GUARDADO v. BLU et al

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ELMER JOSE MEJIA GUARDADO, )
)
Plaintiff, )
)
v. ) 1:25CV713
)
SERGEANT BLU, 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. 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 and signed by
Plaintiff, to permit review.
2. Plaintiff names four Defendants but he already filed a lawsuit against three
of those four Defendants, Sergeant Blu, El Guero Aldana, and Gary
Fernandez, based on the same facts in case 1:25CV655. The Court is
recommending that 1:25CV655 be dismissed based on certain deficiencies
so that Plaintiff can cure those deficiencies. The present action shares the
same deficiencies as to those Defendants and could be dismissed against
them for the same reason, but it is also duplicative of the other case. Plaintiff
should file only one lawsuit based on the same facts and should correct the
deficiencies described in case 1:25CV655. As for the fourth Defendant,
Joseph Mason, the claim against him stems from an entirely different set of
facts in a different prison. Plaintiff must file any claims against Defendant
Mason in a separate action. Further, as the Court informed Plaintiff in a prior
lawsuit, any action against Defendant Mason is not proper in this District,
but will need to be filed in the United States District Court for the Eastern
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District of North Carolina where Defendant Mason is located and where the
facts alleged against him occurred.
Consequently, the Complaint should be dismissed, but without prejudice to Plaintiff
filing new complaint in accordance with the Court’s prior instructions to Plaintiff. For the
filing of the claims against Defendant Mason, Plaintiff may obtain forms and instructions
from the Clerk’s Office for filing in the Eastern District at the following address: 310 New
Bern Avenue, Room 574, Raleigh, NC 27601.1
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.
IT IS RECOMMENDED that this action be dismissed sua sponte without prejudice
to Plaintiff filing new complaints, on the proper § 1983 forms and in the proper districts,
according to the Court’s instructions to him in this and other cases.
This, the 21st day of October, 2025.
1 If Plaintiff chooses to re-file his complaint against Defendant Mason here in this District, he should correct
all of the matters noted above and should also include a statement addressing the proper venue in this case,
for the Court’s consideration in determining whether this case must be transferred to a proper district
pursuant to 28 U.S.C. § 1406.
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