United States District Court, W.D. North Carolina, Asheville Division
D. Whitney Chief United States District Judge.
MATTER is before the Court on initial review of
Plaintiff's pro se Complaint under 28 U.S.C. §§
1915A and 1915(e). (Doc. No. 1.) Also before the Court is
Plaintiff's Motion to Proceed In Forma Pauperis
(“IFP”) (Doc. No. 2) and Motion seeking liberal
construction of his pro se Complaint (Doc. No. 3).
law requires that a party instituting a civil action in
federal district court pay a filing fee or be granted leave
to proceed without prepayment of fees and costs. See
28 U.S.C. §§ 1914(a), 1915(a)(1). A prisoner
seeking to bring a civil action in federal district court
without prepayment of fees, must file an affidavit that
includes a statement of all assets such prisoner possesses
and a statement that the prisoner is unable to pay such fees
or give security therefor. § 1915(a)(1). Additionally,
the prisoner must submit a certified copy of the trust fund
account statement (or institutional equivalent) for the
prisoner for the 6-month period immediately preceding the
filing of the complaint or notice of appeal, obtained from
the appropriate official of each prison at which the prisoner
is or was confined. § 1915(a)(2).
Court has reviewed Plaintiff's IFP Declaration (Doc. No.
2-1), as well as the Trust Account Statement he provided
(Doc. No. 2-2). The later indicates Plaintiff has a large
amount of debt due to the numerous civil law suits he has
filed while incarcerated. (Doc. No. 2-2.) In his IFP
Declaration, Plaintiff states that he has no income and owns
no property. (Doc. No. 2-1.) It appears Plaintiff lacks
sufficient funds to pay the filing fee. Therefore, the Court
will grant Plaintiff's IFP Motion.
STANDARD OF REVIEW
Plaintiff is proceeding in forma pauperis, the Court must
review the Complaint to determine whether it is subject to
dismissal on the grounds that it is “frivolous or
malicious [or] fails to state a claim on which relief may be
granted.” 28 U.S.C. § 1915(e)(2). Furthermore,
under § 1915A the Court must conduct an initial review
and identify and dismiss the Complaint, or any portion of the
Complaint, if it is frivolous, malicious, or fails to state a
claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune to such relief.
se complaint must be construed liberally. Haines v.
Kerner, 404 U.S. 519, 520 (1972). The liberal
construction requirement, however, will not permit a district
court to ignore a plaintiff's clear failure to allege
facts which set forth a claim that is cognizable under
federal law. Weller v. Dep't of Soc. Servs., 901
F.2d 387 (4th Cir. 1990).
is a prisoner of the State of North Carolina. His Complaint
pursuant to 42 U.S.C. § 1983 was filed on February 28,
2017, when he placed it in the mail. (Compl. 11, Doc. No. 1.)
Plaintiff has named FNU Mitchell, whom he identifies as
Director of Security for all North Carolina Department of
Public Safety correctional facilities in the Western District
of North Carolina, and Hubert Corpening, whom he identifies
as Superintendent of Marion Correctional Institution
(“MCI”), as Defendants. Plaintiff's action
against Defendants is based on the following factual
After filing a law suit against John A. Herring in case no.
3:17-cv-035-FDW-1,  Regional Director Mitchell told Plaintiff
that “since you like filing lawsuit[s] against my
employees, I'm going to teach you a lesson and make sure
you'r [sic] confined in restrive [sic] housing for a long
Mitchell then had Plaintiff transferred to Marion to place
him [in] the RDU program (which is a program that consist[s]
of being confined to a cell for 18 months) with [strict] and
When Plaintiff arrived at Marion, he was told by several
officers that they were instructed by Corpening to confiscate
all legal documents with Herring's name on them. The
officer also threatened to kill Plaintiff ...