United States District Court, N.D. Mississippi, Oxford Division
REPORT AND RECOMMENDATION
PERCY UNITED STATES MAGISTRATE JUDGE.
before the Court is Plaintiff Willie Lee Stewart's motion
to proceed in forma pauperis. Docket 3.
Aside from the question of whether a plaintiff meets the
financial prerequisites to proceed in forma
pauperis, a plaintiff must also establish that he has
not raised a frivolous or malicious claim or a claim that
fails to state a claim on which relief may be granted. 28
U.S.C. § 1915(e)(2). 28 U.S.C. § 1915(e)(2) provides
that Notwithstanding any filing fee, or any portion thereof,
that may have been paid, the court shall dismiss the case at
any time if the court determines that -
(A) the allegation of poverty is untrue; or
(B) the action or appeal -
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted;
(iii) seeks monetary relief against a defendant who is immune
from such relief.
28 U.S.C. § 1915(a)(1) provides, “[A]ny court of
the United States may authorize the commencement, prosecution
or defense of any suit, action or proceeding, civil or
criminal, or appeal therein, without prepayment of fees or
security therefor, by a person who submits an affidavit that
includes a statement of all assets such prisoner possesses
that the person is unable to pay such fees or give security
therefor.” This statute does not provide an absolute
right to proceed in forma pauperis in federal
courts. Carter v. Thomas, 527 F.2d 1332 (5th Cir.
1976). It is a privilege extended to those unable to pay the
filing fees when an action is not frivolous or malicious.
Startti v. U.S.A., 415 F.2d 1115 (5th Cir. 1969).
The court has discretion to determine whether or not to grant
this status, Carter v. Telectron, 452 F.Supp. 939
(S.D. Tex. 1976), and the court may monitor a civil action
that has been instituted in forma pauperis to avoid
or minimize abuse of prosecution of such civil suits.
Hawkins v. Elliot, 385 F.Supp. 354(D.C. S.C 1974);
Mann v. Leeke, 73 F.R.D. 264 (D.C. S.C.1974).
filed this action on November 21, 2018, using the Court's
form complaint for filing a Section 1983 Civil Rights
complaint and claims that the “Statement of
Claim” filed in support thereof “shows that [his]
rights have repeatedly been violated under the 14th
Amendment: Title II Americans with Disabilities Act[, ]
Rehabilitation Act Section 504.” Docket 1, 2.
Plaintiff's Statement of Claim complains about “the
quality of HeathCare Services [Plaintiff] has received from
various HealthCare Providers herein the State of Mississippi
as well as in Tennessee” and references treatment from
Dr. Scott Baymiller and a “claim of
misdiagnosis.” Doc. 2, p. 1. Without setting forth any
specific factual allegations, Plaintiff claims that
“Dr. Baymiller's actions constitutes [sic]
a violation of [Plaintiff's] Civil Rights under the U.S.
Constitution.” Id. Plaintiff's Complaint
and the supplemental documentation submitted in support
thereof are devoid of any factual allegations by which a
claim under § 1983, the 14th Amendment, Americans with
Disabilities Act, and/or Section 504 of the Rehabilitation
Act may be established.
asked in the Complaint to explain how he was injured,
Plaintiff responds “[t]his is best explained by my
attorney. At present I do not have one.” When asked to
state the relief he is seeking, Plaintiff responds
“[i]n the first instance, I am asking the Court to
provide me with an attorney.” Plaintiff's request
for the appointment of counsel “to assist in the
handling of his claims” or to explain how he has been
injured does not excuse his failure to set forth the specific
facts on which his claims under Section 1983, the 14th
Amendment, the Americans with Disabilities Act, and/or
Section 504 of the Rehabilitation Act are based.
December 10, 2018, the Court ordered Plaintiff to show cause
as to as to why his Complaint should not be dismissed for
failure to state a claim on which relief may be granted under
28 U.S.C. §1915(e)(2)(B)(ii). Docket 5. The Show Cause
Order informed Plaintiff that “no viable claim is
suggested by the sparse facts alleged” and explained
that he is required to “set forth the specific facts on
which his claims under Section 1983, the 14th Amendment, the
Americans with Disabilities Act, and/or Section 504 of the
Rehabilitation Act are based.” Having considered
Plaintiff's January 7, 2019 Response to the Show Cause
Order (Docket 7), the undersigned recommends that this action
Response to the Show Cause Order claims that “Dr.
Baymiller has generated a report that has resulted in injury
to my rights” which Plaintiff claims is twofold. Docket
7 at 2. Plaintiff claims (1) that Dr. Baymiller's
conclusion that there is “[n]o reason he cannot
participate in vocational rehabilitation, as long as
awareness of personality is known” is inherently
contradictory and (2) that Dr. Baymiller “denied [him]
the option of the least restrictive and appropriate level of
care and support” when he diagnosed him with
Personality Disorder NOS but failed to rule out any other
potential causes. Id. at 2-3. According to
Plaintiff, Dr. Baymiller's report containing a diagnosis
and recommending therapy led to Plaintiff being told that
“if [he] did not consent to therapy within thirty days,
[his] file would automatically be closed.” Id.
at 3. Plaintiff alleges that this “resulted in pain and
suffering due to mental anguish, reduced quality of life,
loss of past and future earnings, and loss of
of whether Plaintiff meets the definition of pauper, he has
failed to state a claim upon which relief can be granted.
While Plaintiff may disagree with Dr. Baymiller's
diagnosis and conclusions regarding his fitness for
participating in vocational rehab, Plaintiff has still failed
to allege specific facts on which any claim under Section
1983, the 14th Amendment, the Americans with Disabilities
Act, and/or Section 504 of the Rehabilitation Act could
conceivably be based. To establish a prima facie
case under 42 U.S.C. § 1983, Plaintiff must allege two
elements: (1) the deprivation of a constitutional or a
federal statutory right and (2) that the deprivation was
committed by a person acting “under color of state
law.” West v. Atkins, 487 U.S. 42, 48 (U.S.
1988). Plaintiff has failed to allege either of the elements
required to state a § 1983 claim. Regarding any alleged
violation of the 14th Amendment, Plaintiff states no facts
relating to any perceived violation of his procedural or
substantive due process rights. It is not clear whether
Plaintiff is attempting to assert a claim under the American
with Disabilities Act and/or Section 504 of the
Rehabilitation Act for an alleged failure to accommodate a
disability or for discrimination related to a disability
because no facts are alleged which would support such a
claim. Although Plaintiff must be held to “less
stringent standards than formal pleadings drafted by lawyers,
” his Complaint can only be dismissed for failure to
state a claim if it appears “beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Estelle v.
Gamble, 429 U.S. 97, 106 (1976) (internal citations
Complaint and supporting documentation as well as his
response to the Show Cause Order and documentation submitted
in support thereof fail ...