Stacy v. Jefferson County Sheriff et al

Filing 6

ORDER to proceed in forma pauperis and to Dismiss. Signed on 02/19/09 by Judge Garr M. King. (pvh)

FILED FEB 20 2009

I N THE UNITED STATES D I S T R I C T COURT FOR THE D I S T R I C T OF OREGON THADDEUS A . STACY, Plaintiff,
CV.

08 - 6 4 1 2 - K I

v.
JEFFERSON COUNTY S H E R I F F , e t al. , Defendants. KING, J u d g e

ORDER TO PROCEED I N FORMA PAUPERIS AND TO D I S M I S S

I N FORMA P A U P E R I S / F I L I N G FEE

Plaintiff,

a prisoner at the Jefferson County J a i l ,
§

brings

t h i s c i v i l r i g h t s action pursuant to 42 U.S.C. moves to proceed i n forma pauperis (#1).

1983.

Plaintiff

An examination o f t h e

application reveals that plaintiff is unable to afford the fees of this action. Accordingly, I T I S ORDERED t h a t t h e p r o v i s i o n a l i n

forma pauperis s t a t u s given the p l a i n t i f f i s confirmed.
Pursuant t o 28 U.S.C. § 1915(b} (1), a p r i s o n e r proceeding i n

forma pauperis i s r e q u i r e d t o pay the f u l l f i l i n g fee of $350.00
when funds exist. Plaintiff has authorized the agency having

custody of him to collect the f i l i n g fee from his prison t r u s t 1 - - ORDER TO PROCEED I N FORMA PAUPERIS AND TO D I S M I S S

account w h e n f u n d s e x i s t .

Accordingly, an i n i t i a l partial filing

fee of $20.00 i s assessed by this order. Upon payment o f the i n i t i a l p a r t i a l f i l i n g fee, plaintiff

s h a l l be obligated t o make monthly payments of 20 percent of the preceding month's income credited to p l a i n t i f f ' s t r u s t account. These payments shall be collected and forwarded by the agency having custody of plaintiff to the Clerk of the Court each time the amount in plaintiff I s trust account exceeds $10.00, until the

filing fee is paid in full.
ORDER TO D I S M I S S
I.

BACKGROUND .

In

his

original

complaint,

plaintiff

alleges

that

while

confined at the Jefferson County J a i l , " j a i l staff" inspected his incoming legal mail outside of his presence, denied him adequate access to legal materials and resources, and forced him to review h i s l e g a l m a t e r i a l s i n a " d r u n k t a n k rr w i t h n o t a b l e o r c h a i r s . In a document captioned rrAdditional Claims and Affidavit to S u p p o r t A l l e g a t i o n s 11
,

plaintiff alleges that he suffered a gall

bladder a t t a c k while confined a t the Jefferson County J a i l , and was not provided adequate medical treatment by "corrections staff". F i n a l l y , i n a document e n t i t l e d rrMotion t o D i s m i s s and Remove Defendant F r o m A c t i o n ll , plaintiff moves the court to dismiss

IIJefferson County; Cpt. Robbins and a l l other mentioned agents of Jefferson County" from this action. 2 - - ORDER TO PROCEED I N FORMA PAUPERIS AND TO D I S M I S S

II.

STANDARDS.
This court must dismiss an action initiated by a prisoner

seeking redress from a governmental entity or officer or employee, i f the court determines that the action fails to state a claim for which r e l i e f may be granted. 28 U.S.C.
§§

1 9 1 5 ( e } ( 2 ) (B)

and

1 9 1 5 A ( b ) i L o p e z v . S m i t h , 203 F . 3 d 1 1 2 2 , 1 1 2 6 (9 th C i r . 2 0 0 0 ) . Dismissal for failure to state a claim is proper i f i t appears beyond doubt that p l a i n t i f f can prove no set of facts in support of his claims that would e n t i t l e him to r e l i e f . Ortez v. Washington

C o u n t y , 88 F . 3 d 8 0 4 , 806 (9 th C i r . 1 9 9 6 ) i C e r v a n t e s v . C i t y o f S a n Diego, 5 F.3d 1273, 1274 (9 th C i r . 1993). Because plaintiff is

proceeding pro se, I construe the pleadings liberally and afford the plaintiff the benefit of any doubt. S.Ct. 2197, 2200 (2007)
i

Erickson v. Pardus, 127

Ortez, 88 F.3d a t 806.

III.

DISCUSSION.
Plaintiff's complaint is subject to dismissal for several

reasons.

