Opinion
3:04-cv-606.
May 6, 2005
MEMORANDUM AND ORDER
The court is in receipt of a pro se prisoner's civil rights complaint under 42 U.S.C. § 1983 and an application to proceed in forma pauperis. It appears from the application that the plaintiff lacks sufficient financial resources to pay the $150.00 filing fee. Accordingly, pursuant to 28 U.S.C. § 1915(b)(4), the Clerk is DIRECTED to file this action without the prepayment of costs or fees or security therefor as of the date the complaint was received. However, for the reasons stated below, process shall not issue and this action is DISMISSED.
Plaintiff submitted his complaint before the filing fee increased from $150.00 to $250.00.
In order to state a claim under 42 U.S.C. § 1983, plaintiff must establish that he was deprived of a federal right by a person acting under color of state law. Black v. Barberton Citizens Hospital, 134 F.3d 1265, 1267 (6th Cir. 1998); O'Brien v. City of Grand Rapids, 23 F.3d 990, 995 (6th Cir. 1994); Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992). See also Braley v. City of Pontiac, 906 F.2d 220, 223 (6th Cir. 1990) ("Section 1983 does not itself create any constitutional rights; it creates a right of action for the vindication of constitutional guarantees found elsewhere.").
Plaintiff's complaint concerns the conditions of his confinement while incarcerated in the Grainger County Jail; he has since been transferred to the Hancock County Jail. Plaintiff named the jail itself as the defendant. The Grainger County Jail, however, is not a suable entity within the meaning of § 1983. See, e.g., Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994) (a police department is not an entity which can be sued under § 1983).
Although this court is mindful that a pro se complaint is to be liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), it is quite clear that the plaintiff has failed to state a claim upon which relief may be granted under § 1983. Therefore, this action is DISMISSED sua sponte, for failure to state a claim. The court CERTIFIES that any appeal from this action would not be taken in good faith and would be totally frivolous. See Rule 24 of the FEDERAL RULES OF APPELLATE PROCEDURE.
Because the plaintiff is an inmate in the Hancock County Jail, he is herewith ASSESSED the civil filing fee of $150.00. Pursuant to 28 U.S.C. § 1915(b)(1)(A) and (B), the custodian of the plaintiff's inmate trust account at the institution where he now resides is directed to submit to the Clerk, U.S. District Court, 800 Market Street, Suite 130, Knoxville, Tennessee 37902, as an initial partial payment, whichever is greater of:
(a) twenty percent (20%) of the average monthly deposits to the plaintiff's inmate trust account; or
(b) twenty percent (20%) of the average monthly balance in the plaintiff's inmate trust account for the six-month period preceding the filing of the complaint.
Thereafter, the custodian shall submit twenty percent (20%) of the plaintiff's preceding monthly income (or income credited to the plaintiff's trust account for the preceding month), but only when such monthly income exceeds ten dollars ($10.00), until the full filing fee of one hundred fifty dollars ($150.00) as authorized under 28 U.S.C. § 1914(a) has been paid to the Clerk. 28 U.S.C. § 1915(b)(2).
The Clerk is DIRECTED to send a copy of this Memorandum and Order to the Sheriff of Hancock County, Tennessee, and the county attorney for Hancock County, Tennessee, to ensure that the custodian of the plaintiff's inmate trust account complies with that portion of the Prison Litigation Reform Act relating to payment of the filing fee. The Clerk is further DIRECTED to forward a copy of this Memorandum and Order to the court's financial deputy.