Smith v. Baker et al
Filing
5
ORDER granting 2 MOTION for Leave to Proceed in forma pauperis filed by Curtis Smith. The clerk's office is directed to file the complaint without the prepayment of the filing fee. The plaintiff is directed to submit an initial partial payment filing fee of $1.10 by no later than 2/20/12. The institution having custody of the plaintiff is directed to collect and remit monthly payments until the $350.00 filing fee is paid in full. The clerk's office is directed to send a cop y of this order and the notice of collection of filing fee to the appropriate official at the place where the plaintiff is an inmate. The court reserves ruling on the plaintiff's claims for purposes of 28 U.S.C. Section 1915(e)(2)(B) and/or 28 U.S.C. Sec. 1915A. Signed by Chief Judge Linda R Reade on 1/26/12. (Copy w/NEF to Plf at Newton Correctional Facility; Copy to Warden at Newton Correctional Facility; CRF) (ksy)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
CURTIS D. SMITH,
Plaintiff,
No. C11-1049-LRR
vs.
EDWARD BAKER, LISA
MCGRANAHAN, UNKNOWN
INDIVIDUALS,
ORDER
Defendants.
____________________________
This matter is before the court following transfer from the United States District
Court for the Southern District of Iowa. Such transfer occurred on November 17, 2011.
The clerk’s office filed the case in this district on November 21, 2011. Prior to the case
being transferred or on November 14, 2011, the plaintiff submitted an application to
proceed in forma pauperis (docket no. 2). Along with his application to proceed in forma
pauperis, the plaintiff submitted a complaint pursuant to 42 U.S.C. § 1983.
Based on the plaintiff’s statements, it is clear that the plaintiff does not have
sufficient funds to pay the required filing fee. 28 U.S.C. § 1914(a) (requiring $350.00
filing fee). Thus, in forma pauperis status shall be granted to the plaintiff. See generally
28 U.S.C. § 1915. The clerk’s office shall file the complaint without the prepayment of
the filing fee. Although the court deemed it appropriate to grant the plaintiff in forma
pauperis status, the plaintiff is required to pay the full $350.00 filing fee by making
payments on an installment basis. 28 U.S.C. § 1915(b)(1); see also In re Tyler, 110 F.3d
528, 529-30 (8th Cir. 1997) (“[T]he [Prisoner Litigation Reform Act] makes prisoners
responsible for their filing fees the moment the prisoner brings a civil action or files an
appeal.”). The full filing fee will be collected even if the court dismisses the case because
it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks
money damages against a defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2).
Here, the plaintiff must pay an initial partial filing fee in the amount of 20 percent
of the greater of his average monthly account balance or average monthly deposits for the
six months preceding the filing of the complaint. 28 U.S.C. § 1915(b)(1). Based on the
plaintiff’s statements, the court finds that the initial partial filing fee is $1.10. Id. The
plaintiff shall submit $1.10 by no later than February 20, 2012. Id. If the court does not
receive payment by this deadline, the instant action shall be dismissed. See Fed. R. Civ.
P. 41(b) (permitting dismissal where a plaintiff either fails to prosecute or fails to respond
to an order of the court); Hutchins v. A.G. Edwards & Sons, 116 F.3d 1256, 1259-60 (8th
Cir. 1997) (explaining court’s power to dismiss an action); Edgington v. Missouri Dept.
of Corrections, 52 F.3d 777, 779-80 (8th Cir. 1995) (same), abrogated on other grounds
by Doe v. Cassel, 403 F.3d 986, 989 (8th Cir. 2005). If necessary, the plaintiff may
request in a written motion an extension of time to pay the initial partial filing fee.
In addition to the initial partial filing fee, the plaintiff must “make monthly
payments of 20 percent of the preceding month’s income credited to the prisoner’s
account.” 28 U.S.C. § 1915(b)(2). The statute places the burden on the prisoner’s
institution to collect the additional monthly payments and forward them to the court.
Specifically,
[a]fter payment of the initial partial filing fee, the prisoner
shall be required to make monthly payments of 20 percent of
the preceding month’s income credited to the prisoner’s
account. The agency having custody of the prisoner shall
forward payments from the prisoner’s account to the clerk of
the court each time the amount in the account exceeds $10
until the filing fees are paid.
