Briscoe v. City of Moberly et al

Filing 5

MEMORANDUM AND ORDER-- HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis [Doc. # 2 ] is GRANTED. FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint, because the complai nt is legally frivolous and fails to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B). FURTHER ORDERED that plaintiff's motion for appointment of counsel [Doc. # 4 ] is DENIED as moot. A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Jean C. Hamilton on 02/26/13. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

OLAN WAYNE BRISCOE,
Plaintiff,
v.
CITY OF MOBERLY, et al.,
Defendants.

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No. 2:13-CV-6-JCH

MEMORANDUM AND ORDER
This matter is before the Court upon the application of Olan Wayne Briscoe for
leave to commence this action without payment of the required filing fee. See 28
U.S.C. § 1915(a). Upon consideration of the financial information provided with the
completed application, the Court finds that plaintiff is financially unable to pay any
portion of the filing fee. Therefore, plaintiff will be granted leave to proceed in forma
pauperis.
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court may dismiss a complaint filed
in forma pauperis at any time if the action is frivolous, malicious, fails to state a claim
upon which relief can be granted, or seeks monetary relief against a defendant who is
immune from such relief. An action is frivolous if "it lacks an arguable basis either in

law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state
a claim upon which relief can be granted if it does not plead “enough facts to state a
claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 127 S. Ct. 1955, 1974 (2007).
In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the
complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520
(1972). The Court must also weigh all factual allegations in favor of the plaintiff,
unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 32
(1992); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
The Complaint
Plaintiff seeks monetary relief in this action brought pursuant to 42 U.S.C. §§
1983, 1985, and 1986. The named defendants are City of Moberly and Moberly police
officers J.J. Baird, A.J. Swon, and A.M. Wheatry.

Plaintiff's allegations are

substantially similar to those he advanced in two previous lawsuits, which were both
dismissed as legally frivolous: Briscoe v. Baird, No. 2:12-CV-11-JCH (E.D. Mo.) and
Briscoe v. Director of Revenue, State of Missouri, No. 2:11-CV-14-AGF (E.D. Mo.).
In the instant action, plaintiff once again alleges that he was arrested on February
13, 2008, for "DWI and resisting arrest." Plaintiff complains that he was forced to
spend the night in a cell at the Moberly Police Department, during which, officers
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"would rake their batons across the cell bars and kick the cell bars [every twenty
minutes] when [he] was asleep." Plaintiff states that this scared him, and he woke up
"sore from head to toe" and noticed that he had "numerous bruises." Plaintiff states that
he was released the following day, on February 14.
Discussion
I. Section 1983 Claims
Having carefully reviewed plaintiff's allegations, the Court will dismiss defendant
City of Moberly pursuant to § 1915(e)(2)(B). Although a municipality is not entitled
to absolute immunity in § 1983 actions, it cannot be held liable under a respondeat
superior theory. Monell v. Department of Social Services, 436 U.S. 658, 691 (1978).
Municipal liability cannot be imposed absent an allegation that unlawful actions were
taken pursuant to a municipality's policy or custom. Id. at 694. There being no such
allegation in the present action, the complaint is legally frivolous as to this defendant.
Plaintiff is suing officers Baird, Swon, and Wheatry in their official capacities.
See Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th Cir. 1995)(where
a complaint is silent about defendant’s capacity, Court must interpret the complaint as
including official-capacity claims); 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,
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491 U.S. 58, 71 (1989). To state a claim against a municipality or a government
official in his or her official capacity, a 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 violations of plaintiff’s constitutional rights. As a result, the complaint
is legally frivolous and fails to state a claim upon which relief can be granted.
As additional grounds for dismissing this action, the Court finds that plaintiff's
allegations simply do not rise to the level of a constitutional violation and fail to state
a claim under § 1983.
II. Section 1985 and 1986 Claims
Title 42 U.S.C. § 1985 concerns conspiracies to interfere with civil rights.
Although plaintiff does not specify under which subsection of § 1985 he is proceeding,
the Court will liberally construe the allegations under § 1985(3), which provides in
pertinent part:
If two or more persons . . . conspire . . . for the purposes of
depriving, either directly or indirectly, any person or class of
persons of the equal protection of the laws, or of equal
privileges and immunities under the laws . . . the party so
injured or deprived may have an action for the recovery of
damages occasioned by such injury or deprivation, against
any one or more of the conspirators.
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Thus, to state a claim under § 1985(3), a plaintiff must establish that (1) he is a member
of a class suffering from invidious discrimination; and (2) defendants’ actions were
motivated by racial animus or some other type of class-based discrimination. United
Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 834-39 (1983); Griffin v.
Breckenridge, 403 U.S. 88, 102-03 (1971) (plaintiff must allege these two elements to
state § 1985(3) claim). In the instant action, nothing in the complaint indicates that
plaintiff is a member of a protected class or that defendants were motivated by
purposeful discrimination. As such, plaintiff’s § 1985(3) claims will be dismissed as
legally frivolous. Because a § 1986 action is dependent upon the existence of a § 1985
claim, plaintiff’s § 1986 claim is also frivolous. See McIntosh v. Arkansas Republican
Party-Frank White Election Committee, 766 F.2d 337, 340 (8th Cir. 1985).
For these reasons, the Court will dismiss this action pursuant to § 1915(e)(2)(B).

Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in
forma pauperis [Doc. #2] is GRANTED.

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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 and fails
to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B).
IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel
[Doc. #4] is DENIED as moot.
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 26th day of February, 2013.

/s/Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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