Smith et al v. Hoff et al

Filing 3

ORDER DEFERRING ruling on Plaintiff's 2 MOTION for Leave to Proceed in forma pauperis and DIRECTS Plaintiff to amend his Complaint within fourteen (14) days of the date of this Order. The Court DIRECTS the Clerk of Court to provide Plainti ff with a proper blank prisoner civil rights complaint form. The Court DIRECTS the Clerk of Court to provide Plaintiff with a blank copy of the application to proceed in forma pauperis form. The Court likewise DIRECTS Plaintiff to re-submit his app lication using that form within fourteen (14) days of this Order. Any inmate other than Plaintiff Nathan Smith desiring to bring suit against Defendants must initiate a separate action by submitting a signed complaint and either paying the applicable filing fee or filing a motion to proceed in forma pauperis. Signed by Magistrate Judge R. Stan Baker on 2/2/2017. (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

NATHAN SMITH,
Plaintiff,

CIVIL ACTION NO.: 2:17-cv-8

v.
MS. FNU HOFF; KAREN BREDESENMAURY; LISA JACOBS; RICHARD LONG;
THOMAS KANE; and KATINA WHEELER,
Defendants.

ORDER
Plaintiff, who is currently housed in the McIntosh County Detention Center in Darien,
Georgia, filed a Complaint pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

(Doc. 1.)

Along with his

Complaint, Plaintiff filed a Motion to Proceed in Forma Pauperis. (Doc. 2.) For the reasons set
forth below, the Court DEFERS ruling on Plaintiff’s Motion and DIRECTS Plaintiff to amend
his Complaint within fourteen (14) days of the date of this Order. 1

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The Court notes that the names of two other inmates appear on the Complaint. (Doc. 1.) Notably,
however, neither of these other inmates has paid a filing fee or filed a Motion to Proceed in forma
pauperis. Moreover, Eleventh Circuit Court of Appeals’ precedent prohibits multiple prisoners from
proceeding in forma pauperis in the same civil action. See Hubbard v. Haley, 262 F.3d 1194, 1196-98
(1lth Cir. 2001). Therefore, the Court will address the inmates’ attempts to proceed in one cause of action
at the frivolity review stage, and the other inmates listed in the complaint will not be included as plaintiffs
in this lawsuit. Any inmate other than Plaintiff Nathan Smith desiring to bring suit against Defendants
must initiate a separate action by submitting a signed complaint and either paying the applicable filing fee
or filing a motion to proceed in forma pauperis. See id.; Local R. 4.1.

BACKGROUND
In his Complaint, Plaintiff asserts he is near the completion date of his federal sentence.
Plaintiff asserts he has a violent history and an extensive criminal record. (Doc. 1, p. 1.)
Plaintiff maintains he was sent to the Dismas Charities, Inc., halfway house for treatment of his
mental health issues, but these issues were not addressed “due to a systematic neglect[.]” (Id.)
Plaintiff requests an emergency protective order directing Defendants to obtain adequate mental
health services for Plaintiff prior to his release from custody in March 2017. (Id. at p. 2.)
DISCUSSION
Plaintiff seeks to bring this action in forma pauperis. Under 28 U.S.C. § 1915(a)(1), the
Court may authorize the filing of a civil lawsuit without the prepayment of fees if the plaintiff
submits an affidavit that includes a statement of all of his assets and shows an inability to pay the
filing fee and also includes a statement of the nature of the action which shows that he is entitled
to redress. Even if the plaintiff proves indigence, the Court must dismiss the action if it is
frivolous, malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C.
§§ 1915(e)(2)(B)(i)–(ii). Additionally, pursuant to 28 U.S.C. § 1915A, the Court must review a
complaint in which a prisoner seeks redress from a governmental entity. Upon such screening,
the Court must dismiss a complaint, or any portion thereof, that is frivolous, malicious, or fails to
state a claim upon which relief may be granted or which seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915A(b).
When reviewing a Complaint on an application to proceed in forma pauperis, the Court is
guided by the instructions for pleading contained in the Federal Rules of Civil Procedure. See
Fed. R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . .
a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed. R.

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Civ. P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set
of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without
arguable merit either in law or fact.’” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)
(quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).
Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by
the same standard applicable to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Thompson v. Rundle, 393 F. App’x 675, 678 (11th Cir. 2010). Under that
standard, this Court must determine whether the complaint contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
plaintiff must assert “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not” suffice. Twombly, 550 U.S. at 555. Section 1915 also
“accords judges not only the authority to dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless.” Bilal, 251 F.3d at 1349
(quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).

In its analysis, the Court must abide by the long-standing principle that the pleadings of
unrepresented parties are held to a less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys.”) (emphasis omitted) (quoting Hughes v. Lott, 350
F.3d 1157, 1160 (11th Cir. 2003)). However, Plaintiff’s unrepresented status will not excuse
mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We

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have never suggested that procedural rules in ordinary civil litigation should be interpreted so as
to excuse mistakes by those who proceed without counsel.”).
Plaintiff’s Complaint was not submitted on the form complaint prisoners are to use when
filing 42 U.S.C. § 1983 or Bivens causes of action in this Court. The Court DIRECTS the Clerk
of Court to provide Plaintiff with a proper blank prisoner civil rights complaint form. The Court
also DIRECTS Plaintiff to complete this form within fourteen (14) days of this Order and to
pay special attention to the questions this forms asks. In addition, Plaintiff is advised he must set
forth allegations indicating that his constitutional rights have been violated and by whom his
rights have been violated. See Bivens, 403 U.S. at 388 (“To state a claim under Bivens, a
plaintiff must allege that a federal actor deprived him of some constitutional right.”); see also
Hale v. Tallapoosa Cty., 50 F.3d 1579, 1582 (11th Cir. 1995) (In order to state a claim for relief
under Section 1983, a plaintiff must satisfy two elements. First, a plaintiff must allege that an act
or omission deprived him “of some right, privilege, or immunity secured by the Constitution or
laws of the United States.”

Second, a plaintiff must allege that the act or omission was

committed by “a person acting under color of state law.”) Moreover, Plaintiff must include
sufficient specificity to satisfy the above-described standard of review.
In addition, while Plaintiff has submitted an Application to Proceed in Forma Pauperis,
he has submitted a handwritten form which is not the form the Court wishes for prisoners to use
when seeking to proceed before this Court. To this end, the Court DIRECTS the Clerk of Court
to provide Plaintiff with a blank copy of the application to proceed in forma pauperis form which
asks prisoner-plaintiffs questions about their inmate trust accounts on page 2 of this application.
The Court likewise DIRECTS Plaintiff to re-submit his application using that form within
fourteen (14) days of this Order.

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CONCLUSION
For the above stated reasons, the Court DEFERS ruling on Plaintiff’s Motion to Proceed
in Forma Pauperis. The Court DIRECTS Plaintiff to amend his Complaint and to submit the
appropriate form on which to move to proceed in forma pauperis within fourteen (14) days of
the date of this Order. Should Plaintiff fail to abide by these directives, the Court will dismiss
this case for failure to prosecute and failure to follow a court order. The Court DIRECTS the
Clerk of Court to forward to Plaintiff a blank copy of the prisoner civil rights form complaint and
a blank copy of the appropriate form for application to proceed in forma pauperis for prisoners.
SO ORDERED, this 2nd day of February, 2017.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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