MIDGETT v. DOWD et al

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
SHELBY T. MIDGETT, 	)
)
Plaintiff, 	)
)
v. 	) 	1:25CV1143
)
SGT DOWD, et al., 	)
)
Defendant(s). 	)
ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, a prisoner of the State of North Carolina, submitted a civil rights action
pursuant to 42 U.S.C. § 1983, together with an application to proceed in forma pauperis.
The form of the Complaint is such that a serious flaw makes it impossible to further process
the Complaint. The problem is:
1. 	The filing fee was not received nor was a proper affidavit to proceed in forma
pauperis submitted, with sufficient information completed and signed by
Plaintiff, to permit review. 	Plaintiff submitted an in forma pauperis
application, but included a range of $500-$1000 when asked the amount of
deposits into his prison trust account in the past six months. 	Although
Petitioner is allowed to provide a good faith estimate of the amount of the
deposits if he cannot discover the actual amount, he should not provide a range
because the Court cannot use a range to calculate the amount of the initial
partial payment of the filing fee. Plaintiff must provide only a single amount.
Consequently, the Complaint should be dismissed, but without prejudice to Plaintiff
filing a new complaint, on the proper § 1983 forms, which corrects the defect 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 Fed. R. Civ. P. 8 (i.e., Sections (a) & (d)).
Case 1:25-cv-01143-DAB-LPA Document 3 Filed 01/08/26 Page 1 of 3

The Court also notes certain issues with Plaintiff’s claims that he should consider in
making any refiling. 	The Complaint alleges two excessive uses of force on two separate
occasions by two different pairs of detention officers. Ordinarily two separate lawsuits, one
for each incident, would be required in this situation. 	Plaintiff attempts to tie the two
incidents by claiming that both are retaliation for another lawsuit he filed. 	However, he
simply makes this conclusory allegation without giving any supporting facts tying these
events to his prior litigation. If Plaintiff cannot provide supporting facts tying the incidents
to the prior litigation, he must file separate lawsuits as to the two incidents. Also, the facts
related to the first incident are unclear. 	Plaintiff states that he was pepper sprayed after
asking for, and being refused, protective custody. However, he does not make clear exactly
what, if anything, occurred between his request and the spraying that led to the spraying.
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 Fed. R. Civ. P. 8 (i.e., Sections (a) & (d)).
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Case 1:25-cv-01143-DAB-LPA Document 3 Filed 01/08/26 Page 2 of 3

IT IS RECOMMENDED that this action be dismissed sua sponte without prejudice
to Plaintiff filing a new complaint, on the proper § 1983 forms, which corrects the defects
cited above.
This, the 8th day of January, 2026.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
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Case 1:25-cv-01143-DAB-LPA Document 3 Filed 01/08/26 Page 3 of 3