Jones v. City of St. Louis

Filing 8

MEMORANDUM AND ORDER. IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [Doc. #3] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $3.27 within thirty (30) days of the date of this O rder. 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 this action is DISMISSED without prejudice. IT IS FURTHER ORDERED that all other pending motions are DENIED as moot. 3 Signed by Honorable Jean C. Hamilton on 6/14/2011. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MYRON JONES,
Plaintiff,
v.
CITY OF ST. LOUIS, et al.,
Defendants.

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No. 4:11CV917 JCH

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Myron Jones (registration no.
78322), an inmate at St. Louis City Justice Center, for leave to commence this action
without payment of the required filing fee. For the reasons stated below, the Court
finds that plaintiff does not have sufficient funds to pay the entire filing fee and will
assess an initial partial filing fee of $3.27. See 28 U.S.C. § 1915(b)(1). Furthermore,
based upon a review of the complaint, the Court finds that the complaint should be
dismissed 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
$16.33, and an average monthly balance of $1.35. Plaintiff has insufficient funds to
pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee
of $3.27, 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); Denton v. Hernandez, 504 U.S. 25, 31
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(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 “enough facts to state a
claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007).
The Complaint
Plaintiff brings this action under 42 U.S.C. § 1983. Named as defendants are the
City of St. Louis, Robert Singh (Police Officer), and Michael Schwartze (same).
Plaintiff alleges that his Fourth Amendment right to be free from unreasonable searches
and seizures was violated when Singh and Schwartz arrested him on July 9, 2010.
Plaintiff says he was sitting in his car in front of a vacant building when Singh
and Schwartze approached his vehicle and asked him what he was doing. Plaintiff
claims he told the officers he was waiting for a female friend. Plaintiff states that the
officers uttered racial epithets towards him and told him to get out of the vehicle.
Plaintiff says he refused to cooperate with the officers and went to grab his cell phone.
Plaintiff maintains that Schwartze responded by pulling his firearm , opening the car
door, and pulling plaintiff from his vehicle.

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Plaintiff claims that Singh then searched plaintiff’s vehicle and found a bottle
containing pills, which Singh claimed were illegal drugs. Plaintiff avers that the officers
then attempted to give plaintiff cash to become a paid police informant, but plaintiff
says he refused the cash. Plaintiff says he was then arrested and processed.
Plaintiff states that he was on parole and house arrest at the time of the incident.
Discussion
The complaint is silent as to whether 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); 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
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
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fails to state a claim upon which relief can be granted as to each of the named
defendants.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. #3] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of
$3.27 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 this action is DISMISSED without
prejudice.
IT IS FURTHER ORDERED that all other pending motions are DENIED as
moot.
Dated this 14th day of June, 2011.

/s/ Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE

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