Mahone et al v. Sulltrop et al, No. 2:2015cv00070 - Document 4 (E.D. Mo. 2015)

Court Description: OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. # 2 ] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of $1.70 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 the complaint, because the 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). A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Henry Edward Autrey on 10/20/15. (KJS)
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Mahone et al v. Sulltrop et al Doc. 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI NORTHERN DIVISION MICHAEL A. MAHONE, Plaintiff, v. JACK SULLTROP, et al., Defendants. ) ) ) ) ) ) ) ) ) No. 2:15CV70 JMB OPINION, MEMORANDUM AND ORDER This matter is before the Court on plaintiff’s motion for leave to commence this action without payment of the required filing fee. The motion will be granted, and plaintiff will be assessed an initial partial filing fee of $1.70. See 28 U.S.C. ' 1915(b)(1). Furthermore, based upon a review of the complaint, the Court finds that this action should be dismissed pursuant to 28 U.S.C. ' 1915(e)(2)(B). 28 U.S.C. ' 1915(e) Pursuant to 28 U.S.C. ' 1915(e)(2)(B), the Court may 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 against a defendant who is immune from such relief. An action is frivolous if Ait lacks an arguable basis in either law or in fact.@ Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action fails to state a claim upon which relief can be granted if it does not plead Aenough Dockets.Justia.com facts to state a claim to relief that is plausible on its face.@ Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 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, 32-33 (1992). The Complaint Plaintiff, an inmate at the Northeast Correctional Center (NECC), seeks monetary relief in this action for the violation of his constitutional rights under 42 U.S.C. ' 1983. Plaintiff=s allegations arise out of his incarceration at NECC in August 2015. Named as defendants are Jack Sulltrop (Health Service Administrator), Corizon Medical Corporation, Missouri Department of Corrections, Dr. Alt (Medical Doctor), Tammy Anderson (Health Service Director), and Unknown Oakley (Nurse). Plaintiff alleges that he was placed in “the infirmary” for refusing to take prescribed antibiotics. Plaintiff complains that he was held against his will and that defendant Sulltrop told him he would always side with Corizon when plaintiff filed grievances. 2 Discussion Having carefully reviewed the complaint, the Court concludes that dismissal is warranted under 28 U.S.C. ' 1915(e)(2)(B). Plaintiff brings this action against defendants 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 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, in this case the State of Missouri. See Will v. Michigan Dep=t of State Police, 491 U.S. 58, 71 (1989). A[N]either a State nor its officials acting in their official capacity are >persons= under ' 1983.@ Id. Similarly, to state a claim against a Corizon employee in his or her official capacity,1 a plaintiff must allege that a policy or custom of his employer is responsible for the alleged constitutional violation. See Monell v. Dep=t of Social Services, 436 U.S. 658, 690-91 (1978). The instant complaint does not contain any allegations that a policy or custom of Corizon was responsible for the alleged violations of plaintiff=s constitutional rights. As a result, the complaint is legally 1 It is unclear whether any or all of the named defendants are employees of Corizon, Inc., or if they were employed directly by NECC. In either case, plaintiff=s claims are legally frivolous. 3 frivolous and fails to state a claim upon which relief can be granted as to all defendants in their official capacities. As additional grounds for dismissing this action, the Court notes that mere negligence does not rise to the level of a constitutional violation. See Daniels v. Williams, 474 U.S. 327, 328 (1986); Estelle v. Gamble, 429 U.S. 97, 106 (1976) (mere negligence is not cognizable as Eighth Amendment violation); Morton v. Becker, 793 F.2d 185, 188 n.3 (8th Cir. 1986) (Fourteenth Amendment Due Process Clause is not implicated by state official=s negligent act causing unintended loss of or injury to life, liberty, or property). Moreover, plaintiff=s claims against the Missouri Department of Corrections are barred by the Eleventh Amendment. See Alabama v. Pugh, 438 U.S. 781, 782 (1978). Similarly, a suit against the Missouri Department of Corrections is, in effect, a suit against the State of Missouri; however, the State of Missouri is not a Aperson@ for purposes of a ' 1983 action. Will v. Michigan Dept. of State Police, 491 U.S. 58, 63 (1989). For the above-stated reasons, the Court will dismiss this action under 28 U.S.C. ' 1915(e)(2)(B). Accordingly, IT IS HEREBY ORDERED that plaintiff=s motion to proceed in forma pauperis [Doc. #2] is GRANTED. 4 IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of $1.70 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 the complaint, because the 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). A separate Order of Dismissal shall accompany this Memorandum and Order. Dated this 20th day of October, 2015 ___________________________________ HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE 5