Harris v. Dunklin County

Filing 4

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Sidney Dean Harris motion is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing fee of $.96 within thirty (30) days from 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 the Clerk shall not issue process or cause process to issue, because the complaint is legally frivolous and fails to state a claim upon which relief may be granted. See 28 U.S.C. 1915(e)(2)(B). A separate Order of Dismissal shall accompany this Memorandum and Order. (Initial Partial Filing Fee due by 6/11/2015.) Signed by District Judge Stephen N. Limbaugh, Jr on 5/12/15. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
SIDNEY DEAN HARRIS
Plaintiff,
v.
DUNKLIN COUNTY,
Defendant.

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No. 1:15-CV-74-ACL

MEMORANDUM AND ORDER
This matter is before the Court on the motion of Sidney Dean Harris
(registration no. 1239776) for leave to commence this action without payment of the
required filing fee [Doc. #2]. After reviewing plaintiff’s financial information, the
motion will be granted and plaintiff will be assessed an initial partial filing fee of
$.96. Furthermore, based upon a review of the complaint [Doc. #1], the Court finds
that this action 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 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 six-month period.
See 28 U.S.C. ' 1915(b)(1). 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.

See 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.
A review of plaintiff's inmate account statement indicates an average
monthly deposit of $4.79, and an average monthly account balance of $0.00.
Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court
will assess an initial partial filing fee of $.96, 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 may 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 against a defendant who is
immune from such relief. An action is frivolous if Ait lacks an arguable basis in
either law or in fact.@ Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action
fails to state a claim upon which relief can be granted if it does not plead Aenough
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facts to state a claim to relief that is plausible on its face.@ Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (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 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 conclusion is the most plausible or
whether it is more likely that no misconduct occurred.

Id. at 1950, 51-52.

Moreover, in reviewing a pro se complaint under ' 1915(e)(2)(B), the Court
must give the complaint the benefit of a liberal construction.
404 U.S. 519, 520 (1972).

Haines v. Kerner,

The Court must also weigh all factual allegations in
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favor of the plaintiff, unless the facts alleged are clearly baseless.

Denton v.

Hernandez, 504 U.S. 25, 32-33 (1992).
The Complaint
Plaintiff, an inmate at the Booneville Correctional Center, brings this action
for monetary relief pursuant to 42 U.S.C. ' 1983 against Dunklin County. Plaintiff
alleges that he was falsely arrested by the Kennett Police Department for “using [his]
own debit card at an ATM.” He further alleges that after being held for thirty-five
days for his preliminary hearing, all charges were dropped.
Discussion
Although a municipality, such as Dunklin County, is not entitled to absolute
immunity in ' 1983 actions, it cannot be held liable under a respondeat superior
theory. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). Municipal
liability cannot be imposed absent an allegation that unlawful actions were taken
pursuant to a municipality's policy or custom. Id. at 694. There being no such
allegation in the present action, the complaint is legally frivolous as to defendant
Dunklin County. The Court will not liberally construe the complaint as asserting
claims against the Kennett Police Department, because police departments are not
suable entities under ' 1983. Ketchum v. City of West Memphis, Ark., 974 F.2d 81,
82 (8th Cir. 1992); see also De La Garza v. Kandiyohi County Jail, 2001 WL
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987542, at *1 (8th Cir. 2001) (sheriff's departments and police departments are not
usually considered legal entities subject to suit under ' 1983).

For these reasons,

the Court will dismiss this action under 28 U.S.C. ' 1915(e)(2)(B).
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in
forma pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing
fee of $.96 within thirty (30) days from 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 the Clerk shall not issue process or
cause process to issue, because the complaint is legally frivolous and fails to state a
claim upon which relief may be granted. See 28 U.S.C. ' 1915(e)(2)(B).
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 12th day of May, 2015.

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UNITED STATES DISTRICT JUDGE

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