Perry v. Federal Bureau of Prisons et al
Filing
6
MEMORANDUM AND ORDER ENTERED: Plaintiff shall supply the court on or before August 3, 2012, with a certified copy of his institutional financial records for the six months preceding May 2012 from all facilities in which he was housed during that per iod. The failure to file a timely response may result in the dismissal of this action without prejudice and without further notice to plaintiff. On or before August 3, 2012, plaintiff shall advise the court whether he submitted an administrative to rt claim to the Bureau of Prions before commencing this action under the Federal Tort Claims Act and also shall advise the court whether he intends to pursue further relief in this matter under Bivens. Signed by Senior District Judge Sam A. Crow on 7/11/2012. (Mailed to pro se party Jason L. Perry by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JASON L. PERRY,
Plaintiff,
v.
CASE NO. 12-3100-SAC
FEDERAL BUREAU OF PRISONS, et al.,
Defendants.
MEMORANDUM AND ORDER
This matter is before the court on a civil action filed by a
prisoner in federal custody. Plaintiff proceeds pro se and seeks
leave to proceed in forma pauperis.
Motion to proceed in forma pauperis
Plaintiff’s request to proceed in forma pauperis is governed by
28 U.S.C. § 1915. Section 1915(a)(1) requires a prisoner seeking to
bring a civil action without prepayment of fees to submit an
affidavit that includes a statement of all assets, a statement of
the nature of the complaint, and the affiant's belief that he is
entitled to redress. The court finds the motion for leave to proceed
in forma pauperis filed by plaintiff satisfies these requirements.
Section
1915(a)(2)
requires
an
inmate
also
to
submit
a
certified copy of the inmate's institutional account for the six
months immediately preceding the filing of the action from an
appropriate official from each prison in which the inmate is or was
incarcerated. Plaintiff has not yet submitted this information, and
the court will direct him to supplement the record.
Screening
Because plaintiff is a prisoner, the court must conduct a
preliminary review of his complaint and must dismiss it or any part
of it 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)-(b). A complaint filed pro se by
a party proceeding in forma pauperis must be given a liberal
construction, Haines v. Kerner, 404 U.S. 519, 520 (1972), but even
under this standard, a pro se party’s “conclusory allegations
without supporting factual averments are insufficient to state a
claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). 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).
Plaintiff appears to identify this matter as an action under
the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1), 26712680. The FTCA contains an exhaustion requirement, and the United
States Supreme Court has recognized that the “FTCA bars claimants
from bringing suit in federal court until they have exhausted their
administrative remedies.” McNeil v. U.S., 508 U.S. 106, 113 (1993).
A plaintiff satisfies this by presenting an administrative tort
claim to the appropriate federal agency. 28 U.S.C. § 2675(a).
Because
it
is
not
clear
that
plaintiff
has
submitted
an
administrative tort claim to the Bureau of Prisons, the court will
direct him to clarify whether he has used that remedy.
2
In contrast, however, if plaintiff intends to pursue a Bivenstype1 claim, invoking jurisdiction pursuant to 28 U.S.C. § 1331, he
must advise the court of that intention.
IT IS, THEREFORE, BY THE COURT ORDERED that plaintiff shall
supply the court on or before August 3, 2012, with a certified copy
of his institutional financial records for the six months preceding
May 2012 from all facilities in which he was housed during that
period. The failure to file a timely response may result in the
dismissal of this action without prejudice and without further
notice to plaintiff.
IT IS FURTHER ORDERED that on or before August 3, 2012,
plaintiff
shall
advise
the
court
whether
he
submitted
an
administrative tort claim to the Bureau of Prisons before commencing
this action under the Federal Tort Claims Act and also shall advise
the court whether he intends to pursue relief in this matter under
Bivens.
A copy of this order shall be transmitted to the plaintiff.
IT IS SO ORDERED.
DATED:
This 11th day of July, 2012, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
1
Bivens v. Six Unknown Named Agents of the Fed. Bureau of
Narcotics, 403 U.S. 388 (1971)(recognizing a cause of action
against federal officials sued in their individual
capacities for constitutional violations).
3
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