Mercer v. Cape Girardeau County Jail et al

Filing 6

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [ECF No. 2] is GRANTED. IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $15 within thirty (30) days of the date of this Ord er. Plaintiff is instructed to make his remittancepayable 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 ( Initial Partial Filing Fee due by 10/24/2016.). Signed by District Judge John A. Ross on 9/23/16. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

JESSIE LAMAR MERCER,
Plaintiff,

v.
CAPE GIRADEAU COUNTY JAIL, et al.,
Defendants.

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No. 1:16-CV-201 JAR

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 $15, 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, 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.
When reviewing a complaint under 28 U.S.C. § 1915(e), the Court accepts the well-pled
facts as true. Furthermore, the Court liberally construes the allegations.
The Complaint
Plaintiff brings this action against the Cape Girardeau County Jail (the "Jail"), Unknown
Mulcahy, Unknown Stevens, Unknown Crites, Christian Phelps, and Community Counseling of
Cape Girardeau ("Community Counseling").
Plaintiff was booked into the Jail on February 2, 2016. He says that he discussed his
need for psychiatric medications with his attorney.

However, he did not have a current

prescription or a doctor. On March 17, 2016, he sent a request to defendant Mulcahy to be seen
by a psychiatrist or psychologist. A few weeks later, an employee with Community Counseling
visited and took his history. That person told him he would be seen by a doctor within a few
weeks. As of the date he filed the complaint, he had not been seen by a doctor from Community
Counseling.
On June 28, 2016, plaintiff met with defendant Phelps, who is a mental health specialist
with the Jail. She told plaintiff she would ask Mulcahy to look into when he would be seen by a
doctor. Plaintiff did not hear back from Mulcahy. He says he is "in extreme mental stress ... ".
He claims that dealing with the stress made it difficult to decide whether or not to plead guilty in
his criminal case. However, he pled guilty to second-degree burglary five days after he mailed
his complaint to the Court. Missouri v. Mercer, No. 16CG-CR00071-01 (Cape Girardeau).
Plaintiff requested Ramadan meals in June 2016. Defendant Stevens denied his request
because he is not Muslim. He admits to being Christian. Plaintiff claims defendants Stevens and

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Crites violated his rights when they searched his cell for signs of his religion. Plaintiff did not
profess to be Muslim or request to change his official religion.
Discussion

Plaintiffs claim against the Jail is legally frivolous because it cannot be sued under
§ 1983. Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992).
To state a claim for medical mistreatment, plaintiff must plead facts sufficient to indicate
a deliberate indifference to serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976);

Camberos v. Branstad, 73 F .3d 174, 175 (8th Cir. 1995). Allegations of mere negligence in
giving or failing to supply medical treatment will not suffice. Estelle, 429 U.S. at 106. In order
to show deliberate indifference, plaintiff must allege that he suffered objectively serious medical
needs and that defendants actually knew of but deliberately disregarded those needs. Dulany v.

Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997).

The allegations do not show that either

Mulcahy or Phelps deliberately disregarded his psychiatric needs. They show that Mulcahy
processed his request and he was visited by Community Counseling. And Phelps told him she
would ask Mulcahy to look into the situation. As a result, these allegations fail to state a claim
upon which relief can be granted.
Assuming Community Counseling is a proper defendant in this suit, the Court finds that
plaintiffs allegations against it fail because he has not alleged that a policy or custom of
defendant led to his injuries. See Sanders v. Sears Roebuck & Co., 984 F.2d 972, 95-76 (8th Cir.
1993).
Plaintiffs First Amendment religion claim is legally frivolous because he has not alleged
that defendants prevented him from practicing his religion. Prisoners do not have a clearly

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established right under the First Amendment to practice religions with which they have no
affiliation. As a result, the complaint is dismissed under 28 U.S.C. § 1915(e).
Accordingly,
IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [ECF

No. 2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $15

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. 1
IT IS FURTHER ORDERED that this action is DISMISSED without prejudice.
An Order of Dismissal will be filed separately.
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11JP

Dated this ..1±:::::!_. day of September, 2016.

.ROSS
ED STATES DISTRICT JUDGE

1 Prisoners must pay the full amount of the $350 filing fee.
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. The agency having custody of the prisoner will deduct the payments and forward them to the
Court each time the amount in the account exceeds $10. 28 U.S.C. § 1915(b)(2).

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