United States District Court, D. Kansas
MEMORANDUM AND ORDER
J. WAXSE U.S. Magistrate Judge.
matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff is a prisoner held in state custody.
He proceeds pro se and seeks leave to proceed in forma
motion to proceed in forma pauperis
motion is governed by 28 U.S.C. § 1915(b). Because
plaintiff is a prisoner, he must pay the full filing fee in
installment payments taken from his prison trust account when
he “brings a civil action or files an appeal in forma
pauperis[.]” § 1915(b)(1). Pursuant to §
1915(b)(1), the court must assess, and collect when funds
exist, an initial partial filing fee calculated upon the
greater of (1) the average monthly deposit in his account or
(2) the average monthly balance in the account for the
six-month period preceding the filing of the complaint.
Thereafter, the plaintiff must make monthly payments of
twenty percent of the preceding month's income in his
institutional account. § 1915(b)(2). However, a prisoner
shall not be prohibited from bringing a civil action or
appeal because he has no means to pay the initial partial
filing fee. § 1915(b)(4).
the limited financial information provided shows that
plaintiff has no income and that his available balance is
less than $1.00. The court therefore does not impose an
initial partial filing fee but advises plaintiff that he
remains obligated to pay the $350.00 filing fee.
federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental
entity or an officer or employee of such an entity.
See 28 U.S.C. §1915A(a). Following this review,
the court must dismiss any portion of the complaint that is
frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary damages from a
defendant who is immune from that relief. See 28
U.S.C. § 1915A(b).
screening, a court liberally construes pleadings filed by a
party proceeding pro se and applies “less stringent
standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to
relief above the speculative level.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court
accepts the well-pleaded allegations in the complaint as true
and construes them in the light most favorable to the
plaintiff. Id. However, “when the allegations
in a complaint, however, true, could not raise a [plausible]
claim of entitlement to relief, ” the matter should be
dismissed. Id. at 558. A court need not accept
“[t]hreadbare recitals of the elements of a cause of
action supported by mere conclusory statements.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather,
“to state a claim in federal court, a complaint must
explain what each defendant did to [the pro se plaintiff];
when the defendant did it; how the defendant's action
harmed [the plaintiff]; and what specific legal right the
plaintiff believes the defendant violated.” Nasious
v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163
(10th Cir. 2007).
state a claim for relief under Section 1983, a plaintiff must
allege the violation of a right secured by the Constitution
and laws of the United States and must show that the alleged
deprivation was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48-49
the complaint names the Harvey County Jail as the sole
defendant. A jail, however, is not a “person”
under § 1983. See Aston v. Cunningham, 216 F.3d
1086 (Table), 2000 WL 796086 *4 n. 3 (10th Cir. June 21,
2000)(affirming the dismissal of a county jail from an action
under § 1983 and stating “a detention facility is
not a person or legally created entity capable of being
sued.”). Therefore, the Harvey County Jail must be
dismissed, and plaintiff must amend the complaint to name the
person or persons whose acts or omissions violated his
federal rights. The amended complaint should present a
detailed statement of how each defendant violated
plaintiff's rights, when the violation occurred, and the
THEREFORE, BY THE COURT ORDERED that plaintiff's motion
to proceed in forma pauperis (Doc. #2) is granted. Plaintiff
remains obligated to pay the $350.00 filing
FURTHER ORDERED the plaintiff is granted to and including
August 17, ...