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Powell v. Berry

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

December 19, 2018

DAVID POWELL, Plaintiff,
v.
WARDEN BERRY, et al., Defendants.

          ORDER

          STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE

         This case is currently before the United States Magistrate Judge for screening as required by the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A(a). Plaintiff David Powell, an inmate currently confined at Ware State Prison, filed a complaint (ECF No. 1) on September 10, 2018, seeking relief under 42 U.S.C. § 1983. He also moved to proceed in forma pauperis (“IFP”) but failed to submit a copy of his inmate trust account statement as required by 28 U.S.C. § 1915(b). Mot. for Leave to Proceed IFP, ECF No. 2. On October 24, 2018, the Court directed Plaintiff to recast his Complaint to include additional factual information, and file a certified copy of his inmate trust account statement in support of his IFP motion. Order 1, 3, 5, ECF No. 5. Plaintiff timely responded on November 21, 2018. Recast Compl., ECF No. 6; Mot. for Leave to Proceed IFP, ECF No. 7. Plaintiff's second motion to proceed IFP (ECF No. 7) is GRANTED[1] and this case is now ripe for review.

         Upon review, Plaintiff may proceed with his Eighth Amendment deliberate indifference to serious medical needs claims against Defendants Smith and Thomas. However, it is RECOMMENDED that Plaintiff's claims against Defendants Berry, Smith, Spike, King, and Brown be DISMISSED WITHOUT PRJEUDICE.

         I. Motion to Proceed IFP

         28 U.S.C. § 1915 allows the district courts to authorize the commencement of a civil action without prepayment of the normally-required fees upon a showing that the plaintiff is indigent and financially unable to pay the filing fee. A prisoner seeking to proceed IFP under this section must provide the district court with both (1) an affidavit in support of his claim of indigence and (2) a certified copy of his prison “trust fund account statement (or institutional equivalent) for the 6-month period immediately preceding the filing of the complaint.” § 1915(a)(1)-(2).

         Here, Plaintiff's pauper's affidavit and inmate account statement show that he is currently unable to prepay the Court's $350.00 filing fee.[2] Plaintiff's motion for leave to proceed in forma pauperis (ECF No. 7) is thus GRANTED. Plaintiff, however, is still obligated to pay the full balance of the filing fee, in installments, as set forth in § 1915(b) and explained below. It is accordingly requested that the CLERK forward a copy of this ORDER to the business manager of the facility in which Plaintiff is incarcerated 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 case's outcome, and must be paid in full even if the Plaintiff's Complaint (or any part thereof) is dismissed prior to service.

         A. Directions to Plaintiff's Custodian

         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 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 her prior to the collection of the full filing fee.

         B. Plaintiff's Obligations Upon Release

         An individual's release from prison does not excuse their prior noncompliance with 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 those installments justified by the income to his prisoner trust account while he was still incarcerated. Collection from Plaintiff of any balance due on these payments by any means permitted by law is hereby authorized in the event Plaintiff is released from custody and fails to remit such payments. Plaintiff's Complaint is subject to dismissal if he has the ability to make such payments and fails to do so.

         II. Preliminary Review of Plaintiff's Complaint

         A. Standard for Preliminary Review

         Because Plaintiff is a prisoner proceeding IFP and seeking relief under 42 U.S.C. § 1983, his Complaint is subject to screening under 28 U.S.C. §§ 1915(e) and 1915A, which require a district court to dismiss any complaint that is frivolous, malicious, or fails to state a claim upon which relief may be granted.[3] During preliminary review, the district court must accept all factual allegations in the complaint as true and make all reasonable inferences in the plaintiff's favor. See Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004) (stating that allegations in the complaint must be viewed as true). Pro se pleadings 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. 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 28 U.S.C. § 1915(e); 28 U.S.C. § 1915A.

         To state a viable claim, the complaint must include “enough factual matter” 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 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). There must also be “enough facts to raise a reasonable expectation that discovery will reveal evidence” to prove the claim. Id. at 556. The claims cannot be speculative or based solely on beliefs or suspicions; each must be supported by allegations of relevant and discoverable fact. Id. Thus, neither legal conclusions nor a recitation of legally relevant terms, standing alone, is sufficient to survive preliminary review. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'”) (quoting Twombly, 550 U.S. at 555). Claims without an arguable basis in law or fact will be dismissed as frivolous. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); accord Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001) (noting that claims are frivolous if “clearly baseless” or based upon “indisputably meritless” legal theories).

         B. ...


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