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Witherall v. Corrections Health Partners

United States District Court, D. Montana, Billings Division

November 29, 2017

ALLEN WITHERALL, Plaintiff,
v.
CORRECTIONS HEALTH PARTNERS, et al., Defendants.

          ORDER

          Timothy J. Cavan United States Magistrate Judge.

          Order and Findings and Recommendations of United States Magistrate Judge This matter comes before the Court on Plaintiff Allen Witherall's Motion to Proceed in Forma Pauperis (Doc. 1), and a proposed Complaint (Doc. 2) alleging he was sexually harassed by a medical provider while incarcerated at the Yellowstone County Detention Facility (YCDF). The motion to proceed in forma pauperis will be granted, but the Complaint fails to state a claim upon which relief may be granted and should be dismissed.

         I. MOTION TO PROCEED IN FORMA PAUPERIS

         Pursuant to 28 U.S.C. § 1915(b)(1), Mr. Witherall must pay the statutory filing fee of $350.00. Mr. Witherall submitted an account statement showing average monthly deposits of $143.14 over the six-month period immediately preceding the filing of his Complaint (March 1, 2017 - September 1, 2017). (Doc. 1-1.) Therefore, an initial partial filing fee of $28.63 will be assessed by this Order. 28 U.S.C. § 1915(b)(1)(B) (allowing an assessment in the amount of 20% of the prisoner's average monthly deposits). A separate order will direct the agency having custody of Mr. Witherall to collect the initial partial filing fee from Mr. Witherall's account and forward it to the Clerk of Court.

         Mr. Witherall will be required to pay the remainder of the fee in installments by making monthly payments of 20% of the preceding month's income credited to his prison trust account. The percentage is set by statute and cannot be altered. 28 U.S.C. § 1915(b)(2). Mr. Witherall must make these monthly payments simultaneously with the payments required in any other cases he has filed. Bruce v. Samuels, __ U.S. __, 136 S.Ct. 627, 629 (2016). By separate order, the Court will direct the facility where Mr. Witherall is held to forward payments from Mr. Witherall's account to the Clerk of Court each time the account balance exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

         II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915, 1915A

         A. Standard

         Because Mr. Witherall is a prisoner proceeding in forma pauperis, the Court must review his Complaint under 28 U.S.C. §§ 1915, 1915A. Sections 1915A(b) and 1915(e)(2)(B) require the Court to dismiss a complaint filed in forma pauperis and/or by a prisoner against a governmental defendant before it is served if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief.

         A complaint is frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). “A case is malicious if it was filed with the intention or desire to harm another.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). A complaint fails to state a claim upon which relief may be granted if a plaintiff fails to allege the “grounds” of his “entitlement to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation omitted).

         Rule 8 of the Federal Rules of Civil Procedure provides that a complaint “that states a claim for relief must contain . . . a short and plain statement of the claim showing that the [plaintiff] is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This rule requires a complaint to “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted).

         A complaint's allegations must cross “the line from conceivable to plausible.” Iqbal, 556 U.S. at 680. There is a two-step procedure to determine whether a complaint's allegations cross that line. See Twombly, 550 U.S. at 556; Iqbal, 556 U.S. 662. First, the Court must identify “the allegations in the complaint that are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679, 680. Factual allegations are not entitled to the assumption of truth if they are “merely consistent with liability, ” or “amount to nothing more than a ‘formulaic recitation of the elements' of a constitutional” claim. Id. at 679, 681. A complaint stops short of the line between probability and the possibility of relief where the facts pled are merely consistent with a defendant's liability. Id. at 678.

         Second, the Court must determine whether the complaint states a “plausible” claim for relief. Iqbal, 556 U.S. at 679. A claim is “plausible” if the factual allegations, which are accepted as true, “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. This inquiry is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679 (citation omitted). If the factual allegations, which are accepted as true, “do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not “show[n]”-“that the pleader is entitled to relief.” Id. (citing Fed.R.Civ.P. 8(a)(2)).

         “A document filed pro se is ‘to be liberally construed, ' and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Erickson v. Pardu, 551 U.S. 89, 94 (2007); cf. Fed. Rule Civ. Proc. 8(e) (“Pleadings must be construed so as to do justice”).

         B. ...


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