United States District Court, E.D. North Carolina, Western Division
MARIA S. REMINGTON, Plaintiff,
UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Defendant.
W FLANAGAN United States District Judge
matter comes before the court on plaintiff's motion for
leave to proceed in forma pauperis (DE 1), corrected motion
for leave to proceed in forma pauperis (DE 20), and motion
for extension of time (DE 22). Pursuant to 28 U.S.C. §
636(b)(1)(B) and Federal Rule of Civil Procedure 72(b),
United States Magistrate Judge Robert B. Jones, Jr., entered
a memorandum and recommendation (“M&R”),
wherein it is recommended that the court dismiss
plaintiffs' complaint for failure to prosecute and to
comply with the court's orders. The time for filing
objections to the M&R has passed, and in this posture,
the issues raised are ripe for ruling.
filed a motion for leave to proceed in forma pauperis on July
24, 2017, accompanied by a proposed complaint stating:
“Now comes the plaintiff with a complaint for racial
discrimination from defendant.” (DE 1-1). The clerk
mailed notices of deficiency to plaintiff on August 24, 2017,
for the following reasons: 1) failure to file financial
disclosure statement; 2) failure to file a civil case cover
sheet; 3) failure to file notice of self representation.
Plaintiff filed a civil case cover sheet on September 12,
2017, accompanied by a proposed amended complaint, wherein
she states a claim against defendant under 42 U.S.C.
§§ 1981, 1983, 1985, and 1988, and she alleges that
she was enrolled as a student with defendant but was forced
to drop out due to denial of access to her vehicle,
scholarships, books, funds, as well as other alleged actions
by defendant. (DE 5 at 2-3). Plaintiff seeks jury trial and
September 12, 2017, the court entered an order noting that
plaintiff's motion for leave to proceed in forma pauperis
was not filed on the correct form. In addition, the order
noted that plaintiff failed to file a completed summons,
financial disclosure statement, and notice of
self-representation. The court provided information for
obtaining copies of the necessary forms. The court directed
plaintiff to correct these deficiencies no later than October
5, 2017, warning that failure to do so may result in
dismissal without prejudice of the complaint.
on September 14, 2017, plaintiff filed a notice of
self-representation, financial disclosure statement, and
proposed summons. On September 28, 2017, plaintiff filed a
proposed sealed form application to proceed in forma
pauperis, motion to seal the same, as well as a motion for
extension of time. On October 11, 2017, the court entered an
order denying the motion for extension of time as moot. With
respect to the motion to seal, the court determined that
plaintiff had not demonstrated a particularized need for
sealing, and the court denied the motion to seal the same.
The court warned plaintiff: “If Plaintiff wants the
court to consider her in forma pauperis application, she must
refile it as a public document in conformity with Local Civil
Rule 79.2(b)(3), or alternatively Plaintiff can pay the
$400.00 filing and administrative fee, within 14 days of the
date of this order.” (DE 12 at 3).
October 12, 2017, plaintiff filed a notice of change of
address referencing the instant matter and another matter in
this court, Remington v. Dipeirro, 5:17-CV-374-BR
(the “Dipeirro case”). Plaintiff also
filed a notice and request for waiver of service of summons
directed to defendant. (See DE 13).
October 31, 2017, the court entered an order noting
plaintiff's failure to respond to the court's October
11, 2017, order, and directing plaintiff to show cause no
later than November 14, 2017, why the magistrate judge should
not recommend to the distr i c t c o u r t t h a t t h e c a
s e b e d i s m i s s e d for failure to pay the filing fee
or to file a proper in forma pauperis application.
Alternatively, the order noted that plaintiff may satisfy her
obligations under the show cause order by refiling her
application as a public document or to pay the $400.00 filing
and administrative fee within 14 days. The court again warned
plaintiff that failure to respond to the court's order
may result in dismissal of this case.
November 27, 2017, noting that plaintiff had failed to
respond to the court's October 11, 2017, order, and
October 31, 2017, order to show cause, and noting that
plaintiff was warned of consequence of dismissal in failing
to respond, the magistrate judge entered M&R recommending
that the case be dismissed for failure to prosecute and to
comply with the court's orders. The M&R provided
instructions on filing objections to the M&R on or before
December 11, 2017.
November 28, 2017, plaintiff filed a corrected motion for
leave to proceed in forma pauperis. On December 5, 2017,
plaintiff filed a notice of lawsuit and request for waiver of
service directed to defendant. On December 11, 2017,
plaintiff filed the instant motion for extension of time
“request[ing] more time to respond due to untimely
receiving mail etc. Today Dec 11, 2017, for this case.
Standard of Review
district court reviews de novo those portions of a magistrate
judge's M&R to which specific objections are filed.
28 U.S.C. § 636(b). The court does not perform a de novo
review where a party makes only “general and conclusory
objections that do not direct the court to a specific error
in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). Absent a specific and timely filed
objection, the court reviews only for “clear error,
” and need not give any explanation for adopting the
M&R. Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v.
Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful