Wisham v. McClung et al
ORDER directing the Clerk to send Plaintiff an Application to Proceed In Forma Pauperis & a prisoner trust fund calculation sheet, & directing Plaintiff to file the fully completed Application & calculation sheet w/i 30 days of the entry of this Orde r. Plaintiff shall file, w/i 30 days of the entry of this Order, an Amended Complaint containing the information specified. Plaintiff is reminded that the failure to timely & properly comply with this Order will result in dismissal of the case. Motion terminated: 1 Plaintiff's incomplete MOTION for Leave to Proceed in forma pauperis. Signed by Magistrate Judge J. Thomas Ray on 6/28/2011. (jct)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
RANDELL E. WISHAM
Sheriff of Clay County, et al.
Plaintiff, Randell E. Wisham, is a convicted prisoner in the Clay County
Detention Center (“CCDC”). He has recently filed a pro se1 § 1983 Complaint and
an Application to Proceed In Forma Pauperis. See docket entries #1 and #2.
Plaintiff is hereby notified of his responsibility to comply with Local Rule
5.5(c)(2), which states: "It is the duty of any party not represented by counsel to
promptly notify the Clerk and the other parties to the proceedings of any change in his
or her address, to monitor the progress of the case, and to prosecute or defend the
action diligently. A party appearing for himself/herself shall sign his/her pleadings and
state his/her address, zip code, and telephone number. If any communication from the
Court to a pro se plaintiff is not responded to within thirty (30) days, the case may be
dismissed without prejudice. Any party proceeding pro se shall be expected to be
familiar with and follow the Federal Rules of Civil Procedure.”
Plaintiff is further notified of 28 U.S.C. § 1915(g), which provides that a
prisoner may not proceed with a civil suit in forma pauperis “if the prisoner has, on
3 or more prior occasions, while incarcerated or detained in any facility, brought an
action or appeal in a court of the United States that was dismissed on the grounds that
it is frivolous, malicious, or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical injury.”
I. Application to Proceed In Forma Pauperis
The Prison Litigation Reform Act (“PLRA”) provides that a prisoner who is
permitted to file a civil action in forma pauperis still must pay the full statutory filing
fee of $350. 28 U.S.C. § 1915(b)(1). The only question is whether a prisoner will pay
the entire filing fee at the initiation of the proceeding or in installments over a period
of time. Ashley v. Dilworth, 147 F.3d 715, 716 (8th Cir. 1998). Even if a prisoner is
without assets and unable to pay an initial filing fee, he will be allowed to proceed
with his § 1983 claims and the filing fee will be collected by the Court in installments
from the prisoner’s inmate trust account. 28 U.S.C. § 1915(b)(4). If the prisoner’s
case is subsequently dismissed for any reason, including a determination that it
is frivolous, malicious, fails to state a claim, or seeks monetary relief against a
defendant who is immune from such relief, the full amount of the $350 filing fee
will be collected and no portion of this filing fee will be refunded to the prisoner.
Plaintiff has filed an incomplete Application to Proceed In Forma Pauperis, and
he has not filed a prisoner trust fund calculation sheet. The Court must have these
documents to: (1) determine whether Plaintiff is entitled to proceed in forma pauperis;
and (2) assess an initial partial filing fee. See 28 U.S.C. § 1915(3)(b)(1) (providing
that the initial partial filing fee shall be “20% of the greater of the average monthly
deposits to the prisoner’s account or the average monthly balance in the prisoner’s
account”). Accordingly, the Court will give Plaintiff thirty days to file properly
The PLRA requires federal courts to screen prisoner complaints seeking relief
against a governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). The
Court must dismiss a complaint or a portion thereof if the prisoner has raised claims
that: (a) are legally frivolous or malicious; (b) fail to state a claim upon which relief
may be granted; or (c) seek monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915A(b).
Plaintiff, who is a diabetic, alleges that unspecified individuals at the CCDC
violated his Eighth Amendment rights by failing to provide him with adequate
medical care for a staph infection. See docket entry #2. However, Plaintiff concedes
that he has received two different types of antibiotics and that he has declined a recent
offer to take him to see a doctor. Id.
The Court needs further information in order to complete the screening function
mandated by § 1915A. Thus, Plaintiff shall file, within thirty days of the entry of this
Order, an Amended Complaint clarifying: (1) how long he has had a staph infection;
(2) how the medical care he has received for that infection is constitutionally
inadequate; (3) why he declined to see a doctor; (4) how each of the five Defendants
personally participated in the alleged violation of his constitutional rights;2 and (4)
whether he seeks injunctive relief and/or monetary damages.
IT IS THEREFORE ORDERED THAT:
The Clerk shall send Plaintiff an Application to Proceed In Forma
Pauperis and a prisoner trust fund calculation sheet.
Plaintiff shall file, within thirty days of the entry of this Order, a fully
and properly completed Application to Proceed In Forma Pauperis and prisoner trust
fund calculation sheet.3
Plaintiff shall file, within thirty days of the entry of this Order, an
Amended Complaint containing the information specified herein.
Plaintiff is reminded that the failure to timely and properly comply with
this Order will in the dismissal of this case, without prejudice, pursuant to Local Rule
Those five Defendants are Sheriff Gerald McClurg, Jailer Montie Sanders,
Jailer Sam Poole, Jailer Kaleb Rowe, and Jailer Adam Smith.
Plaintiff must complete and sign the Application to Proceed In Forma
Pauperis. In contrast, the prisoner trust fund calculation sheet must be completed and
signed by authorized jail official.
Dated this 28th day of June, 2011.
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?