Parnell v. The City of Caruthersville Missouri et al
Filing
10
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 $6.66 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 this action is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B). An Order of Dismissal will accompany this Memorandum and Order.. Signed by District Judge Stephen N. Limbaugh, Jr on 11/4/2014. (JMC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
TADDIUS PARNELL,
Plaintiff,
v.
THE CITY OF CARUTHERSVILLE, et al.,
Defendants.
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No. 1:14CV147 SNLJ
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Taddius Parnell, 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 $6.66. 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 $33.33, and an average monthly
balance of less than $33.33.
Plaintiff has insufficient funds to pay the entire filing fee.
Accordingly, the Court will assess an initial partial filing fee of $6.66, 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 under 42 U.S.C. § 1983. He originally brought this action in
the United Stated District Court for the Western District of Kentucky. Venue, however, is proper
in this Court, so the Western District of Kentucky transferred the action to this Court under 28
U.S.C. § 1406(a). Subsequently, plaintiff filed an amended complaint.
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In his amended complaint, plaintiff names officer Randall Lee as defendant. Plaintiff
alleges that Lee pulled him over and arrested him pursuant to an outstanding warrant. Plaintiff
says he told Lee he had an open beer in his car. Lee took plaintiff to the Pemiscot County Jail
(the “Jail”). Plaintiff claims that when they arrived at the Jail, there was something on the seat
where he had been sitting. Plaintiff alleges that Lee asked him about it but that he denied
knowing what it was. Plaintiff states that Lee then charged him with possession of a controlled
substance. Plaintiff asserts that the charges were subsequently dropped.
Discussion
The allegations in the complaint fail to state an actionable claim under § 1983 because
they do not rise to the level of a constitutional violation. As a result, the complaint must be
dismissed under 28 U.S.C. § 1915(e).
Additionally, plaintiff sues Lee in his official capacity only. See Egerdahl v. Hibbing
Community College, 72 F.3d 615, 619 (8th Cir. 1995) (where complaint does not allege
capacity, it is an official-capacity complaint). 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 rights. As a result, the complaint fails to state a claim upon which relief
can be granted for this reason as well.
Accordingly,
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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 $6.66
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 this action is DISMISSED pursuant to 28 U.S.C.
§ 1915(e)(2)(B).
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 4th day of November, 2014.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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