United States District Court, M.D. North Carolina
STEVEN D. PRENTICE, Plaintiff,
LISA BLUE BOGGS, et al., Defendant(s)
STEVEN D. PRENTICE, Plaintiff, Pro se, BUTNER, NC.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Joi Elizabeth Peake,
United States Magistrate Judge.
Plaintiff, a federal prisoner facing a future sentence in the State of North Carolina, submitted a civil rights action pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), 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:
1. The filing fee was not received nor was a proper affidavit to proceed in forma pauperis submitted, with sufficient information completed or signed by Plaintiff, to permit review. Plaintiff submitted an in forma pauperis application, but did not include the amount of deposits into his prison trust account for the past six months or provide sufficient information to allow the Court to calculate that amount.
2. Plaintiff seeks to use this action to raise claims that would necessarily call his criminal convictions into question. Plaintiff is not permitted to do this without first showing that such convictions have been reversed on direct appeal, expunged by Executive Order, declared invalid by a state tribunal, or, finally, called into question by a federal court through the issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). He does not do this. In fact, Plaintiff states at various points that he seeks dismissal of the criminal charges and/or his release from custody as part of this lawsuit. This is not a proper request for relief under § 1983 or Bivens. Instead, Plaintiff would have to attack his convictions by filing a motion under 28 U.S.C. § 2255 or a habeas corpus petition under 28 U.S.C. § 2254.
3. Plaintiff's suit appears to be barred by the applicable statute of limitations. The statute of limitations in this case is three years. See Wilson v. Garcia, 471 U.S. 261, 276-80, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) (holding that, in section 1983 actions, state statute of limitations for personal injury applies); Reinbold v. Evers, 187 F.3d 348, 359 n.10 (4th Cir. 1999) (stating that the personal injury statute of the state where the alleged violation occurred is the appropriate statute of limitations in a Bivens action); Brooks v. City of Winston Salem, 85 F.3d 178, 181 (4th Cir. 1996) (applying North Carolina's three-year statute of limitations for personal injuries to section 1983 actions); N.C. Gen. Stat § 1-52 (establishing three-year statute of limitations for personal injury). A plaintiff's cause of action accrues, and the statute of limitations runs, from the date on which he " possesses sufficient facts about the harm done to him that reasonable inquiry will reveal his cause of action." Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 955 (4th Cir. 1995) (en banc). Here, Plaintiff challenges events related to a search of his residence and other property in the year 2000. These claims are well out of time. Plaintiff claims that he did not discover part of the supporting documentation for his claims until a decade later, but even that discovery would be beyond the statute of limitations.
Consequently, the Complaint should be dismissed, but without prejudice to Plaintiff filing a new complaint, on the proper § 1983 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 in forma pauperis, and a copy of pertinent parts of Federal Rule of Civil Procedure 8 ( i.e., Sections (a) & (d)).
In forma pauperis status is granted for the sole purpose of entering this Order and Recommendation.
IT IS THEREFORE ORDERED 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 Federal Rule of Civil Procedure 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 complaint, on the proper § 1983 ...