First, the pleadings filed subsequent to his complaint

have r e s u l t e d i n the f a i l u r e t o name as a defendant any person o r entity responsible in for his the alleged constitutional violations. named as

Specifically,

original

complaint,

plaintiff

defendants the Crook County Sheriff, the Jefferson County Sheriff, and two Jefferson County correctional o f f i c e r s . motion to dismiss, In plaintiff's

he moves to dismiss Jefferson County and i t s

3 - - ORDER TO PROCEED I N FORMA PAUPERIS AND TO D I S M I S S

agents.

As a r e s u l t ,

the only remaining defendant i s the Crook

County Sheriff. However, p l a i n t i f f f a i l s t o a l l e g e how Crook County S h e r i f f Rodd Clark personally p a r t i c i p a t e d i n the a l l e g e d c o n s t i t u t i o n a l violations.
§

S h e r i f f Clark cannot be held l i a b l e under 42 U.S.C. Taylor v.

1983, simply by virtue of his supervisory capacity.

L i s t , 880 F.2d 1040, 1045 (9th Cir. 1989); Jones v. Williams, 297 F.3d 930, 934 (9 th C i r . 2 0 0 2 ) . Accordingly, plaintiff has failed

to state a claim. Plaintiff's complaint is deficient for the additional reasons t h a t (1) a claim for the denial of access t o the courts requires proof of prejudice which plaintiff has not alleged; and (2)

p l a i n t i f f has not adequately alleged that the mail sent from the United Nations was actually confidential legal mail. Casey, 518 U.S. 343, 351, 354 (1996) See Lewis v.

(prisoner must allege that his

efforts to pursue a legal ciaim were hindered--mere inability to l i t i g a t e e f f e c t i v e l y i s i n s u f f i c i e n t ) ; Mann v. Adams, 846 F.2d 589, 590-91 (9th C i r . ) , c e r t . denied, 488 U.S. 898 (1988) inmates from public agencies, public officials, (mail sent to civil rights

groups, and news media may be opened outside inmate's presence) . Additionally, p l a i n t i f f i s advised t h a t he cannot amend h i s complaint by submitting additional pleadings which do not operate as a complete substitute for his original complaint. Studios, Inc. v. Richard Feiner & Co., See Hal Roach (9th

896 F.2d 1542, 1546

4 - - ORDER TO PROCEED I N FORMA PAUPERIS AND TO D I S M I S S

Cir. 1 9 9 1 ) .

To the extent t h a t p l a i n t i f f ' s "Additional Claim and

A f f i d a v i t t o Support Allegations" may be construed as an amended complaint, i t i s dismissed on the basis that i t does not l i s t a l l defendants in i t s caption, does not state a claim against Sheriff Clark, and does not include a prayer for relief.
P. 8 (a)
&

See Fed. R. c i v .

10 (a) .
CONCLUSION

P l a i n t i f f ' s p r o v i s i o n a l i n f o r m a p a u p e r i s s t a t u s i s CONFIRMED. However, p l a i n t i f f ' s complaint (#2) and amended complaint (#3) are DISMISSED f o r f a i l u r e t o s t a t e a c l a i m . dismiss Jefferson County Sheriff, L e w i s ( # 5 ) i s GRANTED. P l a i n t i f f may f i l e a second amended complaint, curing the Plaintiff' s motion to and Captain

Corporal Robbins,

deficiencies noted above, within 30 days of the date of t h i s order. Plaintiff shall use the form complaint provided by the court. Plaintiff is advised that failure to file a second amended

complaint shall result in the dismissal of this proceeding, with prejudice. I T I S FURTHBR ORDBRED t h a t p l a i n t i f f s h a l l p a y t h e $ 3 5 0 . 0 0 f i l i n g fee when funds e x i s t . I T I S ORDERED t h a t t h e J e f f e r s o n

County Sheriff or his designee shall collect from p l a i n t i f f ' s t r u s t account an i n i t i a l p a r t i a l f i l i n g fee in the amount of $ 20.00 and shall forward the amount to the Clerk of the Court. The Sheriff

shall collect from p l a i n t i f f ' s prison t r u s t account the balance of 5 - - ORDER TO PROCEED I N FORMA PAUPERIS AND TO D I S M I S S

the f i l i n g f e e a n d s h a l l f o r w a r d p a y m e n t s t o t h e C l e r k o f t h e C o u r t in accordance with the formula set forth above. The payments s h a l l

be c l e a r l y i d e n t i f i e d by the name and number assigned t o t h i s action. The Clerk of the Court i s directed to send a copy of t h i s o r d e r t o S h e r i f f J a c k J o n e s , 6 7 5 N.W. C h e r r y L a n e , M a d r a s , O r e g o n , 97741. The Clerk of the Court also is directed to send to

p l a i n t i f f a form § 1983 complaint with t h i s order. I T I S SO ORDERED. DATED t h i s

~

day of February, 2009.

Garr . King United States

6 - - ORDER TO PROCEED I N FORMA PAUPERIS AND TO D I S M I S S