McVaugh v. Butler County Sheriff's Department et al

Filing 7

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing fee of $42.51 within thirty (30) days f rom the date of this Order. Plaintiff is instructed to make his remittance payable to "Clerk, United States District Court". IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint at this t ime. IT IS FURTHER ORDERED that plaintiff shall file an amended complaint within thirty (30) days from the date of this Order. ( Amended/Supplemental Pleadings due by 3/14/2013., Initial Partial Filing Fee due by 3/14/2013.) Signed by District Judge Stephen N. Limbaugh, Jr on 2/12/2013. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

RYAN McVAUGH,
Plaintiff,
v.
BUTLER COUNTY SHERIFF’S
DEPARTMENT, et al.,
Defendants.

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No. 1:13-CV-6-SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Ryan McVaugh (registration
no. 1175643) for leave to commence this action without payment of the required
filing fee [Doc. #2].1 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 $42.51. See 28 U.S.C. § 1915(b)(1). Additionally, the Court will order
plaintiff to file an amended complaint.

The Court notes that plaintiff’s wife, Shannon Anderson, has filed a letter
dated September 28, 2012, apparently seeking to bring a § 1983 action on behalf
of her husband. Because Shannon Anderson is not an attorney and she lacks
standing to bring a § 1983 action on behalf of Ryan McVaugh, the Court will not
liberally construe the complaint to include her as a party-plaintiff in this action.
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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
$209.08, and an average monthly balance of $212.55. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing
fee of $42.51, which is 20 percent of plaintiff’s average monthly balance.

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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). An action fails to state a claim
upon which relief can be granted 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).
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.
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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.
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 Complaint
Plaintiff, an inmate at the Moberly Correctional Center, seeks monetary relief
in this action brought pursuant to 42 U.S.C. § 1983 against defendants Butler County
Sheriff’s Department, Brandon Lowe (Butler County Sheriff Deputy), and Wade Dare
(Butler County Sheriff Deputy). Plaintiff’s allegations arise out of his pre-trial
detention in the Butler County Jail on or about March 5, 2012. Plaintiff claims that
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defendants Lowe and Dare “maliciously and sadistically beat [him] . . . while in
handcuffs,” resulting in serious physical and mental injuries.
Discussion
The Court has reviewed the complaint under 28 U.S.C. § 1915 and believes
that, although plaintiff may certainly be able to assert claims based upon the denial
of his Fourteenth Amendment rights,2 he has failed to state a claim at this time,
because the complaint is silent as to whether he is suing the individual defendants in
their official and/or individual capacities.
Taking into consideration the fact that counsel has recently been appointed to
represent plaintiff in this matter, the Court will grant plaintiff time to file an amended
complaint. Moreover, because the Court is allowing plaintiff to amend his complaint,

It appears that plaintiff was a pretrial detainee when the alleged
constitutional violations occurred, and thus, his claims would be analyzed under
the Fourteenth Amendment's Due Process Clause, rather than the Eighth
Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979). This Court
notes that, while acknowledging that it "has yet to apply a clear standard for
pretrial detainees," Vaughn v. Green County, 438 F.3d 845, 850 (8th Cir. 2006),
the Eighth Circuit Court of Appeals has "repeatedly applied the deliberate
indifference standard of Estelle to pretrial detainee claims that prison officials
unconstitutionally ignored a serious medical need or failed to protect the detainee
from a serious risk of harm." Butler v. Fletcher, 465 F.3d 340, 344 (8th Cir.
2006).
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it will take no action as to the named defendants at this time.3 Plaintiff is reminded
that his amended complaint will supersede his original complaint and will be the only
complaint this Court reviews.
In accordance with the foregoing,
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in
forma pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing
fee of $42.51 within thirty (30) days from 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.
The Court notes that sheriff’s departments, such as defendant Butler
County Sheriff’s Department, are not suable entities. See, e.g., 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) (same); Dean v. Barber,
951 F.2d 1210, 1214-15 (11th Cir. 1992)("[s]heriff's departments and police
departments are not usually considered legal entities subject to suit"); McCoy v.
Chesapeake Correctional Center, 788 F.Supp. 890 (E.D.Va. 1992)(local jails are
not "persons" under § 1983). Moreover, although liability can be imposed on a
municipality, such as Butler County, the municipality cannot be held liable under a
respondeat superior theory. Monell v. Department of Social Services, 436 U.S.
658, 691 (1978). Municipal liability cannot be imposed absent an allegation that
unlawful actions were taken pursuant to a municipality's policy or custom. Id. at
694.
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IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue upon the complaint at this time.
IT IS FURTHER ORDERED that plaintiff shall file an amended complaint
within thirty (30) days from the date of this Order.
Dated this 12th day of February, 2013.

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UNITED STATES DISTRICT JUDGE

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