Turner v. Cape Girardeau County Jail
Filing
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MEMORANDUM AND ORDER:IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF No. 2] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $24.30 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. ( Initial Partial Filing Fee due by 7/31/2013.) Signed by District Judge Stephen N. Limbaugh, Jr on 7/1/2013. (JMC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
DON RAY TURNER, JR.,
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Plaintiff,
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v.
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CAPE GIRARDEAU COUNTY JAIL, )
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Defendant.
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No. 1:13CV89 SNLJ
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Don Turner, an inmate at
Cape Girardeau County Jail, 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 $24.30. 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. § 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
$121.50, and an average monthly balance of $47.81. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing
fee of $24.30, 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 against the Cape Girardeau
County Jail (the “Jail”) and the “Officers of Jail.” Plaintiff alleges that an officer took
his study bible, which contained “personal information” and a picture of his daughter.
Plaintiff claims that this action violates his First Amendment right to practice his
religion.
Discussion
Plaintiff’s claim against the Jail is legally frivolous because it is not a suable
entity. See 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.”).
In general, fictitious parties may not be named as defendants in a civil action.
Phelps v. United States, 15 F.3d 735, 739 (8th Cir. 1994). An action may proceed
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against a party whose name is unknown, however, if the complaint makes sufficiently
specific allegations to permit the identity of the party to be ascertained after
reasonable discovery. Munz v. Parr, 758 F.2d 1254, 1257 (8th Cir. 1985). In the case
at hand, the complaint does not contain allegations sufficiently specific to permit the
identity of “Officers of Jail” to be ascertained after reasonable discovery. These
particular “John Doe” defendants are both unidentified and indeterminate in number.
This is not permissible. See Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir.
1995) (suit naming “various other John Does to be named when identified” not
permissible). As a result, the complaint is legally frivolous as to defendants “Officers
of Jail.”
For these reasons, the Court will dismiss this action under 28 U.S.C. § 1915(e).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [ECF No. 2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee
of $24.30 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.
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 1st day of July, 2013.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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