Kemp v. Black Hawk County Jail et al

Filing 7

ORDER granting 1 Pro Se Motion for Leave to Proceed in forma pauperis filed by Jeffery Kemp. The plaintiff is directed to submit an initial partial filing of $40.00 by no later than 3/4/2016. 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 plaintiff is obligated to pay and the institution having custody of him is obligated to forward 20 percent of the preceding month's income c redited to his account each time the amount in the account exceeds $10.00. 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 i s an inmate. The clerk's office is directed to file the complaint (docket no. 1-1) without the prepayment of the filing fee. The plaintiff is directed to file by no later than 3/4/2016 an amended and substituted complaint specifically setting fo rth pertinent facts, if they exist, which state a constitutional violation and naming those specific persons who, acting under color of law, allegedly violated his rights. Signed by Chief Judge Linda R Reade on 2/5/2016 (copy w/NEF and 1983 form mailed to Plt, copy w/NEF mailed to Warden at Black Hawk County Jail). (skm)

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

JEFFERY KEMP,
Plaintiff,

No. C15-2094-LRR

vs.
BLACK HAWK COUNTY JAIL,
WATERLOO POLICE DEPARTMENT,
BRAD WALZ, SHERIFF TONY
THOMPSON, WARDEN OF BLACK
HAWK COUNTY JAIL, ANDREA
FRANA, BILL HERKELMAN, ADAM
LIDDLE, KYE RICHTER, NICHOLAS
SADD, BRICE LIPPERT, DAVID
MCFARLAND, CHRIS GERGEN,
MICHAEL RASMUSSEN, ERYN
HAGEMAN, KERRY DEVINE, GREG
FANGMAN, MELISSA LUDWIG,
MARK HERBST,

ORDER

Defendants.

This matter is before the court on the plaintiff’s application to proceed in forma
pauperis (docket no. 1). The plaintiff filed such application on November 6, 2015. Also
before the court is the plaintiff’s complaint under 42 U.S.C. § 1983 (docket no. 1-1),
which the plaintiff also submitted on November 6, 2015. Additionally, the plaintiff filed
a supplement (docket no. 2) on November 17, 2015, second supplement (docket no. 3) on
December 3, 2015, third supplement (docket no. 4) on December 30, 2015, fourth
supplement (docket no. 5) on January 12, 2016 and fifth supplement (docket no. 6) on
January 19, 2016.

I. IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915
The plaintiff did not submit the statutory filing fee. See 28 U.S.C. § 1914(a)
(requiring filing fee). In order for a court to authorize the commencement of an action
without the prepayment of the filing fee, a person must submit an affidavit that includes
a statement of all the assets the person possesses. 28 U.S.C. § 1915(a)(1). In addition,
a prisoner must submit a certified copy of the trust fund account statement (or institutional
equivalent) for the 6-month period immediately preceding the filing of the complaint,
obtained from the appropriate official of each prison at which the prisoner was or is
confined. 28 U.S.C. § 1915(a)(2). Based on the plaintiff’s application and certificate of
inmate account, it is clear that the plaintiff does not have sufficient funds to pay the
required 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.
A prisoner bringing a civil action in forma pauperis is required to pay the full
$350.00 filing fee. 28 U.S.C. § 1915(b)(1). 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). Because the court deemed it appropriate to
grant the plaintiff in forma pauperis status, the plaintiff is required to pay the full 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.”).
Concerning the computation of the initial partial filing fee, the plaintiff is required
to submit 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 balance, the court finds that the initial partial
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filing fee is $40.00. Id. The plaintiff shall submit $40.00 by no later than March 4, 2016.
Id. If the court does not receive payment by this deadline, the instant action shall be
dismissed.1 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); Barnett v. Ray, 320 F. App’x
823, 824-25 (10th Cir. 2009) (same); Kennedy v. Reid, 208 F. App’x 678, 679 (10th Cir.
2006) (same); 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.

