Glasgow v. Bagley et al

Filing 13

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis (Docket No. 10 ) is granted. IT IS FURTHER ORDERED that the Clerk of Court shall not issue process or cause process to i ssue upon the amended complaint because it fails to state a claim upon which relief can be granted and is frivolous. IT IS FURTHER ORDERED that plaintiff's amended complaint and all of his causes of action against all defendants are hereby DISMISSED without prejudice. A separate order of dismissal will be entered herewith. IT IS FURTHER ORDERED that an appeal from this dismissal would not be taken in good faith. Signed by District Judge E. Richard Webber on 10/18/16. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
SHANE OWEN GLASGOW,

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Plaintiff,
v.
JON BAGLEY, et al.,
Defendants.

No. 2:16CV55 ERW

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff Shane Owen Glasgow for
leave to commence this action without prepayment of the filing fee. (Docket No. 10). For the
reasons stated below, the Court finds that plaintiff lacks sufficient funds to pay any portion of the
filing fee. In addition, the Court has reviewed the amended complaint, and will dismiss it
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
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

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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.
Plaintiff has submitted a certified inmate account statement for the period of December 1,
2015 through June 6, 2016, showing a starting and ending balance of less than $1.00. (Docket
No. 11). The Court therefore determines that plaintiff is unable to pay any portion of the filing
fee.
28 U.S.C. § 1915(e)(2)(B)
Pursuant to 28 U.S.C. ' 1915(e)(2)(B), the Court shall 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). 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). 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).
To determine whether an action fails to state a claim upon which relief can be granted,
the Court must engage in a two-step inquiry. First, the Court must identify the allegations in the
complaint that are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937,
1950-51 (2009). These include “legal conclusions” and “[t]hreadbare recitals of the elements of
a cause of action [that are] supported by mere conclusory statements.” Id. at 1949. Second, the

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Court must determine whether the complaint states a plausible claim for relief. Id. at 1950-51.
This is a “context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 1950. The plaintiff is required to plead facts that show
more than the “mere possibility of misconduct.” Iqbal, 129 S. Ct. at 1950. The Court must
review the factual allegations in the complaint “to determine if they plausibly suggest an
entitlement to relief.” Id. at 1951.
The Amended Complaint
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 against police officers Stuart
Hughes, Joel Dixon, Josh Hoover and Brandon Pearson; Sheriff’s Office employee Tom Parks;
prosecutor Tracy Carlson; Judges Scot Othic and Andrea Vandeloecht; and the Adair County
Jail. The allegations in the amended complaint stem from plaintiff’s March 23, 2016 traffic stop
and arrest for driving without a valid driver’s license and resisting arrest, and his subsequent
prosecution and sentencing.1 Plaintiff alleges that the traffic stop and arrest violated Article 1
Section 10 of the Constitution, and characterizes his arrest as kidnapping, fraud and felonious
restraint.

He also alleges that his arrest, prosecution and sentencing were the result of a

conspiracy among the various defendants. Regarding the Adair County Jail, plaintiff alleges that
it lacked a proper law library.

Plaintiff seeks $1,000,000.00 in damages, the dismissal of his

criminal case, and the right to drive without a driver’s license.

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Cause Number 16LI-CR00106-01, in which plaintiff pled guilty to driving while revoked/suspended and resisting
arrest and fleeing, and was sentenced to a four-year term of incarceration.

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Discussion
Plaintiff is before the Court in forma pauperis, meaning the Court has a duty to dismiss
the case at any time if it determines that fails to state a claim upon which relief can be granted, is
frivolous, or malicious. 28 U.S.C. § 1915(e)(2). Upon consideration, the Court determines that
plaintiff’s amended complaint is subject to dismissal because it fails to state a claim upon which
relief can be granted and also because it is frivolous.
A complaint fails to state a claim upon which relief can be granted if it does not plead
Aenough facts to state a claim to relief that is plausible on its face.@ Twombly, 550 U.S. at 570.
The amended complaint is silent regarding whether the Sheriff’s Office defendant and the police
officer defendants are being sued in their official or individual capacities. Where a “complaint is
silent about the capacity in which [plaintiff] is suing defendant, [a district court must] interpret
the complaint as including only official-capacity claims.” Egerdahl v. Hibbing Community
College, 72 F.3d 615, 619 (8th Cir. 1995); see also 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 him or her. To state a claim against a municipality or a
government official in his or her official capacity, plaintiff must allege that a policy or custom of
the municipality is responsible for the alleged constitutional violation. Monell v. Dept. of Social
Services, 436 U.S. 658, 690-91 (1978). In the case at bar, the amended complaint contains no
allegations that a policy or custom of the government entity that employed the Sheriff’s Office
defendant or the police officer defendants was responsible for the alleged violations of plaintiff’s
constitutional rights. As a result, it fails to state a claim upon which relief can be granted with
respect to those defendants, and is subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B).

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The amended complaint is also subject to dismissal because it is frivolous. Id; Neitzke v.
Williams, 490 U.S. 319, 325 (1989) (complaint is frivolous if it lacks “an arguable basis either in
law or in fact.”) Plaintiff’s claims against the Adair County Jail are legally frivolous because
that defendant is not a suable entity. See Marsden v. Fed. Bureau of Prisons, 856 F. Supp. 832,
836 (S.D. N.Y. 1994) (jails are not entities amenable to suit); 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”); Dean v. Barber, 951 F.2d 1210, 1214–15 (11th Cir. 1992)
(“[s]heriff's departments and police departments are not usually considered legal entities subject
to suit”); McCoy v. Chesapeake Correctional Center, 788 F. Supp. 890 (E.D. Va. 1992) (local
jails are not “persons” under § 1983). Similarly, Judges, Pierson v. Ray, 386 U.S. 547 (1967)
and prosecutors, Imbler v. Pachtman, 424 U.S. 409 (1976) may not be held liable for damages
under § 1983 for the performance of their respective duties in judicial proceedings.
Plaintiff’s claims would fail even if he had properly alleged them against a proper partydefendant. Article 1, Section 10 of the United States Constitution, cited by plaintiff, does not
grant plaintiff the right to operate a motor vehicle without a valid driver’s license, nor does it
protect him from being pulled over and arrested for doing so. Plaintiff’s allegations that his
arrest, prosecution and sentencing were the result of a conspiracy among the defendants are
conclusory and nonsensical, and fail to plausibly suggest entitlement to relief. See Iqbal, 129 S.
Ct. at 1951. Finally, obtaining dismissal of a state conviction and being granted the right to drive
a car without a valid driver’s license are not remedies available in a § 1983 action. See Heck v.
Humphrey, 114 S.Ct. 2364, 2372 (1994).
Accordingly,

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IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in forma
pauperis (Docket No. 10) is granted.
IT IS FURTHER ORDERED that the Clerk of Court shall not issue process or cause
process to issue upon the amended complaint because it fails to state a claim upon which relief
can be granted and is frivolous.
IT IS FURTHER ORDERED that plaintiff’s amended complaint and all of his causes
of action against all defendants are hereby DISMISSED without prejudice. A separate order of
dismissal will be entered herewith.
IT IS FURTHER ORDERED that an appeal from this dismissal would not be taken in
good faith.
Dated this 18th day of October, 2016.

E. RICHARD WEBBER
UNITED STATES DISTRICT JUDGE

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