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
Plaintiffs' Amended Complaints, (Doc. Nos. 7, 9, 11, 13,
15, 17), on Plaintiffs' Motions to proceed in forma
pauperis, (Doc. Nos. 2, 8, 10, 12, 14, 16, 18, 19), and
on the Court's May 5, and October 31, 2019 Orders, (Doc.
Nos. 3, 23). Also pending are two Letters by Plaintiff Wilson
that were docketed as Motions, (Doc. Nos. 4, 21).
se Plaintiffs filed a Complaint pursuant to 42 U.S.C.
§ 1983 while they were pretrial detainees at the
Cleveland County Detention Center. On May 3, 2019, the Court
issued an Order explaining that the Complaint was too
deficient to be screened on initial review and that each
Plaintiff was required to pay the filing fee or move to
proceed in forma pauperis and file a signed Amended
Complaint within 21 days. (Doc. No. 3). Plaintiffs were
cautioned that failure to comply would probably result in the
case's dismissal and closure without further notice.
(Doc. No. 3 at 2). On October 31, 2019, the Court issued an
Order requiring Plaintiffs Morrison, Wilson, Soria Garcia,
Banks, Curry, Sarvis, and Sanford to file Notices informing
the Court of their current addresses. (Doc. No. 23).
Byers, Moore, Soria Garcia, Douglas, Curry, and Sarvis have
filed Amended Complaints. They name as Defendants some or all
of the following: Head State Prosecutor Michael W. Miller,
Assistant State Prosecutor Richard L. Shaffer Jr., Assistant
State Prosecutor Elizabeth Lari, State Prosecutor Sally Kirby
Turner, and State Prosecutor William Wiseman. Plaintiffs
claim that Defendants are not following North Carolina
statutes and procedures, and are depriving them of due
process, with regards to first appearances, probable cause
hearings, and/or submitting indictments to the grand jury.
Plaintiffs seek release from pending charges, federal
indictment and removal of Defendants' law licenses,
expungement of prior criminal records, and a public apology.
Plaintiffs Morrison, (Doc. No. 30), Soria Garcia, (Doc. No.
31), and Curry (Doc. No. 32), filed Notices providing the
Court with their current addresses in compliance with the
October 31 Order, and the Court has been able to determine
Plaintiff Sarvis and Banks' current addresses on the
NCDPS website. See
Plaintiffs Wilson and Sanford failed to comply with the
October 31 Order and the Court has been unable to determine
their present addresses.
MOTIONS TO PROCEED IN FORMA PAUPERIS
to proceed in forma pauperis have been filed by
Plaintiffs Wilson, (Doc. No. 2), Morrison (Doc. No. 19),
Byers (Doc. No. 14), Moore (Doc. No. 12), Soria Garcia (Doc.
No. 16), Short (Doc. No. 6), Curry (Doc. No. 8), and Sarvis
(Doc. No. 10). These Plaintiffs claim that they have zero
income, are unemployed, have no assets, and are unable to pay
the costs of these proceedings because they are incarcerated.
The Court is satisfied that they lack they lack sufficient
funds to pay the filing fee. These Plaintiffs will therefore
be granted leave to proceed in forma pauperis. The
Clerk of Court will be instructed to enter an Order Waiving
Initial Partial Filing Fee and Directing the Correctional
Facility to Transmit Partial Payments with regards to
Plaintiffs Wilson, Morrison, Byers, Moore, Soria Garcia,
Short, Curry, and Sarvis.
LACK OF PROSECUTION
have a general duty to prosecute their cases. In this regard,
a pro se plaintiff must keep the Court apprised of
his current address. See Carey v. King, 856 F.2d
1439, 1441 (9th Cir. 1988) (“A party, not
the district court, bears the burden of keeping the court
apprised of any changes in his mailing address.”).
Where a pro se plaintiff has failed to notify the
Court of his change of address, the action is subject to
dismissal without prejudice for failure to prosecute. See
Walker v. Moak, 2008 WL 4722386 (E.D. La. Oct. 22, 2008)
(dismissing without prejudice a § 1983 action for
failure to prosecute under Rule 41(b) of the Federal Rules of
Civil Procedure where the plaintiff did not notify the court
of his new address upon his release from jail). Litigants are
also obligated to comply with Court orders. See
generally Fed.R.Civ.P. 41(b) (district court may dismiss
an action “[f]or failure of the plaintiff to
prosecute.”). Before dismissing a case for failure to
prosecute, a district court should weigh: “(1) the
plaintiff's degree of personal responsibility; (2) the
amount of prejudice caused the defendant; (3) the presence of
a drawn out history of deliberately proceeding in a dilatory
fashion; and (4) the effectiveness of sanctions less drastic
than dismissal.” Attkisson v. Holder, 925 F.3d
606, 625 (4th Cir. 2019) (quoting Hillig v.
Comm'r of Internal Revenue, 916 F.2d 171, 174
(4th Cir. 1990)).
Court ordered Plaintiffs to pay the filing fee or an
application to proceed in forma pauperis and an
amended complaint by Order dated May 3, 2019, and to file a
notice informing the Court of their current addresses on
October 31, 2019.
Banks and Sanford failed to pay the filing fee or apply to
proceed in forma pauperis, and Plaintiffs Banks,
Morrison, Sanford, and Wilson failed to file amended
complaints in compliance with the May 3, 2019 Order.
Plaintiffs Wilson and Sanford fail to comply with the October
31, 2019 Order requiring Plaintiffs to apprise the Court of
their present addresses and the Court has been unable to
determine their present locations.
this action will be dismissed without prejudice and
terminated as to Plaintiffs Banks, Sanford, Morrison, and
Wilson for lack of prosecution and for failing to comply with
the Court's May 3 and October 31, 2019 Orders. Plaintiff
Wilson's pending Motions will be denied as