Mitchell v. Akins

Filing 9

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that the Clerk is directed to send plaintiff a prisoner civil rights complaint form. IT IS FURTHER ORDERED that plaintiff must file an amended complaint within twenty-one (21) days of the date of this Order Amended/Supplemental Pleadings due by 1/19/2016.. Signed by District Judge Stephen N. Limbaugh, Jr on 12/28/15. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
DEMARIO MARKEL MITCHELL,
Plaintiff,
v.
TORRANCE AKINS, et al.,
Defendants.

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No. 1:15CV189 SNLJ

MEMORANDUM AND ORDER
Plaintiff, a prisoner, brings this action against Torrance Akins and the Pemiscot County
Justice Center for excessive force.
Standard of Review
Under 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted.
To state a claim for relief under § 1983, a complaint must plead more than “legal conclusions”
and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A plaintiff must

demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.”
Id. at 679. “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. at 678. Determining whether a complaint states a plausible claim for relief [is] a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. Id. at 679.

Discussion
Plaintiff alleges that he had an argument with defendant Akins. He claims that Akins
followed him to his cell and choked him several times. He also says he injured his head.
Plaintiff wants to sue the Justice Center because jail officials did not process his criminal
complaint against Akins.
Plaintiff did not specify whether he is suing defendant Akins in his official or individual
capacity. 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 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, and it is subject to immediate dismissal.
Furthermore, plaintiff’s claim against the Justice Center is legally frivolous because the
Justice Center cannot be sued. 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.”).

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Because plaintiff is proceeding pro se, the Court will allow plaintiff to file an amended
complaint. Plaintiff is warned that the filing of an amended complaint replaces the original
complaint, and so he must include each and every one of his claims in the amended
complaint. E.g., In re Wireless Telephone Federal Cost Recovery Fees Litigation, 396 F.3d
922, 928 (8th Cir. 2005). Any claims from the original complaint that are not included in
the amended complaint will be considered abandoned. Id. Plaintiff must allege how each
and every defendant is directly responsible for the alleged harm.

In order to sue

defendants in their individual capacities, plaintiff must specifically say so in the complaint.
If plaintiff fails to sue defendants in their individual capacities, this action may be subject
to dismissal.
Accordingly,
IT IS HEREBY ORDERED that the Clerk is directed to send plaintiff a prisoner civil
rights complaint form.
IT IS FURTHER ORDERED that plaintiff must file an amended complaint within
twenty-one (21) days of the date of this Order
Dated this 28th day of December, 2015.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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