Blair v. Elsberry Police Department et al

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis 2 is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $.66 within thirty (30) days of the date of this Ord er. 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 origin al proceeding. IT IS FURTHER ORDERED that if plaintiff fails to pay the initial partial filing fee within thirty (30) days of the date of this Order, then this case will be dismissed without prejudice. IT IS FURTHER ORDERED that the Clerk shall issu e process or cause process to issue upon the complaint as to defendants Brown and Colbert. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendants Brown and Colbert shall reply to plaintiff's claims within the time provi ded by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint as to defendant Nikko, the Elsberry Police Department or the Lincoln County Sheriffs Department because, as to these defendants, the complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both.IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard. An appropriate Order of Partial Dismissal shall accompany this Memorandum and Order. Signed by Honorable Jean C. Hamilton on 11/4/10. (TRC)

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Blair v. Elsberry Police Department et al Doc. 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION DERRICK ALVIN BLAIR, Plaintiff, v. ELSBERRY POLICE DEPT., et al., Defendants. ) ) ) ) ) ) ) ) ) No. 4:10CV1973 JCH MEMORANDUM AND ORDER This matter is before the Court upon the motion of plaintiff (registration no. 506343), an inmate at Northeast Correctional Center, for leave to commence this action without payment of the required filing fee [Doc. #2]. 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 $.66. See 28 U.S.C. 1915(b)(1). Furthermore, after reviewing the complaint, the Court will partially dismiss the complaint and will order the Clerk to issue process or cause process to be issued on the non-frivolous portions of 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 Dockets.Justia.com 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 $3.29, and an average monthly balance of $.05. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $.66, which is 20 percent of plaintiff's average monthly deposit. 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 "lacks an arguable basis in either law or fact." Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is malicious if it is undertaken -2- 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 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." Id. The Court must review the factual allegations in the complaint "to determine if they plausibly suggest an entitlement to relief." Id. at 1951. When faced with alternative explanations for the alleged misconduct, the Court may exercise its judgment in determining whether plaintiff's conclusion is the most plausible or whether it is more likely that no misconduct occurred. Id. at 1950, 51-52. The Complaint Plaintiff brings this action pursuant to 42 U.S.C. 1983 alleging violations of his civil rights. Named as defendants are: the Elsberry Police Department; Lincoln County -3- Sheriff's Department; Sean Brown; Pat Colbert; and police dog, Nikko.1 Plaintiff claims that defendants Brown and Colbert used excessive force in effectuating his arrest. He asserts that they tased him, beat him, and encouraged the police dog, Nikko, to bite him, even though he was not resisting arrest. Plaintiff also claims, generally, that he was denied appropriate medical care after he was arrested, but he does not name the individual that denied him care. Plaintiff seeks monetary damages for the alleged unlawful conduct. Discussion Plaintiff's claims against defendants Brown and Colbert for excessive force survive initial review under 28 U.S.C. 1915. However, as plaintiff has not identified the exact person who denied him medical care, his claim for deliberate indifference to his medical needs fails to state a claim. Similarly, plaintiff's failure to identify specific claims against the Elsberry Police Department and the Lincoln County Sheriff's Department are fatal to his request for relief against these entities. See, e.g., Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) ("Liability under 1983 requires a causal link to, and direct responsibility for, the alleged deprivation of rights."); see also Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim not cognizable under 1983 where plaintiff fails to allege defendant was personally involved in or directly 1 Mistakenly spelled "Mikko" on the docket. -4- responsible for incidents that injured plaintiff); Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995) (respondeat superior theory inapplicable in 1983 suits); see also, 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."); Catlett v. Jefferson County, 299 F. Supp. 2d 967, 968-69 (E.D. Mo. 2004). Lastly, plaintiff cannot sustain a claim against Nikko, the police dog, as Nikko is not a "person" subject to suit under 1983. Accordingly, IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $.66 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 if plaintiff fails to pay the initial partial filing fee within thirty (30) days of the date of this Order, then this case will be dismissed without prejudice. -5- IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to issue upon the complaint as to defendants Brown and Colbert. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. 1997e(g)(2), defendants Brown and Colbert shall reply to plaintiff's claims within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint as to defendant Nikko, the Elsberry Police Department or the Lincoln County Sheriff's Department because, as to these defendants, the complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both. IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard. An appropriate Order of Partial Dismissal shall accompany this Memorandum and Order. Dated this 4th day of November, 2010. /s/ Jean C. Hamilton JEAN C. HAMILTON UNITED STATES DISTRICT JUDGE -6-

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