Becker v. Fort Dodge Correctional Facility

Filing 9

ORDER - Granting 2 , 3 , 4 and 5 Motions to proceed in forma pauperis. The Plaintiff is directed to submit an initial partial filing fee of $2.07 by no later than 11/28/14. The clerk's office is directed to send a copy of this ord er and the notice of collection of filing fee to the appropriate official at the place where plaintiff is an inmate. The plaintiff's action is dismissed. Plaintiff's 6 MOTION to Appoint Counsel is denied. Signed by Judge Mark W Bennett on 11/3/14. (copy w/nef mailed to plaintiff and Warden of Fort Dodge Correctional Facility) (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION

JEFFREY JOHN BECKER,
Plaintiff,

No. C14-3051-MWB

vs.
FORT DODGE CORRECTIONAL
FACILITY and IOWA DEPARTMENT
OF CORRECTIONS,

ORDER

Defendants.
____________________________
This matter is before the court on the plaintiff’s application to proceed in forma
pauperis (docket nos. 2, 3, 4 & 5) and motion for appointment of counsel (docket no. 6).
The plaintiff filed such application and motion on August 29, 2014. Along with his
application to proceed in forma pauperis, the plaintiff submitted a complaint under 42
U.S.C. § 1983 (docket no. 1).
I. IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915
Based on the plaintiff’s application to proceed in forma pauperis and certificate of
inmate account, the court concludes 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.
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 his
average monthly deposits, the court finds that the initial partial filing fee is $2.07. Id.
The plaintiff shall submit $2.07 by no later than November 28, 2014. Id. 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
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.
II. APPOINTMENT OF COUNSEL
Appointment of counsel is based on multiple factors, including the complexity of
the case, and, although the court does appoint attorneys in some federal actions, it is not
required to appoint an attorney. See Phillips v. Jasper Cnty. Jail, 437 F.3d 791, 794 (8th
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Cir. 2006); see also Taylor v. Dickel, 293 F.3d 427, 428 (8th Cir. 2002) (discussing 28
U.S.C. § 1915(e)(1)); Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996) (setting forth
factors to be considered for appointment of counsel in civil case); Plummer v. Grimes, 87
F.3d 1032, 1033 (8th Cir. 1996) (same); Abdullah v. Gunter, 949 F.2d 1032, 1035 (8th
Cir. 1991) (same); Wiggins v. Sargent, 753 F.2d 663, 668 (8th Cir. 1985) (stating an
indigent litigant enjoys neither a statutory nor a constitutional right to have counsel
appointed in a civil case). Given the record in this action, the court does not believe that
assistance of counsel is warranted. Therefore, the plaintiff’s request for counsel shall be
denied.
III. STANDARD OF REVIEW
A pro se complaint must be liberally construed. See Hughes v. Rowe, 449 U.S. 5,
9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Smith v. St. Bernards
Reg’l Med. Ctr., 19 F.3d 1254, 1255 (8th Cir. 1994). In addition, unless the facts alleged
are clearly baseless, they must be weighed in favor of the plaintiff. Denton v. Hernandez,
504 U.S. 25, 32-33 (1992). A court, however, can dismiss at any time a complaint filed
in forma pauperis if the complaint is frivolous, malicious, fails to state a claim on which
relief may be granted or seeks monetary relief against a defendant who is immune from
such relief. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b)(1). A claim is “frivolous”
if it “lacks an arguable basis in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325
(1989); accord Cokeley v. Endell, 27 F.3d 331, 332 (8th Cir. 1994). An action fails to
state a claim upon which relief can be granted if it does not plead “enough facts to state
a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). Accordingly, a court may review the complaint and dismiss sua sponte those
