Small v. Adams Heights Manufactured Home Park, LLC

Filing 4

MEMORANDUM AND ORDER ENTERED: On or before March 19, 2013, plaintiff shall submit to the clerk of the court an initial partial filing fee of $8.00. Any objection to this order must be filed on or before the date payment is due. On or before M arch 19, 2013, plaintiff shall show cause why this matter should not be dismissed for failure to state a claim that is cognizable under Section 1983. The failure to file a timely response may result in the dismissal of this action without additional prior notice to the plaintiff. Signed by Senior District Judge Sam A. Crow on 2/19/2013. (Mailed to pro se party Curtis Leon Small by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CURTIS LEON SMALL,
Plaintiff,
v.

CASE NO. 13-3011-SAC

ADAMS HEIGHTS MANUFACTURED HOME
PARK, LLC,
Defendants.

MEMORANDUM AND ORDER

This matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff, a prisoner in the Shawnee County Jail, proceeds
pro se and seeks leave to proceed in forma pauperis.
Pursuant to 28 U.S.C. § 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 records submitted by the plaintiff, which
reflect four months, the court finds the average monthly deposit to
his account is $40.00;

the average monthly balance

cannot be

determined from the records provided. The court therefore assesses
an initial partial filing fee of $8.00, twenty percent of the average
monthly deposit, rounded to the lower half dollar.1
Next, the court’s initial review of this matter suggests a
1

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), which require payments
of twenty percent of the preceding month’s income each time the income exceeds
$10.00.

defect, namely, that plaintiff asserts a state law negligence claim
rather than a constitutional claim cognizable under § 1983. See
Daniels v. Williams, 474 U.S. 327, 330-32 (1986)(claims of negligence
are not cognizable in an action under § 1983); Rost v. Steamboat
Springs

RE-2

School

District,

511

F.3d

1114,

1126

(10th

Cir.

2008)(“negligent conduct is insufficient to prove liability under
§1983” (citations omitted)). Because plaintiff’s claim of negligence
by the defendant presents a state law claim that should be presented
to a state district court, the court is considering the dismissal of
this action. The dismissal would not prevent plaintiff from presenting
the claim in the state court if he chooses to do so.
IT IS, THEREFORE, BY THE COURT ORDERED that on or before March
19, 2013, plaintiff shall submit to the clerk of the court an initial
partial filing fee of $8.00. Any objection to this order must be filed
on or before the date payment is due.
IT IS FURTHER ORDERED that on or before March 19, 2013, plaintiff
shall show cause why this matter should not be dismissed for failure
to state a claim that is cognizable under § 1983. The failure to file
a timely response may result in the dismissal of this action without
additional prior notice to the plaintiff.
A copy of this order shall be transmitted to the plaintiff.
IT IS SO ORDERED.
DATED:

This 19th day of February, 2013, at Topeka, Kansas.

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