Carnell v. Carr et al

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). The clerk's office is to prepare waiver of service of summons forms for each defendant for service by the United States Marshal Service at no cost to plaintiff absent a showing that plaintiff is able to pay the cost of such service. 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. 12-3020-SAC

JOHN CARR, et al,
Defendants.

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 seeks damages from Linn County
Sheriff John Carr, and Linn County on allegations that defendants
provide no proper disciplinary or protective housing at the jail,
and that he was physically attacked by a prisoner presenting an
obvious and known threat to plaintiff’s safety.

The court finds a

response is required on these allegations.1
IT IS THEREFORE ORDERED that plaintiff’s motion for leave to

1

Plaintiff also claims the jail does not provide proper housing
for handicapped prisoners.
Plaintiff does not allege he is
handicapped, but instead claims he is required to assist one or more
handicapped prisoners with daily functions such as toileting and
showering.
These allegations of being required to assist
handicapped prisoners present no plausible claim that plaintiff’s
constitutional rights are thereby being violated by defendants.
Accordingly, no response is warranted on these particular
allegations.
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proceed in forma pauperis (Doc. 2) is provisionally granted without
assessment of an initial partial filing fee, and that payment of the
$350.00 district court filing fee is to proceed as authorized by 28
U.S.C. § 1915(b)(2).
IT IS FURTHER ORDERED that a response from defendants is
required.

The clerk’s office is to prepare waiver of service of

summons forms for each defendant, for service by the United States
Marshal Service at no cost to plaintiff absent a showing that
plaintiff is able to pay the cost of such service.
The clerk’s office is to send a copy of this order to the
County Counselor for Linn County.
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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