Howard v. Crawford, No. 3:2015cv09800 - Document 5 (S.D.W. Va. 2015)
Court Description: MEMORANDUM OPINION AND ORDER denying Plaintiff's 1 APPLICATION to Proceed Without Prepayment of Fees and Costs; directing Plaintiff to submit, within 45 days of the date of this Order, an amended Application to Proceed Without Prepayment of Fe es & Costs, reflecting his current financial status, or pay the $400 filing fee; notifying Plaintiff that no action shall be taken on his complaint until the fee is paid or the amended application is filed, and a failure to pay the fee or submit the amended application shall result in a recommendation that the complaint be dismissed; directing Plaintiff to amend his complaint within 45 days of the date of this Order and cure the various deficiencies in pleading, as more fully set forth here in; if Plaintiff wishes to dismiss the case, without prejudice, in order to pursue his claim in another form, he shall notify the Court by sending a motion for dismissal; noticing Plaintiff that a failure to amend the complaint as ordered shall resul t in a recommendation that the complaint be dismissed for failure to state a claim compensable under 42 U.S.C. § 1983; reminding Plaintiff of his obligation under the local rules of this Court to notify the Clerk of any change in address or contact information. Signed by Magistrate Judge Cheryl A. Eifert on 7/24/2015. (cc: Plaintiff) (mkw)
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Howard v. Crawford Doc. 5 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 CARTEZ K. H OW ARD , Plain tiff, v. Cas e N o . 3 :15-cv-0 9 8 0 0 LARRY CRAW FORD , Ad m in is trato r o f th e W e s te rn Re gio n 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 Application to Proceed Without Prepaym ent of Fees & Costs and his pro se com plaint seeking m oney dam ages from the defendant for an alleged slip and fall suffered by Plaintiff when he was an inm ate at the Western Regional J ail. The undersigned notes that Plaintiff is no longer an inm ate at the Western Regional J ail and is not listed as an inm ate of any other West Virginia jail or correctional facility. Therefore, his application to proceed in form a pauperis, (ECF No. 1) is D EN IED , as it is no longer factually accurate. Plaintiff is ORD ERED to subm it, within fo rty-five ( 4 5) d ays of the date of this Order, an am ended Application to Proceed Without Prepaym ent of Fees & Costs, reflecting his current financial status, or pay the $ 40 0 filing fee. Plain tiff is n o tifie d that no action shall be taken on his com plaint until the fee is paid or the am ended application is filed, and a failure to pay the fee or subm it the am ended application shall result in a recom m endation that the - 1 Dockets.Justia.com 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 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 may 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). Plaintiff’s com plaint alleges the following: 1. That on April 12, 20 15, Plaintiff’s unit at the Western Regional J ail was flooded when another inm ate pulled down a fire sprinkler. The prisoners in the unit were im m ediately placed on lockdown. 2. After the inm ate was rem oved, the other prisoners were allowed to walk in the com m on area, which had not yet been cleared of the water from the sprinkler. 3. As a result of the water on the floor, Plaintiff fell and hit his head. He was knocked unconscious and required transport to a local hospital. He now has a back injury. Plaintiff seeks com pensatory dam ages in the am ount of $ 250 ,0 0 0 and reim bursem ent for future m edical and pharm acy bills. -2 Clearly, these allegations do not state a valid cause of action under 28 U.S.C. § 1983, or otherwise establish that jurisdiction is proper in the United States District Court. Consequently, along with paying the filing fee or subm itting an am ended Application to Proceed Without Prepaym ent of Fees and Costs, Plaintiff is ORD ERED to am end his com plaint within fo rty-five ( 4 5) d ays of the date of this Order and cure the various deficiencies in pleading as indicated below: 1. Plaintiff shall state in the com plaint his full nam e and current address. 2. Plaintiff shall elaborate on how the defendant allegedly violated Plaintiff’s civil or constitutional rights. Plaintiff m ust bear in mind that in order to state a cause of action for m oney dam ages under 42 U.S.C. § 1983, he m ust show that the defendant was acting under color of state law and deprived Plaintiff of a federally protected civil right, privilege, or im m unity. Perrin v. 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). Generally, a “slip and fall” case does not state a claim of constitutional m agnitude, even when the event involves an inm ate falling in a correctional facility. See New ton v. North Central Regional Jail, Civil Action No. 5:13CV76, 20 14 WL 3572128, at *5 (N.D.W.Va. J uly 18, 20 14) (collecting cases). Instead, “[r]em edy for this type of injury, if any, m ust be sought in state court under traditional tort law principles.” Mitchell v. W est Virginia, 554 F.Supp 1215, 1217 (N.D.W.Va. 1983). 3. Plaintiff shall also state the nature of the alleged constitutional violation and shall specify whether he is nam ing Defendant Crawford in his personal or official capacity. -3 If Plaintiff wishes to dism iss the case, without prejudice, in order to pursue his claim in another forum , he shall notify the Court by sending a m otion for dism issal. 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 recom mendation that the com plaint be dism issed for failure to state a claim com pensable under 42 U.S.C. § 1983. Plain tiff is re m in d e d o f h is o bligatio n u n d e r th e lo cal ru le s o f th is Co u rt to n o tify th e Cle rk o f an y ch an ge in ad d re s s o r co n tact in fo rm atio n . The Clerk is instructed to provide a copy of this order to Plaintiff at 4840 Adam s # 266, Rochester, MI 4380 6. EN TERED : J uly 24, 20 15. -4
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