Shipley v. Iron County, Missouri et al

Filing 6

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 $19.28 within thirty (30) days of the date of t his Order. IT IS FURTHER ORDERED that if plaintiff fails to pay the initial partial filing fee within thirty (30) days of the date of this Order, then this case will be dismissed without prejudice. IT IS FURTHER ORDERED that the Clerk shall mail to p laintiff a Prisoner Civil Rights Complaint form. IT IS FURTHER ORDERED that plaintiff use the form and submit an amended complaint within thirty (30) days from the date of this Order. IT IS FURTHER ORDERED that if plaintiff fails to comply with this Order, this action will be dismissed without further proceedings. ( Amended/Supplemental Pleadings due by 4/25/2013., Initial Partial Filing Fee due by 4/25/2013.) Signed by District Judge Stephen N. Limbaugh, Jr on 3/26/2013. (Prisoner Civil Rights Form forwarded to Mr. Shipley)(JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
STUARD T. SHIPLEY,
Plaintiff,
v.
IRON COUNTY, MISSOURI, et al.,
Defendants.

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No. 1:13CV00038 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Stuard Shipley (registration
no. 212985), an inmate at Moberly Correctional Center, for leave to commence this
action without payment of the required filing fee. For the reasons stated below, the
Court finds that the plaintiff does not have sufficient funds to pay the entire filing fee
and will assess an initial partial filing fee of $19.28. See 28 U.S.C. § 1915(b)(1).
Furthermore, after reviewing the complaint, the Court finds that plaintiff should be
required to file an amended complaint or face summary dismissal of this action.
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
$96.41, and an average monthly balance of $0.34. Plaintiff has insufficient funds to
pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee
of $19.28, 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
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.
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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 Complaint
Plaintiff brings this action under 42 U.S.C. § 1983 for deliberate indifference
to his medical needs. Named as defendants are Iron County, Missouri; the Iron
County Sheriff’s Department (the “Department”); James May, Chief Deputy for the
Department; Bessi Lynn Nash, Head Jailer, Iron County Jail; Don Barzewski,
Presiding Commissioner, Iron County; Bradford Johnson, Iron County Board of
Commissioners; Dustin Walker, Iron County Board of Commissioners, and Virginia
Queen, Clerk of the County Commission.
Plaintiff alleges that he has a history of heart problems and extensive heart
surgery. He has two artificial heart valves, and he has to take Coumadin, a blood
thinner, on a daily basis, to prevent blood clots from forming on the valves. This is
a life-sustaining medication, for the formation of blood clots is potentially lifethreatening.
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Plaintiff was booked into custody at the Iron County Jail (the “Jail) on March
4, 2010. Plaintiff told defendant Nash on his arrival of his medical history and need
for daily Coumadin. Plaintiff says Nash told him she would do what she could.
Despite repeated requests, plaintiff was forced to go the next ten days without
Coumadin.
Plaintiff left the Jail for a brief period and returned on March 18, 2010. On
March 19, 2010, plaintiff again told Nash that he needed Coumadin. Plaintiff claims
that Nash told him she needed to process the request through James Mays. Plaintiff
says that he continued to try to talk to Nash about his need for Coumadin but that she
deliberately ignored him.
When plaintiff left the Jail, he immediately sought medical attention. His INR
blood levels were low and required two days of therapy in the hospital before his
blood levels were at a level where he could be released.
Discussion
The Court believes that the complaint sufficiently states a claim for deliberate
indifference against defendant Nash. However, plaintiff has failed to properly plead
an action under § 1983.
The complaint is silent as to whether defendants are being sued in their official
or individual capacities. Where a “complaint is silent about the capacity in which
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[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 any of the individual defendants.
For the same reason, the complaint fails to state a claim against Iron County,
Missouri.
Plaintiff’s claim against the Sheriff’s Department is legally frivolous because
the Department 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

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juridical entities suable as such.”); Catlett v. Jefferson County, 299 F. Supp. 2d 967,
968-69 (E.D. Mo. 2004) (same).
“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 James Mays, Don Barzewski, Bradford Johnson, Dustin Walker, or
Virginia Queen 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.
Because plaintiff is proceeding pro se, the Court will allow plaintiff to file an
amended complaint. Plaintiff shall have thirty days from the date of this Order to file
an amended complaint. Plaintiff is warned that the filing of an amended complaint
replaces the original complaint, and claims that are not realleged are deemed
abandoned. E.g., In re Wireless Telephone Federal Cost Recovery Fees Litigation,

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396 F.3d 922, 928 (8th Cir. 2005). If plaintiff fails to file an amended complaint
within thirty days, the Court will dismiss this action without prejudice.
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 $19.28 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 if plaintiff fails to pay the initial partial
filing fee within thirty (30) days of the date of this Order, then this case will be
dismissed without prejudice.
IT IS FURTHER ORDERED that the Clerk shall mail to plaintiff a Prisoner
Civil Rights Complaint form.
IT IS FURTHER ORDERED that plaintiff use the form and submit an
amended complaint within thirty (30) days from the date of this Order.

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IT IS FURTHER ORDERED that if plaintiff fails to comply with this Order,
this action will be dismissed without further proceedings.
Dated this 26th day of March, 2013.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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