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O'Shea v. Guyer

United States District Court, D. Montana, Helena Division

December 9, 2019

JOHN O'SHEA, Plaintiff,
v.
LYNN GUYER, WARDEN; PAUL REESE, JAMES HURST, CONNIE WINNERS, MONTANA STATE PRISON MEDICAL STAFF, and MELISSA SHARF, Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          John Johnston United States Magistrate Judge

         Plaintiff John O'Shea has filed a Motion to Proceed in Forma Pauperis (Doc. 1) and a proposed Complaint (Doc. 2) alleging prisoner civil rights claims under 42 U.S.C. § 1983. The motion to proceed in forma pauperis will be granted and Defendants Reese, Hurst, and Winners will be required to respond to the Complaint. Mr. O'Shea did not raise any allegations against Defendants Guyer, Medical Staff, and Sharf and they should therefore be dismissed without prejudice.

         I. MOTION TO PROCEED IN FORMA PAUPERIS

         Pursuant to 28 U.S.C. § 1915(b)(1), Mr. O'Shea must pay the statutory $350.00 filing fee. Mr. O'Shea 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. O'Shea will be required to pay the 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. O'Shea 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. O'Shea is held to forward payments from Mr. O'Shea'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

         The Court has considered whether Mr. O'Shea'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. O'Shea has a reasonable opportunity to prevail on the merits. See 42 U.S.C. § 1997e(g). Dismissal is not appropriate at this time. Defendants Reese, Hurst, and Winners 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).

         Based on the foregoing, the Court issues the following:

         ORDER

         1. Mr. O'Shea'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 August 28, 2019.

         2. Pursuant to Fed.R.Civ.P. 4(d), the Court requests Defendants Reese, Hurst, and Winners 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 30 days of the entry date of this Order. If Defendants Reese, Hurst, and Winners choose to return the Waiver of Service of Summons, their answer or appropriate motion will be due within 60 days of the date of this Order pursuant to Fed.R.Civ.P. 12(a)(1)(B). See also 42 U.S.C. § 1997e(g)(2).

         3. The Clerk of Court shall e-mail the following documents to Legal Counsel for the Montana Department of Corrections:

* Complaint (Doc. 2);
* this Order;
* a Notice of Lawsuit & Request to Waive Service of ...

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