Harker v. Houseman et al

Filing 5

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Jeffrey A. Harker, 4 MOTION to Appoint Counsel filed by Plaintiff Jeffrey A. Harker. IT IS HEREBY ORDERED that plaintiff 9;s motion for leave to proceed in forma pauperis [Doc. #2] is GRANTED, and no initial partial filing fee will be assessed. IT IS FURTHER ORDERED that, based upon the Younger abstention doctrine, the Clerk shall not issue process or cause process to issue upon the complaint. See 28 U.S.C. 1915(e)(2)(B). IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [Doc. #4] is DENIED as moot. A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge John A. Ross on 7/7/15. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

JEFFREY A. HARKER,

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Plaintiff,
v.
JESSE HOUSEMAN, et al.,
Defendants.

No. 1:15-CV-114-JAR

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Jeffrey A. Harker
(registration no. 22439) 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 an initial partial filing fee, and therefore, the
motion will be granted.

See 28 U.S.C. ' 1915(b)(1). Furthermore, based upon a

review of the complaint, 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.

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.

See 28 U.S.C. ' 1915(a)(1),(2).

A review of plaintiff's account

statement indicates an average monthly deposit of $00.00, and an average monthly
account balance of $00.00.

Plaintiff has insufficient funds to pay the entire filing

fee, and the Court will not assess an initial partial filing fee 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

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immune from such relief. An action is frivolous if it "lacks an arguable basis in
either law or fact." Neitzke v. Williams, 490 U.S. 319, 328 (1989). 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).

An

action fails to state a claim upon which relief can be granted 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).
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

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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

favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v.
Hernandez, 504 U.S. 25, 32 (1992).
The Complaint
Plaintiff, an inmate at the Cape Girardeau County Jail, seeks monetary relief
in this 42 U.S.C. ' 1983 action against Jesse Houseman (Deputy) and John Jordan
(Sheriff) in their individual and official capacities, and the Cape Girardeau County
Sheriff’s Office. Plaintiff alleges that on August 12, 2014, defendant Houseman
arrested plaintiff at his home. Plaintiff claims that Houseman tasered him for no
reason and that defendant Jordan is Houseman’s supervisor and should have
known “of the illegal or violative actions of Deputy Houseman.”

A review of

Missouri CaseNet reveals that plaintiff is presently facing charges arising out of
this incident for, inter alia, assault and attempted assault and resisting and

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interfering with a felony arrest.
Discussion
In Younger v. Harris, 401 U.S. 37, 46 (1971), the Supreme Court directed
federal courts to abstain from hearing cases where "the action complained of
constitutes the basis of an ongoing state judicial proceeding, the proceedings
implicate important state interests, and an adequate opportunity exists in the state
proceedings to raise constitutional challenges."

Harmon v. City of Kansas City,

Missouri, 197 F.3d 321, 325 (8th Cir. 1999); see also, Fuller v. Ulland, 76 F.3d
957, 959 (8th Cir. 1996).
Having carefully reviewed the case at bar, the Court concludes that the
Younger criteria are satisfied and that abstention is warranted.

There is an

ongoing state criminal judicial proceeding arising out of the August 12 arrest;
plaintiff's allegations implicate important state interests; and an adequate
opportunity exists in the state proceeding to raise constitutional challenges.
Finding no "extraordinary circumstances" that would justify interfering with
pending state judicial proceedings, the Court will dismiss the instant action,
without prejudice. See Younger, 401 U.S. at 43-44.
As additional grounds for dismissing this action, the Court finds that the
complaint is also legally frivolous as to defendant John Jordan, because plaintiff

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has failed to assert any claims or allegations against him, and the doctrine of
respondeat superior is not applicable in § 1983 actions.

See Boyd v. Knox, 47

F.3d 966, 968 (8th Cir. 1995); Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir. 2001)
(§ 1983 liability arises only upon a showing of personal participation by
defendant); Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (liability
under § 1983 requires a causal link to, and direct responsibility for, the alleged
deprivation of rights); 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).
The complaint is also frivolous as to the Cape Girardeau County Sheriff=s
Office, because sheriff’s departments are not suable entities.

See, e.g., Ketchum

v. City of West Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992) (departments or
subdivisions of local government are Anot juridical entities suable as such@); Catlett
v. Jefferson County, 299 F. Supp. 2d 967, 968-69 (E.D. Mo. 2004) (same); Dean v.
Barber, 951 F.2d 1210, 1214-15 (11th Cir. 1992) ("[s]heriff's departments and
police departments are not usually considered legal entities subject to suit");
McCoy v. Chesapeake Correctional Center, 788 F.Supp. 890 (E.D.Va. 1992) (local
jails are not "persons" under ' 1983).

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In accordance with the foregoing,
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in
forma pauperis [Doc. #2] is GRANTED, and no initial partial filing fee will be
assessed .
IT IS FURTHER ORDERED that, based upon the Younger abstention
doctrine, the Clerk shall not issue process or cause process to issue upon the
complaint. See 28 U.S.C. ' 1915(e)(2)(B).
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of
counsel [Doc. #4] is DENIED as moot.
A separate Order of Dismissal shall accompany this Memorandum and
Order.
Dated this 7th day of July, 2015.

_________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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