claims that fail “‘to raise a right to relief above the speculative level. . . .’”, see Parkhurst
v. Tabor, 569 F.3d 861, 865 (8th Cir. 2009) (quoting Bell Atl., 550 U.S. at 555), or that
are premised on meritless legal theories or clearly lack any factual basis, see Neitzke, 490
U.S. at 325. See, e.g., Denton v. Hernandez, 504 U.S. at 27 (considering frivolousness);
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Myers v. Vogal, 960 F.2d 750, 751 (8th Cir. 1992) (concluding that a district court may
dismiss an action if an affirmative defense exists).
IV. CLAIM ASSERTED
Currently confined at the Fort Dodge Correctional Facility in Fort Dodge, Iowa,
the plaintiff, proceeding pro se, submitted a complaint to redress issues that are related to
his confinement. Jurisdiction is predicated on 28 U.S.C. § 1343. Under 28 U.S.C. §
1391(b), venue appears to be proper as the events giving rise to the instant action occurred
in this district.
The statement of claim portion of the complaint is as follows:
On March 1, 2014 at approximately 6:00 a.m. in the morning
[while I was] sleeping, [I] rolled off the top bunk and injured
my head and back. (emergency had [to put] 9 staples [in] the
back of my head).
Further, documents that the plaintiff included with his complaint indicate the following:
(1) the plaintiff has been confined within the Iowa Department of Corrections since
December 6, 2013; (2) the plaintiff has been at the Fort Dodge Correctional Facility since
February 21, 2014; (3) the plaintiff initially received a bottom bunk, but he was assigned
a top bunk on February 28, 2014; (4) the top bunk is approximately six feet from the
ground and does not have a safety rail to prevent a person from falling out of bed; (5)
while sleeping, the plaintiff fell out of his bed and hit his head on a steel table and the
floor; (6) the plaintiff suffered two cuts to the back of his head; (7) the plaintiff received
outstanding assistance from correctional officials; (8) at the local emergency room, the
plaintiff received medical attention, including a cat scan, x-rays and staples; (9) since the
incident, the plaintiff has experienced dizziness throughout the day, headaches, sharp pain
in the back of his head, shaking in his left hand, concentration problems, comprehension
problems, speech problems, lower back pain and neck pain; (10) the plaintiff has not had
any follow-up with the doctor or medical staff; (11) on June 1, 2014, the plaintiff asked
medical for a lower bunk restriction because he fell out of his top bunk and feels unsafe;
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(12) on the same date, Betty Ploeger denied the plaintiff’s request for a bottom bunk
because he did not have a medical indication that required a lower bunk restriction; and
(13) there may be a regulation within the Iowa Department of Corrections to have a safety
rail on the upper bunk bed.1 As relief, the plaintiff states that he wants monetary
compensation as a result of sustaining injuries and being in an unsafe situation.
V. ANALYSIS
A. Claims Under 42 U.S.C. § 1983
Title 42 U.S.C. § 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . .
subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper proceeding
for redress . . .
42 U.S.C. § 1983 was designed to provide a “broad remedy for violations of federally
protected civil rights.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 685 (1978).
However, 42 U.S.C. § 1983 provides no substantive rights. Albright v. Oliver, 510 U.S.
266, 271 (1994); Graham v. Conner, 490 U.S. 386, 393-94 (1989); Chapman v. Houston
Welfare Rights Org., 441 U.S. 600, 617 (1979). “One cannot go into court and claim a
‘violation of [42 U.S.C.] § 1983’ — for [42 U.S.C.] § 1983 by itself does not protect
anyone against anything.” Chapman, 441 U.S. at 617. Rather, 42 U.S.C. § 1983
provides a remedy for violations of all “rights, privileges, or immunities secured by the
Constitution and laws [of the United States].” 42 U.S.C. § 1983; see also Albright, 510

