Patterson v. Beard et al

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff is granted leave to proceed in forma pauperis. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $3.10 within thirty (30) days of the date of this Order. Plaint iff 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 proceed ing. IT IS FURTHER ORDERED that the Clerk shall mail to plaintiff a Prisoner Civil Rights Complaint. IT IS FURTHER ORDERED that petitioner shall file an amended complaint on the provided form no later than 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. Initial Partial Filing Fee due by 3/14/2014. Signed by Magistrate Judge Lewis M. Blanton on 2/12/2014. (JMC)(prisoner civil rights forms forwarded to Mr. Patterson)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JUSTIN EUGENE PATTERSON

Plaintiff,
v.
UNKNOWN BEARD, et al.,

Defendants.

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No. 1:13CV179 LMB

MEMORANDUM AND ORDER
This matter is before the Court on the application of plaintiff (registration
no. 1202015), an inmate at the 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 $3.10. See 28 U.S.C. § 1915(b)(1). Additionally, the Court will order
plaintiff to submit an amended complaint.
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
$15.50, and an average monthly balance of less than $15.50.

Plaintiff has

insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an
initial partial filing fee of $3.10, 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 Alacks 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
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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 Aenough 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. Named as defendants
are the Cape Girardeau County Jail and Unknown Beard, a correctional officer at
the Jail. Plaintiff alleges that Beard offered to give him extra food in exchange for
Beard using his Tazer on plaintiff. Plaintiff says he did not agree. Plaintiff asserts
that Beard tazed him anyway, and plaintiff claims he fell on the floor and was
injured as a result. Plaintiff says he did not receive the medical attention that he
needed for his injuries.
Discussion
Plaintiff’s claim against the Jail 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 defendant Beard 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
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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.
Because plaintiff is proceeding pro se, the Court will allow him 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, 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 is granted leave to proceed in
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forma pauperis.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee
of $3.10 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 mail to plaintiff a
Prisoner Civil Rights Complaint.
IT IS FURTHER ORDERED that petitioner shall file an amended
complaint on the provided form no later than 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.

Dated this 12th day of February, 2014.

LEWIS M. BLANTON
UNITED STATES MAGISTRATE JUDGE

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