Roberts v. Riker et al

Filing 6

ORDER: Plaintiff's application to proceed in forma pauperis is GRANTED. The plaintiff is herewith ASSESSED the civil filing fee of $350.00. Consequently, the plaintiff has failed to state a claim upon which relief can be granted. This acti on, therefore, is hereby DISMISSED. An appeal of the judgment rendered herein would not be taken in good faith. Therefore, the plaintiff is NOT certified to pursue an appeal of this judgment in forma pauperis. Entry of this order shall constitute the judgment in this action. It is so ORDERED. Signed by District Judge Kevin H. Sharp on 2/10/12. (xc:Pro se party by regular and certified mail; Sumner Cty Sheriff.)(tmw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

HANK A. ROBERTS
Plaintiff,
v.
ADRIEL RIKER, et al.
Defendants.

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No. 3:12-0126
Judge Sharp

ORDER

The Court has before it a pro se prisoner complaint (Docket Entry No. 1) under 42 U.S.C.
§ 1983 and an application to proceed in forma pauperis (Docket Entry Nos. 2 and 5).
It appears from the application that the plaintiff lacks sufficient financial resources from
which to pay the $350.00 filing fee. Accordingly, plaintiff’s application to proceed in forma pauperis
is GRANTED. 28 U.S.C. § 1915(a).
The plaintiff is herewith ASSESSED the civil filing fee of $350.00. Pursuant to 28 U.S.C.
§ 1915(b)(1)(A) and (B), the custodian of the plaintiff's inmate trust account at the institution where
he now resides is directed to submit to the Clerk of Court, as an initial partial payment, whichever
is greater of:
(a) twenty percent (20%) of the average monthly deposits to the plaintiff's inmate trust
account; or
(b) twenty percent (20%) of the average monthly balance in the plaintiff's inmate trust
account for the prior six (6) months.

Thereafter, the custodian shall submit twenty percent (20%) of the plaintiff's preceding
monthly income (or income credited to the plaintiff's trust account for the preceding month), but
only when such monthly income exceeds ten dollars ($10.00), until the full filing fee of three
hundred fifty dollars ($350.00) as authorized under 28 U.S.C. § 1914(a) has been paid to the Clerk
of Court. 28 U.S.C. § 1915(b)(2).
The plaintiff is an inmate at the Sumner County Jail in Gallatin, Tennessee. He alleges that
he was sprayed with a chemical agent by a guard at the jail while he was wearing handcuffs.
Pro se pleadings are subject to liberal construction. Haines v. Kerner, 404 U.S. 519 (1972).
Nevertheless, liberal construction does not require the Court to create a claim which the plaintiff has
not spelled out in his complaint. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). A plaintiff is
required to plead more than bare legal conclusions. Lillard v. Shelby County Board of Education,
76 F.3d 716, 726 (6th Cir. 1996). Thus, a pro se litigant must meet the basic pleading requirements
for a complaint in order to state a cognizable claim for relief. Wells, supra. The plaintiff must
identify the right or privilege that was violated and the role that each defendant played in the alleged
violation. Dunn v. Tennessee, 697 F.2d 121, 128 (6th Cir. 1982).
In this case, the plaintiff has neglected to identify the position occupied by each defendant
at the jail and how each of the defendants was involved in the alleged unprovoked assault upon him.
In fact, neither of the defendants is even mentioned by name in the plaintiff’s Statement of Facts.
Docket Entry No.1 at pg.5. Consequently, the plaintiff has failed to state a claim upon which relief
can be granted. This action, therefore, is hereby DISMISSED. 28 U.S.C. § 1915(e)(2).
An appeal of the judgment rendered herein would not be taken in good faith. Coppedge v.
United States, 369 U.S. 438, 445-446 (1962). Therefore, the plaintiff is NOT certified to pursue an
appeal of this judgment in forma pauperis. 28 U.S.C. § 1915(a)(3).

Nevertheless, should the plaintiff decide to file a notice of appeal, he must either pay the
Clerk of Court the full appellate filing fee of four hundred fifty five dollars ($455.00) or submit a
new application to proceed in forma pauperis with a certified copy of his inmate trust account
statement for the previous six month period. 28 U.S.C. § 1915(a)(1); McGore v. Wrigglesworth, 114
F.3d 601 (6th Cir. 1997).
The Clerk is directed to send a copy of this order to the Sheriff of Sumner County to ensure
that the custodian of plaintiff's inmate trust account complies with that portion of the Prison
Litigation Reform Act relating to the payment of the filing fee.
Entry of this order shall constitute the judgment in this action.
It is so ORDERED.

____________________________
Kevin H. Sharp
United States District Judge