Bryant v. Poplar Bluff Police Department et al

Filing 5

MEMORANDUM AND ORDER..GRANTING re: 2 MOTION for Leave to Proceed in forma pauperis filed by Plaintiff Weldon B. Bryant, DENYING 4 MOTION to Appoint Counsel filed by Plaintiff Weldon B. Bryant..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 or fails to state a claim upon which relief can be granted, or both. Signed by Honorable Stephen N. Limbaugh, Jr on 1/19/12. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
WELDON B. BRYANT,

)
)
Plaintiff,
)
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v.
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POPLAR BLUFF POLICE DEPT., et al.,)
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Defendants.
)

No. 1:11CV230 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff for leave to
commence this action without payment of the required filing fee. The Court finds
that plaintiff does not have sufficient funds to pay the filing fee and will grant
plaintiff’s motion to proceed in forma pauperis. See 28 U.S.C. § 1915(b)(1). Based
upon a review of the complaint, the Court finds that the complaint 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 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 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).
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 judgment in
determining whether plaintiff’s conclusion is the most plausible or whether it is more
likely that no misconduct occurred. Id. at 1950, 51-52.
The Complaint
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Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of
his civil rights in connection with an arrest. Plaintiff sues the Poplar Bluff Police
Department and the City of Poplar Bluff claiming that they harassed and falsely
arrested him in February of 2011 after he had a misunderstanding with a City Clerk
during a telephone conversation. Plaintiff seeks monetary damages for the purported
unlawful behavior.
Discussion
To state a claim against the City of Poplar Bluff, plaintiff must allege that a
policy or custom of the City is responsible for the alleged constitutional violation.
Monell v. Department of Social Services, 436 U.S. 658, 690-91 (1978). The instant
complaint does not contain any allegations that a policy or custom of the City was
responsible for the alleged violations of plaintiff’s constitutional rights. As a result,
the complaint fails to state a claim upon which relief can be granted.
Moreover, plaintiff’s claim against Poplar Bluff Police Department is legally
frivolous because the Police Department is not a suable entity. Ketchum v. City of
West Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992) (departments or subdivisions
of local government are “not juridical entities suable as such.”); Catlett v. Jefferson
County, 299 F. Supp. 2d 967, 968-69 (E.D. Mo. 2004).

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Because the facts and legal issues are not complicated and plaintiff has not
presented any non-frivolous allegations supporting his prayer for relief, the Court
declines to appoint counsel in this matter. See, e.g., Nelson v. Redfield Lithograph
Printing, 728 F.2d 1003, 1004 (8th Cir. 1984).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of
counsel [Doc. #4] is DENIED.
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 or fails
to state a claim upon which relief can be granted, or both.
Dated this 19th day of January, 2012.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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