United States District Court, E.D. Tennessee, Chattanooga
MEMORANDUM AND ORDER
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE.
Court is in receipt of a pro se prisoner's civil rights
complaint under 42 U.S.C. § 1983 [Doc. 2], a motion for
leave to proceed in forma pauperis [Doc. 1], and
Plaintiff's certificate for his inmate trust account
[Doc. 4]. It appears from Plaintiff's filings [Docs. 1
and 4] that he lacks sufficient financial resources to pay
the $350.00 filing fee. Accordingly, pursuant to 28 U.S.C.
§ 1915, Plaintiff is allowed to proceed in this action
without the prepayment of costs or fees or security therefor.
For the reasons set forth below, however, no process shall
issue and this action will be DISMISSED for failure to state
a claim upon which relief may be granted.
the Prison Litigation Reform Act (“PLRA”),
district courts must screen prisoner complaints and sua
sponte dismiss any claims that are frivolous or
malicious, fail to state a claim for relief, or are against a
defendant who is immune. See, e.g., 28 U.S.C.
§§ 1915(e)(2)(B) and 1915(A); Benson v.
O'Brian, 179 F.3d 1014 (6th Cir. 1999). The
dismissal standard articulated by the Supreme Court in
Ashcroft v. Iqbal, 556 U.S. 662 (2009) and in
Bell Atl. Corp. v. Twombly, 550 U.S. 554 (2007)
“governs dismissals for failure state a claim under [28
U.S.C. §§ 1915(e)(2)(B) and 1915A] because the
relevant statutory language tracks the language in Rule
12(b)(6).” Hill v. Lappin, 630 F.3d 468,
470-71 (6th Cir. 2010). Thus, to survive an initial review
under the PLRA, a complaint “must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570).
liberally construe pro se pleadings filed in civil rights
cases and hold them to a less stringent standard than formal
pleadings drafted by lawyers. Haines v. Kerner, 404
U.S. 519, 520 (1972). Allegations that give rise to a mere
possibility that a plaintiff might later establish
undisclosed facts supporting recovery are not well-pled and
do not state a plausible claim, however. Twombly,
550 U.S. at 555, 570. Further, formulaic and conclusory
recitations of the elements of a claim which are not
supported by specific facts are insufficient to state a
plausible claim for relief. Ashcroft v. Iqbal, 556
U.S. 662, 681 (2009).
order to state a claim under 42 U.S.C. § 1983, a
plaintiff must establish that he was deprived of a federal
right by a person acting under color of state law. Black
v. Barberton Citizens Hosp., 134 F.3d 1265, 1267 (6th
Cir. 1998); O'Brien v. City of Grand Rapids, 23
F.3d 990, 995 (6th Cir. 1994); Russo v. City of
Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992); see
also Braley v. City of Pontiac, 906 F.2d 220, 223 (6th
Cir. 1990) (stating that “Section 1983 does not itself
create any constitutional rights; it creates a right of
action for the vindication of constitutional guarantees found
complaint, Plaintiff alleges that Defendant Milchak refused
to provide him with a meal on two occasions and that, on the
second occasion, Plaintiff informed Defendant Milchak that he
had not eaten, but when Plaintiff again wanted to speak to
Defendant Milchak about missing this meal, Defendant Milchak
stated “y[']all n*ggas ain't nothing to me but
my car payment, house payment, [and] boat payment[, ]
that's all y[']all are to me [Doc. 1 p. 2]. These are
the only substantive allegations in the complaint.
construing the complaint in favor of Plaintiff, it fails to
state a claim for violation of Plaintiff's constitutional
rights. Specifically, Plaintiff sets forth no allegations
from which the Court could plausibly infer that Plaintiff was
not provided with food sufficient to maintain normal health
as required for prison deprivation of food to violate the
Eighth Amendment. Richmond v. Settles, 450 Fed.
App'x 448, 456 (6th Cir. 2011). Further, it is not
unconstitutional to use slurs or epithets. Williams v.
Sandel, 433 F. App'x 353, 362 (6th Cir. 2011). As
such, Plaintiff's complaint fails to state a claim upon
which relief may be granted under § 1983.
Plaintiff is an inmate in the Northwest Correctional Complex,
he is herewith ASSESSED the civil filing fee of $350.00.
Pursuant to 28 U.S.C. § 1915(b)(1)(A) and (B), the
custodian of Plaintiff's inmate trust account at the
institution where he now resides is directed to submit to the
Clerk, U.S. District Court, 900 Georgia Avenue, Room 309,
Chattanooga, Tennessee 37402, twenty percent (20%) of
Plaintiff's preceding monthly income (or income credited
to Plaintiff's trust account for the preceding month),
but only when such monthly income exceeds ten dollars
($10.00), until the full filing fee of three hundred fifty
dollars ($350.00) as authorized under 28 U.S.C. §
1914(a) has been paid to the Clerk. 28 U.S.C. §
Clerk is DIRECTED to send a copy of this Memorandum and Order
to the Warden of the Northwest County Correctional Complex,
the Commissioner of the Tennessee Department of Correction,
and the Attorney General for the State of Tennessee to ensure
that the custodian of Plaintiff's inmate trust account
complies with that portion of the Prison Litigation Reform
Act relating to payment of the filing fee. The Clerk is
further DIRECTED to forward a copy of this Memorandum and
Order to the Court's financial deputy.
the Court CERTIFIES that any appeal from this order would not
be taken in good faith and the Court will therefore DENY