Green v. Sperfslage

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA CEDAR RAPIDS DIVISION

DAVANTE BENJAMIAH GREEN,

Plaintiff, No. C18-0029-LRR

vs. ORDER WILLIAM SPERFSLAGE, MIKE HEINARCY, PAUL NEMMERS, TRACY DIEETH, SHAWN HOWARD, CARRIE CARSON, BENNY SAVALA, CO HAWKINGS, MATT EIVINS, DIMITRIUS BOWENS, AARON SHARR, DR. VRBA, and WARDEN WISE,

Defendants. ____________________

This matter is before the court pursuant to the plaintiff’s pro se application to proceed in forma pauperis (docket no. 1) and pro se complaint (docket no. 1-1). I. APPLICATION TO PROCEED IN FORMA PAUPERIS The plaintiff did not submit the statutory filing fee. See 28 U.S.C. § 1914(a) (requiring filing fee). In order for a court to authorize the commencement of an action without the prepayment of the filing fee, a person must submit an affidavit that includes a statement of all the assets the person possesses. See 28 U.S.C. § 1915(a)(1). In addition, a prisoner must submit a certified copy of the trust fund account statement (or institutional equivalent) for the 6-month period immediately preceding the filing of the complaint, obtained from the appropriate official of each prison at which the prisoner was or is confined. See 28 U.S.C. § 1915(a)(2). Plaintiff, an inmate at the Anamosa State Penitentiary, in Anamosa Iowa, Iowa, has submitted documents which substantially comply with those requirements. (See docket no. 1 at 1-4.). Because plaintiff does not have the assets necessary to pay the filing fee, his application (docket no. 1) is granted. However, even though the court deems it appropriate to grant the plaintiff in forma pauperis status, the plaintiff is required to pay the full $350.00 filing fee by making payments on an installment basis. 28 U.S.C. § 1915(b)(1); see also In re Tyler, 110 F.3d 528, 529–30 (8th Cir. 1997) (“[T]he [Prisoner Litigation Reform Act] makes prisoners responsible for their filing fees the moment the prisoner brings a civil action or files an appeal.”). The full filing fee will be collected even if the court dismisses the case because it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks money damages against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). Here, plaintiff must pay an initial partial filing fee in the amount of twenty percent of the greater of his average monthly account balance or average monthly deposits for the six months preceding the filing of the complaint. 28 U.S.C. § 1915(b)(1). Based on the documents that plaintiff submitted, the court finds that the initial partial filing fee is $5.39. (See docket no. 1 at 4). Plaintiff shall submit $5.39 by no later than one month from the date of this order. If the court does not receive payment by this deadline, the instant action shall be dismissed pursuant to Fed. R. Civ. P. 41(b) (permitting dismissal where a plaintiff either fails to prosecute or fails to respond to an order of the court); Hutchins v. A.G. Edwards & Sons, 116 F.3d 1256, 1259–60 (8th Cir. 1997) (explaining court’s power to dismiss an action). If necessary, plaintiff may request in a written motion an extension of time to pay the initial partial filing fee. In addition to the initial partial filing fee, plaintiff must “make monthly payments of 20 percent of the preceding month’s income credited to the prisoner’s account.” 28 U.S.C. § 1915(b)(2). The statute places the burden on the prisoner’s institution to collect the additional monthly payments and forward them to the court. Specifically: 2 [a]fter payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month’s income credited to the prisoner’s account. The agency having custody of the prisoner shall forward payments from the prisoner’s account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid.

28 U.S.C. § 1915(b)(2). Therefore, after plaintiff pays in full the initial partial filing fee, the remaining installments shall be collected by the institution having custody of the plaintiff. The clerk’s office shall send a copy of this order and the notice of collection of filing fee to the appropriate official at the place where the plaintiff is an inmate. II. INITIAL REVIEW STANDARD A pro se complaint must be liberally construed. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Smith v. St. Bernards Reg’l Med. Ctr., 19 F.3d 1254, 1255 (8th Cir. 1994); see also Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). However, the Court may dismiss an in forma pauperis complaint if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant that is immune from a monetary judgment. 28 U.S.C. § 1915(e)(2); see also 28 U.S.C. § 1915A(b)(1) (requiring the Court to do an initial review of prisoner complaints). In reviewing a prisoner or in forma pauperis complaint, unless the facts alleged are clearly baseless, they must be weighed in favor of the plaintiff. See Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). Pro se complaints, however, must allege sufficient facts to support the plaintiff’s claim. Stone, 364 F.3d at 914. A claim is “frivolous” if it “lacks an arguable basis in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989); accord Cokeley v. Endell, 27 F.3d 331, 332 (8th Cir. 1994). In determining whether a complaint fails to state a claim pursuant to § 1915(e)(2), courts generally rely on the standards articulated pursuant to Federal Rule of Procedure 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997); see also Atkinson 3 v. Bohn, 91 F.3d 1127, 1128–29 (8th Cir. 1996) (applying Rule 12(b)(6) standard to a dismissal under 28 U.S.C. § 1915(e)(2). An action fails to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Pursuant to § 1915(e)(2), a court may review the complaint and dismiss sua sponte those claims that fail “to raise a right to relief above the speculative level,” Id. at 555., or that are premised on meritless legal theories or clearly lack any factual basis, see Neitzke, 490 U.S. at 325. III. INITIAL REVIEW ANALYSIS A. § 1983 Standard 42 U.S.C. § 1983 provides, in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .

