Ball v. Horton et al

Filing 4

ORDER ENTERED: Plaintiff Ball's motion for leave to proceed in forma pauperis is provisionally granted subject to Ball submitting within thirty (30) days an initial partial filing fee of $13.50. Any objection to this order must be filed on or before the date payment is due. Plaintiff's motion 3 for appointment of counsel is denied without prejudice. Plaintiff is granted thirty (30) days to show cause why the complaint should not be summarily dismissed. Signed by Senior District Judge Sam A. Crow on 12/16/2011. (Mailed to pro se party Lynn Lee Ball by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

LYNN LEE BALL,
Plaintiff,
v.

CASE NO.11-3209-SAC

SANDY HORTON, et al.,
Defendants.

O R D E R
Before the court is a complaint seeking relief under 42 U.S.C.
§ 1983 filed pro se by Lynn Lee Ball, a prisoner confined in a
Kansas correctional facility.

Also before the court is Ball’s

motion for leave to proceed in forma pauperis under 28 U.S.C. §
1915.
In Forma Pauperis, 28 U.S.C. § 1915
Ball must pay the full $350.00 filing fee in this civil action.
See 28 U.S.C. § 1915(b)(1)(prisoner bringing a civil action or
appeal in forma pauperis is required to pay the full filing fee).
If granted leave to proceed in forma pauperis, he is entitled to pay
this filing fee over time, as provided by payment of an initial
partial filing fee to be assessed by the court under 28 U.S.C. §
1915(b)(1) and by periodic payments from his inmate trust fund
account as authorized in 28 U.S.C. § 1915(b)(2).
Pursuant to 28 U.S.C. § 1915(b)(1), the court is required to
assess an initial partial filing fee of twenty percent of the
greater of the average monthly deposits or average monthly balance
in the prisoner's account for the six months immediately preceding

the date of filing of a civil action.

Having examined the limited

records provided, the court assesses an initial partial filing fee
of $13.50, twenty percent of the average monthly deposit to Ball’s
account, rounded to the lower half dollar.
Screening of the Complaint, 28 U.S.C. § 1915A
Because Ball is a prisoner plaintiff, the court is required to
screen the complaint and to dismiss it or any portion thereof that
is frivolous, fails to state a claim on which relief may be granted,
or seeks monetary relief from a defendant immune from such relief.
28 U.S.C. § 1915A(a) and (b).
A

pro

construction.

se

party’s

complaint

must

be

given

a

liberal

Haines v. Kerner, 404 U.S. 519, 520 (1972).

A party

proceeding pro se, however, still bears "the burden of alleging
sufficient facts on which a recognized legal claim could be based."
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).
To state a claim for relief, the complaint must present
allegations of fact, assumed to be true, that "raise a right to
relief above the speculative level."
Twombly, 550 U.S. 544, 555 (2007).

Bell Atlantic Corp. v.
The complaint must present

"enough facts to state a claim to relief that is plausible on its
face."

Id.

at

570.

At

this

stage,

the

court

accepts

all

well-leaded allegations as true and views them in the light most
favorable to the plaintiff.

Id. at 555.

In the present action, Ball states he sustained third degree
burns on his legs in February 2010 when a hot coffee container
exploded at the Crawford County Jail.

Ball acknowledges that

medical treatment including hospitalization was provided for his
injury. Ball further states the insurer for Crawford County refuses
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to pay Ball’s medical bills or to compensate Ball for his injuries.
Ball filed the instant action to seek damages from the Crawford
County Sheriff and all jail shift supervisors, arguing they are
responsible for protecting his safety and ensuring that all safety
rules are being followed at the jail.
Having reviewed the complaint, the court finds it is subject to
being summarily dismissed because no claim is presented upon which
relief can be granted under § 1983.
“Plaintiffs alleging a violation of § 1983 must demonstrate
they have been deprived of a right secured by the Constitution and
the laws of the United States, and that the defendants deprived them
of this right acting under color of law.”
F.3d 1030, 1033 (10th Cir.2008).
no

plausible

punishment

in

claim

of

violation

Fourteenth Amendments.

being
of

Jenkins v. Currier, 514

Here, Ball’s allegations present
subjected

his

rights

to

cruel

under

and

the

unusual

Eighth

and

Rather, his allegations sound in common law

tort for which relief is available in the state courts.

See

DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189,
201-03 (1989)(§ 1983 does not impose liability for violations of
duties of care arising out of state tort law); Reeve v. Oliver, 41
F.3d 381, 383 (8th Cir. 1994) (although harm may be caused by state
actor, § 1983 does not turn fourteenth amendment into fount of tort
law that supersedes existing tort actions under state law).
Additionally,

Ball

does

not

allege

that

any

defendant

personally participated in the wrong being alleged, and Ball may not
rely on the doctrine of respondeat superior in seeking relief under
§ 1983 by virtue of a defendant’s supervisory position.

Rizzo v.

Goode, 423 U.S. 362 (1976)(supervisor status alone is insufficient
3

to support liability under § 1983); Mitchell v. Maynard, 80 F.3d
1433, 1441 (10th Cir.1996)("[P]ersonal participation is an essential
allegation in a section 1983 claim.")(quotation marks and citation
omitted).
Ball is therefore directed to show cause why the complaint
should not be summarily dismissed as stating no claim for relief
under § 1983.

28 U.S.C. § 1915(e)(2)(B)(ii).1

The failure to file

a timely response may result in the complaint being dismissed for
the reasons stated herein without further prior notice.
IT IS THEREFORE ORDERED that Ball’s motion for leave to proceed
in forma pauperis (Doc. 2) is provisionally granted subject to Ball
submitting within thirty (30) days an initial partial filing fee of
$13.50.

Any objection to this order must be filed on or before the

date payment is due.
IT IS FURTHER ORDERED that Ball’s motion for appointment of
counsel (Doc. 3) is denied without prejudice.
IT IS FURTHER ORDERED that Ball is granted thirty (30) days to
show cause why the complaint should not be summarily dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
Copies of this order shall be mailed to Ball and to the
Centralized Inmate Banking office for the Kansas Department of

1

Ball is advised that dismissal of the complaint under 28
U.S.C. § 1915(e)(2)(B)(ii) will count as a “strike” under 28 U.S.C.
1915(g), a “3-strike” provision which prevents a prisoner from
proceeding in forma pauperis in bringing a civil action or appeal if
“on 3 or more prior occasions, while incarcerated or detained in any
facility, [the prisoner] brought an action or appeal in a court of
the United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which relief
may be granted, unless the prisoner is under imminent danger of
serious physical injury.”
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Corrections.
IT IS SO ORDERED.
DATED:

This 16th day of December 2011 at Topeka, Kansas.

s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge

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