Nelson v. Wilcox et al

Filing 8

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that this action is DISMISSED without prejudice under 28 U.S.C. § 1915(e). IT IS FURTHER ORDERED that plaintiffs motion for summary judgment [Doc. 6] is DENIED as moot. An Order of Dismissal will be filed with this Memorandum and Order.. Signed by District Judge John A. Ross on 9/11/2012. (RAK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NICHOLAS NELSON,
Plaintiff,
v.
JAMES WILCOX, et al.,
Defendants.

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No. 4:12CV1299 JAR

MEMORANDUM AND ORDER
This matter is before the Court on review of plaintiff’s amended complaint
under 28 U.S.C. § 1915(e). Under 28 U.S.C. § 1915(e), the Court is required to
review the complaint and dismiss it if it is frivolous, malicious, or fails to state a claim
upon which relief can be granted. Having reviewed the case, the Court finds that it
is both frivolous and fails to state a claim upon which relief can be granted.
The Court reviewed the original complaint on August 20, 2012, and found that
it failed to state a claim upon which relief can be granted. The Court ordered plaintiff
to submit an amended complaint that cured the defects in the original complaint. On
September 6, 2012, plaintiff filed a motion for summary judgment, and on September
10, 2012, he submitted his amended complaint.
In the amended complaint, plaintiff sues Officer James Wilcox in his official
capacity, and he also names the Metropolitan St. Louis Police Department and the

Board of Police Commissioners as defendants.

Plaintiff alleges, in a wholly

conclusory manner, that Wilcox violated his Second Amendment rights when he
seized plaintiff’s guns during an arrest. Plaintiff further alleges that the Board of
Police Commissioners failed to correct the errors of their employees.
The amended complaint is frivolous because it is wholly conclusory and fails
to allege any facts that would, if proved, entitle plaintiff to relief.
Plaintiff’s claim against the Metropolitan St. Louis Police Department is also
legally frivolous because the Department is not a suable entity. 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.”).
The complaint is also legally frivolous as to the St. Louis Board of Police
Commissioners because it is not a suable entity. Jurisdiction can only be obtained by
suing its individual members. Edwards v. Baer, 863 F.2d 606, 609 (8th Cir. 1988).
The complaint is silent as to whether defendant Wilcox is being sued in his
official or individual capacity. 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
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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 against Wilcox.
There is no cause of action under 42 U.S.C. § 1983 for unconstitutional taking
of personal property where the state provides an adequate postdeprivation remedy.
E.g., Clark v. Kansas City Missouri School Dist., 375 F.3d 698, 703 (8th Cir. 2004).
Missouri provides the postdeprivation remedy of replevin for recovery of personal
property. Id.; Mo. R. Civ. P. 99.01-99.15. As a result, plaintiff’s claim against the
Department for failing to return his property fails to state a claim for this reason as
well.
For these reasons, the Court will dismiss the action under 28 U.S.C. § 1915(e).
Accordingly,

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IT IS HEREBY ORDERED that this action is DISMISSED without prejudice
under 28 U.S.C. § 1915(e).
IT IS FURTHER ORDERED that plaintiff’s motion for summary judgment
[Doc. 6] is DENIED as moot.
An Order of Dismissal will be filed with this Memorandum and Order.
Dated this 11th day of September, 2012.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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