Daniel v. Penrod et al

Filing 6

MEMORANDUM AND ORDER re: 5 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Catina Denise Daniel; motion is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $13.3 3 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 num ber; 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. (Initial Partial Filing Fee due by 4/2/2015.) Signed by District Judge Stephen N. Limbaugh, Jr on 3/3/15. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
CATINA DENISE DANIEL,
Plaintiff,
v.
BOBBY PENROD, et al.,
Defendants.

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No. 1:15CV23 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff, Catina Daniel, an inmate at
the Scott 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 $13.33. 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 $66.67, and an average monthly
balance of $5.30. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the
Court will assess an initial partial filing fee of $13.33, 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, an inmate at the Scott County Jail, brings this action pursuant to 42 U.S.C. §
1983, alleging false arrest and false imprisonment. Named as defendants are: Bobby Penrod
(Detective, Sikeston Police Department); David Dolan (Judge); Rick Walter (Scott County
Sheriff’s Dept.) and; Scott Horman (Judge).

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Plaintiff claims that she was arrested when police searched her friend’s home, pursuant to
a search warrant. Plaintiff asserts that she and her boyfriend were asleep in a bedroom in her
friend’s home and she was told that she was being arrested pursuant to an outstanding warrant.
Plaintiff states that after the search of the home she was charged with possession of a controlled
substance and possession with intent to distribute.
Plaintiff complains that she does not believe that she had an outstanding warrant at the
time of the search of the home, and she claims that her name was not on the search warrant, so
she doesn’t believe the search of her bedroom at the home was lawful. Thus, plaintiff believes
she was subject to a false arrest and false imprisonment. Plaintiff has not articulated which of
the defendant correctional officers placed her under arrest or kept her imprisoned at the Jail.
Plaintiff also complains that Judge Harmon and Judge Dolan have refused to give her a bond
reduction, so she has been required to spend her time in jail rather than be released on bond.
Plaintiff seeks monetary relief and requests to be released from Scott County Jail.
Discussion
Plaintiff=s complaint is legally frivolous as to Judges Harmon and Dolan because they are
Aentitled to absolute immunity for all judicial actions that are not >taken in a complete absence of
all jurisdiction.=@ Penn v. United States, 335 F.3d 786, 789 (8th Cir. 2003) (quoting Mireles v.
Waco, 502 U.S. 9, 11-12 (1991)). Plaintiff’s claims against the remaining two defendants are
also subject to dismissal.
The complaint is silent as to whether defendants Penrod and Walter 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

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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 with regard to defendants Penrod or Walter.
Even if plaintiff had named defendants Penrod and/or Walter in their individual
capacities, the complaint would still be subject to dismissal with respect to these defendants.
ALiability under ' 1983 requires a causal link to, and direct responsibility for, the alleged
deprivation of rights.@ Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990); see also
Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim not cognizable under ' 1983
where plaintiff fails to allege defendant was personally involved in or directly responsible for
incidents that injured plaintiff); Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995) (respondeat
superior theory inapplicable in ' 1983 suits). In the instant action, plaintiff has not set forth any
facts indicating that defendants Penrod or Walter were directly involved in or personally
responsible for the alleged violations of his constitutional rights. As a result, the complaint fails
to state a claim upon which relief can be granted with respect to these defendants.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc.
#5] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $13.33
within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance

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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 3rd day of March, 2015.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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