Simmons v. Pemiscot County Justice Center et al

Filing 20

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 the plaintiff shall pay an initial filing fee of $22.69 within thirty (30) days of the date of this Order. 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. IT IS FURTHER ORDERED that all other pending motions are DENIED as moot. An Order of Dismissal will accompany this Memorandum and Order.( Initial Partial Filing Fee due by 10/9/2012.). Signed by District Judge Stephen N. Limbaugh, Jr on 9/7/2012. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
RICHARD L. SIMMONS,
Plaintiff,
v.
PEMISCOT COUNTY JUSTICE
CENTER, et al.,
Defendants.

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No. 1:12CV133 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Richard Simmons
(registration no. 1030094), an inmate at Eastern Reception Diagnostic and
Correctional Center, for leave to commence this action without payment of the
required filing fee. For the reasons stated below, the Court finds that plaintiff does
not have sufficient funds to pay the entire filing fee and will assess an initial partial
filing fee of $22.69. See 28 U.S.C. § 1915(b)(1). Furthermore, based upon a review
of the amended 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(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
$113.45, and an average monthly balance of $39.65. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing
fee of $22.69, 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
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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); Denton v. Hernandez, 504 U.S.
25, 31 (1992). 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). A complaint fails to state a claim if it does not plead “enough facts
to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007).
The Amended Complaint
Plaintiff brings this action under 42 U.S.C. § 1983. Named as defendants are
the Pemiscot County Justice Center (the “Justice Center”), Danny Dodson (Assistant
Administrator, the Justice Center), Josh Bost (Administrator), “Bubba” (Maintenance
Worker), William Carter (Prosecutor), Brenda Unknown (Shift Supervisor), and
Lance Unknown (Correctional Officer). At all times relevant to the complaint,
plaintiff was detained at the Justice Center.
Plaintiff alleges that defendant Dodson made him pay for his medications while
he was detained at the Justice Center. Plaintiff says he was on several medications
for health problems and psychiatric problems. Plaintiff also claims that Dodson

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overcharged him for the medications he received and also charged him for
medications he was not taking.
Plaintiff maintains that Dodson refused to provide him with his prescription
Xanax because the Justice Center had a policy of denying prisoners access to
narcotics. Plaintiff claims that while he had an open sore on his arm he requested
antibiotic cream. Plaintiff says that Dodson refused to provide him with the proper
cream and his arm became infected.
Plaintiff avers that defendant Bost refused to provide him with receipts for his
medications and doctor’s visits. Plaintiff also says that Bost refused to provide him
with grievance forms, a policy handbook, and a current account statement.
Plaintiff asserts that defendant “Bubba” was sometimes charged with
distributing medications to prisoners, even though he did not have the training to do
so.
Plaintiff claims that he had two teeth pulled, and he says that the dentist wrote
him a prescription for pain medications. Plaintiff states that Dodson took the
prescription and refused to give him his pain medications.
Plaintiff alleges that defendant Lance Unknown allowed another prisoner into
his cell to assault him. Plaintiff claims that Lance helped the prisoner to assault him,

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and he claims he was injured as a result. Plaintiff says that Brenda Unknown filed a
grievance about the incident.
Discussion
Plaintiff’s claim against the Justice Center is legally frivolous because it is not
a suable entity. Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 81 (8th Cir.
1992) (departments or subdivisions of local government are “not juridical entities
suable as such.”).
The complaint is silent as to whether the individually named defendants are
being sued in their official or individual capacities. Where a “complaint is silent
about the capacity in which [plaintiff] is suing defendant, [a district court must]
interpret the complaint as including only official-capacity claims.” Egerdahl v.
Hibbing Community College, 72 F.3d 615, 619 (8th Cir. 1995); 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.
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 complaint does not contain any allegations that a policy
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or custom of a government entity 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.
“Liability under § 1983 requires a causal link to, and direct responsibility for,
the alleged deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th
Cir. 1990); see also Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim not
cognizable under § 1983 where plaintiff fails to allege that defendant was personally
involved in or directly responsible for the incidents that injured plaintiff); Boyd v.
Knox, 47 F.3d 966, 968 (8th Cir. 1995) (respondeat superior theory inapplicable in
§ 1983 suits). In the instant action, plaintiff has not set forth any facts indicating that
defendants Bost, “Bubba,” Carter, or Brenda Unknown were directly involved in or
personally responsible for the alleged violations of his constitutional rights. As a
result, the complaint fails to state a claim upon which relief can be granted as to these
defendants for this reason as well.
Rule 20(a)(2) of the Federal Rules of Civil Procedure allows a plaintiff to join
defendants where the rights asserted against them arose from the same series of
transactions or occurrences, or when any question of law or fact is common among
the defendants. In this action, the majority of plaintiff’s claims are request for relief
pertain to defendant Dodson. The claims against Dodson are wholly unrelated to his
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claims against defendants “Bubba,” William Carter, Brenda Unknown, and Lance
Unknown. As a result, these defendants are not properly joined in this action. See
George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“Claim A against Defendant 1
should not be joined with unrelated Claim B against Defendant 2.”).
Plaintiff has filed a motion to amend by interlineation [Doc. 19]. The Court has
reviewed the allegations in the motion, and the Court finds that they do not cure the
defects in the amended complaint.
For each of these reasons, the Court finds that the case should be dismissed
under 28 U.S.C. § 1915(e).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. 2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee
of $22.69 within thirty (30) days of the date of this Order. Plaintiff is instructed to
make his remittance payable to “Clerk, 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.

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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.
IT IS FURTHER ORDERED that all other pending motions are DENIED as
moot.
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 7th day of September, 2012.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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