Burns v. Morgan et al

Filing 7

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc.#2 and #5] are GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $1.00 within thirty (30) days of the da te of this Order..IT IS FURTHER ORDERED that plaintiffs motion for an extension of time to provide his certified copy of his account statement [Doc. #6] is DENIED AS MOOT. IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B). ( Initial Partial Filing Fee due by 2/23/2015.) Signed by District Judge Stephen N. Limbaugh, Jr on 1/23/15. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
MICHAEL BURNS,
Plaintiff,
v.
JERRY MORGAN, et al.,
Defendants.

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No. 1:14CV172 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff, Michael Burns, (registration
no.1205316), an inmate at Southeast Correctional Center (“SECC”), 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 $1.00. See 28 U.S.C. § 1915(b)(1). Furthermore, based upon a review of the
complaint, the Court finds that the amended 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 indicated that although he has requested a copy of his certified account
statement, he still has not received it from the prison. As such, the Court will assess plaintiff a
nominal initial partial filing fee of $1.00 at this time.
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 Amended Complaint
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil
rights. Named as defendants are two correctional officers at Eastern Reception, Diagnostic and
Correctional Center (“ERDCC”), Jerry Morgan and Unknown Kennedy.
Plaintiff asserts that in July of 2012, defendants Morgan and Kennedy used excessive
force when removing him from his cell during his confinement at ERDCC. Plaintiff believes
defendants’ actions were in violation of his Eighth Amendment rights. Plaintiff’s amended
complaint is silent as to the capacity under which he is suing defendants.

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Discussion
The amended complaint is silent as to whether defendants are being sued in their official
or individual capacities. Where a Acomplaint 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, in this case
the State of Missouri. Will v. Michigan Dep=t of State Police, 491 U.S. 58, 71 (1989). A[N]either
a State nor its officials acting in their official capacity are >persons= under ' 1983.@ Id. As a
result, the amended complaint fails to state a claim upon which relief can be granted.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis
[Doc.#2 and #5] are GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $1.00
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 plaintiff’s motion for an extension of time to provide
his certified copy of his account statement [Doc. #6] is DENIED AS MOOT.

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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 23rd day of January, 2015.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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