Wilson v. Tate et al, No. 4:2014cv01890 - Document 11 (E.D. Mo. 2015)
Court Description: OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiff=s motion to proceed in forma pauperis [Doc. #8] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of $16.54 within thirty (30) days of the date of th is Order. Plaintiff is instructed to make his remittance payable to AClerk, United States District Court,@ and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that the remittance is for an origi nal proceeding. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon, because the amended complaint is legally frivolous and fails to state a claim upon which relief can be granted. See 28 U.S.C. ' 1915(e)( 2)(B). IT IS FURTHER ORDERED that the Clerk shall docket this case as Joseph Troy Wilson v. Randall Tate, St. Francois County Sheriff Department, Loretta Warncke, and the Division of Family Services. IT IS FURTHER ORDERED that plaintiffs remaining pending motions are DENIED as moot. A separate Order of Dismissal shall accompany this Memorandum and Order. 8 ( Initial Partial Filing Fee due by 3/27/2015.) Signed by District Judge Henry Edward Autrey on 2/27/15. (CLA)
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION JOSEPH TROY WILSON, Plaintiff, v. RANDALL TATE, et al., Defendants. ) ) ) ) ) ) ) ) ) No. 4:14CV1890 HEA OPINION, MEMORANDUM AND ORDER This matter is before the Court on the motion of Joseph Troy Wilson (registration no. 77444) for leave to commence this action without payment of the required filing fee [Doc. #8]. The Court will grant the motion and assess plaintiff an initial partial filing fee of $16.54. In addition, after reviewing the amended complaint [Doc. #9] and for the reasons set forth below, the Court will dismiss this action pursuant to 28 U.S.C. ' 1915(e)(2)(B). 28 U.S.C. ' 1915(b)(1) Pursuant to 28 U.S.C. ' 1915(b)(1), a prisoner bringing a civil action in forma pauperis is required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his or her prison account to pay the entire fee, the Court must assess and, when funds exist, collect an initial partial filing fee of 20 percent of the greater of (1) the average monthly deposits in the prisoner=s account, or (2) the average monthly balance in the prisoner=s account for the prior six-month period. After payment of the initial partial filing fee, the prisoner is required to make monthly payments of 20 percent of the preceding month=s income credited to the prisoner=s account. 28 U.S.C. ' 1915(b)(2). The agency having custody of the prisoner will forward these monthly payments to the Clerk of Court each time the amount in the prisoner=s account exceeds $10, until the filing fee is fully paid. Id. Plaintiff has submitted an affidavit and a certified copy of his prison account statement for the six-month period immediately preceding the submission of his complaint. A review of plaintiff=s account indicates an average monthly deposit of $82.68, and an average monthly balance of $17.53. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $16.54, which is 20 percent of plaintiff=s average monthly deposit. 28 U.S.C. ' 1915(e) Pursuant to 28 U.S.C. ' 1915(e)(2)(B), the Court must dismiss a complaint filed in forma pauperis if the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. An action is frivolous if it "lacks an arguable basis in either law or fact." Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is 2 malicious if it is undertaken for the purpose of harassing the named defendants and not for the purpose of vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63 (E.D.N.C. 1987), aff'd 826 F.2d 1059 (4th Cir. 1987). An action fails to state a claim upon which relief can be granted if it does not plead Aenough facts to state a claim to relief that is plausible on its face.@ Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). To determine whether an action fails to state a claim upon which relief can be granted, the Court must engage in a two-step inquiry. First, the Court must identify the allegations in the complaint that are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009). These include "legal conclusions" and "[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory statements." Id. at 1949. Second, the Court must determine whether the complaint states a plausible claim for relief. Id. at 1950-51. This is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. The plaintiff is required to plead facts that show more than the "mere possibility of misconduct." Id. The Court must review the factual allegations in the complaint "to determine if they plausibly suggest an entitlement to relief." Id. at 1951. When faced with alternative explanations for the alleged misconduct, the Court may exercise its 3 judgment in determining whether plaintiff's conclusion is the most plausible or whether it