Puskas v. Western Regional Jail, No. 3:2018cv01536 - Document 3 (S.D.W. Va. 2018)
Court Description: MEMORANDUM OPINION AND ORDER directing Plaintiff to pay the filing fee of $400, or in the alternative, submit to the Court a completed and signed Application to Proceed Without Prepayment of Fees and Costs, which includes the institutional cert ification and an inmate account transaction record; notifying Plaintiff that failure to pay the fee or submit a completed application within thirty (30) days of the date of this Order shall result in a recommendation that the Complaint be dismissed; directing Plaintiff to amend her complaint within thirty (30) days of the date of this Order; notifying Plaintiff that a failure to amend the complaint as ordered shall result in a recommendation that the complaint be dismissed. Signed by Magistrate Judge Cheryl A. Eifert on 12/26/2018. (cc: Plaintiff with an Application to Proceed Without Prepayment of Fees and Costs) (hkl)
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Puskas v. Western Regional Jail Doc. 3 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 JOD I PU SKAS, Plain tiff, v. Cas e N o . 3 :18 -cv-0 153 6 W ESTERN REGION AL JAIL, D e fe n d an t. MEMORAN D U M OPIN ION AN D ORD ER Pending before the Court is Plaintiff’s Com plaint filed pursuant to 42 U.S.C. § 1983, (ECF No. 1). The undersigned notes that Plaintiff has failed to pay a filing fee or subm it an Application to Proceed Without Prepaym ent of Fees and Costs. Before the Com plaint can be accepted for prosecution, either the filing fee must be paid, or an application to proceed in form a pauperis m ust be approved by the Court. Therefore, Plaintiff is hereby ORD ERED to pay the filing fee of $ 40 0 , or in the alternative, subm it to the Court a com pleted and signed Application to Proceed Without Prepaym ent of Fees and Costs, which includes the institutional certification and an inm ate account transaction record. Plain tiff is n o tifie d that failure to pay the fee or subm it a com pleted application within th irty ( 3 0 ) d ays of the date of this Order shall result in a recom m endation that the Com plaint be dism issed. 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 1 Dockets.Justia.com 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 her, 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 her com plaint in order to correct deficiencies in the pleading. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Plaintiff alleges that on October 31, 20 18, she was assaulted by a correctional officer, Brittany Adkins, at the Western Regional J ail in Barboursville, West Virginia. (ECF No. 1). Plaintiff claim s that the unprovoked attack left her with bleeding m arks and a scar. Title 42 U.S.C. § 1983 provides a rem edy to parties who are deprived of federally protected civil rights by persons acting under color of any state “law, statute, ordinance, regulation, custom , or usage.” To state a cause of action under § 1983, a plaintiff m ust allege facts showing that: (1) an official deprived the plaintiff of a federally protected civil right, privilege or im munity and (2) that the official did so under color of State law. 42 U.S.C. § 1983; see also Perrin v. Nicholson, C/ A No. 9:10 -1111-HFF-BM, 20 10 WL 3893792 (D.S.C. Sept. 8, 20 10 ). If either of these elem ents is m issing, the com plaint fails to state a claim for relief under 42 U.S.C. § 1983. The Eighth Am endm ent to the United States Constitution “im poses duties on [prison] officials who m ust provide hum ane conditions of confinem ent; prison officials m ust ensure that inm ates receive adequate food, clothing, shelter, and m edical care, and 2 m ust ‘take reasonable m easures to guarantee the safety of the inm ates.’” Farm er v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palm er, 468 U.S. 517, 526– 27 (1984)). A prison official violates this constitutional m andate when he uses excessive force against a prisoner, Hudson v. McMillian, 50 3 U.S. 1, 4 (1992), and when he responds to a prisoner’s serious m edical need with deliberate indifference. Estelle, 429 U.S. 97, 10 4 (1976). To establish a constitutional claim of excessive force, a plaintiff m ust show that a prison official “inflicted unnecessary and wanton pain and suffering.” Tay lor v. McDuffie, 155 F.3d 479, 483 (4th Cir.1998) (quoting W hitley v. Albers, 475 U.S. 312, 320 , (1986)). There is a subjective com ponent to the claim in that the official m ust have “acted with a sufficiently culpable state of m ind.” W illiam s v. Benjam in, 77 F.3d 756, 761 (4th Cir. 1996). Objectively, the injury inflicted on the inm ate m ust be “sufficiently serious.” Id. However, the predom inate focus is not on the severity of the injury because when prison officials “maliciously and sadistically use force to cause harm , contem porary standards of decency always are violated whether or not significant injury is evident.” W ilkins v. Gaddy , 559 U.S. 34, 37 (20 10 ). “The proper inquiry is whether the force applied was in a good faith effort to m aintain or restore discipline or m aliciously and sadistically for the very purpose of causing harm .” Tay lor, 155 F.3d at 483. “In determ ining whether [this] constitutional line has been crossed, a court m ust look to such factors as the need for the application of force, the relationship between the need and the am ount of force used, the extent of the injury inflicted, and whether the force was applied in a good faith effort to m aintain and restore discipline or m aliciously and sadistically for the very purpose of causing harm .” Orem v. Rephann, 523 F.3d 442, 446 (4th Cir. 20 0 8) (quoting Johnson v. Glick, 481 F.2d 10 28, 10 33 (2d Cir.1973)). 3 If Plaintiff wishes to pursue a claim against C. O. Adkins, then she m ust am end her com plaint to cure the following deficiencies: 1. The Western Regional J ail is not a “person” subject to liability under 42 U.S.C. § 1983. Therefore, if Plaintiff wishes to pursue her civil action against C. O. Adkins, Plaintiff must expressly add C. O. Brittany Adkins as a defendant in this action by listing her as a defendant. 2. Plaintiff m ust identify the relief she seeks; for exam ple, whether she dem ands m onetary com pensation, or equitable relief, or both. Plaintiff is ORD ERED to am end her com plaint within th irty ( 3 0 ) d ays of the date of this Order. Plain tiff is h e re by give n n o tice that a failure to am end the com plaint as ordered shall result in a recomm endation that the com plaint be dism issed for failure to state a claim 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 als o re m in d e d of her obligation to prom ptly notify the Clerk of Court of any change in his contact inform ation. The Clerk is instructed to provide a copy of this order to Plaintiff, along with a form Com plaint under 42 U.S.C. § 1983, an Application to Proceed Without Prepaym ent of Fees and Costs, and any available instructions for com pleting the form s. The Clerk shall write the civil action num ber on the form s provided to Plaintiff. EN TERED : December 26, 20 18 4
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