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Ford v. Brock

April 15, 2008

FRANKIE FORD, PLAINTIFF,
v.
DON BROCK, WARDEN MORROW, DEPUTY WARDEN ANDREW LEWIS, GRIEVANCE CHAIRPERSON HIGDON, IRC FISHER, C.O. KAREN KROGMAN, LT. ROY HIXON, C.O. BURNS; DEFENDANTS.



The opinion of the court was delivered by: Harry S. Mattice, Jr. United States District Judge

MEMORANDUM AND ORDER

Frankie Ford ("Ford") has filed a pro se prisoner's civil rights complaint pursuant to 42 U.S.C. § 1983. Ford claims he fell when he slipped in a puddle of water caused by the leaking sink in his jail cell (Court File No. 3). Ford seeks monetary relief against Defendants and requests that the "employees of the maintenance department involved in this incident" be fired (Court File No. 3). However, no service shall issue and this complaint will be DISMISSED(Court File No. 1). The dismissal of the complaint necessarily also requires the dismissal of Ford's motions to appoint counsel (Court File No. 4); motion for service of process (Court File No. 5); motion to compel (Court File No. 6); motion to amend service (Court File No. 7); motion to amend and add defendants (Court File No. 8); motion for a speedy trial (Court File No. 11); motion to amend and add defendants (Court File No. 12); and motion for jury trial (court File No. 13).

I. APPLICATION TO PROCEED IN FORMA PAUPERIS

It appears from the application to proceed in forma pauperis submitted by Ford that he lacks sufficient financial resources at the present time to pay the required filing fee of $350.00. Ford is not, however, relieved of the ultimate responsibility of paying the $350.00 filing fee. Since Ford is an inmate or prisoner in custody at Southeastern Tennessee State Regional Correctional Facility in Pikeville, Tennessee, he is ASSESSED the civil filing fee of $350.00 under the Prisoner Litigation Reform Act, Pub. L. 104-134, 110 Stat. 1321, codified in 28 U.S.C. § 1915, and shall pay such fee.

Pursuant to 28 U.S.C. § 1915(b)(1)(A) and (B), the custodian of Ford's inmate trust account at the institution where he now resides shall submit to the Clerk, United States District Court, 900 Georgia Ave., Room 309, Chattanooga, Tennessee 37402, as an initial partial payment, whichever is the greater of (a) twenty percent (20%) of the average monthly deposits to Ford's inmate trust account; or (b) twenty percent (20%) of the average monthly balance in Ford's inmate trust account for the six-month period preceding the filing of the complaint.

Thereafter, the custodian shall submit twenty percent (20%) of Ford's preceding monthly income (or income credited to his trust account for the preceding month), but only when such monthly income exceeds $10.00, until the full filing fee of $350.00 as authorized under 28 U.S.C. §1914(a) has been paid to the Clerk. 28 U.S.C. § 1915(b)(2).

The Clerk of Court will be DIRECTED to send a copy of this Memorandum and Order to the Warden and custodian of inmate accounts at Southeastern Tennessee State Regional Correctional Facility, the Commissioner of the Tennessee Department of Correction, and the Attorney General for the State of Tennessee to ensure the custodian of Ford's inmate trust account complies with the portion of the Prison Litigation Reform Act relating to payment of the filing fee.

The agency having custody of Ford will collect the filing fee as funds become available. This order will become a part of inmate Ford's file and follow the inmate if he is transferred to another institution. The agency having custody of Ford will continue to collect monthly payments from his prisoner account until the entire filing fee of $350.00 is paid.

Ford will be ORDERED to notify this Court of any change of address if he is transferred to another institution, and to provide the prison officials at any new institution with a copy of this order. Failure of Ford to notify this Court of an address change within ten (10) days following any change of address and/or failure to notify the new prison officials of this order and outstanding debt will result in the imposition of appropriate sanctions against him without any additional notice or hearing by the Court.

II. STANDARD OF REVIEW

Pro se pleadings filed in civil rights cases are to be liberally construed and are held to a less stringent standard than formal pleadings drafted by lawyers. McNeil v. United States, 508 U.S. 106, 113 (1993); Boag v. MacDougall, 454 U.S. 364, 365 (1982); Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991). Pro se status does not, however, exempt the plaintiff from the requirement that he comply with relevant rules of procedural and substantive law. Hulsey v. State of Texas, 929 F.2d 168, 171 (5th Cir. 1991); Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981). Pro se plaintiffs must comply with Rule 8 of the Federal Rules of Civil Procedure which provides that a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief. . . ." LRL Properties v. Portage Metro Housing Authority, 55 F.3d 1097, 1104 (6th Cir. 1995). Although the standard of review is liberal, it does require more than the bare assertion of legal conclusions. Lillard v. Shelby County Bd. Of Educ., 76 F.3d 716, 726 (6th Cir. 1996) (standard of review for dismissing a complaint pursuant to Fed. R. Civ. P. 12(b)(6)-failure to state a claim upon which relief may be granted); LRL Properties, 55 F.3d at 1103-04; Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir. 1993); Hartfield v. East Grand Rapids Public Schools, 960 F. Supp. 1259, 1268 (W.D. Mich. 1997). The complaint must give the defendants fair notice of what the plaintiff's claim is and the grounds upon which it rests. Lillard, 76 F.3d at 726; Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir. 1994). "In practice, 'a . . . complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.'" Lillard, 76 F.3d at 726 (citations omitted).

The Court screens the complaint pursuant to 28 U.S.C. § 1915A and § 1915(e). Furthermore, 28 U.S.C. § 1915(e)(2) provides that the Court must dismiss a case at any time that the Court may determine is frivolous or fails to state a claim upon which relief can be granted.

A. Screening Pursuant to 28 U.S.C. §§ 1915A and 1915(e)

When screening a prisoner complaint, a district court must examine both § 1915(e)(2) and § 1915A. If the civil action seeks redress from a governmental entity, officer, or employee, the district court must dismiss the complaint, or any portion of the complaint, which (a) is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (b) seeks monetary relief from a defendant who is immune from monetary relief. 28 U.S.C. § 1915A. Should the complaint contain any allegations that do not fall within § 1915A, the district court must then examine the complaint under § 1915(e)(2). The requirements of §1915(e)(2) overlap the criteria of § 1915A. Section 1915A is restricted to prisoners who sue government entities, officers, or employees. In contrast, § 1915(e)(2) is restricted neither to actions brought by prisoners, nor to cases involving government defendants. Further, § 1915A is applicable at the initial stage of the litigation, while § 1915(e)(2) is applicable throughout the entire litigation process. A case that may not initially appear to meet §1915(e)(2) may be dismissed at a future date should it become apparent that the case satisfies this section. Thus, in prisoner cases, the district court must first examine a complaint under § 1915A and then review the complaint under § 1915(e)(2) before the case can proceed in due course. A district court is required to screen all civil cases brought by prisoners, regardless of whether the inmate paid the full filing fee, is a pauper, is pro se, or is represented by counsel as the statute does not differentiate between various civil actions brought by prisoners. The dismissal of a complaint under §1915(e)(2) or § 1915A does not negate a prisoner's obligation to pay the filing fee in accordance with § ...


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