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If the plaintiff does not submit the required initial partial payment by March 4,
2016, he must explain by no later than March 18, 2016 whether his failure to pay was
caused by circumstances beyond his control, such as prison officials’ failure to adhere to
his request to remit payment using funds from his account, or whether his nonpayment was
caused by his failure to leave sufficient funds in the account to pay the initial partial
payment. See Sims v. Davis, 589 F. App’x 813 (8th Cir. 2015) (citing George v. Tucker,
570 F. App’x 629 (8th Cir. 2014)).
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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. PLEADINGS
Concerning the plaintiff’s complaint (docket no. 1-1), supplement (docket no. 2),
second supplement (docket no. 3), third supplement (docket no. 4), fourth supplement
(docket no. 5) and fifth supplement (docket no. 6), they do not comply with the Federal
Rules of Civil Procedure. Although courts construe pro se pleadings liberally, pro se
litigants, like all other parties, must abide by the Federal Rules of Civil Procedure. See,
e.g., Williams v. Harmon, 294 F. App’x 243, 245 (8th Cir. 2008) (affirming dismissal
where pro se litigant failed to comply with the Federal Rules of Civil Procedure). The
Federal Rules of Civil Procedure require parties to formulate their pleadings in an
organized and comprehensible manner. Specifically, Federal Rule of Civil Procedure
8(a)(1)-(3) requires that a complaint contain a “short and plain statement of the grounds
for the court’s jurisdiction” a “short and plain statement” of the plaintiff’s claims and a
“demand for the relief sought.” Federal Rule of Civil Procedure 8(d)(1) provides that,
although no technical form of pleading is required, each claim must be simple, concise and
direct. Federal Rule of Civil Procedure 10(b) directs parties to separate their claims within
their pleadings and provides that each claim should be limited as far as practicable to a
single set of circumstances. In addition, Federal Rule of Civil Procedure 10(b) makes
clear that each claim that is founded on a separate transaction or occurrence must be stated
in a separate count where doing so would promote clarity.
The plaintiff’s claims are not simple, concise and direct. It is evident from the
record that the plaintiff inundated the court with filings. Because he sought to add new
claims, to expand on his original claims and/or to seek additional relief, the record is very
difficult to review. Stated differently, the court finds that it is extraordinarily hard to
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discern what claims the plaintiff is actually asserting against the named defendants or
unnamed defendants. Given the record, the court is of the opinion that the matter is best
addressed by requiring the plaintiff to file an amended and substituted complaint. The
plaintiff shall file by no later than March 4, 2016 an amended and substituted complaint
specifically setting forth pertinent facts, if they exist, which state a constitutional violation
and naming those specific persons who, acting under color of law, allegedly violated his
rights. The plaintiff shall only state what each defendant personally did, or failed to do,
which resulted in harm to him. The plaintiff shall refrain from speaking on behalf of other
inmates and giving legal arguments. The plaintiff should attempt to limit the “statement
of claim” portion of his complaint to five pages, written on one side of the paper and
double-spaced. And, the plaintiff shall state the date and place of all events that provide
the basis for any claim that arises under 42 U.S.C. § 1983. If the plaintiff fails to file an
amended and substituted complaint by March 4, 2016, this action will be dismissed. See
Miller v. Benson, 51 F.3d 166, 168 (8th Cir. 1995) (addressing inherent power to dismiss
a case for failure to prosecute). If necessary, the plaintiff may request in a written motion
an extension of time to file an amended and substituted complaint. The clerk’s office shall
send the plaintiff the form that is regularly used by those individuals who seek relief under
42 U.S.C. § 1983. If he so chooses, the plaintiff may complete and submit it as his
amended and substituted complaint.
In sum, the court will not rely on every filing that the plaintiff submitted. Rather,
as previously stated, the court will afford the plaintiff with an opportunity to file an
amended and substituted complaint and conduct the necessary review once it is filed.
Finally, the plaintiff should be aware that any claims that are not realleged in his amended
and substituted complaint will be deemed abandoned by the court. See In re Wireless Tel.
Fed. Cost Recover Fees Litig., 396 F.3d 922, 928 (8th Cir. 2005). The court shall reserve

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ruling on the plaintiff’s claims for purposes of 28 U.S.C. § 1915(e)(2)(B) and/or 28
U.S.C. § 1915A.2
IT IS THEREFORE ORDERED:
(1) The plaintiff’s application to proceed in forma pauperis (docket no. 1) is
granted.
(2) The plaintiff is directed to submit an initial partial filing of $40.00 by no later
than March 4, 2016. If necessary, the plaintiff may request in a written motion an
extension of time to pay the initial partial filing fee. Additionally, 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.
(3) 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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Before proceeding with his action, the plaintiff should be aware of several points.
First, under the Prison Litigation Reform Act,
[n]o Federal civil action may be brought by a prisoner
confined in a jail, prison or other correctional facility, for
mental or emotional injury suffered while in custody without
prior showing of physical injury.
42 U.S.C. § 1997e(e). Second, a plaintiff must fully exhaust administrative remedies prior
to commencing an action. See 42 U.S.C. § 1997e(a). Third, an inmate must demonstrate
that he suffered prejudice as a result of the inadvertent opening of legal mail by prison
officials. See Beaulieu v. Ludeman, 690 F.3d 1017, 1037 (8th Cir. 2012). Lastly, liability
under 42 U.S.C. § 1983 may not be grounded upon a respondeat superior theory. See
Chambers v. St. Louis County, 247 F. App’x 846, 848 (8th Cir. 2007).
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(4) The clerk’s office is directed to file the plaintiff’s complaint (docket nos. 1-1)
without the prepayment of the filing fee.
(5) The plaintiff is directed to file by no later than March 4, 2016 an amended and
substituted complaint specifically setting forth pertinent facts, if they exist, which
state a constitutional violation and naming those specific persons who, acting under
color of law, allegedly violated his rights. The plaintiff is directed to only state
what each defendant personally did, or failed to do, which resulted in harm to him.
The plaintiff is directed to refrain from speaking on behalf of other inmates and
giving legal arguments. The plaintiff is encouraged to limit the “statement of
claim” portion of his complaint to five pages, written on one side of the paper and
double-spaced. And, the plaintiff is directed to state the date and place of all events
that provide the basis for any claim that arises under 42 U.S.C. § 1983.
(6) Unless the plaintiff files an amended and substituted complaint by March 4,
2016 or the court grants an enlargement of time to file an amended and substituted
complaint, the clerk’s office is directed to dismiss without prejudice this action.
(7) The clerk’s office is directed to send the plaintiff the form that is regularly used
by those who seek relief under 42 U.S.C. § 1983.
(8) 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 5th day of February, 2016.

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TO:

WARDEN/ADMINISTRATOR
Black Hawk County Jail, Waterloo, Iowa
NOTICE OF COLLECTION OF FILING FEE
You are hereby given notice that Jeffery Kemp, an inmate at your facility, filed the

following lawsuit in the United States District Court for the Northern District of Iowa:
Kemp v. Black Hawk County Jail et al., Case No. C15-2094-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 $40.00, 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,
after the plaintiff pays the initial partial filing fee of $40.00, 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