Gardner v. Ste. Genevieve County Jail et al

Filing 9

MEMORANDUM AND ORDER re: 3 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Brian Gardner, motion is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of $12.40 within th irty (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 plaintiff's supplement to the complaint [Doc. #8] is STRICKEN from the record. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon, because the amended complaint is legally frivolous and fails to state a claim upon which relief can be granted. See 28 U.S.C. 1915(e)(2)(B). A separate Order of Dismissal shall accompany this Memorandum and Order. (Initial Partial Filing Fee due by 9/19/2014.) Signed by District Judge Stephen N. Limbaugh, Jr on 8/20/14. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
BRIAN GARDNER,
Plaintiff,
v.
STE. GENEVIEVE COUNTY JAIL,
et al.,
Defendants.

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No. 1:14-CV-85-SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Brian Gardner (registration
no. 60627) for leave to commence this action without payment of the required filing
fee [Doc. #3]. The Court will grant the motion and assess plaintiff an initial partial
filing fee of $12.40. In addition, after reviewing the amended complaint [Doc. #7]
and for the reasons set forth below, the Court will dismiss this action 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
$62.00, and an average monthly balance of $53.80. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the Court will assess an initial partial
filing fee of $12.40, 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
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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
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).
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.
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
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judgment in determining whether plaintiff's conclusion is the most plausible or
whether it is more likely that no misconduct occurred. Id. at 1950-52.
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 First Amended Complaint
Plaintiff, an inmate at the Ste. Genevieve Detention Center, seeks monetary
relief in this 42 U.S.C. ' 1983 action against the Ste. Genevieve County Jail, N. Ems
(a correctional officer), Unknown Slankman (a correctional officer), Unknown
Karol (a sergeant), and Gary Stolzer (the sheriff). For his "Statement of Claim,"
plaintiff summarily states, "[A]ll the issues raised in the original petition stand here.
Specifically, 8th and 14th constitutional rights violations." In addition, he states
that he "would like to [be] transferred to another federal holdover."1

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On August 4, 2014, the Court received copies of three inmate grievance forms
from plaintiff, which have been docketed as a supplement to the complaint [Doc.
#8]. Because the Court does not allow plaintiffs to amend their complaints by
interlineation or supplementation, Document #8 will be stricken from the record.
All claims in an action must be included in one, centralized complaint form, as
neither the Court nor defendants wish to search through supplemental pleadings in
order to piece together plaintiff=s claims.
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Discussion
Plaintiff brings this action against defendants Ems, Slankman, Karol, and
Stolzer in their official capacities. See Egerdahl v. Hibbing Community College, 72
F.3d 615, 619 (8th Cir. 1995) (where a complaint is silent about defendant=s
capacity, Court must interpret the complaint as including official-capacity claims);
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 amended 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,
as to defendants Ems, Slankman, Karol, and Stolzer, the amended complaint is
legally frivolous and fails to state a claim upon which relief can be granted.
The Court finds that the amended complaint is also legally frivolous as to
defendant Ste. Genevieve County Jail, because jails are not suable entities. See
Lair v. Norris, 32 Fed. Appx. 175, 2002 WL 496779 (8th Cir. 2002); Alsbrook v.
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City of Maumelle, 184 F.3d 999, 1010 (8th Cir. 1999) (' 1983 suit cannot be brought
against state agency), cert. dismissed, 529 U.S. 1001 (2000); Marsden v. Fed.
Bureau of Prisons, 856 F. Supp. 832, 836 (S.D.N.Y. 1994) (jails are not entities
amenable to suit).
As additional grounds for dismissing this action, the Court notes that to state a
claim under ' 1983, a plaintiff must allege that (1) the defendant acted under color of
state law, and (2) defendant's alleged conduct deprived the plaintiff of a
constitutionally-protected federal right. Schmidt v. City of Bella Villa, 557 F.3d
564, 571 (8th Cir. 2009). In the instant case, plaintiff has failed to allege that any of
the named defendants personally participated in the violation of his constitutional
rights. See Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir. 2001) (§ 1983 liability
arises only upon a showing of personal participation by defendant); Madewell v.
Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (liability under § 1983 requires a
causal link to, and direct responsibility for, the alleged deprivation of rights); Martin
v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim not cognizable under § 1983
where plaintiff fails to allege defendant was personally involved in or directly
responsible for incidents that injured plaintiff).
Last, the Court notes that transfers to another prison are entirely within the
discretion of prison officials. Lyon v. Farrier, 727 F.2d 766, 768 (8th Cir. 1984).
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Moreover, prisoners have no justifiable expectation that they will be incarcerated in
any particular prison within a state. Olim v. Wakinekona, 461 U.S. 238, 245 (1983);
Murphy v. Missouri Dept. of Correction, 769 F.2d 502, 503 (8th Cir. 1985). Any
protected interest plaintiff might have in being incarcerated in a particular state
prison would have to be created by state law. See Hewitt v. Helms, 459 U.S. 460,
469 (1983). Plaintiff has failed to allege the existence of such a law.
For these reasons, this action will be dismissed pursuant to 28 U.S.C. '
1915(e)(2)(B).
Accordingly,
IT IS HEREBY ORDERED that plaintiff=s motion to proceed in forma
pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of
$12.40 within thirty (30) days of the date of this Order. Plaintiff is instructed to
make his remittance payable to AClerk, 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 plaintiff's supplement to the complaint
[Doc. #8] is STRICKEN from the record.

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IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue upon, because the amended complaint is legally frivolous and fails
to state a claim upon which relief can be granted. See 28 U.S.C. ' 1915(e)(2)(B).
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 20th day of August, 2014.

UNITED STATES DISTRICT JUDGE

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