§ 1983 was designed to provide a “broad remedy for violations of federally protected civil rights.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 685 (1978). However, 42 U.S.C. § 1983 provides no substantive rights. See Albright v. Oliver, 510 U.S. 266, 271 (1994); Graham v. Conner, 490 U.S. 386, 393-94 (1989); Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979). “One cannot go into court and claim a ‘violation of [42 U.S.C.] § 1983’ — for [42 U.S.C.] § 1983 by itself does not protect anyone against anything.” Chapman, 441 U.S. at 617. Rather, 42 U.S.C. § 1983 provides a remedy for violations of all “rights, privileges, or immunities secured by the Constitution and laws [of the United States].” 42 U.S.C. § 1983; see also Albright, 510 U.S. at 271 (42 U.S.C. § 1983 “merely provides a method for vindicating federal rights elsewhere conferred.”); Graham, 490 U.S. at 393-94 (same); Maine v. Thiboutot, 448 U.S. 1, 4 4 (1980) (“Constitution and laws” means 42 U.S.C. § 1983 provides remedies for violations of rights created by federal statute, as well as those created by the Constitution.). To state a claim under 42 U.S.C. § 1983, a plaintiff must establish: (1) the violation of a right secured by the Constitution or laws of the United States and (2) the alleged deprivation of that right was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). B. Plaintiff’s Claims In his complaint, plaintiff makes one claim. Plaintiff alleges that defendants knew his co-defendant was a threat because there was a “keep separate order,” but defendants failed to protect him, and he was assaulted by his co-defendant on December 6, 2017. Because being subjected to assault is not “part of the penalty that criminal offenders [must] pay for their offenses,” Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), the eighth amendment's prohibition against cruel and unusual punishment requires prison officials to “take reasonable measures to guarantee” inmate safety by protecting them from attacks by other prisoners, Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal quotation marks and citations omitted). Of course, prison officials do not commit a constitutional violation every time one prisoner attacks another. See id. at 834, 114 S.Ct. 1970; Blades v. Schuetzle, 302 F.3d 801, 803–04 (8th Cir.2002). In order to establish an eighth amendment failure-to-protect claim, a plaintiff must show that the prison official was deliberately indifferent to a “substantial risk of serious harm.” Farmer, 511 U.S. at 828, 114 S.Ct. 1970. To succeed on such a claim, the plaintiff must first establish that the alleged constitutional deprivation was “objectively, sufficiently serious,” which requires a showing that the official's failure to protect resulted in the inmate being “incarcerated under conditions posing a substantial risk of serious harm.” Id. at 834, 114 S.Ct. 1970.

Young v. Selk, 508 F.3d 868, 871–72 (8th Cir. 2007). Based on the forgoing, plaintiff has alleged facts which, if true, could amount to a claim that defendants were deliberately indifferent by failing to protect him. Accordingly, his claim will be allowed to proceed. 5 IV. CONCLUSION IT IS THEREFORE ORDERED: (1) The plaintiff’s application to proceed in forma pauperis (docket no. 1) is granted. (2) The clerk of court’s office is directed to file the complaint (docket no. 1-1) without the prepayment of a filing fee. (3) The plaintiff is directed to submit an initial partial filing of $5.39 by no later than October 3, 2019. If necessary, the plaintiff may request in a written motion an extension of time to pay the initial partial filing fee. Additionally, after the plaintiff pays the initial partial filing fee, the institution having custody of the plaintiff is directed to collect and remit monthly payments in the manner set forth in 28 U.S.C. § 1915(b)(2). Until the $350.00 filing fee is paid in full, the plaintiff is obligated to pay and the institution having custody of him is obligated to forward 20 percent of the preceding month’s income credited to his account each time the amount in the account exceeds $10.00. (4) The clerk of court is directed to send a copy of this order and the notice of collection of filing fee to the appropriate official at the place where the plaintiff is an inmate. (5) The clerk of court is directed to serve, via certified mail, the complaint (Doc. No. 1-1), the waiver of service of summon forms and a copy of this order on defendants c/o the Iowa Attorney General’s Office.1 DATED this 3rd day of September, 2019.

1 The clerk’s office may include copies for all defendants in one package sent to the Iowa Attorney General’s Office. 6 Je R. sat JUDGE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF IOWA

TO: WARDEN/ADMINISTRATOR Anamosa State Penitentiary, Anamosa, Iowa NOTICE OF COLLECTION OF FILING FEE

You are hereby given notice that Davante Green, No. 6374231, an inmate at your facility, filed the following lawsuit in the United States District Court for the Northern District of lowa: Green v. Sperfslage, et al., Case No. C18-0029-LRR. The inmate was granted in forma pauperis status pursuant to 28 U.S.C. § 1915(b), which requires partial payments of the $350.00 filing fee. Based on the inmate’s statements, the court has assessed an initial partial filing fee of $5.39, which the inmate must pay now to the clerk of court. See 28 U.S.C. § 1915(b)(1). After payment of the initial partial filing fee, the [inmate] shall be required to make monthly payments of 20 percent of the preceding month’s income credited to [his] account. The agency having custody of the [inmate] shall forward payments from [his] account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid. 28 U.S.C. § 1915(b)(2). Therefore, you must monitor the account and send payments to the clerk of court according to the system provided in 28 U.S.C. § 1915(b)(2), that is, after plaintiff pays the initial partial filing fee of $5.39, you should begin making monthly payments of 20 percent of the preceding month’s income credited to the inmate’s account. Please make the appropriate arrangements to have these fees deducted and sent to the court as instructed. If plaintiff has been relocated to a different institution, please forward this Order and Notice to the institution having custody of him. Any institution having custody of plaintiff shall collect and remit the filing fee as set forth above.

□ Deputy Clerk Robert L. Phelps U.S. District Court Clerk Northern District of Iowa