United States District Court, S.D. West Virginia, Huntington Division
January 3, 2017
STEVEN ALLEN SMITH, Plaintiffs,
WESTERN REGIONAL JAIL MEDICAL, Defendant.
MEMORANDUM OPINION AND ORDER
A. EIFERT UNITED STATES MAGISTRATE JUDGE.
before the court is Plaintiff's Application to Proceed
Without Prepayment of Fees and Costs, (ECF No. 1), and
Plaintiff's Complaint filed pursuant to 42 U.S.C. §
1983. (ECF No. 2). The undersigned notes that the Application
to proceed in forma pauperis is incomplete. Before
the Application can be accepted for review, the institution
of incarceration must complete the certificate located at the
bottom of page 2 of the Application, or Plaintiff must submit
a transaction record of his inmate account. For that reason,
Plaintiff is hereby ORDERED to pay the filing fee of $400 or
submit to the Court an amended Application to Proceed Without
Prepayment of Fees and Costs, which includes the
institutional certification, or an inmate account transaction
record. Plaintiff is notified that the failure to pay the fee
or submit the application as instructed within thirty (30)
days of the date of this Order shall result in a
recommendation that the complaint be dismissed.
keeping with 28 U.S.C. § 1915(e)(2), the undersigned has
conducted a preliminary review of Plaintiff's complaint
to determine if the action is frivolous, fails to state a
claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief.
Although pro se complaints, such as the one filed in
this case, must be liberally construed to allow the
development of potentially meritorious claims, the court may
not rewrite the pleading to include claims that were never
presented, Parker v. Champion, 148 F.3d 1219, 1222
(10th Cir. 1998), develop the plaintiff's legal theories
for him, Small v. Endicott, 998 F.2d 411, 417-18
(7th Cir. 1993), or “conjure up questions never
squarely presented” to the court. Beaudett v. City
of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). At the
same time, to achieve justice, the court may allow a pro
se plaintiff the opportunity to amend his complaint in
order to correct deficiencies in the pleading. Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
alleges that, on November 4, 2016 while he was in protective
custody at the Western Regional Jail in Barboursville, West
Virginia, he was viciously assaulted by another inmate. (ECF
No. 2 at 4-5). He claims that correctional officers at the
Jail allowed the attack to happen by ignoring Plaintiff's
verbalized concerns regarding his safety and by allowing an
inmate to “cap” his cell door; thereby,
facilitating the inmate's access to Plaintiff.
(Id.). Plaintiff seeks better security and
protection for inmates in protective custody, for
correctional officers “to do their jobs and protect us,
” and $75, 000 in monetary compensation for pain and
suffering. (Id. at 5).
order to state a cause of action for money damages under 42
U.S.C. § 1983, a plaintiff must show that a person (the
defendant) was acting under color of state law and deprived
the plaintiff of a federally protected civil right,
privilege, or immunity. Perrin v. Nicholson, 2010
U.S. Dist. LEXIS 105121, at *4 (D.S.C. 2010); American
Mfr. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50-52
(1999). For the most part, liability under 42 U.S.C. §
1983 is personal in nature, based upon a defendant's own
constitutional violation. Monell v. Department of Social
Services of the City of NY, 436 U.S. 658, 694, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978). Here, Plaintiff has only named
the Western Regional Jail as a defendant. The Jail is not a
“person” subject to liability under 42 U.S.C.
§ 1983. Therefore, if Plaintiff claims that a person or
persons acting under color of state law has violated his
federal civil or constitutional rights, he must amend his
complaint to name the individual or individuals and to state
precisely what civil or constitutional right was violated. If
Plaintiff is unaware of the names of the relevant
individuals, Plaintiff shall designate in the case caption
each individual whose name is unknown as a John Doe or Jane
Doe (e.g. Correctional Officer John Doe) and shall further
identify each individual in the body of the complaint by
description, date/time of contact, alleged act, or in some
other manner that assists the court in determining the
identity and number of individual defendants in the action,
as well as the specific reason that each individual defendant
is included in the complaint. To the extent Plaintiff knows
partial names, he shall include those parts (e.g.
Correctional Officer Thomas LKU (‘last name
is hereby given notice that a failure to amend the complaint
as ordered may result in a recommendation that the complaint
be dismissed for failure to state a claim cognizable under 42
U.S.C. § 1983 and/or for failure to prosecute under
Fed.R.Civ.P. 41 and L. R. Civ. P. 41.1. Plaintiff is also
reminded of his obligation to promptly notify the Clerk of
Court of any change in his address.
Clerk is instructed to provide a copy of this order to