McCall v. O'Fallon, Missouri Police Department et al

Filing 4

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [Doc. # 2 ] is GRANTED. 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. An Order of Dismissal will accompany this Memorandum and Order. Signed by Honorable Donald J. Stohr on 6/29/09. (KJF, )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION DARIN MCCALL, Plaintiff, v. O'FALLON POLICE DEPARTMENT, et al., Defendants. ) ) ) ) ) ) ) ) ) )

No. 4:09CV929 DJS

MEMORANDUM AND ORDER This matter is before the Court upon the motion of Darin McCall (registration no. 532735), an inmate at St. Charles County Department of Corrections, for leave to commence this action without payment of the required filing fee [Doc. #2]. The motion will be granted. Additionally, 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 six-month 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, until the filing fee is fully paid. Id. Plaintiff has submitted an affidavit and a certified copy of his prison account statement for the six-month period immediately preceding the submission of his complaint. A review of plaintiff's account indicates an average monthly deposit of $0.00 and a negative monthly balance. Plaintiff has insufficient funds to pay an initial partial filing fee. Accordingly, the Court will not assess a partial initial filing fee. 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 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 in either law or in fact." Neitzke v. Williams, 490 U.S. 319, 328 (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

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that is plausible on its face." Bell Atlantic Corp. v. Twombly, 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, 32-33 (1992); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Complaint Plaintiff brings this action under 42 U.S.C. § 1983. Named as defendants are the O'Fallon Police Department and Unknown Pleasant, a police officer for O'Fallon, Missouri. The complaint seeks monetary relief. Plaintiff alleges that on May 29, 2008, he fell asleep in the drive through of a Dairy Queen restaurant. Plaintiff says that Pleasant approached him and accused him of being under the influence of drugs or alcohol. Plaintiff claims that he was only exhausted because it was hot that day. Plaintiff states that Pleasant conducted a field sobriety test, and plaintiff claims that he failed the test because he was wearing sandals. Plaintiff maintains that he was on probation for DWI at the time. Plaintiff alleges that he was then arrested and taken to the O'Fallon police station. Plaintiff claims that a Breathalyzer test was conducted and that he blew 0.00.
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Plaintiff states that he then agreed to a urine test and the test "came back positive." Plaintiff believes that Pleasant tampered with the urine test out of malice towards plaintiff. Plaintiff says that Pleasant also found marijuana in plaintiff's car, which plaintiff states he had no knowledge of. Plaintiff believes that he is being wrongly imprisoned. Discussion Plaintiff's claim against the O'Fallon Police Department is legally frivolous because the Department is not a suable entity. Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 81 (8th Cir. 1992) (departments or subdivisions of local government are "not juridical entities suable as such."). The complaint is silent as to whether defendant Pleasant is being sued in his official or individual capacity. 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); 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, 491 U.S. 58, 71 (1989). 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
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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 fails to state a claim upon which relief can be granted. Accordingly, IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. #2] is GRANTED. 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. An Order of Dismissal will accompany this Memorandum and Order. Dated this 29th Day of June, 2009.

/s/Donald J. Stohr UNITED STATES DISTRICT JUDGE

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