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Buck v. Federal Correctional Institution

United States District Court, S.D. Indiana, Terre Haute Division

April 17, 2018

SAMUEL JAY BUCK, Plaintiff,
v.
FEDERAL CORRECTIONAL INSTITUTION --SAFETY DEPARTMENT -- IN TERRE HAUTE INDIANA, Defendant.

          ENTRY DISCUSSING FILING FEE, DISMISSING COMPLAINT AND DIRECTING FURTHER PROCEEDINGS

          Hon. William T. Lawrence, Judge

         I. Filing Fee

         The plaintiff's motion for leave to proceed without prepaying fees or costs, Dkt. No. 2, is granted because the Court finds that the plaintiff does not have the assets or means to pay even an initial partial filing fee. Because the Prison Litigation Reform Act mandates that a prisoner will not be prohibited from bringing a civil action for the reason that he lacks the assets and means to pay an initial partial filing fee, 28 U.S.C. § 1915(b)(4), the plaintiff will be granted a waiver of payment of the initial partial filing fee in this case. He is still obligated, however, to pay the full five dollar filing fee pursuant to the statutory formula set forth in 28 U.S.C. § 1915(b)(2). See Id. § 1915(b)(1). “All [28 U.S.C.] § 1915 has ever done is excuse pre-payment of the docket fees; a litigant remains liable for them, and for other costs, although poverty may make collection impossible.” Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir. 1996).

         II. Screening Standard

         The plaintiff is a prisoner currently incarcerated at the Federal Correctional Institution (“FCI”) in Terre Haute, Indiana. Because the plaintiff is a “prisoner” as defined by 28 U.S.C. § 1915(h), this Court has an obligation under 28 U.S.C. § 1915A(b) to screen his complaint before service on the defendants. Pursuant to 28 U.S.C. § 1915A(b), the Court must dismiss the complaint if it is frivolous or malicious, fails to state a claim for relief, or seeks monetary relief against a defendant who is immune from such relief. In determining whether the complaint states a claim, the Court applies the same standard as when addressing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). To survive dismissal,

[the] complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pro se complaints such as that filed by the plaintiff are construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers. Obriecht v. Raemisch, 517 F.3d 489, 491 n.2 (7th Cir. 2008).

         III. The Complaint

         Plaintiff Samuel Jay Buck alleges that two fingers on his right hand were seriously injured on June 15, 2016, by an industrial fan with a broken safety cage.

         Mr. Buck wants the defendant to fix or replace the unsafe fans. He seeks $5, 000 in monetary damages and an earlier release date so he can seek therapy and nerve treatment.

         “Relief from misconduct by federal agents may be obtained either by a suit against the agent for a constitutional tort under the theory set forth in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), or by a suit against the United States under the Federal Tort Claims Act [FTCA] . . . which permits claims based upon misconduct which is tortious under state law. 28 U.S.C. §§ 1346(6), 2680.” Sisk v. United States, 756 F.2d 497, 500 n.4 (7th Cir. 1985). Mr. Buck's complaint does not state a claim under either of these theories of liability.

         A.

         Under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. (“FTCA”), the only proper defendant is the United States itself, Hughes v. United States, 701 F.2d 56, 58 (7th Cir. 1982), and the United States is not included as a defendant in this case. Myles v. United States, 416 F.3d 551, 552 (7th Cir. 2005) (noting that the composition and content of the amended complaint are entirely the responsibility of the plaintiff, for “even pro se litigants are masters of their own complaints ...


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