McGinnist v. Sachse et al
Filing
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MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis Doc. 2 is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $1.75 within thirty (30) days of the date of this Or der. 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 proce eding. IT IS FURTHER ORDERED that the Clerk shall mail to plaintiff a copy of the Courts Prisoner Civil Rights Complaint form. IT IS FURTHER ORDERED that plaintiff shall file an amended complaint within thirty(30) days of the date of this Memorandum and Order. Signed by District Judge John A. Ross on 9/10/2012. (RAK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
EDWARD McGINNEST,
Plaintiff,
v.
JENNIFER SACHSE, et al.,
Defendants.
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No. 4:12CV1452 JAR
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Edward McGinnest
(registration no. 1092759), an inmate at Crossroads 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 $1.75. See 28 U.S.C.
§ 1915(b)(1). Additionally, the Court will allow plaintiff to file 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
$8.75, and an average monthly balance of $1.30. Plaintiff has insufficient funds to
pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee
of $1.75, 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,
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31 (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. Named as defendants are
Jennifer Sachse, Warden of the Missouri Eastern Correctional Center (“MECC”);
Brenda Short, Assistant Warden; and Michael Vernaci, Correctional Officer.
Plaintiff alleges that on July 25, 2010, defendant Vernaci sprayed him with
pepper spray without cause. Plaintiff claims that defendants Sachse and Short denied
his grievances.
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).
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Naming a government official in his or her official capacity is the equivalent of
naming the government entity that employs the official, in this case the State of
Missouri. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). “[N]either
a State nor its officials acting in their official capacity are ‘persons’ under § 1983.”
Id. As a result, the complaint fails to state a claim upon which relief can be granted.
Furthermore, “[o]nly persons who cause or participate in the [Constitutional]
violations are responsible. Ruling against a prisoner on an administrative complaint
does not cause or contribute to the violation.” George v. Smith, 507 F. 3d 605, 609
(7th Cir. 2007) (citations omitted). As a result, the complaint is legally frivolous as
to defendants Sachse and Short.
Because plaintiff is proceeding pro se, the Court will allow plaintiff to file an
amended complaint rather than dismissing it at this time. Plaintiff has thirty days from
the date of this Order to file an amended complaint, in order to cure the defects in the
original 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 $1.75 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 FURTHER ORDERED that plaintiff shall file an amended complaint
within thirty(30) days of the date of this Memorandum and Order.
Dated this 10th day of September, 2012.
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
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