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Rendina v. Seals

United States District Court, E.D. Tennessee

November 19, 2019

ANTHONY L. RENDINA, Plaintiff,
v.
RONALD SEALS, RHETT RUTLEDGE, IAN MORLAN, KYLE MILLER, TREVOR TARWATER, DAVID BUCHANAN, FNU COLE, FNU ROSS, LNU JOE, FNU BALLARD, and FNU MAPLES, Defendants.

          MEMORANDUM OPINION AND ORDER

          THOMAS A. VARLAN UNITED STATES DISTRICT JUDGE.

         The Court is in receipt of a pro se prisoner's complaint under 42 U.S.C. § 1983 [Doc. 1], a motion for leave to proceed in forma pauperis [Doc. 4], and a motion to appoint counsel [Doc. 5]. The Court will first address Plaintiff's motions before screening the complaint in accordance with the Prison Litigation Reform Act (“PLRA”).

         I. FILING FEE

         Plaintiff's motion for leave to proceed in forma pauperis is unaccompanied by a certified copy of his inmate trust account for the previous six-month period [Doc. 4]. Plaintiff contends, however, that staff at the Sevier County Jail, where he is housed, refuse to comply with the Court's order to produce the inmate account statement [See Doc. 7]. Accordingly, the Court will presume that Plaintiff lacks sufficient financial resources to pay the filing fee, and pursuant to 28 U.S.C. § 1915, this motion [Doc. 4] will be GRANTED.

         Because Plaintiff is an inmate in the Sevier County Jail, he will be ASSESSED the civil filing fee of $350.00. The custodian of Plaintiff's inmate trust account will be DIRECTED to submit to the Clerk, U.S. District Court, 800 Market Street, Suite 130, Knoxville, Tennessee 37902, as an initial partial payment, the greater of: (a) twenty percent (20%) of the average monthly deposits to Plaintiff's inmate trust account; or (b) twenty percent (20%) of the average monthly balance in his inmate trust account for the six-month period preceding the filing of the complaint. 28 U.S.C. § 1915(b) (1) (A) and (B). Thereafter, the custodian of Plaintiff's inmate trust account shall submit 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) has been paid to the Clerk. 28 U.S.C. §§ 1915(b)(2) and 1914(a).

         To ensure compliance with this fee-collection procedure, the Clerk will be DIRECTED to mail a copy of this memorandum and order to the custodian of inmate accounts at the institution where Plaintiff is now confined and to the Attorney General for the State of Tennessee. This order shall be placed in Plaintiff's prison file and follow him if he is transferred to another correctional institution. The Clerk also will be DIRECTED to provide a copy to the Court's financial deputy.

         II. APPOINT COUNSEL

         Appointment of counsel in a civil proceeding is not a constitutional right, but a privilege justified only in exceptional circumstances. Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993). A district court has discretion to determine whether to appoint counsel for an indigent party. Reneer v. Sewell, 975 F.2d 258, 261 (6th Cir. 1992). In exercising that discretion, the district court should consider the nature of the case, whether the issues are legally or factually complex, and the party's ability to present his claims. Lavado, 992 F.2d at 605-06. After considering these factors, the Court finds that appointment of counsel is not warranted in this case. Accordingly, Plaintiff's motion to appoint counsel [Doc. 5] is DENIED.

         III. SCREENING

         A. COMPLAINT ALLEGATIONS

         Plaintiff was confined to Max 2, cell 216, at the Sevier County Jail (“SCJ”) on April 6, 2019 [Doc. 1 p. 1]. On that date, the toilet in his cell would not stop running, so Correctional Officer (“CO”) David Buchanan cut off the water to his cell [Id.]. On 11 separate dates between April 7 and May 5, Plaintiff submitted written requests to Defendants Buchanan, Miller, Morlan, and Rutledge, asking that the toilet be repaired or that water be provided to him [Id. at 2]. Plaintiff received no response [Id.].

         On 13 separate dates between April 8 and May 4, Plaintiff made the same requests from Defendants Ross, Cole, Tarwater, Morlan, and Rutledge [Id.]. On April 7, 21, and 25, Plaintiff mailed formal requests to Defendants Morlan, Rutledge, and Seals asking them to repair his toilet or move him to a cell with water [Id.]. Plaintiff wrote formal requests to Defendant Maples on April 6, 16, and 23, requesting that his toilet be repaired [Id]. Defendant Maples told Plaintiff that he would repair Plaintiff's toilet on April 17, 2019, but he failed to do so [Id.]. Thereafter, Plaintiff refused to go back into his cell but was ultimately forced into the cell by Defendant Buchanan [Id.]. The water remained shut off in Plaintiff's cell for 30 consecutive days until Defendant Maples repaired the toilet on May 6, 2019 [Id. at 1].

         B. SCREENING STANDARD

         Under the 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 1915A; 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. 544 (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 ...


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