Washburn (ID 82688) v. Trego County Jail

Filing 5

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion to proceed in forma pauperis 2 is granted. Plaintiff remains obligated to pay the $350.00 filing fee. Plaintiff is granted to and including August 17, 2017, to submit an amended complaint. Signed by Magistrate Judge David J. Waxse on 07/17/17. Mailed to pro se party Allen Dean Washburn by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ALLEN DEAN WASHBURN,
Plaintiff,
v.

CASE NO. 17-3108-SAC-DJW

TREGO COUNTY JAIL,
Defendant.

MEMORANDUM AND ORDER
This matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff is a prisoner held in state custody. He proceeds
pro se and seeks leave to proceed in forma pauperis.
The motion to proceed in forma pauperis
This motion is governed by 28 U.S.C. § 1915(b). Because plaintiff
is a prisoner, he must pay the full filing fee in installment payments
taken from his prison trust account when he “brings a civil action
or files an appeal in forma pauperis[.]” § 1915(b)(1). Pursuant to
§ 1915(b)(1), the court must assess, and collect when funds exist,
an initial partial filing fee calculated upon the greater of (1) the
average monthly deposit in his account or (2) the average monthly
balance in the account for the six-month period preceding the filing
of the complaint. Thereafter, the plaintiff must make monthly payments
of twenty percent of the preceding month’s income in his institutional
account. § 1915(b)(2). However, a prisoner shall not be prohibited
from bringing a civil action or appeal because he has no means to pay
the initial partial filing fee. § 1915(b)(4).
Here, the limited financial information provided shows that
plaintiff has no income and that his available balance is less than

$1.00. The court therefore does not impose an initial partial filing
fee but advises plaintiff that he remains obligated to pay the $350.00
filing fee.
Screening
A federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental entity or an
officer or employee of such an entity. See 28 U.S.C. §1915A(a).
Following this review, the court must dismiss any portion of the
complaint that is frivolous, malicious, fails to state a claim upon
which relief may be granted, or seeks monetary damages from a defendant
who is immune from that relief. See 28 U.S.C. § 1915A(b).
In screening, a court liberally construes pleadings filed by a
party proceeding pro se and applies “less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.
89, 94 (2007).
To avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to relief above
the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007). The court accepts the well-pleaded allegations in the
complaint as true and construes them in the light most favorable to
the plaintiff. Id. However, “when the allegations in a complaint,
however, true, could not raise a [plausible] claim of entitlement to
relief,” the matter should be dismissed. Id. at 558. A court need not
accept “[t]hreadbare recitals of the elements of a cause of action
supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Rather, “to state a claim in federal court, a
complaint must explain what each defendant did to [the pro se
plaintiff]; when the defendant did it; how the defendant’s action

harmed [the plaintiff]; and what specific legal right the plaintiff
believes the defendant violated.” Nasious v. Two Unknown B.I.C.E.
Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
To state a claim for relief under Section 1983, a plaintiff must
allege the 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, 48-49 (1988)(citations omitted).
Here, the complaint names the Trego County Jail as the sole
defendant. A jail, however, is not a “person” under § 1983. See Aston
v. Cunningham, 216 F.3d 1086 (Table), 2000 WL 796086 *4 n. 3 (10th
Cir. June 21, 2000)(affirming the dismissal of a county jail from an
action under § 1983 and stating “a detention facility is not a person
or legally created entity capable of being sued.”). Therefore, the
Trego County Jail must be dismissed, and plaintiff must amend the
complaint to name the person or persons whose acts or omissions
violated his federal rights. The amended complaint should present a
detailed statement of how each defendant violated plaintiff’s rights,
when the violation occurred, and the injury caused.
IT IS, THEREFORE, BY THE COURT ORDERED that plaintiff’s motion
to proceed in forma pauperis (Doc. #2) is granted. Plaintiff remains
obligated to pay the $350.00 filing fee.1
IT IS FURTHER ORDERED the plaintiff is granted to and including
August 17, 2017, to submit an amended complaint.
A copy of this order shall be transmitted to the plaintiff.

1

Plaintiff will be required to pay the filing fee in installments calculated
pursuant to 28 U.S.C. § 1915(b)(2).

IT IS SO ORDERED.
DATED:

This 17th day of July 2017, at Kansas City, Kansas.

s/ David J. Waxse
DAVID J. WAXSE
U.S. Magistrate Judge