Sago v. New Madrid County et al

Filing 6

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Kevin Sago motion is GRANTED..IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B). I T IS FURTHER ORDERED that plaintiffs motion for appointment of counsel [Doc. #5] is DENIED AS MOOT. An Order of Dismissal will accompany this Memorandum and Order.( Initial Partial Filing Fee due by 10/29/2014.) Signed by District Judge Stephen N. Limbaugh, Jr on 9/29/14. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
KEVIN SAGO,
Plaintiff,
v.
NEW MADRID COUNTY, et al.,
Defendants.

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No. 1:14CV120 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff, an inmate at Pemiscot
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 $8.21. 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 sixmonth 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 $41.07, and an average monthly
balance of $0. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court
will assess an initial partial filing fee of $8.21, 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 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 pursuant to 42 U.S.C. § 1983 alleging violations of his civil
rights relating to his incarceration in New Madrid County Jail. Named as defendants are New
Madrid County and New Madrid County Jail.

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Plaintiff complains that when he was held in the New Madrid County Jail it lacked
cameras in “pods and living areas,” medical staff and a nurse, smoke detectors and sprinklers,
and contained “black mold” in the shower areas. Plaintiff, however, does not state that he was
allegedly harmed by any of the aforementioned conditions of confinement.
Discussion
Plaintiff=s claim against the New Madrid County Jail is legally frivolous because the Jail
is not a suable entity. Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992)
(departments or subdivisions of local government are Anot juridical entities suable as such.@);
Catlett v. Jefferson County, 299 F. Supp. 2d 967, 968-69 (E.D. Mo. 2004).
Moreover, in order to state a claim against a municipality, plaintiff must allege that a
policy or custom of the municipality is responsible for the alleged constitutional violation.
Monell v. Department of Social Services, 436 U.S. 658, 690-91 (1978). The instant complaint
does not contain any allegations that a policy or custom of New Madrid County was responsible
for the alleged violations of plaintiff=s constitutional rights. In fact, plaintiff fails to state that he
was allegedly harmed as a result of any of the aforementioned conditions of confinement about
which he complains. As a result, the complaint fails to state a claim upon which relief can be
granted against New Madrid County.
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 $8.21
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

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prison registration number; (3) the case number; and (4) that the remittance is for an original
proceeding.
IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28 U.S.C.
§ 1915(e)(2)(B).
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel [Doc.
#5] is DENIED AS MOOT.
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 29th day of September, 2014.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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