Bond v. Smith et al
Filing
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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 $12.52 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 mail to plaintiff a copy of the Court's prisoner civil rights complaint form. IT IS HEREBY ORDERED that plaintiff shall submit an amended complaint no later than thirty (30) d ays from the date of this Order. If plaintiff fails to comply with this Order, the Court will dismiss this action without further proceedings. Signed by Honorable Rodney W. Sippel on 7/16/12. (cc: Prisoner Civil Rights Complaint form mailed to Plaintiff.) (ARL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FRENCHIE BOND,
Plaintiff,
v.
UNKNOWN SMITH, et al.,
Defendants.
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No. 4:12CV1188 RWS
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Frenchie Bond (registration
no. 1238512), an inmate at Algoa Correctional 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 $12.52. See 28 U.S.C. § 1915(b)(1).
Additionally, the Court will direct plaintiff to submit an amended complaint or face
dismissal of this action.
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
$62.59, 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 $12.52, 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 for excessive force. At all
times relevant to the complaint, plaintiff was confined at the St. Louis County Jail (the
“Jail”). The named defendants are Unknown Smith, Betty Barns, I. Lee, and Unknown
Sanners. Defendants are alleged to have been correctional officers at the Jail at the
time of the incident that led to the complaint.
Plaintiff alleges that defendant Smith twisted plaintiff’s handcuffs while escorting
him to administrative segregation. Plaintiff says this was done to cause him pain.
Plaintiff claims that defendants Barns and Lee “witnessed the incident on scene and
Officer Sanners was in the tower watching the abuse and said that ‘he will give
testimony on [plaintiff’s] behalf in a legal proceeding.’”
Plaintiff claims that he fell backwards down the stairs during the escort. Plaintiff
alleges that while he was lying on the ground Smith stood over him with clenched fists,
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as if he were going to hit plaintiff. Plaintiff says that Barns stepped in and took him to
administrative segregation without any further problems.
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
fails to state a claim upon which relief can be granted.
Moreover, “[l]iability under § 1983 requires a causal link to, and direct
responsibility for, the alleged deprivation of rights.” Madewell v. Roberts, 909 F.2d
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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 Barns, Lee, or Sanners were directly involved in or
personally responsible for the alleged violations of his constitutional rights. Plaintiff’s
only allegations against these defendants are that they were present, offered to provide
evidence against Smith, or stepped in to help him. As a result, the complaint fails to
state a claim upon which relief can be granted against Barns, Lee, or Smith for this
reason as well.
Because plaintiff is proceeding pro se, the Court will allow plaintiff to file an
amended complaint rather than dismissing the case at this time. 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.
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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 the plaintiff shall pay an initial filing fee of
$12.52 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 mail to plaintiff a copy of
the Court’s prisoner civil rights complaint form.
IT IS HEREBY ORDERED that plaintiff shall submit an amended complaint
no later than thirty (30) days from the date of this Order. If plaintiff fails to comply
with this Order, the Court will dismiss this action without further proceedings.
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 16th
day of July, 2012.
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
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