Argo v. Gobble

• Decision Date: 03 June 2011
• Docket Number: No. 1:10-cv-227,1:10-cv-227
• Parties: KEVIN ARGO Plaintiff, v. SHERIFF TIM GOBBLE; CAPT. GABE THOMAS, Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

KEVIN ARGO Plaintiff,

v.SHERIFF TIM GOBBLE; CAPT. GABE THOMAS, Defendants.

No. 1:10-cv-227

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE at CHATTANOOGA

Dated: June 3, 2011

Chief District Judge Curtis L. Collier

MEMORANDUM

Kevin Argo ("Plaintiff"), a pro se prisoner, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983 (Court File No. 2). Plaintiff's complaint alleges Defendants have denied him access to a law library; a drop box for mail and mail delivery six days a week (they only deliver mail five days a week); and sufficient toilet paper. Finally, Plaintiff complains the lights are left on from 7:00 a.m until 9:00 p.m. (Court File No. 2).

For the reasons discussed below, the complaint will be DISMISSED sua sponte for failure to state a claim (Court File No. 2). Because the complaint will be dismissed, Walter Bowman's motion requesting to be reinstated as a plaintiff will be DENIED (Court File No. 10).

I. Application to Proceed In Forma Pauperis

It appears from the application to proceed in forma pauperis submitted by Plaintiff Kevin Argo, he lacks sufficient financial resources at the present time to pay the required filing fee of $350.00 (Court File No. 1). Plaintiff, is not relieved of the ultimate responsibility of paying the $350.00 filing fee. Since Plaintiff is an inmate in custody at Morgan County Correctional Complex, in Wartburg, Tennessee, he is ASSESSED the civil filing fee of $350.00 under the Prisoner Litigation Reform Act, Pub. L. 104-134, 110 Stat. 1321 (1996), codified in 28 U.S.C. § 1915.Plaintiff is ordered to pay the full filing fee of three-hundred and fifty dollars ($350.00) pursuant to the Prisoner Litigation Reform Act, Pub. L. 104-134, 110 Stat. 1321 (1996), codified in 28 U.S.C. § 1915 (Court File No. 3).

Pursuant to 28 U.S.C. § 1915(b)(1)(A) and (B), the custodian of Plaintiff's inmate trust account at the institution where he now resides is ORDERED to submit to the Clerk, United States District Court, 900 Georgia Avenue, Room 309, Chattanooga, Tennessee 37402, as an initial partial payment, whichever is the greater of

(a) twenty percent (20%) of the average monthly deposits to Plaintiffs inmate trust account; or

(b) twenty percent (20%) of the average monthly balance in Plaintiffs inmate trust account for the six-month period preceding the filing of the complaint.

Thereafter, the custodian SHALL submit twenty percent (20%) of Plaintiffs preceding monthly income (or income credited to his trust account for the preceding month), but only when such monthly income exceeds $10.00, until the full filing fee of $350.00 as authorized under 28 U.S.C. § 1914(a) has been paid to the Clerk. 28 U.S.C. § 1915(b)(2).

The Clerk of Court is DIRECTED to send a copy of this memorandum and order to the Warden and Custodian of Records at Morgan County Correctional Complex, in Wartburg, Tennessee; the Commissioner of the Tennessee Department of Correction; and the Attorney General for the State of Tennessee, to ensure the custodian of Plaintiffs inmate trust account complies with the portion of the Prison Litigation Reform Act relating to payment of the filing fee.

The agency having custody of Plaintiff SHALL collect the filing fee as funds become available. This order SHALL become a part of Plaintiffs file and follow him if he is transferred to another institution. The agency having custody of Plaintiff SHALL continue to collect monthlypayments from Plaintiffs prisoner account until the entire filing fee of $350.00 is paid.

Plaintiff is ORDERED to provide the prison officials at any new institution with a copy of this order. Failure of Plaintiff to notify the new prison officials of this order and outstanding debt will result in the imposition of appropriate sanctions against him without any additional notice or hearing by the Court.

II. Standard of Review

A. Pro Se Pleadings

Pro se pleadings filed in civil rights cases are liberally construed and held to a less stringent standard than formal pleadings drafted by lawyers. McNeil v. United States, 508 U.S. 106, 113 (1993); Boag v. MacDougall, 454 U.S. 364, 365 (1982); Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991). However, pro se status does not exempt plaintiffs from the requirement that they must comply with relevant rules of procedural and substantive law. Hulsey v. State of Texas, 929 F.2d 168, 171 (5th Cir. 1991); Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981). Pro se plaintiffs must comply with Rule 8 of the Federal Rules of Civil Procedure which provides a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief. . . ." LRL Properties v. Portage Metro Housing Authority, 55 F.3d 1097, 1104 (6th Cir. 1995). Although the standard of review is liberal, it does require more than the bare assertion of legal conclusions. Lillard v. Shelby County Bd. Of Educ., 76 F.3d 716, 726 (6th Cir. 1996) (standard of review for dismissing a complaint pursuant to Fed. R. Civ. P. 12(b)(6)-failure to state a claim upon which relief may be granted); LRL Properties, 55 F.3d at 1103-04; Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir. 1993); Hartfield v. East Grand Rapids Public Schools, 960 F. Supp. 1259, 1268 (W.D. Mich. 1997).

