Tompkins v. Terrell et al

Filing 22

ORDER dismissing as moot 20 Motion for TRO; denying 21 Motion for leave to amend his complaint and for relief from judgment. Signed by Chief Judge Frank D. Whitney on 1/24/14. (Pro se litigant served by US Mail.)(nll)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:13-cv-306-FDW
STUART WAYNE TOMPKINS,

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Plaintiff,
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v.
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DUANE TERRELL, et al.,
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Defendants.
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_________________________________)

ORDER

THIS MATTER is before the Court on consideration of Plaintiff’s motion for leave to
filed an amended complaint, which he filed pursuant to 42 U.S.C. § 1983, his motion for relief
from judgment, and his motion for a temporary restraining order. (Doc. Nos. 20-21). Plaintiff
dates his motion for leave to amend and relief from judgment on January 16, 2014, and it is postmarked on January 17, 2014.
On December 11, 2013, this Court dismissed Plaintiff’s § 1983 complaint following an
initial review under 28 U.S.C. § 1915A. The Court found that Plaintiff, while a prisoner of the
State of North Carolina, had filed three or more § 1983 complaints and been allowed to proceed
without prepayment of fees in at least three of those cases. Three or more of these complaints
had been dismissed as either being frivolous or for failure to state a claim for relief and the cases
were final either because the time for taking appeal from the judgments had expired or the Fourth
Circuit had affirmed the dismissal and the time for seeking further review had expired. Further,
the Court found that Plaintiff had presented no allegations that he was in imminent danger thus
he could not proceed with his § 1983 complaint without first submitting the full filing fee.

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Plaintiff’s complaint was therefore dismissed under the provisions of 28 U.S.C. § 1915(g). As an
alternative ground for dismissal, the Court found that Plaintiff failed to state a claim for relief in
his complaint. (Doc. No. 11: Order of Dismissal). The findings and conclusions from this Order
of Dismissal are fully incorporated herein.
On January 16, 2014, and on the very day that Plaintiff dated his motion for relief in Doc.
No. 21, this Court entered an Order denying Plaintiff’s previously filed motion to amend his
complaint. The findings and conclusions from that Order are incorporated herein by reference.
(Doc. No. 19).
In the most recent motion, Plaintiff appears to include the same allegations regarding his
denial of access to send and receive mail by prison authorities. For the reasons stated in the
Court’s previous orders, Doc. Nos. 11 and 19, Plaintiff’s motion for leave to amend his
complaint and for relief from judgment will be denied.
IT IS, THEREFORE, ORDERED that Plaintiff’s motions for leave to amend his
complaint and for relief from judgment are DENIED. (Doc. No. 21).
IT IS FURTHER ORDERED that Plaintiff’s motion for a temporary restraining order
is DISMISSED as moot. (Doc. No. 20).
Signed: January 24, 2014

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