Ben Yisrayl v. Ste. Genevieve County Jail Detention Center et al

Filing 4

MEMORANDUM AND ORDER re: 3 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Yliyah Ben Yisrayl. IT IS HEREBY ORDERED that plaintiff's request to accept his motion to proceed in forma pauperis filed i n his related case is GRANTED. [Doc. 2] IT IS FURTHER ORDERED that the Clerk shall make a copy of plaintiff's motion to proceed in forma pauperis from Ben Yisrayl v. Saint Genevieve County Jail, No. 1:17-CV-112 AGF (E.D. Mo.), and docket it in t he instant matter. IT IS FURTHER ORDERED that plaintiff's motion to proceed in forma pauperis is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $1.00 within thirty (30) days of the date of this Order. P laintiff 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 pr oceeding.IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint because the complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both. See 28 U.S.C.§ 1915(e)(2)(B). An Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge Charles A. Shaw on 9/19/17. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
YLIYAH BEN YISRAYL,
Plaintiff,
v.
SAINT GENEVIEVE COUNTY JAIL,
et al.,
Defendants.

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No. 1:17-CV-113 CAS

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff, an inmate at Forrest Medium
Security Institution at Forrest City, Arkansas, for leave to commence this action without payment
of the required filing fee. 1 For the reasons stated below, the Court finds that the plaintiff does
not have sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of
$1.00. See 28 U.S.C. § 1915(b)(1). Furthermore, after reviewing the complaint, the Court will
dismiss the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B).
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
1

The Court separated this action from another action in this Court, Ben Yisrayl v. Saint
Genevieve County Jail, No. 1:17-CV-112 AGF (E.D. Mo.), on July 17, 2017. On July 26, 2017,
plaintiff filed in this case a request [Doc. 2] to accept his motion to proceed in forma pauperis
that was filed in his prior case. The Court will ask the Clerk to file a copy of his motion to
proceed in forma pauperis in the present case for the convenience of the Court and the plaintiff.

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, until the filing fee is fully paid. Id.
Plaintiff has filed a notice in Ben Yisrayl v. Saint Genevieve County Jail, Case No. 1:17CV-112 AGF (E.D. Mo.), stating that he has been unable to get a copy of his prison account
statement. As a result, the Court will require plaintiff to pay an initial partial filing fee of $1.00.
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.”). If plaintiff is unable to pay the initial partial filing fee, he must submit a copy of his
prison account statement in support of his claim.
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. ' 1915(e)(2)(B), the Court must dismiss a complaint filed in forma
pauperis if the action is frivolous, malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a defendant who is immune from such relief. An action is
frivolous if it Alacks an arguable basis in either law or fact.@ Neitzke v. Williams, 490 U.S. 319,
328 (1989); Denton v. Hernandez, 504 U.S. 25, 31 (1992). An action is malicious if it is
undertaken for the purpose of harassing the named defendants and not for the purpose of
vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63 (E.D.N.C. 1987),
aff=d 826 F.2d 1059 (4th Cir. 1987). A complaint fails to state a claim if it does not plead
Aenough facts to state a claim to relief that is plausible on its face.@ Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).

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The Complaint
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), 2 alleging violations of
his civil rights. Plaintiff names Saint Genevieve County Jail, Corporal Unknown Karol and the
United States Marshal Service as defendants in this action. Plaintiff brings this action against
defendants in their official capacities only.
Plaintiff states that during his incarceration at the Saint Genevieve County Jail he was not
given an appropriate kosher diet. He claims that this was in violation of the Religious Land Use
and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc-1(a). Specifically, plaintiff
disagrees with the Jail’s practices of transferring food items in Styrofoam containers, preparing
food from cans, reheating food that was cooked in advance and serving unsealed food. Plaintiff
asserts that if the food is unsealed he does not trust that it is kosher. Plaintiff claims that he
asked in June 2017, through his attorney, to be transferred by the United States Marshals Service
to St. Louis County Jail, where he thinks the kosher practices are better, but he did not hear back
about his request for transfer. Since that time, plaintiff has been transferred to Forrest Medium
Security Institution in Forrest, Arkansas.
Plaintiff seeks monetary damages only in this action, in an amount of one million dollars.
Discussion
Plaintiff’s claim against the Saint Genevieve County Jail is legally frivolous because the
Jail is not an entity that can be sued. 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.”).

2

A claim under Bivens involves the same analysis as one arising under 42 U.S.C. § 1983.
Gordon v. Hansen, 168 F.3d 1109, 1113 (8th Cir. 1999).

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Plaintiff’s claim under the RLUIPA against the United States Marshals Service, a
division of the United States Department of Justice, also fails. A Bivens action cannot be
brought against the United States, its agencies, or its government officials who are sued in their
official capacities. See F.D.I.C. v. Meyer, 510 U.S. 471, 484-86 (1994); see also Patel v. U.S.
Bureau of Prisons, 515 F.3d 807, 812 (8th Cir. 2008) (“Bivens allows for a cause of action for
damages against federal officials, not federal agencies, for certain constitutional violations”);
Buford v. Runyon, 160 F.3d 1199, 1203 (8th Cir. 1998) (complaint against a government official
in his official capacity is a suit against the United States, and sovereign immunity precludes
prosecution of a Bivens action against the United States).
Plaintiff’s claim under the RLUIPA against defendant Karol, a Corporal at the Saint
Genevieve County Jail, is also subject to dismissal. While the RLUIPA allows official capacity
claims against prison officials, it does not authorize monetary damages based on official-capacity
claims. See Van Wyhe v. Reisch, 581 F.3d 639, 655 (8th Cir. 2009). Further, even if plaintiff
had sought injunctive relief, his claims for such relief would be moot because he is no longer
imprisoned in the Saint Genevieve County Jail. Therefore, plaintiff’s claims under the RLUIPA
are frivolous in this action and subject to dismissal.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s request to accept his motion to proceed in
forma pauperis filed in his related case is GRANTED. [Doc. 2]
IT IS FURTHER ORDERED that the Clerk shall make a copy of plaintiff’s motion to
proceed in forma pauperis from Ben Yisrayl v. Saint Genevieve County Jail, No. 1:17-CV-112
AGF (E.D. Mo.), and docket it in the instant matter.
IT IS FURTHER ORDERED that plaintiff’s motion to proceed in forma pauperis is
GRANTED.

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IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $1.00
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 the Clerk shall not issue process or cause process to
issue upon the complaint because the complaint is legally frivolous or fails to state a claim upon
which relief can be granted, or both. See 28 U.S.C.§ 1915(e)(2)(B).
An Order of Dismissal will accompany this Memorandum and Order.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 19th day of September, 2017.

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