Butler v. Smith et al

Filing 2

ORDER directing Plaintiff, if he wishes to proceed with this action, to file an application to proceed in forma pauperis, or pay the $350 filing fee, within 30 days of the entry date of this Order. Further, Plaintiff is ordered to file an Amend ed Complaint within 30 days of entry of this Order, specifically explaining only one constitutional claim so that the Court can determine whether he may proceed with this lawsuit. Failure to timely & completely respond to this Order may result in dismissal of Plaintiff's Complaint under Local Rule 5.5(c)(2). Signed by Magistrate Judge Beth Deere on 8/3/2010. (jct)

Butler v. Smith et al

Doc. 2

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS J O N E S B O R O DIVISION M A R K A. BUTLER P L A IN T IF F

V. J O H N SMITH, et al.

No. 3:10CV00172 JMM-BD DEFENDANTS

ORDER I. I n Forma Pauperis

P la in tif f , an inmate detained at the Craighead County Detention Facility, brings th is pro se Complaint under 42 U.S.C. § 1983. (Docket entry #1) Upon review of the re c o rd , the Court notes that Plaintiff has neither filed a motion to proceed in forma p a u p e ris nor paid the statutory filing fee. The statutory filing fee for a complaint under 4 2 U.S.C. § 1983 is $350.00. Under the Prison Litigation Reform Act ("PLRA"), even prisoners who are p e rm itte d to file civil actions in forma pauperis must pay the $350.00 statutory filing fee. 28 U.S.C. §1915(b)(1). The only question is whether a prisoner will pay the entire filing fe e at the initiation of the proceeding or in installments over a period of time. Ashley v. D ilw o rth , 147 F.3d 715, 716 (8th Cir. 1998). In order to proceed in forma pauperis, the Plaintiff must submit a proper and c o m p le te application to proceed in forma pauperis, along with a calculation sheet, p re p a re d and signed by an authorized officer of the correctional facility where he is being

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held. Based on information contained in the application and calculation sheet, the Court w ill assess an initial, partial filing fee if sufficient funds exist and will direct the future c o lle c tio n of monthly installment payments until the filing fee is paid in full. 28 U.S.C § 1915(b)(1)-(2). If the case is subsequently dismissed for any reason, including a d e te rm in a tio n that it is frivolous, malicious, fails to state a claim, or seeks monetary relief a g a in s t a defendant who is immune from such relief, the full amount of the $350.00 filing fe e will be collected, and no portion of this filing fee will be refunded to the prisoner. Accordingly, if Plaintiff wishes to proceed with this action, he is ordered to file an a p p lic a tio n to proceed in forma pauperis, or pay the filing fee of $350.00, within thirty d a y s of the entry date of this Order. The Clerk of Court is directed to forward Plaintiff an in forma pauperis application, along with a copy of this Order. Failure to comply with th is Order may result in dismissal of this case without prejudice under Local Rule 5 .5 ( c ) ( 2 ). II. S c r e e n in g F e d e ra l courts are required to screen prisoner complaints seeking relief against a g o v e rn m e n ta l entity, officer, or employee. 28 U.S.C. § 1915(e). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that: (a) are legally friv o lo u s or malicious; (b) fail to state a claim upon which relief may be granted; or (c) s e e k monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1 9 1 5 (e )(2 ).

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To state a cognizable claim under 42 U.S.C. § 1983, a plaintiff must allege that the c o n d u c t of a defendant acting under color of state law deprived him of a right, privilege, o r immunity secured by the federal Constitution or laws of the United States. 42 U.S.C. § 1983. "Though pro se complaints are to be construed liberally, see Estelle v. Gamble, 4 2 9 U.S. 97, 106, 97 S.Ct. 285(1976), they still must allege sufficient facts to support the c la im s advanced." Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). As it now stands, th e Court cannot determine whether Plaintiff has stated a claim for relief under 42 U.S.C. § 1983. In his Complaint, Plaintiff alleges that his conditions of confinement are u n c o n stitu tio n a l and that "some officers" have interfered with inmate mail. In order to e s ta b lis h that a prisoner's conditions of confinement violate the Eighth Amendment, the p riso n e r must show (1) that the alleged deprivation is, "objectively, sufficiently serious," re s u ltin g "in the denial of the minimal civilized measure of life's necessities," and (2) that p riso n officials were deliberately indifferent to "an excessive risk to inmate health or s a f e ty." Farmer v. Brennan, 511 U.S. 825, 834, 837, 114 S.Ct. 1970, 1977, 1980 (1994). Deliberate indifference is more than negligence. Crow v. Montgomery, 403 F .3d 598, 6 0 2 (8th Cir. 2005). "It requires proof of a reckless disregard of a known risk." Id. (citing Jackson v. Everett, 140 F.3d 1149, 1152 (8th Cir. 1998)). Additionally, the PLRA re q u ire s a prisoner to allege physical injury from his allegedly unconstitutional conditions o f confinement. 42 U.S.C. § 1997e(e). Here, Plaintiff has not alleged such facts.

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Plaintiff alleges that prison officials have interfered with his mail. It is well settled th a t prison officials may open privileged legal mail only in an inmate's presence; h o w e v e r, all other mail may be opened and inspected for contraband outside of the in m a te 's presence. Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974); Gardner v. H o w a r d , 109 F.3d 427, 430 (8th Cir. 1997); and Jensen v. Klecker, 648 F.2d 1179, 1182 (8 th Cir. 1981). Privileged legal mail is narrowly defined as "mail to or from an inmate's a tto rn e y and identified as such." Gardner, 109 F.3d at 430. Mail to and from a court d o e s not fall under this narrow definition of privileged legal mail and, therefore, may be o p e n e d outside of the inmate's presence. See Moore v.. Rowley, Case No. 04-1981, 2005 W L 677800 (8th Cir. Mar. 24, 2005) (unpublished opinion) (holding that a bankruptcy p e titio n a prisoner mailed to the United States Bankruptcy Court was not privileged legal m a il and, therefore, could be opened by prison officials outside of his presence); Martin v . Brewer, 830 F.2d 76, 78 (7th Cir. 1987) (explaining that court documents may be o p e n e d outside of an inmate's presence because they are "public documents"). Here, P la in tif f fails to state what type of mail Defendants have opened or whether any such mail b e lo n g e d to him. M o re o v e r, although Plaintiff names eight individuals as Defendants, he fails to s ta te how these individuals violated his federally protected rights or what injury he s u s ta in e d as a result of such unconstitutional conduct.

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Finally, Plaintiff may not defeat the filing fee requirements contained in 28 U.S.C. § 1915, by joining in one lawsuit a multitude of unrelated and legally distinct claims in v o lv in g different defendants. Accordingly, Plaintiff is ordered to file an Amended Complaint within thirty days o f entry of this Order, specifically explaining only one constitutional claim so that the C o u rt can determine whether he may proceed with this lawsuit. Failure to timely and c o m p le te ly respond to this Order may result in dismissal of Plaintiff's Complaint. See L o c a l Rule 5.5(c)(2). IT IS SO ORDERED this 3rd day of August, 2010.

___________________________________ U N IT E D STATES MAGISTRATE JUDGE

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