Galindo vs. USA et al

Filing 2

ORDER ENTERED: Plaintiff is granted thirty (30) days in which to satisfy the filing fee requirement by either paying the fee of $400.00 or submitting a properly completed and supported motion for leave to proceed without fees on court-approved forms. Within the same thirty-day period, plaintiff must submit his complaint upon court-approved forms and in his form complaint must cure the deficiencies discussed herein. Signed by Senior District Judge Sam A. Crow on 6/12/2013. (Mailed to pro se party Samuel Galindo by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SAMUEL GALINDO,
Plaintiff,
v.

CASE NO.

13-3084-SAC

UNITED STATES
OF AMERICA, et al.,
Defendants.
O R D E R
This pro se civil complaint was filed by an inmate of the
Sedgwick County Jail, Wichita, Kansas.

Plaintiff claims that he was

assaulted by an officer employee of the Butler County Jail (BCJ) while
he was an inmate there.
officer.

He seeks to have charges filed against the

Plaintiff has not satisfied the filing fee prerequisite.

The court further finds that the complaint is deficient in several
ways.

Plaintiff is given time to satisfy the fee and cure the

deficiencies in his complaint.

If he fails to comply within the

prescribed time, this action may be dismissed without further notice.

FILING FEE
The fee for filing a civil rights complaint is $400.00, which
includes the statutory fee of $350.00 plus the $50.00 administrative
fee; or $350.00 for one granted leave to proceed in forma pauperis.
Plaintiff has neither paid the fee nor submitted a motion to proceed

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without Prepayment of Fees.

This action may not proceed until the

filing fee is satisfied in one of these two ways.
time to satisfy the filing fee.

Plaintiff is given

He is forewarned that if he fails

to satisfy the fee as ordered within the prescribed time, this action
may be dismissed without prejudice and without further notice.
28 U.S.C. § 1915 requires that a prisoner seeking to bring an
action without prepayment of fees submit a motion on court-approved
forms that contains an affidavit described in subsection (a)(1), and
a

“certified

copy

of

the

trust

fund

account

statement

(or

institutional equivalent) for the prisoner for the six-month period
immediately preceding the filing” of the action “obtained from the
appropriate official of each prison at which the prisoner is or was
confined.”

28 U.S.C. § 1915(a)(2).

Plaintiff is reminded that under § 1915(b)(1), being granted
leave to proceed without prepayment of fees does not relieve him of
the obligation to pay the full amount of the filing fee.

Instead,

it

payments

entitles

him

to

pay

the

fee

over

time

through

automatically deducted from his inmate trust fund account as funds
become available pursuant to 28 U.S.C. § 1915(b)(2).1

COMPLAINT MUST SUBMITTED ON FORMS

1

Pursuant to § 1915(b)(2), the Finance Office of the facility where plaintiff
is currently confined will be authorized to collect twenty percent (20%) of the
prior month’s income each time the amount in plaintiff’s institution account
exceeds ten dollars ($10.00) until the filing fee has been paid in full.

2

Local court rule requires that civil complaints be submitted
upon court-approved forms.

The clerk is directed to send forms to

plaintiff and he is required to submit his complaint upon those forms.

FAILURE TO STATE A CLAIM FOR RELIEF
Plaintiff’s complaint and exhibit indicate the following
factual background for this complaint.

On March 6, 2013, Mr. Galindo

had just filled a cup with coffee when defendant Preston, a
correctional officer at the BCJ, yanked the cup away.

Mr. Galindo

was angry because plaintiff got the water when ordered to lockdown.
Plaintiff was burned with hot water and suffered pain as a result.
Mr. Galindo apparently refused to lock down after this incident and
was punished as a result.

Plaintiff filed a form 9 on the date of

the incident stating he would like to file charges, but it was not
resolved.
In his form complaint, plaintiff must cure several defects that
are apparent from his original pleading.

First, the initiation of

criminal charges against an individual is not relief that is
available in a civil rights action.
other relief.

Plaintiff does not request any

Accordingly, he is not entitled to the relief he seeks

and the action is subject to being dismissed on this basis.
Second, plaintiff names the United States as defendant but
states no basis for holding the United States liable.

His complaint

is based upon an alleged incident involving defendant Preston.
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No

personal participation is alleged in the burning incident by the
United States or any of its employees in the U.S. Marshal Service.
The failure of the USMS to respond to his complaint after the
incident, even if true, does not show its personal participation in
the event that plaintiff claims violated his constitutional rights.
Personal participation is a necessary element of a § 1983 claim.
Finally, plaintiff’s own allegations indicate that he has not
properly and fully exhausted all administrative remedies upon his
claim.

In his form complaint, he must describe all steps he took

to exhaust the available administrative remedies prior to filing this
action.

Filing a form 9 grievance is not sufficient when other steps

are available.
IT IS THEREFORE ORDERED that plaintiff is granted thirty (30)
days in which to satisfy the filing fee requirement by either paying
the fee of $400.00 or submitting a properly completed and supported
motion for leave to proceed without fees on court-approved forms.
IT IS FURTHER ORDERED that within the same thirty-day period
plaintiff must submit his complaint upon court-approved forms and
in his form complaint must cure the deficiencies discussed herein.
The clerk is directed to send 1983 and IFP forms to plaintiff.
IT IS SO ORDERED.
Dated this 12th day of June, 2013, at Topeka, Kansas.

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

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