The complaint must give the defendants fair notice of what the plaintiffs claim is and the grounds upon which it rests. Lillard, 76 F.3d at 726; Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir. 1994). Although the Federal Rules of Civil Procedure do not require a plaintiff to set out in detail the facts underlying the claim, the plaintiff must provide sufficient allegations to give defendants fair notice of the claims against them. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993). The Supreme Court has rejected the notion that a "wholly conclusory statement of claim" could survive a motion to dismiss "whenever the pleadings left open the possibility that a plaintiff might later establish some 'set of [undisclosed] facts' to support recovery." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 562 (2007). Thus, at a minimum, a complaint must include the necessary facts and grounds upon which a particular claim rests. "In practice, 'a . . . complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.'" Lillard, 76 F.3d at 726 (citations omitted).

B. Screening Pursuant to 28 U.S.C. §§ 1915A and 1915(e)

In addition, when considering a prisoner's civil complaint, the Court has the responsibility to screen the complaint pursuant to 28 U.S.C. § 1915A and § 1915(e). Furthermore, 28 U.S.C. §§ 1915A and 1915(e)(2) provides the Court must dismiss a case at any time if the Court determines it is frivolous or fails to state a claim upon which relief can be granted. McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007).

III. Facts

Plaintiff claims they do not have access to any legal books; a drop box for mail; or sufficient toilet paper. In addition, he complains that mail is only delivered to inmates five days a week and that the lights are left on from 7:00 a.m. until 9:00 p.m. (Court File No. 2).

IV. Analysis

A. 42 U.S.C. § 1983 To state a viable claim under 42 U.S.C. § 1983, a plaintiff must allege: (1) he was deprived of a right, privilege, or immunity secured by the Constitution or laws of the United States; and (2) the deprivation was caused by a person while acting under color of state law. Flagg Bros. Inc. v. Brooks, 436 U.S. 149, 155-156 (1978); Brock v. McWherter, 94 F.3d 242, 244 (6th Cir. 1996). To maintain a cause of action for damages under 42 U.S.C. § 1983, a plaintiff must also allege the defendant caused the plaintiff an injury and show actual damages. See Carey v. Piphus, 435 U.S. 247, 255 (1978); Chatman v. Slagle, 107 F.3d 380, 384 (6th Cir. 1997); Zehner v. Trigg, 952 F.Supp. 1318, 1321 (S.D. Ind.), aff'd 133 F3d 459 (7th Cir. 1997); also see 42 U.S.C. § 1997e(e) ("No federal civil action may be brought by a prisoner confined in a jail, prison, or other corrections facility for mental or emotional injury suffered while in custody without a prior showing of physical injury").

Additionally, to state a § 1983 claim, a plaintiff must allege sufficient facts that, if true, would establish he incurred an injury when the defendants deprived him of a right secured by the Constitution of the United States while they acted under color of law. See Brock, 94 F.3d at 244; 42 U.S.C. § 1997e(e).

B. Injunctive Relief

Though difficult to decipher, it appears Plaintiff is requesting injunctive relief. Plaintiff, who is no longer incarcerated at Bradley County Justice Center, requests that a law library be placed in each pod; any inmate who was denied legal books be given three days credit for each day incarcerated; that a drop-box be placed in each pod; that toilet paper be given upon request; and that all fees and court costs be taxed against Bradley County.

To the extent Plaintiff requests injunctive relief such request is denied as moot since he is no longer incarcerated in the Bradley County Justice Center. See Moore v. Curtis, 68 Fed.Appx. 561 (6th Cir. June 13, 2003), available at 2003 WL 21397865 (prisoner's request for injunctive and declaratory relief is moot because he is no longer incarcerated); Dellis v. Corrections Corp. of America, 257 F.3d 508, 510 (6th Cir. 2001) (concluded request for injunctive and declaratory relief were moot because he was no longer incarcerated in the facility (citing Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996).

Nevertheless, even if Plaintiff had requested money damages his complaint would be dismissed for the following reasons.

C. Identity of Defendants

Plaintiff brings suit against Sheriff Tim Gobble ("Sheriff Gobble") and Capt...