United States District Court, E.D. Arkansas, Jonesboro Division
T. KEARNEY UNITED STATES MAGISTRATE JUDGE.
In Forma Pauperis
Tacker, an inmate proceeding pro se, seeks relief in
a civil rights action pursuant to 42 U.S.C. § 1983, and
has filed a Motion to Proceed in forma pauperis,
pursuant to 28 U.S.C. § 1915(a) (Doc. No. 1). This
includes the appropriate financial information which makes
the showing required by the statute; therefore,
Plaintiff's Motion will be granted.
to 28 U.S.C. § 1915(b)(1), Plaintiff is required to pay
the statutory filing fee of $350.00 for this
action. Plaintiff has been without sufficient
funds for six months and is presently without sufficient
funds. Accordingly, the Court will not assess an initial
partial filing fee. Plaintiff is obligated, however, to make
monthly payments of 20 percent of the preceding month's
income credited to Plaintiff's prison trust account each
time the amount in the account exceeds $10.00, until the
filing fee is paid in full. Plaintiff's present
custodian, the Poinsett County Detention Center, is required
to send to the Clerk of the Court these payments from
Plaintiff's prison trust account until the statutory
filing fee of $350 is paid in full. 28 U.S.C. §
Prison Litigation Reform Act (PLRA) requires federal courts
to screen prisoner complaints seeking relief against a
governmental entity, officer, or employee. 28 U.S.C. §
1915A(a). The Court must dismiss a complaint or portion
thereof if the prisoner has raised claims that: (a) are
legally frivolous or malicious; (b) fail to state a claim
upon which relief may be granted; or (c) seek monetary relief
from a defendant who is immune from such relief. 28 U.S.C.
action is frivolous if “it lacks an arguable basis
either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). 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 Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
reviewing a pro se complaint under §
1915(e)(2)(B), the court must give the complaint the benefit
of a liberal construction. Haines v. Kerner, 404
U.S. 519, 520 (1972). The court must also weigh all factual
allegations in favor of the plaintiff, unless the facts
alleged are clearly baseless. Denton v. Hernandez,
504 U.S. 25, 32 (1992). But regardless whether a plaintiff is
represented or appearing pro se, the complaint must
allege specific facts sufficient to state a claim. See
Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
to survive a court's 28 U.S.C. § 1915(e)(2) and 42
U.S.C. § 1997e(c)(1) screening, a complaint must contain
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),
citing Twombly, 550 U.S. at 570. A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.
Twombly, 550 U.S. at 556-7. The
plausibility standard is not akin to a “probability
requirement, ” but it asks for more than a sheer
possibility that a defendant has acted unlawfully. Where a
complaint pleads facts that are “merely consistent
with” a defendant's liability, it “stops
short of the line between possibility and plausibility of
entitlement to relief.” Id.
alleges on August 29, 2016, she fell while taking a shower at
the Jail and hurt her arm, and had not been taken to the
doctor as of September 9, 2016. She also alleges the improper
ventilation of the shower and two inches of moldy water on
the floor caused her fall. Although she names four
individuals as Defendants, she only mentions Defendants
Marshall and Cox in her Statement of Claim, and does not
include any allegations of improper/unconstitutional conduct
against named Defendants Kendall and Mills. In addition, her
allegations that Defendant Marshall put ice on her arm and
told her she would see the doctor soon, fail to support a
claim for deliberate indifference. Similarly, her allegation
that Defendant Cox examined her arm on August 31, and told
her it looked broken, does not state a deliberate
indifference claim. Therefore, Plaintiff's Complaint as
it stands does not state a claim for relief against
Court will provide Plaintiff the opportunity to amend her
Complaint with respect to her allegations against the named
Defendants and any additional Defendants she wishes to name.
If she decides to amend, Plaintiff should submit to the
Court, within thirty (30) days of the entry date of this
Order, a superseding Amended Complaint which contains all of
her claims against all Defendants she is suing in a single
document. Plaintiff is cautioned that an Amended Complaint
renders her original Complaint without legal
effect. Only claims properly set out in the
Amended Complaint will be allowed to proceed. Therefore,
Plaintiff's Amended Complaint should: 1) name all
the parties she believes deprived her of her constitutional
rights and whom she wishes to sue in this action; 2) provide
specific facts against each named Defendant in a simple,
concise, and direct manner; 3) indicate whether she is suing
each Defendant in his/her individual or official capacity, or
in both capacities; 4) state how she was harmed; and 5) state
if she was a pretrial detainee at the time of the incident.
Plaintiff must set forth specific facts concerning the
allegations she has set forth including, where applicable,
dates, times and places.
Court is sensitive to the fact that pro se litigants
like Plaintiff are not trained in the law and will give
deference to a pro se plaintiff where the law
requires. However, all parties, including pro se
litigants, must comply with substantive and procedural law.
Brown v. Frey, 806 F.2d 801, 804 (8th Cir. 1986).
Accordingly, the Court will only consider claims properly
pled in a Complaint or in a superseding Amended Complaint.
Additionally, the Court ...