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Riley v. Glover

United States District Court, M.D. Georgia, Columbus Division

February 1, 2018

Corrections Officer JAMES GLOVER, Defendant.



         Pro se Plaintiff Dennis Lewis Riley, an inmate at Rutledge State Prison in Columbus, Georgia, filed the present civil rights complaint under 42 U.S.C. § 1983. Compl., ECF No. 1. Plaintiff also submitted a motion for leave to proceed in forma pauperis (“IFP”). Mot. for Leave to Proceed In Forma Pauperis, ECF No. 2. That motion was granted, and Plaintiff was ordered to pay an initial partial filing fee. Order Granting Mot. for Leave to Proceed In Forma Pauperis, ECF No. 5. Plaintiff has now paid the initial partial filing fee and his complaint is ripe for preliminary review as required by the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A(a).

         Upon review of Plaintiff's Complaint, the undersigned will allow Plaintiff's claims for cruel and unusual punishment and for violation of his right to bodily privacy to proceed. For the reasons explained below, it is recommended that his Eighth Amendment excessive force claim be dismissed without prejudice.

         I. Motion to Proceed In Forma Pauperis

         The district courts may authorize the commencement of a civil action without prepayment of the normally required filing fee if the plaintiff shows that he is indigent and financially unable to pay the filing fee. See 28 U.S.C. §1915(b). As noted above, Plaintiff's motion to proceed in forma pauperis was previously granted, and Plaintiff has paid an initial partial filing fee.

         Although he is proceeding in forma pauperis, Plaintiff is nevertheless obligated to pay the full $350.00 filing fee, in installments, as provided in 28 U.S.C. § 1915(b)(1) and explained below. The CLERK shall therefore forward a copy of this ORDER to the business manager of the facility in which Plaintiff is detained so that withdrawals from his account may commence as payment towards the filing fee. The district court's filing fee is not refundable, regardless of the outcome of the case, and must therefore be paid in full even if Plaintiff's complaint (or any part thereof) is dismissed prior to service.

         A. Directions to Plaintiff's Custodian

         Because Plaintiff has now been granted leave to proceed IFP, it is hereby ORDERED that the warden of the institution wherein Plaintiff is incarcerated, or the sheriff of any county wherein he is held in custody, and any successor custodians, each month cause to be remitted to the Clerk of this Court twenty percent (20%) of the preceding month's income credited to Plaintiff's account at said institution until the $350.00 filing fee has been paid in full. In accordance with the provisions of the PLRA, Plaintiff's custodian is hereby authorized to forward payments from the prisoner's account to the Clerk of Court each month until the filing fee is paid in full, provided the amount in the account exceeds $10.00. It is further ORDERED that collection of monthly payments from Plaintiff's trust fund account shall continue until the entire $350.00 has been collected, notwithstanding the dismissal of Plaintiff's lawsuit or the granting of judgment against him prior to collection of the full filing fee.

         B. Plaintiff's Obligations Upon Release

         Pursuant to the provisions of the PLRA, in the event Plaintiff is hereafter released from the custody of the State of Georgia or any county thereof, he shall remain obligated to pay any balance due on the filing fee in this proceeding until said amount has been paid in full; Plaintiff shall continue to remit monthly payments as required by the PLRA. Collection from Plaintiff of any balance due on the filing fee by any means permitted by law is hereby authorized in the event Plaintiff is released from custody and fails to remit payments. Plaintiff's Complaint is subject to dismissal if he has the ability to make monthly payments and fails to do so.

         II. Preliminary Screening

         A. Standard of Review

         Under the PLRA, the district courts are obligated to conduct a preliminary screening of every complaint filed by a prisoner who seeks redress from a government entity, official, or employee. See 28 U.S.C. § 1915A(a). Screening is also required, under 28 U.S.C. § 1915(e), when the plaintiff is proceeding IFP. Both statutes apply in this case but the standard of review is the same. When conducting a preliminary screening, the Court must accept all factual allegations in the complaint as true. See Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006); Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003).

         Pro se pleadings, like the one in this case, are “held to a less stringent standard than pleadings drafted by attorneys, ” and a pro se complaint is thus “liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam). The district court, however, cannot allow a plaintiff to litigate frivolous, conclusory, or speculative claims. Thus, as part of the preliminary screening, the court shall dismiss a complaint, or any part thereof, prior to service if it is apparent that the plaintiff's claims are frivolous or if his allegations fail to state a claim upon which relief may be granted - i.e., that the plaintiff is not entitled to relief based on the facts alleged. See § 1915A(b); § 1915(e).

         A claim is frivolous if it “lacks an arguable basis either in law or in fact.” Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (internal quotation marks omitted). The Court may dismiss claims that are based on “indisputably meritless legal” theories and “claims whose factual contentions are clearly baseless.” Id. (internal quotation marks omitted). A complaint fails to state a claim if it does not include “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The factual allegations in a complaint “must be enough to raise a right to relief above the speculative level” and cannot “merely create[] a suspicion [of] a legally cognizable right of action.” Twombly, 550 U.S. at 555 (second alteration in original). In other words, the complaint must allege enough ...

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