Whittley v. Merechant et al

Filing 6

MEMORANDUM AND ORDER re: 2 ORDERED that plaintiff's motion to proceed in formapauperis [Doc. #2] is GRANTED. FURTHER ORDERED that plaintiff shall pay an initial filing fee of $55.30 within thirty (30) days of the date of this Order. FURTH ER 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 can be granted. A separate Order of Dismissal shall accompany this Memorandum and Order. ( Initial Partial Filing Fee due by 8/30/2012.). Signed by District Judge Jean C. Hamilton on 7/31/12. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BRANDON WHITTLEY,
Plaintiff,
v.
MIKE MERECHANT, et al.,
Defendants.

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No. 4:12-CV-1046-JCH

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Brandon Whittley
(registration no. 1145890) 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 therefore, the motion will be
granted and plaintiff will be assessed an initial partial filing fee. See 28 U.S.C. §
1915(b)(1). Furthermore, based upon a review of the complaint, the Court finds that
this action 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
$276.50, and an average monthly balance of $72.49. Plaintiff has insufficient funds to
pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee
of $55.30, 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 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.”
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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
that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(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).
The Complaint
Plaintiff, an inmate at the Tipton Correctional Center, seeks monetary relief in
this 42 U.S.C. § 1983 action against defendants Mike Merechant (Festus Police
Officer), Festus Police Department, and State of Missouri. Plaintiff alleges that
defendant Merechant illegally stopped, searched, arrested, and assaulted him, resulting
in physical injuries and medical expenses.
Discussion
Plaintiff brings this action against defendant Merechant in his official capacity.
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 pleading as
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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 is
legally frivolous as to defendant Merechant.
Plaintiff’s claims against the Festus Police Department and State of Missouri are
also legally frivolous. See Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82
(8th Cir. 1992)(police departments are not suable entities under § 1983); De La Garza
v. Kandiyohi County Jail, 2001 WL 987542, at *1 (8th Cir. 2001) (sheriff's
departments and police departments are not usually considered legal entities subject to
suit under § 1983); Will v. Michigan Dept. of State Police, 491 U.S. at 63 (a State is
absolutely immune from liability under § 1983).
For these reasons, the complaint will be dismissed as legally frivolous and for
failure to state a claim upon which relief can be granted.
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Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of
$55.30 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 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 can be granted. See 28 U.S.C. § 1915(e)(2)(B).
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 31st Day of July, 2012.

/s/Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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