Hollywood v. Caruthersville Sheriff's Department et al

Filing 5

MEMORANDUM AND ORDER..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 $9.46 within thirty (30) days of the date of t his 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 pr oceeding re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Ricky Hollywood. 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 3/6/2015.). Signed by District Judge Stephen N. Limbaugh, Jr on 2/6/15. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
RICKY HOLLYWOOD,
Plaintiff,
v.
CARUTHERSVILLE SHER. DEPT., et al.,
Defendants.

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No. 1:15CV10 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff Ricky Hollywood, 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 $9.46. 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 $40.73, and an average monthly
balance of $47.33. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the
Court will assess an initial partial filing fee of $9.46, which is 20 percent of plaintiff's average
monthly balance.
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, 112 S. Ct. 1728, 1733 (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, 127 S. Ct. 1955, 1974 (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

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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 judgment in determining whether plaintiff’s proffered conclusion is the most
plausible or whether it is more likely that no misconduct occurred. Id. at 1950, 1951-52.
The Complaint
Plaintiff, an inmate at Pemiscot County Jail, brings this action pursuant to 42 U.S.C. §
1983 alleging violations of his civil rights. Named as the two defendants in this action are the
Caruthersville Sheriff’s Department and the Pemiscot County Detention Center.
Plaintiff asserts generally that there is only a nurse employed at the Pemiscot County
Detention Center from time to time to deal with medical needs and he does not feel like ti is
enough. He states that he has been dealing with joint pains from a car accident/stabbing that
occurred prior to being incarcerated and he has been given periodic medical attention from time
to time, but he doesn’t feel like it has been enough.
Plaintiff states that he feels like his legal mail might have been opened outside his
presence and had staples taken from the packet.
Plaintiff complains that the Jail doesn’t have an adequate law library for his legal needs.
Plaintiff feels like he is being overcharged for medical care, tissues, razors, etc. He states
that he doesn’t feel he should have to pay for medical care and commissary items.

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Plaintiff states in a conclusory manner that there are “unsanitary living conditions” at the
Jail. He asserts that there is “black mold” inside the showers and the air vents have never been
changed.
Plaintiff seeks monetary damages in his complaint.
Discussion
Plaintiff’s complaint fails to state a claim upon which relief may be granted. The
complaint names only two defendants in this action: the Caruthersville Sheriff’s Department and
the Pemiscot County Justice Detention Center. Neither entity is a suable entity under § 1983.
See Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992) (departments or
subdivisions of local government are “not juridical entities suable as such.”). As such, plaintiff’s
complaint is subject to dismissal.
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 $9.46
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.

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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 6th day of February, 2015.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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