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Smith v. Henson

United States District Court, D. Montana, Great Falls Division

January 26, 2018

BENJAMIN KARL SMITH, Plaintiff,
v.
MR. HENSON, TERRI SEFALO, WARDEN FLETCHER, WARDEN FENDER, D.J. GODFREY, ASST. WARDEN POWELL, CHAPLIN DELELLA, and MR. MADRID, Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          JOHN JOHNSTON UNITED STATES MAGISTRATE JUDGE

         Plaintiff Benjamin Smith filed a Motion to Proceed in Forma Pauperis (Doc. 1) and a proposed Complaint alleging he has been denied his rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution and under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) 42 U.S.C. § 2000cc et seq. (Docs. 1, 2.) Specifically, he alleges Defendants have refused to allow him to attend Jumah Services (Muslim congregational prayer service) since his arrival at the Crossroads Correctional Center on August 21, 2017. He seeks injunctive relief and punitive damages.

         The motion to proceed in forma pauperis will be granted. Defendants Henson, Fender, Godfrey, Powell, Delella, and Madrid will be required to respond to the Complaint. Defendants Fletcher and Sefalo are employees of Montana State Prison and Mr. Smith's allegations only involve his incarceration at Crossroads. Defendants Fletcher and Sefalo will be recommended for dismissal.

         I. MOTION TO PROCEED IN FORMA PAUPERIS

         Pursuant to 28 U.S.C. § 1915(b)(1), Mr. Smith must pay the statutory filing fee of $350.00. Mr. Smith submitted an account statement showing an inability to pay that fee; therefore, the initial partial filing fee is waived, and he may proceed with the case. See Bruce v. Samuels, 136 S.Ct. 627, 629 (2016)(“the initial partial filing fee may not be exacted if the prisoner has no means to pay it, § 1915(b)(4)”).

         Mr. Smith will be required to pay the filing fee in installments and make 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. Smith must make these monthly filing-fee payments simultaneously with the payments required in any other cases he has filed. Id. By separate order, the Court will direct the facility where Mr. Smith is held to forward payments from Mr. Smith'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).

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

         A. Standard

         Mr. Smith is a prisoner proceeding in forma pauperis so 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.

         The Court has considered whether Mr. Smith's Complaint is frivolous, malicious, fails to state a claim, or seeks solely monetary relief from a defendant who is immune. See 28 U.S.C. §§ 1915(e)(2), 1915A(b). It has also considered whether Mr. Smith has a reasonable opportunity to prevail on the merits. See 42 U.S.C. § 1997e(g). Dismissal is not appropriate at this time. Defendants Henson, Fender, Godfrey, Powell, Delella, and Madrid must respond to the Complaint. See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be permitted to “waive the right to reply to any action brought by a prisoner confined in any jail, prison, or other correctional facility under section 1983, ” once the Court has conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary determination based on the face on the pleading alone that plaintiff has a “reasonable opportunity to prevail on the merits, ” Defendant is required to respond).

         The Court however, will recommend the dismissal of the Warden Fletcher and Terri Sefalo. As stated, Mr. Smith indicates that these individuals are employees of Montana State Prison and he makes no allegation that any of his claims arose while he was incarcerated at Montana State Prison.

         Based on the foregoing, the Court issues the following:

         ORDER

         1. Mr. Smith's Motion to Proceed in Forma Pauperis (Doc. 1) is granted. The Clerk shall edit the text of the docket entry for the Complaint (Doc. 2) to remove the word “LODGED.” The Complaint is deemed filed on January 16, 2018.

         2. Pursuant to Fed.R.Civ.P. 4(d), the Court will request Defendants Henson, Fender, Godfrey, Powell, Delella, and Madrid to waive service of summons of the Complaint by executing, or having counsel execute, the Waiver of Service of Summons. The Waiver must be returned to the Court within thirty (30) days of the entry date of this Order as reflected on the Notice of Electronic Filing. If Defendants choose to return the Waiver of Service of Summons, their answer or appropriate motion will be due within 60 days of the entry date of this Order as reflected on the Notice of Electronic Filing, pursuant to Fed.R.Civ.P. 12(a)(1)(B). See also 42 U.S.C. § 1997e(g)(2).

         2. The Clerk of Court shall e-mail the following documents to Legal Counsel for ...


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