United States District Court, S.D. West Virginia, Huntington Division
SARAH L. SNYDER, Plaintiff,
LAKIN CORRECTIONAL CENTER; W.V. DIVISION OF CORRECTIONS. Defendants.
MEMORANDUM OPINION AND ORDER
A. Eifert Magistrate Judge.
before the Court is Plaintiff's Application to Proceed
Without Prepayment of Fees and Costs, (ECF No. 1), and
Complaint filed pursuant to 42 U.S.C. § 1983, (ECF No.
2). Having considered the Application, the Court
GRANTS same. The Court notes that Plaintiff
has minimal funds in her inmate account; therefore, she shall
not be required to pay an initial partial filing fee.
However, Plaintiff is ORDERED to make
monthly payments beginning on September 5,
2018 equal to 20 percent of the preceding
month's income credited to her prisoner account until the
full filing fee of $350.00 has been paid. These payments
shall be due by the fifth day of each month thereafter. The
Federal Prison Camp at Alderson, or any other agency or
facility having custody of Plaintiff, shall forward payments
from Plaintiff's inmate account to the Clerk of Court
each time the amount in Plaintiff's inmate account
exceeds $10, until the full filing fee is paid. See
28 U.S.C. 1915(b). It is 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
Plaintiff and shall pay the balance, if any, to the
Clerk of Court is ORDERED to issue a summons
for each named defendant. The Clerk shall provide the
summonses and copies of the complaint to the United States
Marshals Service. Pursuant to 28 U.S.C. § 1915(d) and
Rule 4(c)(3), Fed. R. Civ. P., the United States
Marshals Service is ORDERED to serve a
summons and complaint on each defendant, or its designated
agent for service. The Marshals Service shall
promptly file the proof of service with the Clerk.
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 her complaint in
order to correct deficiencies in the pleading. Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
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,
Plaintiff has only named the Lakin Correctional Center and
the West Virginia Division of Corrections as defendants.
However, neither the Lakin Correctional Center, nor the West
Virginia Division of Corrections, is a “person”
subject to liability under 42 U.S.C. § 1983.
if Plaintiff claims that a specific person (or persons)
acting under color of state law violated her federal civil or
constitutional rights, she must amend her complaint within
thirty (30) days of the date of this Order
to name the individual or individuals and to state precisely
what civil or constitutional right each individual violated.
If Plaintiff is unaware of the names of the relevant
individuals, she 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; Nurse Jan 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, she
shall include those parts (e.g. Correctional Officer Thomas
LKU (‘last name unknown”)).
is advised that the Eighth Amendment to the United States
Constitution requires the State to provide its prison inmates
with basic medical care. Estelle v. Gamble, 429 U.S.
97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). A prison
official violates this constitutional guarantee when he
responds to a prisoner's serious medical need with
deliberate indifference. Estelle, 429 U.S. at 104;
Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct.
1970, 128 L.Ed.2d 811 (1994). Therefore, to state a
cognizable Eighth Amendment claim, an inmate must meet two
prongs, one objective and one subjective. First, the inmate
must demonstrate the existence of a medical condition or need
that is objectively serious. Estelle, 429 U.S. at
104. Second, the inmate must show that the official
subjectively knew of, but disregarded, “an excessive
risk to inmate health or safety.” Farmer v.
Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d
811 (1994). A prison official is not liable under the Eighth
Amendment if a reasonable response is made, “even if
the harm ultimately [is] not averted.” Odom v.
South Carolina DOC, 349 F.3d 765, 770 (4th Cir. 2003)
(citing Farmer, 511 U.S. at 844). To establish that
a prison official's actions constitute deliberate
indifference to a serious medical need, “the treatment
must be so grossly incompetent, inadequate or excessive as to
shock the conscience or to be intolerable to fundamental
fairness.” Miltier v. Beorn, 896 F.2d 848, 851
(4th Cir. 1990). Accordingly, Plaintiff must set forth facts
in her complaint that meet the standard of an Eighth
Amendment violation. A mere difference of opinion about
whether medical care is needed is usually insufficient to
maintain a valid cause of action. Therefore, when and if
Plaintiff amends her complaint to assert an Eighth Amendment
claim, she should bear these standards in mind.
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
further reminded of his ...