Smith v. Western Regional Jail, No. 3:2016cv12736 - Document 4 (S.D.W. Va. 2017)
Court Description: MEMORANDUM OPINION AND ORDER directing the Plaintiff to pay the filing fee of $400 or submit to the Court an amended Application to Proceed Without Prepayment of Fees and Costs, which includes the institutional certification, or an inmate accoun t transaction record; notifying Plaintiff that the failure to pay the fee or submit the application as instructed within thirty (30) days of the date of this Order shall result in a recommendation that the complaint be dismissed; further directing th e Plaintiff to amend the complaint as more fully set forth herein; notifying Plaintiff that a failure to amend the complaint as ordered may result in a recommendation that the complaint be dismissed 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. Signed by Magistrate Judge Cheryl A. Eifert on 1/3/2017. (cc: Plaintiff) (jsa)
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Smith v. Western Regional Jail 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 STEVEN ALLEN SMITH , Plain tiffs , v. Cas e N o . 3 :16 -cv-12 73 6 W ESTERN REGION AL JAIL MED ICAL, 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 Plaintiff’s Com plaint filed pursuant to 42 U.S.C. § 1983. (ECF No. 2). The undersigned notes that the Application to proceed in form a pauperis is incom plete. Before the Application can be accepted for review, the institution of incarceration m ust com plete the certificate located at the bottom of page 2 of the Application, or Plaintiff m ust subm it a transaction record of his inm ate account. For that reason, Plaintiff is hereby ORD ERED to pay the filing fee of $ 40 0 or subm it to the Court an am ended Application to Proceed Without Prepaym ent of Fees and Costs, which includes the institutional certification, or an inm ate account transaction record. Plain tiff is n o tifie d that the failure to pay the fee or subm it the application as instructed within th irty ( 3 0 ) d a ys of the date of this Order shall result in a recom m endation that the com plaint be dism issed. - 1 Dockets.Justia.com 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). Plaintiff alleges that, on Novem ber 4, 20 16 while he was in protective custody at the Western Regional J ail in Barboursville, West Virginia, he was viciously assaulted by another inm ate. (ECF No. 2 at 4-5). He claim s that correctional officers at the J ail allowed the attack to happen by ignoring Plaintiff’s verbalized concerns regarding his safety and by allowing an inmate to “cap” his cell door; thereby, facilitating the inm ate’s access to Plaintiff. (Id.). Plaintiff seeks better security and protection for inm ates in protective custody, for correctional officers “to do their jobs and protect us,” and $ 75,0 0 0 in monetary com pensation for pain and suffering. (Id. at 5). 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 person (the defendant) was acting under color of state law -2 and deprived the plaintiff of a federally protected civil right, privilege, or imm 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). 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, 98 S.Ct. 20 18, 56 L.Ed.2d 611 (1978). Here, Plaintiff has only nam ed the Western Regional J ail as a defendant. The J ail is not a “person” subject to liability under 42 U.S.C. § 1983. Therefore, if Plaintiff claim s that a person or persons acting under color of state law has violated his federal civil or constitutional rights, he m ust am end his com plaint to nam e the individual or individuals and to state precisely what civil or constitutional right was violated. If Plaintiff is unaware of the nam es of the relevant individuals, Plaintiff 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) and shall further identify 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”). Plain tiff is h e re by give n n o tice th at a failu re to a m e n d th e co m p lain t as o rd e re d m ay re s u lt in a re co m m e n d atio n th at th e co m p lain t be d is m is s e d fo r failu re to s tate a claim co gn izable u n d e r 4 2 U .S.C. § 19 8 3 an d / o r fo r failu re to p ro s e cu te u n d e r Fe d . R. Civ. P. 4 1 an d L. R. Civ. P. -3 4 1.1. Plaintiff is also rem inded of his obligation to prom ptly notify the Clerk of Court of any change in his address. The Clerk is instructed to provide a copy of this order to Plaintiff. EN TERED : J anuary 3, 20 17 -4
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