Williams v. Moyer et al

Filing 7

ORDER granting 6 MOTION for Leave to Proceed in forma pauperis. Plaintiff must pay the $350 filing fee. The Craighead County Sheriff is directed to collect monthly payments from the plaintiffs institutional account until the full fee has be en paid. The Clerk is directed to send a copy of this Order to the Craighead County Sheriff. Plaintiff may proceed with his excessive force claim against Defendants Moyer, McFarland, and Boyd and his retaliation claim against Defendant Moyer. The Cl erk is directed to prepare summons for these Defendants and the U.S. Marshall is directed to serve the summons, complaint, and this Order on them without prepayment of fees and costs or security therefor. Signed by Magistrate Judge J. Thomas Ray on 12/1/2014. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION

MARLOW WILLIAMS, SR.
V.

PLAINTIFF
3:14CV00181 DPM/JTR

LUKE MOYER, Deputy Sheriff,
Craighead County Jail, et al.

DEFENDANTS

ORDER
Plaintiff, Marlow Williams, Sr., is a prisoner in the Craighead County Jail. He
has filed a pro se § 1983 Complaint and an Application to Proceed In Forma
Pauperis.
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. 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 a certificate from an authorized official demonstrating that he
is presently without sufficient funds to pay an initial partial filing fee. Doc. 6.
Therefore, his Application to Proceed In Forma Pauperis is granted and no initial
filing fee will be assessed. See 28 U.S.C. § 1915(b). However, in the future, Plaintiff
must make monthly installment payments equal to 20% of the preceding month's
income credited to his institutional account each time the amount in the account
exceeds $10.00, until the statutory filing fee is paid in full. Id.
II. Screening
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). When making this determination, a court must
accept the truth of the factual allegations contained in the complaint, and it may
-2-

consider the documents attached to the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Reynolds v. Dormire, 636 F.3d 976, 979 (8th Cir. 2011).
A.

Excessive Force Claim
Plaintiff alleges that, on February 28, 2014, Defendants Sergeant McFarland

and Deputy Sheriff Luke Moyer used excessive force against him. Doc. 1. According
to Plaintiff, his injuries were caused by Defendant Sheriff Marty Boyd's failure to train
Defendants McFarland and Moyer on the proper use of force. The Court concludes,
for screening purposes only, that Plaintiff has pled a viable excessive force claim
against Defendants McFarland, Moyer, and Boyd.
B.

Retaliation Claim
Plaintiff also contends that Defendant Moyer placed him in an isolation cell in

retaliation for Plaintiff filing a grievance against him. Id. The Court concludes, for
screening purposes only, that Plaintiff has pled a viable retaliation claim against
Defendant Moyer.
III. Conclusion
IT IS THEREFORE ORDERED THAT:
1.

Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 6) is

GRANTED.
2.

Plaintiff must, nevertheless, pay the statutory filing fee of $350. The

-3-

Craighead County Sheriff, or any future custodian, is directed to collect monthly
payments equal to 20% of the preceding month's income credited to Plaintiff's
institutional account each time the amount in the account exceeds $10.00. The
Craighead County Sheriff, or any future custodian, is further directed to send those
payments the Clerk of the Court until a total of $350 has been paid.
3.

The Clerk is directed to send a copy of this Order to the Craighead

County Sheriff, 901 Willett Road, Jonesboro, AR 72401.
4.

Plaintiff may PROCEED with his: (a) excessive force claim against

Defendants Moyer, McFarland, and Boyd; and (b) retaliation claim against Defendant
Moyer.
5.

The Clerk is directed to prepare a summons for Defendants Moyer,

McFarland, and Boyd.

The U.S. Marshal is directed to serve the summons,

Complaint, and this Order on them without prepayment of fees and costs or security
therefor. 1
Dated this 1st day of December, 2014.

UNITED STATES MAGISTRATE JUDGE
1

If any of the Defendants are no longer Craighead County employees, the individual
responding to service must file a sealed Statement containing the unserved Defendant's last known
private mailing address.
-4-