Watson v. Federal Bureau of Prisons et al
Filing
4
MEMORANDUM AND ORDER ENTERED: On or before July 16, 2012, plaintiff shall submit an initial partial filing fee of $20.50 to the clerk of the court. Any objection to this order must be filed on or before the date payment is due. The failure to file a timely response may result in the dismissal of this action without prejudice and without additional prior notice to the plaintiff. On or before July 16, 2012, plaintiff shall show cause why the Bureau of Prisons should not be dismissed from this action and shall supplement the record to explain the specific bases of his claims against defendants Hollingsworth and Reyes. Signed by Senior District Judge Sam A. Crow on 6/13/2012. (Mailed to pro se party Pierre Terron-Oneal Watson by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PIERRE TERRON-ONEAL WATSON,
Plaintiff,
v.
CASE NO. 12-3091-SAC
FEDERAL BUREAU OF PRISONS, et al.,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the court on a Bivens-type1 civil
rights action filed by a prisoner in federal custody in Florence,
Colorado. Plaintiff was incarcerated in a federal facility in
Leavenworth, Kansas, at the time of the events giving rise to the
complaint. He proceeds pro se and seeks leave to proceed in forma
pauperis.
Because plaintiff is a prisoner, the motion to proceed in forma
pauperis is governed by 28 U.S.C. § 1915(b). Under §1915(b)(1), the
court must assess as an initial partial filing fee twenty percent of
the greater of the average monthly deposit 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
financial
records
submitted
by
the
plaintiff, the court finds the average monthly deposit to his
account is $102.82, and the average monthly balance is $9.28. The
1
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
court therefore assesses an initial partial filing fee of $20.50,
twenty percent of the average monthly deposit, rounded to the lower
half dollar.2
Next, because plaintiff is a prisoner seeking relief against a
governmental entity or an officer or employee of such an entity, the
court
is
required
to
conduct
a
preliminary
screening
of
the
complaint and must dismiss all or any part of it that is frivolous
or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary damages from a defendant who is immune
from such relief. 28 U.S.C. § 1915A(a)-(b).
Because
plaintiff
proceeds
pro
se,
the
court
liberally
construes his pleadings. See Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005). In examining the complaint, the
court accepts as true all-pleaded allegations in the complaint and
the reasonable inferences that may be drawn from those allegations.
Peterson v. Grisham, 594 F.3d 723, 727 (10th Cir. 2010). However,
despite this relaxed standard, the plaintiff must allege “enough
facts to state a claim to relief that is plausible on its face.”
Bell Atlantic Corp v. Twombly, 550 U.S. 544, 570 (2007).
The court’s review of the complaint has identified certain
deficiencies.
First, an action brought pursuant to Bivens only “lies against
[a] federal official in his individual capacity.” Simmat v. U.S.
2
Plaintiff will be required to pay the balance of the $350.00
filing fee in installments calculated pursuant to 28 U.S.C.
§ 1915(b)(2).
2
Bureau
of
Prisons,
413
F.3d
1225,
1231
(10th
Cir.
2005).
Accordingly, the Bureau of Prisons is subject to dismissal from this
action.
Next, a Bivens action must identify the personal participation
of
each
defendant
and
explain
how
that
conduct
caused
the
deprivation of a federal right. See Kite v. Kelley, 546 F.2d 334,
338 (10th Cir. 1976). While plaintiff adequately pleads personal
participation by defendant Evans, he must clarify the specific
factual bases for his claims against defendants Hollingsworth and
Reyes, who are, respectively, the warden and a lieutenant at the
prison.
A supervisor may not be held liable merely due to holding a
supervisory position. See Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009);
Dodds
v.
Richardson,
614
F.3d
1185,
1198
(10th
Cir.2010)(quoting Iqbal, 556 U.S. at 677). Instead, a plaintiff must
allege
and
demonstrate
that
a
supervisory
defendat:
“(1)
...
promulgated, created, implemented or possessed responsibility for
the continued operation of a policy that (2) caused the complained
of constitutional harm, and (3) acted with the state of mind
required to establish the alleged constitutional deprivation.”
Dodds, id. at 1199. Unless plaintiff identifies specific facts
showing the personal participation of defendants Hollingsworth and
Reyes, these defendants are subject to dismissal.
IT IS, THEREFORE, BY THE COURT ORDERED that on or before July
16, 2012, plaintiff shall submit an initial partial filing fee of
$20.50 to the clerk of the court. Any objection to this order must
3
be filed on or before the date payment is due. The failure to file
a timely response may result in the dismissal of this action without
prejudice and without additional prior notice to the plaintiff.
IT
IS
FURTHER
ORDERED
that
on
or
before
July
16,
2012,
plaintiff shall show cause why the Bureau of Prisons should not be
dismissed from this action and shall supplement the record to
explain
the
specific
bases
of
his
claims
against
defendants
Hollingsworth and Reyes.
A copy of this order shall be transmitted to the plaintiff.
IT IS SO ORDERED.
DATED:
This 13th day of June, 2012, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?