1

The Iowa Department of Corrections provides its policies online:
http://www.doc.state.ia.us/Policies.asp. A review of such policies did not reveal a policy
that addresses bunk beds. And, there seems to be some indication from courts that have
addressed the use of guard rails that correctional officials are concerned that guard rails
could be removed and turned into a weapon or used as a ligature.
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U.S. at 271 (42 U.S.C. § 1983 “merely provides a method for vindicating federal rights
elsewhere conferred.”); Graham, 490 U.S. at 393-94 (same); Maine v. Thiboutot, 448
U.S. 1, 4 (1980) (“Constitution and laws” means 42 U.S.C. § 1983 provides remedies for
violations of rights created by federal statute, as well as those created by the
Constitution.). 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 (1988).
B. Plaintiff’s Claim
Given the facts that are alleged in the complaint, the court concludes that the
plaintiff’s assertions do not give rise to a viable claim under 42 U.S.C. § 1983. As a
preliminary matter, the court notes that “[no] action shall be brought with respect to prison
conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see
also Porter v. Nussle, 534 U.S. 516, 524 (2002) (stating that “exhaustion in cases covered
by § 1997e(a) is now mandatory”); Washington v. Uner, 273 F. App’x 575, 576-77 (8th
Cir. 2008) (applying § 1997e(a)).

Proper exhaustion of administrative remedies is

necessary so that corrections officials are afforded the “‘time and opportunity to address
complaints internally before allowing the initiation of a federal case.’” Woodford v. Ngo,
548 U.S. 81, 93 (quoting Porter, 534 U.S. at 525). And, despite the fact that exhaustion
is an affirmative defense that a defendant bears the burden of proving, a court may still
raise the issue of exhaustion sua sponte if it is plain on the face of the complaint that a
grievance procedure is unexhausted. See Jones v. Bock, 549 U.S. 199, 214-16 (2007)
(clarifying that a complaint cannot be dismissed sua sponte for failing to plead and prove
exhaustion but failure to exhaust can be a basis for dismissal for failure to state a claim if
the allegations in the complaint suffice to establish that ground).

The plaintiff

acknowledges in his complaint that there is a prisoner grievance procedure that is available
6

to him in the Fort Dodge Correctional Facility and that he did not present any facts relating
to his confinement at the Fort Dodge Correctional Facility in the available grievance
procedure. Because the plaintiff’s complaint demonstrates that he did not comply with 42
U.S.C. § 1997e(a), dismissal is appropriate.
Moreover, the plaintiff’s allegations regarding his safety fail as a matter of law. See
Davis v. Or. Cnty., 607 F.3d 543, 548 (8th Cir. 2010) (“A prison official is deliberately
indifferent if he ‘knows of and disregards’ a substantial risk to an inmate’s safety.”
(quoting Nelson v. Corr. Med. Servs., 583 F.3d 522, 528 (8th Cir. 2009))). The plaintiff’s
complaint clearly indicates that the plaintiff suffered an injury as a result of accidentally
falling out of bed. But, mere negligence on the part of prison officials violates neither the
Fourteenth Amendment nor the Eighth Amendment. See Blades v. Schuetzle, 302 F.3d
801, 804 (8th Cir. 2002) (stating that mere negligence is insufficient to establish a violation
of the Eighth Amendment); Jackson v. Everett, 140 F.3d 1149, 1152 (8th Cir. 1998)
(“[N]egligence is inappropriate as an Eighth Amendment standard.”); Walker v. Reed, 104
F.3d 156, 157-58 (8th Cir. 1997) (analyzing allegation that plaintiff “slipped and fell”
because of water on the floor); Givens v. Jones, 900 F.2d 1229, 1232 (8th Cir. 1990)
(stating that the Eighth Amendment does not protect against mere acts of negligence on the
part of prison officials); see also Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006)
(concluding mere negligence in relation to medical treatment does not rise to a
constitutional violation); Taylor v. Bowers, 966 F.2d 417, 421 (8th Cir. 1992) (stating
mere negligent failure to diagnose or treat a condition does not give rise to a valid claim
of mistreatment). The plaintiff’s contention that his bunk should have had a guard rail on
it is akin to an allegation that the defendants acted negligently. Indeed, there is no
allegation that the plaintiff required different sleeping arrangements prior to March 1,
2014, that the plaintiff has had any problems associated with being assigned to a top bunk
since March 1, 2014, that other bunk beds within the Fort Dodge Correctional Facility
have guard rails, that anyone was aware the plaintiff’s top bunk bed was missing a guard
7