is more likely that no misconduct occurred. Id. at 1950-52. Moreover, in reviewing a pro se complaint under ' 1915(e)(2)(B), the Court must give the complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). The Court must also weigh all factual allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 32 (1992). The Amended Complaint Plaintiff, an inmate at the St. Francois County Jail, seeks monetary relief in this 42 U.S.C. ' 1983 action against Randall Tate (“SST” for the St. Francois County Sheriff Department), St. Francois County Sheriff Department, Loretta Warncke (a Division of Family Services employee), and the Division of Family Services. For his "Statement of Claim," plaintiff summarily complains that defendant Tate placed him in handcuffs when he went to the St. Francois County Sheriff Department for an “interview.” Plaintiff alleges that this constituted an unconstitutional seizure. Discussion Plaintiff brings this action against defendants Tate and Warncke in their official capacities. See Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th Cir. 1995) (where a complaint is silent about defendant=s capacity, Court must interpret the complaint as including official-capacity claims); Nix v. Norman, 879 4 F.2d 429, 431 (8th Cir. 1989). Naming a government official in his or her official capacity is the equivalent of naming the government entity that employs the official. Will v. Michigan Dep=t of State Police, 491 U.S. 58, 71 (1989). To state a claim against a municipality or a government official in his or her official capacity, plaintiff must allege that a policy or custom of the government entity is responsible for the alleged constitutional violation. Monell v. Dep=t of Social Services, 436 U.S. 658, 690-91 (1978). The instant amended complaint does not contain any allegations that a policy or custom of a government entity was responsible for the alleged violations of plaintiff=s constitutional rights. As a result, the amended complaint is legally frivolous and fails to state a claim upon which relief can be granted as to defendants Tate and Warncke. In addition, the Court finds that the amended complaint is legally frivolous and will be dismissed as to defendant St. Francois County Jail, because jails are not suable entities. See Lair v. Norris, 32 Fed. Appx. 175, 2002 WL 496779 (8th Cir. 2002); Alsbrook v. City of Maumelle, 184 F.3d 999, 1010 (8th Cir. 1999) (' 1983 suit cannot be brought against state agency), cert. dismissed, 529 U.S. 1001 (2000); Marsden v. Fed. Bureau of Prisons, 856 F. Supp. 832, 836 (S.D.N.Y. 1994) (jails are not entities amenable to suit). 5 Last, the complaint will also be dismissed as legally frivolous with respect to Division of Family Services, because plaintiff has failed to assert any claims or allegations against this defendant. See Schmidt v. City of Bella Villa, 557 F.3d 564, 571 (8th Cir. 2009) (to state a claim under ' 1983, plaintiff must allege that (1) the defendant acted under color of state law, and (2) defendant's alleged conduct deprived plaintiff of a constitutionally-protected federal right); Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir. 2001) (§ 1983 liability arises only upon a showing of personal participation by defendant); Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (liability under § 1983 requires a causal link to, and direct responsibility for, the alleged deprivation of rights); Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim not cognizable under § 1983 where plaintiff fails to allege defendant was personally involved in or directly responsible for incidents that injured plaintiff). For these reasons, this action will be dismissed pursuant to 28 U.S.C. ' 1915(e)(2)(B). Accordingly, IT IS HEREBY ORDERED that plaintiff=s motion to proceed in forma pauperis [Doc. #8] is GRANTED. 6 IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of $16.54 within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance payable to AClerk, United States District Court,@ and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that the remittance is for an original proceeding. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon, because the amended complaint is legally frivolous and fails to state a claim upon which relief can be granted. See 28 U.S.C. ' 1915(e)(2)(B). IT IS FURTHER ORDERED that the Clerk shall docket this case as Joseph Troy Wilson v. Randall Tate, St. Francois County Sheriff Department, Loretta Warncke, and the Division of Family Services. IT IS FURTHER ORDERED that plaintiff’s remaining pending motions are DENIED as moot. A separate Order of Dismissal shall accompany this Memorandum and Order. Dated this 27th day of February, 2015 ___________________________________ HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE 7
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