28 U.S.C. § 1915(b)(2). Therefore, after the plaintiff pays in full the initial partial filing
fee, the remaining installments shall be collected by the institution having custody of the
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plaintiff. Id. The clerk’s office shall send a copy of this order and the notice of collection
of filing fee to the appropriate official at the place where the plaintiff is an inmate. The
court shall reserve ruling on the plaintiff’s claims for purposes of 28 U.S.C. §
1915(e)(2)(B) and/or 28 U.S.C. § 1915A.1
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Before proceeding with his action, the plaintiff should be aware that, to state a
claim under 42 U.S.C. § 1983, a plaintiff must establish: (1) the violation of a right
secured by the Constitution or laws of the United States and (2) the alleged deprivation of
that right was committed by a person acting under color of state law. West v. Atkins, 487
U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988). In light of such standard, the
plaintiff should keep in mind that he readily admits in his complaint the following: (1) he
told officials that he took the wrong medicine; (2) he disliked being placed in
administrative segregation; (3) he flooded his cell and smeared his own excrement on the
walls because he wanted to attract the attention of a shift captain or sergeant; (4) officials
turned off the water to his sink and toilet; (5) he remained in his cell with his own
excrement for four hours or until officials removed him from his cell and cleaned it; (6)
he was unable to use his sink or flush his toilet for the rest of the day; (7) he had access
to water and took a shower during recreation time the following day; (8) correctional
officers instructed him to return to his cell; (9) he did not return to his cell and became
involved in an altercation with a correctional officer; and (10) he was found guilty of
assault. So, it appears from the plaintiff’s admissions that many, if not all, of the
conditions that he experienced resulted from his own disruptive actions. Additionally, the
plaintiff should keep in mind the following: (1) a prisoner is entitled to procedural due
process only if the restraint on liberty of which he complains imposes “atypical and
significant hardship on [him] in relation to the ordinary incidents of prison life,” see
Sandin v. Conner, 515 U.S. 472, 483-84, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), and
a demotion to segregation, even without cause, is not itself an atypical and significant
hardship, see Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003); (2) an inmate claiming
retaliation is required to meet a substantial burden of proving the actual motivating factor
for the adverse action, e.g., placement in administrative segregation, is as alleged, see
Griggs v. Norris, 297 F. App’x 553, 555 (8th Cir. 2008); (3) for excessive force claims,
the appropriate inquiry is whether the officers’ actions are objectively reasonable in light
of the facts and circumstances confronting them and stating that the facts and circumstances
include the severity of the crime at issue, whether the suspect posed an immediate threat
to the safety of the officers or others, whether the suspect actively resisted arrest or
attempted to evade arrest by flight and the extent of the suspect’s injuries, see Rohrbough
v. Hall, 586 F.3d 582, 585-86 (8th Cir. 2009); and (4) compensatory damages are only
(continued...)
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IT IS THEREFORE ORDERED:
1) The plaintiff’s application to proceed in forma pauperis (docket no. 2) is granted.
2) The clerk’s office is directed to file the complaint without the prepayment of the
filing fee.
3) The plaintiff is directed to submit an initial partial filing fee of $1.10 by no later
than February 20, 2012. The instant action will be dismissed unless either the
initial partial filing fee of $1.10 is received by February 20, 2012 or the court
grants an enlargement of time to pay the initial partial filing fee in response to a
written motion.
4) After the plaintiff pays the initial partial filing fee, the institution having custody
of the plaintiff is directed to collect and remit monthly payments in the manner set
forth in 28 U.S.C. § 1915(b)(2). Until the $350.00 filing fee is paid in full, the
plaintiff is obligated to pay and the institution having custody of him is obligated to
forward 20 percent of the preceding month’s income credited to his account each
time the amount in the account exceeds $10.00.
5) The clerk’s office is directed to send a copy of this order and the notice of
collection of filing fee to the appropriate official at the place where the plaintiff is
an inmate.
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(...continued)
available if an inmate has the requisite physical injury to support a claim for mental or
emotional suffering and punitive damages are only available if an inmate establishes that
the defendants acted with evil motive or reckless indifference, see Williams v. Hobbs, 662
F.3d 994, 1011-12 (8th Cir. 2011) (discussing the availability of compensatory damages
under 42 U.S.C. § 1997e(e) and the standard for awarding punitive damages).
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6) The court reserves ruling on the plaintiff’s claims for purposes of 28 U.S.C. §
1915(e)(2)(B) and/or 28 U.S.C. § 1915A.
DATED this 26th day of January, 2012.
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TO:
WARDEN/ADMINISTRATOR
Newton Correctional Facility, Newton, Iowa
NOTICE OF COLLECTION OF FILING FEE
You are hereby given notice that Curtis Smith, #6035808, an inmate at your facility,
filed the following lawsuit in the United States District Court for the Northern District of
Iowa: Smith v. Baker et al., Case No. C11-1049-LRR. The inmate was granted in forma
pauperis status pursuant to 28 U.S.C. § 1915(b), which requires partial payments of the
$350.00 filing fee. Based on the inmate’s account information, the court has assessed an
initial partial filing fee of $1.10, which the inmate must pay now to the clerk of court. 28
U.S.C. § 1915(b)(1).
After payment of the initial partial filing fee, the [inmate] shall
be required to make monthly payments of 20 percent of the
preceding month’s income credited to [his] account. The
agency having custody of the [inmate] shall forward payments
from [his] account to the clerk of the court each time the
amount in the account exceeds $10 until the filing fees are
paid.
28 U.S.C. § 1915(b)(2). Therefore, you must monitor the account and send payments to
the clerk of court according to the system provided in 28 U.S.C. § 1915(b)(2), that is, you
should begin making monthly payments of 20 percent of the preceding month’s income
credited to the inmate’s account.
Please make the appropriate arrangements to have these fees deducted and sent to
the court as instructed.
Deputy Clerk
_______________________
Robert L. Phelps
U.S. District Court Clerk
Northern District of Iowa
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