United States District Court, D. Montana, Billings Division
Timothy J. Cavan United States Magistrate Judge.
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.
MOTION TO PROCEED IN FORMA PAUPERIS
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.
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).
SCREENING PURSUANT TO 28 U.S.C. §§ 1915,
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.
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).
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).
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.
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.
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