Sowards v. Western Regional Jail Authority, No. 3:2018cv01101 - Document 4 (S.D.W. Va. 2018)
Court Description: MEMORANDUM OPINION AND ORDER granting Plaintiff's 1 APPLICATION to Proceed Without Prepayment of Fees or Costs; directing Plaintiff to make monthly payments beginning on 9/5/2018, as more fully set forth herein, until the full filing fee of $350.00 has been paid; directing that the recovery, if any, obtained in this action shall be paid to the Clerk of Court, who shall collect therefrom all unpaid fees and costs taxed against Plaintiff and shall pay the balance, if any, to the Plai ntiff; directing that the Clerk of Court issue a summons for the named defendant; directing the United States Marshals Service to serve the summons and complaint on the defendant or his/her designated agent for service; directing Plaintiff to amend complaint, as more fully set forth herein within thirty days of the date of this Order. Signed by Magistrate Judge Cheryl A. Eifert on 7/30/2018. (cc: Plaintiff) (hkl)
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Sowards v. Western Regional Jail Authority Doc. 4 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA H U N TIN GTON D IVISION CH RISTOPH ER D AN IEL SOW ARD S, Plain tiff, v. Cas e N o . 3 :18 -cv-0 110 1 W ESTERN REGION AL JAIL AU TH ORITY, D e fe n d an t. MEMORAN D U M OPIN ION AN D ORD ER Pending before the Court is Plaintiff’s Application to Proceed Without Prepaym ent of Fees and Costs, (ECF No. 1), and Com plaint filed pursuant to 42 U.S.C. § 1983, (ECF No. 2). Having considered the Application, the Court GRAN TS sam e. The Court notes that Plaintiff has m inim al funds in his inm ate account; therefore, he shall not be required to pay an initial partial filing fee. However, Plaintiff is ORD ERED to m ake m onthly paym ents beginning on Se p te m be r 5, 2 0 18 equal to 20 percent of the preceding m onth’s incom e credited to his prisoner account until the full filing fee of $ 350 .0 0 has been paid. These paym ents shall be due by the fifth day of each m onth thereafter. The Western Regional J ail, or any other agency or facility having custody of Plaintiff, shall forward paym ents from Plaintiff’s inm ate account to the Clerk of Court each tim e the am ount in Plaintiff’s inm ate account exceeds $ 10 , until the full filing fee is paid. See 28 U.S.C. 1915(b). It is ORD ERED and N OTICED that the recovery, if any, obtained in this action shall be paid to the Clerk of Court who shall 1 Dockets.Justia.com collect therefrom all unpaid fees and costs taxed against Plaintiff and shall pay the balance, if any, to the Plaintiff. The Clerk of Court is ORD ERED to issue a sum m ons for the nam ed defendant. The Clerk shall provide the sum m ons and a copy of the com plaint to the United States Marshals Service. Pursuant to 28 U.S.C. § 1915(d) and Rule 4(c)(3), Fed. R. Civ . P., the United States Marshals Service is ORD ERED to serve the sum m ons and com plaint on the defendant, or his/ her designated agent for service. The Marshals Service shall prom ptly file the proof of service with the Clerk. In keeping with 28 U.S.C. § 1915(e)(2), the undersigned has conducted a prelim inary review of Plaintiff’s com plaint to determ ine if the action is frivolous, fails to state a claim upon which relief m ay be granted, or seeks m onetary relief from a defendant who is im m une from such relief. Although pro se com plaints, such as the one filed in this case, m ust be liberally construed to allow the developm ent of potentially m eritorious claim s, the court m ay not rewrite the pleading to include claim s that were never presented, Parker v. Cham pion, 148 F.3d 1219, 1222 (10 th Cir. 1998), develop the plaintiff’s legal theories for him , Sm all v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court. Beaudett v. City of Ham pton, 775 F.2d 1274, 1278 (4th Cir. 1985). At the sam e tim e, to achieve justice, the court m ay allow a pro se plaintiff the opportunity to am end his com plaint in order to correct deficiencies in the pleading. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). In order to state a cause of action for m oney dam ages under 42 U.S.C. § 1983, a plaintiff m ust show that a p e r s o n was acting under color of state law and deprived the plaintiff of a federally protected civil right, privilege, or imm unity. Perrin v. 2 Nicholson, 20 10 U.S. Dist. LEXIS 10 5121, at *4 (D.S.C. 20 10 ); Am erican Mfr. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 , 50 -52 (1999). For the m ost part, liability under 42 U.S.C. § 1983 is personal in nature, based upon a defendant’s own constitutional violation. Monell v. Departm ent of Social Services of the City of NY, 436 U.S. 658, 694. Here, Plaintiff has only nam ed the Western Regional J ail Authority as a defendant. However, neither the Western Regional J ail, nor the West Virginia Regional J ail and Correctional Facility Authority, is a “person” subject to liability under 42 U.S.C. § 1983. Therefore, if Plaintiff claim s a person (or persons) acting under color of state law violated his federal civil or constitutional rights, he m ust am end his com plaint within th irty ( 3 0 ) d ays of the date of this Order to nam e those individual or individuals and to state precisely what civil or constitutional right each individual violated. If Plaintiff is unaware of the nam es of the relevant individuals, he shall designate in the case caption each individual whose nam e is unknown as a J ohn Doe or J ane Doe (e.g. Correctional Officer J ohn Doe) an d s h all fu rth e r id e n tify each individual in the body of the com plaint by description, date/ tim e of contact, alleged act, or in som e other m anner that assists the court in determ ining the identity and num ber of individual defendants in the action, as well as the specific reason that each individual defendant is included in the com plaint. To the extent Plaintiff knows partial nam es, he shall include those parts (e.g. Correctional Officer Thom as LKU (‘last nam e unknown”)). Plaintiff is hereby given notice that a failure to am end the com plaint as ordered m ay result in a recom m endation that the com plaint be dism issed for failure to state a claim cognizable under 42 U.S.C. § 1983 and/ or for failure to prosecute under Fed. R. Civ. P. 41 and L. R. Civ. P. 41.1. Plain tiff is re m in d e d o f h is o bligatio n as a p r o s e p lain tiff to tim e ly ad vis e th e Cle rk o f Co u rt o f an y ch an ge s in h is 3 ad d re s s . The Clerk is instructed to provide a copy of this order to Plaintiff. EN TERED : J uly 30 , 20 18 4
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