Smith v. Western Regional Jail, No. 3:2017cv03502 - Document 4 (S.D.W. Va. 2017)
Court Description: MEMORANDUM OPINION AND ORDER directing 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 account tr ansaction record; if Plaintiff claims that a person (or persons) acting under color of state law violated his federal civil or constitutional rights, Plaintiff must amend his complaint, as more fully set forth herein. Signed by Magistrate Judge Cheryl A. Eifert on 7/3/2017. (cc: Plaintiff) (mkw)
Download PDF
<![CDATA[
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 JAMES ARTH U R SMITH , JR., Plain tiff, v. Cas e N o . 3 :17-cv-0 3 50 2 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 J am es Arthur Sm ith J r.’s (“Sm ith”) Application to Proceed Without Prepaym ent of Fees and Costs, (ECF No. 1), and Sm ith 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 Sm ith m ust subm it a transaction record of his inm ate account. For that reason, Sm ith 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. In keeping with 28 U.S.C. § 1915(e)(2), the undersigned has conducted a prelim inary review of Sm ith’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 Dockets.Justia.com 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 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). 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, Sm ith has only nam ed the Western Regional J ail as a defendant. However, the J ail is not a “person” subject to liability under 42 U.S.C. § 1983. Therefore, if Sm ith claim s that 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 to nam e the individual or individuals and to state precisely what civil or constitutional right each individual violated. If Sm ith 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 Sm ith knows partial nam es, he shall include those parts (e.g. Correctional Officer Thom as LKU (‘last nam e unknown”)). Sm ith 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. Sm ith 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 uly 3, 20 17
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
