George v. Dunklin County Justice Center/Sheriff's Dept. et al

Filing 9

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that plaintiff must pay an initial filing fee of $40.00 within twenty-one (21) days of the date of this Order. Plaintiff is instructed to make his remittance payable to Clerk, United States District Cou rt, and to include upon it: (1) his name; (2) his prison registration number; (3) this case number; and (4) the statement that the remittance is for an original proceeding.IT IS FURTHER ORDERED that this case is DISMISSED without prejudice because th e complaint is frivolous or fails to state a claim upon which relief can be granted or both. A separate order of dismissal will be entered herewith.IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in good faith. ( Initial Partial Filing Fee due by 5/3/2017.) Signed by District Judge Jean C. Hamilton on 4/12/17. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
BRIAN K. GEORGE,
Plaintiff,
v.
DUNKLIN COUNTY JUSTICE CENTER,
et al.,
Defendants.

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No. 1:17-CV-40 SPM

MEMORANDUM AND ORDER
This matter is before the Court upon the civil complaint filed by pro se plaintiff Brian K.
George, an inmate at the Dunklin County Jail. Plaintiff initially commenced this action in the
United States District Court for the Western District of Missouri, which provisionally granted
him leave to proceed in forma pauperis and then transferred the matter to this federal judicial
district. Having reviewed the motion to proceed in forma pauperis that plaintiff submitted when
he initiated this case, this Court determines that plaintiff lacks sufficient funds to pay the entire
filing fee. The Court will therefore permit plaintiff to proceed herein in forma pauperis, and will
assess an initial partial filing fee of $40.00, which is twenty percent of plaintiff’s stated average
monthly account balance. In addition, for the reasons discussed below, the Court will dismiss
the complaint.
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 or
her 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 sixmonth period. 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. 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
$10.00, until the filing fee is fully paid. Id.
In the motion that plaintiff filed when he initiated this case, he stated that the average
monthly balance of his prison account is $200.00. The Court will therefore assess an initial
partial filing fee of $40.00, which is twenty percent of plaintiff’s stated average monthly balance.
See Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997) (when a prisoner is unable to provide
the Court with a certified copy of his prison account statement, the Court should assess an
amount “that is reasonable, based on whatever information the court has about the prisoner=s
finances.”).
Legal Standard
Under 28 U.S.C. § 1915(e)(2), 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.
An action is frivolous if it “lacks an arguable basis in either law or fact.” Neitzke v. Williams,
490 U.S. 319, 328 (1989).
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.”
2

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.
When reviewing a pro se complaint under § 1915(e)(2), the Court must give it the
benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972).

However, this

does not mean that pro se complaints may be merely conclusory. Even pro se complaints are
required to allege facts which, if true, state a claim for relief as a matter of law. Martin v.
Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980); see also Stone v. Harry, 364 F.3d 912, 914-15
(8th Cir. 2004) (federal courts are not required to “assume facts that are not alleged, just because
an additional factual allegation would have formed a stronger complaint”).
The Complaint
In the complaint, plaintiff names the Dunklin County Justice Center/Sheriff’s
Department, the Dunklin County Circuit Court and the Missouri Department of Revenue
Driver’s License Bureau as defendants in this action. Plaintiff names defendants in both their
individual and official capacities.
Plaintiff alleges that the Department of Revenue issued a “10-Year Denial” for a charge
that “was not even a reading” on “the BAC/Breathalyzer.” Plaintiff states that the Dunklin
County Circuit Court pursued prosecution of the charge and knowingly violated its own policies
and procedures in doing so. Plaintiff believes he was subjected to a lack of due process,
insufficient evidence, lack of scienter, discrimination and harassment.
Plaintiff states that he does not believe that the BAC was a driving offense and he claims
that the Sheriff’s Department unjustly harassed him and damaged his credit by listing it as a
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DUI.
Plaintiff seeks monetary damages, including punitive relief. He also seeks a “clear
driving record” and “diplomatic immunity.”
Discussion
Plaintiff’s complaint fails to state a claim upon which relief may be granted, as he has not
alleged a proper party defendant in this action. Plaintiff cannot state a claim against the Dunklin
County Justice Center or the Dunklin County Sheriff’s Department because departments or
subdivisions of a local government are not suable entities. See 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.”); see also, Monell v. Dep’t of Social Services, 436 U.S. 658,
690-91 (1978) (the complaint does not contain any allegations that a policy or custom of Dunklin
County was responsible for the alleged violations of plaintiff’s constitutional rights).
Additionally, Dunklin County Court1 is also not a suable entity, as it, too is a subdivision of
Dunklin County. Id.2

1

The Eighth Circuit has recognized that clerks of court are absolutely immune from suit for
damages for civil rights violations when performing tasks that are an “integral part of the judicial
process,” unless they acted in the “clear absence of all jurisdiction.” Boyer v. County of
Washington, 971 F.2d 100, 101 (8th Cir. 1992); see also Maness v. District of Logan County–
Northern Div., 495 F.3d 943 (8th Cir. 2007) (clerks absolutely immune for acts that may be seen
as discretionary or for acts taken at the direction of a judge or according to court rule); Smith v.
Erickson, 884 F.2d 1108, 1111 (8th Cir. 1989) (a federal court clerk, who allegedly impeded an
inmate’s access to the courts by intentionally delaying the filing of his complaint and lying to
him about its whereabouts, was entitled to judicial immunity because “the filing of complaints
and other documents is an integral part of the judicial process”).
2

To the extent plaintiff is asserting a claim against an unnamed prosecutor in this action for filing
charges against plaintiff for the alleged DUI, where “the prosecutor is acting as advocate for the
state in a criminal prosecution, [] the prosecutor is entitled to absolute immunity.” Brodnicki v.
City of Omaha, 75 F.3d 1261, 1266 (8th Cir. 1996).
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Additionally, plaintiff’s claim against the Missouri Department of Revenue is barred by
the Eleventh Amendment. See Alabama v. Pugh, 438 U.S. 781, 782 (1978). A suit against the
Missouri Department of Revenue is, in effect, a suit against the State of Missouri; however, the
State of Missouri is not a a person for purposes of a § 1983 action. See Will v. Michigan Dept. of
State Police, 491 U.S. 58, 63 (1989).
Even if plaintiff had named a proper party defendant, his claim would fail.

His

allegations relate to an ongoing criminal prosecution in Missouri State Court. See State v.
George, No. 14DU-CR01436-01 (35th Circuit Court, Dunklin County). This Court must abstain
from involving itself in an ongoing state criminal prosecution which implicates important state
interests. See Younger v. Harris, 401 U.S. 37, 46 (1971).

If plaintiff feels he has been

wrongfully prosecuted he has the ability to raise such an argument in his criminal prosecution in
state court, through the aegis of his appointed counsel.
The Court therefore concludes that plaintiff’s claims are subject to dismissal on the
grounds that they are legally frivolous or that they fail to state a claim upon which relief can be
granted, or both. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). The other forms of relief plaintiff seeks are
either unavailable in this § 1983 action, or are incomprehensible.
Accordingly,
IT IS HEREBY ORDERED that plaintiff must pay an initial filing fee of $40.00 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) this case number; and (4) the statement that the remittance is for

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an original proceeding.
IT IS FURTHER ORDERED that this case is DISMISSED without prejudice because
the complaint is frivolous or fails to state a claim upon which relief can be granted or both. A
separate order of dismissal will be entered herewith.
IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in
good faith.
Dated this 12th day of April, 2017.

/s/ Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE

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