Saling v. St. Francois County Jail and Sheriff's Department

Filing 5

MEMORANDUM AND ORDER: 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 $3.33 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 origina l proceeding. IT IS FURTHER ORDERED that plaintiff shall submit an amended complaint no later than thirty (30) days from the date of this Memorandum and Order. IT IS FURTHER ORDERED that the Court shall mail to plaintiff a copy of the Court's form Prisoner Civil Rights Complaint. (Response to Court due by 7/20/2011.) Signed by Honorable Catherine D. Perry on June 20, 2011. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DALLAS C. SALING,

)
)
Plaintiff,
)
)
v.
)
)
ST. FRANCOIS COUNTY JAIL, et al., )
)
Defendants.
)

No. 4:11CV1058 CDP

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Dallas Saling, an inmate at
St. Francois County Jail, 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 $3.33. See 28 U.S.C. § 1915(b)(1). Additionally, the Court will order
plaintiff to submit an amended 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 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
$16.67, and an average monthly balance of $0.00. Plaintiff has insufficient funds to
pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee
of $3.33, 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, 112 S.
Ct. 1728, 1733 (1992). An action is malicious if it is undertaken for the purpose of
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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, 127 S. Ct. 1955, 1974 (2007).
The Complaint
Plaintiff brings this action under 42 U.S.C. § 1983. Named as defendants are
the St. Francois County Jail (the “Jail”), the St. Francois Sheriff’s Department,
Rodney Unknown (nurse), Unknown Ramsey, Unknown Cook, and Unknown Tucker
(officer).
The complaint is comprised of separate notes plaintiff took down during the
months of May and June 2011. Plaintiff alleges that while he has been detained at the
Jail he has, at times, been denied access to his medications, which include metoprolol
(blood pressure), trazadone (for sleep), Topamax (seizures), Wellbutrin (depression),
Buspar (anxiety), Peri-Colace (stool softener), Byscodyl (laxative), Claritin
(allergies), and Flonase (same). Plaintiff does say, however, that at times he has
received some of his medications, including metoprolol and Buspar. Plaintiff claims
he has had blood in his urine as a result of missing his blood pressure medication.

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Discussion
Plaintiff’s claims against the Jail and the Sheriff’s Department are legally
frivolous because these defendants are not suable entities. 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.”); Catlett v. Jefferson County,
299 F. Supp. 2d 967, 968-69 (E.D. Mo. 2004) (same).
The complaint is silent as to whether the individual 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
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constitutional rights. As a result, the complaint fails to state a claim upon which
relief can be granted.
“Liability under § 1983 requires a causal link to, and direct responsibility for,
the alleged deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th
Cir. 1990); see also Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim not
cognizable under § 1983 where plaintiff fails to allege that defendant was personally
involved in or directly responsible for the incidents that injured plaintiff); Boyd v.
Knox, 47 F.3d 966, 968 (8th Cir. 1995) (respondeat superior theory inapplicable in
§ 1983 suits). In the instant action, plaintiff has not set forth any facts indicating that
defendants were directly involved in or personally responsible for the alleged
violations of his constitutional rights. As a result, the complaint fails to state a claim
upon which relief can be granted.
The Federal Rules of Civil Procedure require parties to formulate their
pleadings in an organized and comprehensible manner. Even pro se litigants are
required to abide by the Federal Rules. E.g., Williams v. Harmon, No. 07-3800, 2008
WL 4331125 (8th Cir. 2008) (unpublished slip opinion); United States v. Wilkes, 20
F.3d 651, 653 (5th Cir.1994). Federal Rule of Civil Procedure 8(a)(2) requires that
a complaint contain a “short and plain statement” of a plaintiff's claims. Fed. R. Civ.
P. 8(a)(2). Rule 8(d)(1) provides that although no technical forms of pleadings are
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required, each claim shall be “simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1).
Rule 10(b) directs parties to separate their claims within their pleadings and provides
that the contents of which shall be “limited as far as practicable to a single set of
circumstances.” Fed. R. Civ. P. 10(b). Rule 10(b) further requires that where “doing
so would promote clarity, each claim founded on a separate transaction or occurrence
. . . must be stated in a separate count . . .” Id. The complaint does not comply with
Rules 8 or 10 because it is rambling, inarticulate, and fails to plainly demonstrate that
any of the individual defendants have violated plaintiff’s civil rights.
Because plaintiff is pro se and is potentially suffering from real medical
problems, the Court will not dismiss the case at this time. Instead, the Court will give
plaintiff the opportunity to file an amended complaint. Plaintiff shall have thirty days
from the date of this Order to file an amended complaint. Plaintiff is warned that the
filing of an amended complaint replaces the original complaint, and claims that are
not realleged are deemed abandoned. E.g., In re Wireless Telephone Federal Cost
Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005). If plaintiff fails to file
an amended complaint within thirty days, the Court will dismiss this action without
prejudice.
Accordingly,

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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 $3.33 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 plaintiff shall submit an amended
complaint no later than thirty (30) days from the date of this Memorandum and Order.
IT IS FURTHER ORDERED that the Court shall mail to plaintiff a copy of
the Court’s form Prisoner Civil Rights Complaint.
Dated this 20th day of June, 2011.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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