Applewhite v. Scott County Jail et al
MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Gailon Lamarous Applewhite motion is GRANTED. IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $1 2 within twenty-one (21) 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 anoriginal proceeding. IT IS FURTHER ORDERED that the Clerk is directed to serve process on defendants Unknown Ward, Unknown Misty, and Unknown Vinney.IT IS FURTHER ORDERED that defendants Scott County Jail and Amy Johnson areDISMISSED without prejudice.( Initial Partial Filing Fee due by 2/9/2017.). Signed by District Judge Audrey G. Fleissig on 1/19/17. (MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
GAILON LAMAROUS APPLEWHITE,
SCOTT COUNTY JAIL, et al.,
No. 1:16-CV-282 ACL
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 plaintiff’s financial information, the Court assesses a partial
initial filing fee of $12, which is twenty percent of his average monthly deposit. See 28 U.S.C.
§ 1915(b). Additionally, the Court will order the Clerk to serve process on defendants Ward,
Misty, and Vinney.
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.
Plaintiff brings this action against the Scott County Jail and several correctional officers
there. He alleges Officer Ward pushed him into a wall and struck him while he had his hands in
the air. He says Officer Misty slammed a door on his foot and struck his chest, and he claims
Officer Vinney failed to protect him while at the same time yelling obscenities at him. And he
says Officer Amy Johnson refused his request for medical care. Plaintiff sues defendants in their
Plaintiff’s claims against defendants Ward, Misty, and Vinney state a plausible claim for
relief. So, the Court will order the Clerk to serve process on these defendants.
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.”).
In order to show that Johnson was deliberately indifferent to his medical needs, plaintiff
must allege that he suffered an objectively serious medical need and that Johnson actually knew
of but deliberately disregarded that need. Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir.
Here, plaintiff’s claims are entirely conclusory.
Plaintiff has not alleged that he
demonstrated to Johnson that he suffered from an objectively serious medical need or that
Johnson knew of the need and deliberately disregarded it. As a result, the complaint does not
state a plausible claim against Johnson.
IT IS HEREBY ORDERED that plaintiff’s 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 $12
within twenty-one (21) 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
IT IS FURTHER ORDERED that the Clerk is directed to serve process on defendants
Unknown Ward, Unknown Misty, and Unknown Vinney.
IT IS FURTHER ORDERED that defendants Scott County Jail and Amy Johnson are
DISMISSED without prejudice.
An Order of Partial Dismissal will be filed separately.
Dated this 19th day of January, 2017.
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
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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