Saling v. St. Francois County Jail

Filing 6

MEMORANDUM AND ORDER; IT IS HEREBY ORDERED that plaintiff's "motion for leave to appeal informa pauperis" [Doc. # 5 ], which the Court has liberally construed as a motion to proceed without the payment of partial filing fees in the ins tant action, is granted. IT IS FURTHER ORDERED that the Clerk shall docket this case as Dallas C. Saling v. St. Francois County Jail, Unknown Ramsey, Daniel Smith, Hardy White, Darren Cook, Richard Ett, Unknown Gilore, and Rodney Harris. IT IS FURTHE R ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint, because the complaint is legally frivolous and fails to state a claim upon which relief may be granted. See 28 U.S.C.§ 1915(e)(2)(B). IT IS FURTHER OR DERED that plaintiff's original motion for leave to proceed in forma pauperis [Doc. # 2 ] and motion for appointment of counsel [Doc. # 3 ] are denied as moot. A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by Honorable Carol E. Jackson on 03/02/2012; (DJO)

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

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

No. 4:11-CV-2014-CEJ

MEMORANDUM AND ORDER
This matter is before the Court upon review of Dallas Saling’s “motion for
leave to appeal in forma pauperis” [Doc. #5], which the Court will liberally construe
as a motion to proceed without the payment of any partial filing fees.1 Because
plaintiff states that he has been unable to obtain a prison account statement, the Court
will grant his motion and will not assess an initial partial filing fee at this time. See
28 U.S.C. § 1915(b)(1).

1

On December 9, 2011, the Court ordered plaintiff to submit a certified copy
of his prison account statement [Doc. #4]. On December 15, 2011, plaintiff filed a
document entitled “Motion and Affidavit for Permission to Appeal In Forma
Pauperis” [Doc. #5], stating “I have asked repeatedly for things such as my prison
account statement. None or nothing is being presented and I have filed grievances.”

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
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 (“SFCJ”),2 Unknown Ramsey (Deputy), Daniel Smith
(Jail Administrator and Sergeant), Hardy White (“Ranking Official”), Darren Cook
2

The Court notes that on May 25, 2011, plaintiff filed a similar action against
St. Francois County Jail and St. Francois County Sheriff’s Department. See Saling
v. St. Francois County Jail, No. 4:11-CV-958-DDN (E.D.Mo.). On May 31, 2011,
the action was dismissed pursuant to 28 U.S.C. § 1915(e) on the ground that neither
defendant is a suable entity.
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(Shift Supervisor), Richard Ett (Deputy), Unknown Gilore (Deputy), and Rodney
Harris (Nurse).3 Plaintiff alleges that he was “pulled off ten medications when he
entered [SFCJ] on April 26, 2011.” He states that he had been taking a variety of
medications for blood pressure, allergies, mood stabilization, anxiety, depression,
muscle tension, sleep, and water retention, as well as vitamins for “proper immunity
functions.” Plaintiff claims that he is only being given one medicine, “Metoprolol,”
but it is for 25 mg, whereas his physician had prescribed “12.5 m” twice daily. He
states, “getting my medications correct seems to be a problem or game to the people
who work here.” For relief, plaintiff seeks a transfer to the Calloway County Jail. He
also states, seemingly contradictorily, that he is “filing for the proper compensation,”

3

The Court notes that on June 10, 2011, plaintiff filed another 42 U.S.C. § 1983
action arising out of the alleged deprivation of medications at the St. Francois County
Jail. See Saling v. St. Francois County Jail, No. 4:11-CV-1058-CDP (E.D.Mo.). In
his first amended complaint, plaintiff named the following parties as defendants: St.
Francois County Jail, Unknown Ramsey, Unknown Millstad, Darren Cook, Rodney
Harris, K. Glore, Richard Ett, and Unknown Dear. On August 2, 2011, the action was
dismissed, without prejudice, pursuant to 28 U.S.C. § 1915(e) and Rule 41(b) of the
Federal Rules of Civil Procedure. The Court held that the Jail is not a suable entity,
the amended complaint failed to state a claim against the individual defendants in
their official capacity, and plaintiff failed to set forth any facts against Ramsey, Cook,
Glore, Ett, or Dear. In addition, the Court found that plaintiff had failed to pay the
initial partial filing fee, as previously ordered. Plaintiff appealed, and the case is
presently pending in the United States Court of Appeals for the Eighth Circuit. See
Saling v. St. Francois County Jail and Sheriff’s Department, No. 11-3669 (8th Cir.).
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and that he is not claiming either actual or punitive monetary damages for the acts
alleged in the complaint.
Discussion
Plaintiff brings this action against the individual defendants in their official
capacities. See Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th Cir.
1995)(where a complaint is silent about defendant’s capacity, Court must interpret the
complaint as including official-capacity claims); 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, a 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 such, the complaint fails to state a claim upon which relief
can be granted as to defendants Ramsey, Smith, White, Cook, Ett, Gilore, and Harris.
Plaintiff’s claims against SFCJ are legally frivolous because this defendant is
not a suable entity. See Marsden v. Fed. Bureau of Prisons, 856 F. Supp. 832, 836
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(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).
The transfer of a prisoner to another prison is entirely within the discretion of
prison officials, Lyon v. Farrier, 727 F.2d 766, 768 (8th Cir. 1984), and prisoners
have no justifiable expectation that they will be incarcerated in any particular prison
within a state. Olim v. Wakinekona, 461 U.S. 238, 245 (1983); Murphy v. Missouri
Dept. of Correction, 769 F.2d 502, 503 (8th Cir. 1985). Any protected interest
plaintiff might have in being incarcerated in a particular state prison would have to
be created by state law. See Hewitt v. Helms, 459 U.S. 460, 469 (1983). Plaintiff has
failed to allege the existence of such a law.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s “motion for leave to appeal in
forma pauperis” [Doc. #5], which the Court has liberally construed as a motion to
proceed without the payment of partial filing fees in the instant action, is granted.
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IT IS FURTHER ORDERED that the Clerk shall docket this case as Dallas
C. Saling v. St. Francois County Jail, Unknown Ramsey, Daniel Smith, Hardy White,
Darren Cook, Richard Ett, Unknown Gilore, and Rodney Harris.
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 and
fails to state a claim upon which relief may be granted.

See 28 U.S.C.

§ 1915(e)(2)(B).
IT IS FURTHER ORDERED that plaintiff’s original motion for leave to
proceed in forma pauperis [Doc. #2] and motion for appointment of counsel [Doc. #3]
are denied as moot.
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 2nd day of March, 2012.

UNITED STATES DISTRICT JUDGE

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