Kingcade v. Hill et al
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 $1.00 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. An Order of Dismissal will accompany this Memorandum and Order. ( Initial Partial Filing Fee due by 10/17/2012.) Signed by District Judge Stephen N. Limbaugh, Jr on 9/17/2012. (JMC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
FOREST CONAN KINGCADE,
HANK HILL, et al.,
No. 1:12CV148 SNLJ
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Forest Kingcade
(registration no. 23780), 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 $1.00.
See 28 U.S.C. § 1915(b)(1). Furthermore, based upon a review of the complaint, the
Court finds that the complaint should be dismissed pursuant to 28 U.S.C.
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 is unable to submit a certified copy of his account statement because
he has only recently been introduced to the Missouri Department of Corrections. As
a result, the Court will direct plaintiff to submit a partial initial filing fee of $1.00.
See Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997) (when a prisoner is
unable to provide the Court with a certified copy of his prison account statement, the
Court should assess an amount “that is reasonable, based on whatever information the
court has about the prisoner’s finances.”).
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); 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).
Plaintiff brings this action under 42 U.S.C. § 1983. Named as defendants are
the Portageville Police Department (the “Department”); Hank Hill, a police officer
for the Department; and New Madrid County Jail (the “Jail”).
Plaintiff alleges that Hill arrested him on July 9, 2012, at his home and
transported him to the Jail. Plaintiff claims that during transport Hill threatened to
assault him. And plaintiff says that when they got to the Jail Hill punched him in the
face during the booking process. Plaintiff says he asked for medical treatment and
a grievance form but was refused.
Plaintiff’s claims against the Department and the Jail are legally frivolous
because these defendants are not suable entities. 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 defendant Hill is being sued in his official
or individual capacity. 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 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 as to Hill.
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 $1.00 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.
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.
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 17th day of September, 2012.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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