Fair v. Lincoln County et al

Filing 33

ORDER denying 31 Motion for Reconsideration; denying 32 Motion for Leave to File. Signed by Chief Judge Martin Reidinger on 4/26/2021. (Pro se litigant served by US Mail.) (rhf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:20-cv-00027-MR
MICHAEL ODELL FAIR,

)
)
Plaintiff,
)
)
vs.
)
)
)
FNU NEAL, et al.,
)
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Defendants.
)
___________________________ )

ORDER

THIS MATTER is before the Court on Plaintiff’s “Motion of
Reconsideration Due Consideration Truth Declaration In/Based on the Law
of the Spirit of Law Based on the Law of Affidavit” [Doc. 31] and “Motion for
Leave

to

File an Amended Complaint Due Consideration Truth

Declaration/Affidavit in the Spirit of Law” [Doc. 32], which the Court construes
as motions to reconsider and to amend, respectively.
Pro se Plaintiff Michael Odell Fair (“Plaintiff”) is a North Carolina state
inmate currently incarcerated at Warren Correctional Institution in Norlina,
North Carolina. Plaintiff filed this action on February 20, 2020, pursuant to
42 U.S.C. § 1983. [See Doc. 1]. On June 22, 2020, Plaintiff’s Amended
Complaint survived initial review as to Plaintiff’s claims against Defendant
FNU Neal and the Doe Defendants. [Docs. 13, 14]. On March 15, 2021,

after notice to Plaintiff, the Court dismissed all Defendants and this action
without prejudice for Plaintiff’s failure to show good cause for not timely
returning completed summonses for the U.S. Marshal to effectuate service
on Defendants. [Doc. 28; see Doc. 24].
Plaintiff now moves the Court to reconsider its Order dismissing
Plaintiff’s action “due to that I have brung forth Joe Doe defendant first name
which is Kevin.” [Doc. 31].

Plaintiff asks to be allowed to “rectify [his]

complaint” because he now identifies Defendant FNU Neal as “Kevin Neal.”
[Doc. 31]. Plaintiff also moves for “leave to file an amended complaint adding
a party.” [Doc. 32]. Plaintiff states, “[s]ince the filing of the complaint the
plaintiff has determined that the names of the John Doe defendant(s) is
KEVIN NEAL and Sheriff BILL BEAM (added) due to Sheriff responsibility.”
[Id. at 1].
Plaintiff’s motions will be denied. Plaintiff’s motion to amend is denied
because there is no pending complaint to amend. Plaintiff’s action has been
dismissed without prejudice. Should Plaintiff wish to file another complaint
identifying the Defendants as indicated in his motions here, he may do so.1
As to Plaintiff’s motion to reconsider, the Court properly dismissed all the

1

The Court, of course, expresses no opinion regarding whether such claims would be
timely or otherwise pass initial review.
2

Defendants and Plaintiff’s action under Rule 4(m) on Plaintiff’s failure to show
good cause for his not timely serving Defendants. That Plaintiff now knows
the first name of one of the Defendants is of no consequence to the Court’s
decision. Again, if Plaintiff wishes to file a new action against these
Defendants, he may do so.
ORDER
IT IS, THEREFORE, ORDERED that Plaintiff’s motions [Docs. 31, 32]
are DENIED.
IT IS SO ORDERED.
Signed: April 26, 2021

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