], and Motion for Leave to File and Amend Evidence [Doc. #13]
are DENIED.
IT IS FURTHER ORDERED that this action is DISMISSED sua sponte without
prejudice to Plaintiff filing (a) new complaint(s) on the proper forms which
correct(s) the defects cited in the Recommendation.
This the 1st day of October, 2018.

/s/ N. Carlton Tilley, Jr.
Senior United States District Judge