United States District Court, M.D. Georgia, Valdosta Division
TRAVIUS NORMAN, Plaintiff, Pro se, VALDOSTA, GA.
ORDER & RECOMMENDATION
THOMAS Q. LANGSTAFF, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Travius Norman, a state inmate currently confined at Valdosta State Prison, in Valdosta, Georgia, filed a pro se civil rights complaint in this Court seeking relief under 42 U.S.C. § 1983. Plaintiff also seeks leave to proceed in this action without prepayment of the $350.00 filing fee. Plaintiff's Motion to Proceed in forma pauperis (Doc. 2) is GRANTED. After a preliminary review of the Complaint, however, the undersigned RECOMMENDS that Plaintiff's Complaint be DISMISSED, without prejudice, for failure to disclose his litigation history and failure to state a claim.
I. Motion to Proceed in forma pauperis
Upon review of Plaintiff's pauper's affidavit and certified trust account statement, the undersigned finds that Plaintiff is currently unable to pre-pay any portion of the $350.00 fee. His Motion to Proceed in forma pauperis is thus GRANTED, and he may proceed in this action without prepaying any portion of the filing fee. See 28 U.S.C. § 1915(b). This does not mean that the fee is waived, however. Plaintiff is still required to pay the full amount of the $350.00 filing fee using the installment payment plan described in 28 U.S.C. § 1915(b).
Therefore, in accordance with the Prison Litigation Reform Act, it is now ORDERED that Plaintiff's custodian remit to the Clerk of this Court each month twenty percent (20%) of the preceding month's income credited to Plaintiff's inmate account until the $350.00 filing fee has been paid in full, provided the amount in the account exceeds $10.00. Transfers from Plaintiff's account shall continue until the entire filing fee has been collected, notwithstanding the earlier dismissal of Plaintiff's lawsuit. If Plaintiff is hereafter released from custody, he shall remain obligated to pay any remaining balance due of the above filing fee; Plaintiff shall continue to remit monthly payments as required by the Prison Litigation Reform Act. Collection from Plaintiff of any balance due by any means permitted by law is hereby authorized in the event Plaintiff fails to remit payments.
The CLERK is DIRECTED to mail a copy of this Order to the warden and/or business manager of the facility in which Plaintiff is currently confined.
II. Preliminary Review
A. Standard of Review
Because Plaintiff is a prisoner " seeking redress from a governmental entity or [an] officer or employee of a governmental entity, " this Court is required to conduct a preliminary screening of his Complaint. See 28 U.S.C. § 1915A(a). In so doing, the district court must accept all factual allegations in the complaint as true. Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004). Pro se pleadings, like the one in this case, are also " held to a less stringent standard than pleadings drafted by attorneys" and must be " liberally construed" by the court. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
A pro se pleading is, nonetheless, subject to dismissal prior to service if the court finds that the complaint, when construed liberally and viewed in the light most favorable to the plaintiff, fails to state a claim upon which relief may be granted. See 28 U.S.C. § 1915A(b)(1). A complaint fails to state a claim when it does not include " enough factual matter (taken as true)" to " give the defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To state a claim, a plaintiff must also allege sufficient facts to " raise the right to relief above the speculative level" and create " a reasonable expectation" that discovery will reveal the evidence necessary to prove a claim. See id. " Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
B. Plaintiff's Claims
The present action arises out of an inmate-on-inmate attack occurring at Valdosta State Prison. The Complaint alleges that Officers Machett and Griffin handcuffed Plaintiff while he was still in his cell with the intent to escort him to the showers. When Plaintiff's door was opened, however, another inmate escaped from his cell (by " popping his lock"), ran past the officers, and began stabbing Plaintiff with a homemade weapon. Officer Machett then allegedly pushed Plaintiff back into his cell, but allowed Plaintiff's attacker to follow. After some delay, Machett responded by discharging pepper spray into the cell until Plaintiff was ...