Kingcade v. Kennett, Mo City Police Dept. et al
MEMORANDUM AND ORDER re: 3 filed by Forest Conan Kingcade, 4 filed by Forest Conan Kingcade. IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF No. 3] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $8.97 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 priso n registration number; (3) the case number; and (4) that the remittance is for an original proceeding. IT IS FURTHER ORDERED that plaintiff shall file an amended complaint within thirty (30) days of the date of this Memorandum and Order. IT IS FURTHE R ORDERED that if plaintiff fails to comply with this Memorandum and Order, the Court may dismiss this action without further proceedings. IT IS FURTHER ORDERED that plaintiff's motion for the appointment of counsel [ECF No. 4] is DENIED without prejudice. (Initial Partial Filing Fee due by 12/4/2014, Response to Court due by 12/4/2014.) Signed by District Judge Stephen N. Limbaugh, Jr on 11/4/14. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
FOREST CONAN KINCADE,
KENNETT, MO CITY POLICE
DEPARTMENT, et al.,
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Forest Conan Kincade (registration
no. 237380), an inmate at 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 $8.97. See 28 U.S.C. § 1915(b)(1). Additionally, the Court
will require plaintiff to file 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 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 $44.83, 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 $8.97, which is 20 percent of plaintiff's average monthly
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).
Plaintiff brings this action under 42 U.S.C. § 1983.
Named as defendants are the
Kennett, Missouri Police Department; B. Moore (Officer); M. Dennis (Cpl.); A. Campbell
(Officer); T. Trowbridge (Captain); and P. Caldwell (Sgt.).
Plaintiff alleges that on August 7, 2014, defendants Moore, Dennis, Campbell,
Trowbridge, and Caldwell arrested him on suspicion of shoplifting.
Plaintiff claims that
defendant Moore used excessive force in applying handcuffs to plaintiff, and that defendant
Dennis used excessive force in tazing plaintiff for between one and two minutes. According to
plaintiff, defendants Trowbridge and Caldwell observed, and did not intervene. Plaintiff alleges
that he was later refused medical care and tazed a second time by defendant Campbell.
The complaint is silent as to whether defendants are being sued in their official or
individual capacities. Where a “complaint is silent about the capacity in which [plaintiff] is
suing defendant, [a district court must] interpret the complaint 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 plaintiff 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 so he must include each and every one of his claims in the amended complaint.
E.g., In re Wireless Telephone Federal Cost Recovery Fees Litig., 396 F.3d 922, 928 (8th Cir.
2005). In order to sue defendants in their individual capacities, plaintiff must specifically say so
in the complaint. If plaintiff fails to file an amended complaint within thirty days, the Court will
dismiss this action without prejudice.
With regard to plaintiff’s request for appointment of counsel, the Court notes that there is
no constitutional or statutory right to appointed counsel in civil cases.
Nelson v. Redfield
Lithograph Printing, 728 F.2d 1003, 1004 (8th Cir. 1984). In determining whether to appoint
counsel, the Court considers several factors, including (1) whether the plaintiff has presented
non-frivolous allegations supporting his or her prayer for relief; (2) whether the plaintiff will
substantially benefit from the appointment of counsel; (3) whether there is a need to further
investigate and present the facts related to the plaintiff's allegations; and (4) whether the factual
and legal issues presented by the action are complex. See Johnson v. Williams, 788 F.2d 1319,
1322-23 (8th Cir. 1986); Nelson, 728 F.2d at 1005.
It is not yet apparent that plaintiff can state non-frivolous claims under 42 U.S.C. § 1983.
Further, the Court finds that the facts and legal issues raised by plaintiff are not so complicated
that the appointment of counsel is warranted at this time.
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF
No. 3] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $8.97
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
IT IS FURTHER ORDERED that plaintiff shall file an amended complaint within
thirty (30) days of the date of this Memorandum and Order.
IT IS FURTHER ORDERED that if plaintiff fails to comply with this Memorandum
and Order, the Court may dismiss this action without further proceedings.
IT IS FURTHER ORDERED that plaintiff’s motion for the appointment of counsel
[ECF No. 4] is DENIED without prejudice.
Dated this 4th day of November, 2014.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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