rail or that inmates routinely fall out of bed and hurt themselves. Cf. Phillips, 437 F.3d
at 795-96 (determining that genuine issue of material fact existed as to whether jail
employees failed to properly administer plaintiff’s anti-seizure medication and improperly
assigned him to a top bunk despite plaintiff’s known seizure disorder). Consequently, the
record establishes that no constitutional violation occurred.
Additionally, the plaintiff only names the Fort Dodge Correctional Facility and the
Iowa Department of Corrections as defendants in this action. Neither of the named
defendants, however, is a “person” for purposes of litigation under 42 U.S.C. § 1983. See
Will v. Michigan Dep’t of State Police, 491 U.S. 58, 64-71, 109 S. Ct. 2304, 105 L. Ed.
2d 45 (1989) (holding that a state and its agencies are not “persons” within the meaning
of 42 U.S.C. § 1983); see also McLean v. Gordon, 548 F.3d 613, 618 (8th Cir. 2008)

(making clear that a claim for damages under 42 U.S.C. § 1983 may not be asserted
against a state); Barket, Levy & Fine, Inc. v. St. Louis Thermal Energy Corp., 948 F.2d
1084, 1086 (8th Cir. 1991).

Accordingly, it is appropriate to dismiss the named

defendants from the plaintiff’s action under 42 U.S.C. § 1983.
Finally, to the extent that the plaintiff is attempting to assert state-law claims, the
court declines to exercise supplemental jurisdiction. See Brown v. Peterson, 156 F. App’x
870, 871 (8th Cir. 2005) (concluding decision to exercise supplemental jurisdiction over
state-law claim is discretionary); see also McLaurin v. Prater, 30 F.3d 982, 985 (8th Cir.
1994) (indicating subsection (c) of 28 U.S.C. § 1367 clearly gives a court discretion to
reject jurisdiction over supplemental claims).
In light of the foregoing, the plaintiff’s complaint shall be dismissed for failing to
state a claim upon which relief can be granted. Because the court deems it appropriate to
dismiss the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), the dismissal of this action
shall count against the plaintiff for purposes of the three-dismissal rule set forth in 28
U.S.C. § 1915(g).

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IT IS THEREFORE ORDERED:
(1) The plaintiff’s application to proceed in forma pauperis status (docket nos. 2,
3, 4 & 5) is granted.
(2) The plaintiff is directed to submit an initial partial filing fee of $2.07 by no later
than November 28, 2014. If necessary, the plaintiff may request in a written
motion an extension of time to pay the initial partial filing fee.
(3) 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.
(4) 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.
(5) The plaintiff’s 42 U.S.C. § 1983 action is dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B).
(6) The dismissal of the instant action counts against the plaintiff for purposes of the
three-dismissal rule set forth in 28 U.S.C. § 1915(g).
(7) The plaintiff’s application for appointment of counsel (docket no. 6) is denied.
DATED this 3rd day of November, 2014.

__________________________________
MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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TO:

WARDEN/ADMINISTRATOR
Fort Dodge Correctional Facility, Fort Dodge, Iowa
NOTICE OF COLLECTION OF FILING FEE
You are hereby given notice that Jeffrey John Becker, #1152374, an inmate at your

facility, filed the following lawsuit in the United States District Court for the Northern
District of Iowa: Becker v. Fort Dodge Correctional Facility et al., Case No. C14-3051MWB. 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 $2.07, 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.
/s/ djs, Deputy Clerk
_______________________
Robert L. Phelps
U.S. District Court Clerk
Northern District of Iowa