United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM AND ORDER
WILLIAM L. CAMPBELL, JR. UNITED STATES DISTRICT JUDGE.
Brandon Bernard, an inmate in the custody of the Davidson
County Sheriff's Office in Nashville, Tennessee, has
filed a pro se complaint under 42 U.S.C. §
1983. (Doc. No. 1.) Plaintiff has also filed an application
for leave to proceed in forma pauperis (IFP). (Doc.
case is before the Court for ruling on the IFP application
and for initial review pursuant to the Prison Litigation
Reform Act (PLRA), 28 U.S.C. §§ 1915(e)(2) and
1915A, and 42 U.S.C. § 1997e.
Application to Proceed IFP
the PLRA, 28 U.S.C. § 1915(a), a prisoner bringing a
civil action may apply for permission to file suit without
prepaying the filing fee of $350.00 required by 28 U.S.C.
§ 1914(a). Because it is apparent from Plaintiff's
IFP application that he lacks the funds to pay the entire
filing fee in advance, his application (Doc. No. 2) is
to 28 U.S.C. §§ 1915(b) and 1914(a), Plaintiff is
nonetheless assessed the $350.00 civil filing fee. The warden
of the facility in which Plaintiff is currently housed, as
custodian of Plaintiff's trust account, is
DIRECTED to submit to the Clerk of Court, as
an initial payment, the greater of: (a) 20% of the average
monthly deposits to Plaintiff's credit at the jail; or
(b) 20% of the average monthly balance to Plaintiff's
credit for the six-month period immediately preceding the
filing of the complaint. 28 U.S.C. § 1915(b)(1).
Thereafter, the custodian shall submit 20% of Plaintiff's
preceding monthly income (or income credited to Plaintiff for
the preceding month), but only when the balance in his
account exceeds $10.00. 28 U.S.C. § 1915(b)(2). Payments
shall continue until the $350.00 filing fee has been paid in
full to the Clerk of Court. 28 U.S.C. § 1915(b)(3).
Clerk of Court MUST send a copy of this
Order to the warden of the facility where Plaintiff is housed
to ensure compliance with that portion of 28 U.S.C. §
1915 pertaining to the payment of the filing fee. If
Plaintiff is transferred from his present place of
confinement, the custodian must ensure that a copy of this
Order follows Plaintiff to his new place of confinement, for
continued compliance with the Order. All payments made
pursuant to this Order must be submitted to the Clerk of
Court for the United States District Court for the Middle
District of Tennessee, 801 Broadway, Nashville, TN 37203.
Initial Review of the Complaint
PLRA Screening Standard
to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss any
IFP complaint that is facially frivolous or malicious, fails
to state a claim upon which relief may be granted, or seeks
monetary relief against a defendant who is immune from such
relief. Similarly, Section 1915A provides that the Court
shall conduct an initial review of any prisoner complaint
against a governmental entity, officer, or employee, and
shall dismiss the complaint or any portion thereof if the
defects listed in Section 1915(e)(2)(B) are identified. Under
both statutes, this initial review of whether the complaint
states a claim upon which relief may be granted asks whether
it contains “sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face, ” such that it would survive a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6). Hill v.
Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. Applying
this standard, the Court must view the complaint in the light
most favorable to Plaintiff and, again, must take all
well-pleaded factual allegations as true. Tackett v. M
& G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir.
2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466
(6th Cir. 2009) (citations omitted)). Furthermore, pro se
pleadings must be liberally construed and “held to less
stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)). However, pro se litigants are not exempt from the
requirements of the Federal Rules of Civil Procedure,
Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989),
nor can the Court “create a claim which [a plaintiff]
has not spelled out in his pleading.” Brown v.
Matauszak, 415 Fed.Appx. 608, 613 (6th Cir. 2011)
(quoting Clark v. Nat'l Travelers Life Ins. Co.,
518 F.2d 1167, 1169 (6th Cir. 1975)).
Section 1983 Standard
seeks to vindicate alleged violations of his federal
constitutional rights under 42 U.S.C. § 1983. Section
1983 creates a cause of action against any person who, acting
under color of state law, deprives an individual of any
right, privilege or immunity secured by the Constitution or
federal laws. Wurzelbacher v. Jones-Kelley, 675 F.3d
580, 583 (6th Cir. 2012). Thus, to state a Section 1983
claim, Plaintiff must allege two elements: (1) a deprivation
of rights secured by the Constitution or laws of the United
States, and (2) that the deprivation was caused by a person
acting under color of state law. Carl v. Muskegon
Cnty., 763 F.3d 592, 595 (6th Cir. 2014).