United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
A. Eifert, United States Magistrate Judge.
before the Court is Plaintiff Marcellus Dwain Williams's
(“Williams”) Application to Proceed Without
Prepayment of Fees and Costs, (ECF No. 1), and Williams's
Complaint filed pursuant to 42 U.S.C. § 1983, (ECF No.
2). The Court hereby GRANTS the
Application. The Court notes that Williams has only
a minimal balance in his prison account; therefore, he shall
not be required to pay an initial partial filing fee, but is
hereby ORDERED to make monthly payments
equal to 20 percent of the preceding month's income
credited to his prisoner account until the full filing fee of
$350.00 has been paid. The first payment shall be made on or
before December 5, 2017 and the subsequent
payments shall be due on the fifth day of each month
thereafter. The Western Regional Jail, or any other agency
having custody of Williams, shall forward payments from his
prisoner account to the Clerk of Court each time the amount
in his prisoner account exceeds $10, until the full filing
fee is paid. See 28 U.S.C. 1915(b). It is further
ORDERED and NOTICED that
the recovery, if any, obtained in this action shall be paid
to the Clerk of Court who shall collect therefrom all unpaid
fees and costs taxed against Williams and shall pay the
balance to the him, if any.
keeping with 28 U.S.C. § 1915(e)(2), the undersigned has
conducted a preliminary review of Williams'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 to
correct deficiencies in the pleading. Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
sues under 42 U.S.C. § 1983. In order to state a cause
of action for money damages under 42 U.S.C. § 1983, a
plaintiff must show that a person
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. Here, Williams has only
named the West Virginia Regional Jail Authority and the
Western Regional Jail as defendants. Neither the Jail
Authority, nor the Jail, is a “person” subject to
liability under 42 U.S.C. § 1983.
extent Williams claims that a person (or persons) acting
under color of state law 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 each individual violated.
Williams is advised that he must state allegations amounting
to a constitutional or civil rights violation by each named
defendant. If Williams is unaware of the names of the
relevant individuals, he 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. If Williams knows
only partial names, he shall include those parts (e.g.
Correctional Officer Michael LKU (‘last name
in the Complaint, Williams describes a “slip and
fall” incident that occurred while he was working in
the kitchen at the Western Regional Jail. The mere fact that
such an incident occurred, without more, is insufficient to
state a constitutional claim under 42 U.S.C. § 1983. A
run-of-the-mill slip and fall case involving two citizens of
the the same State is generally filed in State court or in
the State's Court of Claims, but
not in federal court. Based on the current
allegations, Williams's complaint is subject to dismissal
for failure to state a claim and/or for lack of jurisdiction.
Plaintiff should note that 28 U.S.C. § 1915 governs
actions in which a prisoner seeks to proceed without
prepayment of fees or costs (“in forma
pauperis”). Section 1915(g) of the statute
includes a “three strikes” rule, stating as
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section
if the prisoner has, on 3 or more occasions, while
incarcerated or detained in any facility, brought an action
or appeal in a court of the United States that was dismissed
on the grounds that it is frivolous, malicious, fails to
state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.
to the Court's docket, Williams has filed three pro
se lawsuits in this Court in the past three months, and
in all three, he has requested to proceed without prepayment
of fees or costs. If all three of these cases are dismissed
for any of the reasons set forth above, Williams shall be
barred from filing any other cases in forma
pauperis unless he is in imminent
danger of serious physical injury.
Therefore, Williams may wish to carefully review the three
cases he has filed and determine whether he wishes to proceed
with all three actions. If Williams wishes to voluntarily
dismiss any of the pending actions, he shall file a motion
for voluntary dismissal with the Clerk of Court. However, in
the event Williams decides to proceed with this civil action,
he is ORDERED to amend his Complaint as
indicated within thirty days of the date of
this Order. Williams is hereby given notice that a failure to
amend the complaint as ordered shall result in a
recommendation that the complaint be dismissed for failure to
state a claim/and or lack of jurisdiction under 42 U.S.C.
is also reminded of his obligation to promptly notify the
Clerkof Court of ...