Gater v. Stevens et al

Filing 8

MEMORANDUM AND ORDER..granting re: 6 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Jerry Gater ( Initial Partial Filing Fee due by 5/9/2016.)IT IS FURTHER ORDERED that this action is dismissed without prejudice.. Signed by District Judge Ronnie L. White on 4/7/16. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

JERRY GATER,
Plaintiff,
V.

UNKNOWN STEVENS, et al.,
Defendants.

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No. 1:16CV12 RLW

MEMORANDUM AND ORDER

Plaintiff, a prisoner, seeks leave to proceed in forma pauperis in this civil action under 42
U.S.C. § 1983. Having reviewed plaintiffs financial information, the Court assesses a partial
initial filing fee of $4.00, which is twenty percent of his average monthly deposit. See 28 U.S.C.

§ 1915(b).
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.
The Complaint

Plaintiff brings this action against Lieutenant Unknown Stevens, Captain Unknown
Mulcahy, and the Cape Girardeau County Jail. Plaintiff says his mail to the courts has been
tampered with, that black mold in the showers has given him lung and eye infections, that other
prisoners are losing weight because of inadequate nutrition, and that other inmates are not
receiving random judge assignments from this Court.
Discussion

Plaintiff's claim against the Jail is legally frivolous because it 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.").
Plaintiff did not specify whether he is suing defendants 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 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

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violations of plaintiffs constitutional rights. As a result, the complaint fails to state a claim upon
which relief can be granted.
"Liability 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 Ashcroft

v. Iqbal, 556 U.S. 662, 676 (2009) ("Because vicarious liability is inapplicable to Bivens and
§ 1983 suits, a plaintiff must plead that each Government-official defendant, through the

official's own individual actions, has violated the Constitution."). In the instant action, plaintiff
has not set forth any facts indicating that defendants 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 for this reason as well.
Accordingly,

IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [ECF
No. 6] is GRANTED.

IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $4.00
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.

IT IS FURTHER ORDERED that this action is dismissed without prejudice.
An Order of Dismissal will be filed separately.

Dated this

7~ay of April, 2016.

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J. L:h--.._

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RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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