Carnell v. Allen

Filing 3

ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is provisionally granted without assessment of an initial partial filing fee and payment of the $350.00 district court filing fee is to proceed as authorized by 2 8 U.S.C. 1915(b)(2). Plaintiff is granted twenty (20) days to show cause why the instant complaint should not be summarily dismissed as stating no claim for relief. Signed by Senior District Judge Sam A. Crow on 2/1/2012. (Mailed to pro se party David Allan Carnell by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DAVID ALLAN CARNELL,
Plaintiff,
v.

CASE NO. 12-3019-SAC

JAMES ROCKY ALLEN,
Defendant.

O R D E R
This matter comes before the court on a form complaint for
filing under 42 U.S.C. § 1983, submitted pro se by a prisoner
confined in the Linn County jail in Mound City, Kansas. Also before
the court is plaintiff’s motion for leave to proceed in forma
pauperis under 28 U.S.C. § 1915.
In Forma Pauperis Status - 28 U.S.C. § 1915
Plaintiff 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, plaintiff 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 plaintiff's inmate
trust fund account as authorized in 28 U.S.C. § 1915(b)(2).
Plaintiff documents that no prisoner financial records are
available at the Linn County jail.

Given plaintiff’s apparent lack

of financial resources, the court grants plaintiff provisional leave
to proceed in forma pauperis, subject to the court revisiting

plaintiff’s indigent status if additional financial information
become available.

Plaintiff remains obligated to pay the remainder

of the $350.00 district court filing fee in this civil action,
through payments from his inmate trust fund account as authorized by
28 U.S.C. § 1915(b)(2).
Screening of the Complaint, 28 U.S.C. § 1915A
Because plaintiff is a prisoner, 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).

To state a claim under 42 U.S.C. §

1983, plaintiff must allege a violation of a right secured by the
Constitution and laws of the United States, and must show that the
alleged deprivation was committed by a person acting under color of
state law.

West v. Atkins, 487 U.S. 42 (1988).

In the present case, plaintiff alleges he was beaten by another
prisoner, the sole defendant named in the complaint.

Because there

is nothing to suggest this private person was acting “under color of
state law” at the time, plaintiff’s allegations clearly fail to
state an actionable claim for relief under § 1983. Absent amendment
of the complaint to cure this deficiency, the court finds the
complaint is subject to being summarily dismissed pursuant to §
1915A(b).

The failure to file a timely response to the show cause

order entered herein may result in the complaint being dismissed
without further prior notice.
IT IS THEREFORE ORDERED that plaintiff’s motion for leave to
proceed in forma pauperis (Doc. 2) is provisionally granted without
assessment of an initial partial filing fee, and that payment of the
2

$350.00 district court filing fee is to proceed as authorized by 28
U.S.C. § 1915(b)(2).
IT IS FURTHER ORDERED that plaintiff is granted twenty (20)
days to show cause why the instant complaint should not be summarily
dismissed as stating no claim for relief.
IT IS SO ORDERED.
DATED:

This 1st day of February 2012 at Topeka, Kansas.

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

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