Hunter v. Byrant et al
Filing
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MEMORANDUM AND ORDER. (see order for details) 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 $.83 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 remit tance 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 or fails to state a claim upon which relief can be granted, or both. IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [Doc. # 4 ] is DENIED AS MOOT. An Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge E. Richard Webber on 10/04/2012. (CBL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL HUNTER,
Plaintiff,
v.
PAULA PERKINS, et al.,
Defendants.
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No. 4:12CV01592 ERW
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
46380), an inmate at St. Louis City Justice 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 $.83. See 28 U.S.C. § 1915(b)(1). Furthermore,
based upon a review of the complaint, the Court finds that the complaint 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
$4.17, and an average monthly balance of $.98. Plaintiff has insufficient funds to pay
the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of
$.83, 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). An action is malicious if it is
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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).
To determine whether an action fails to state a claim upon which relief can be
granted, the Court must engage in a two-step inquiry. First, the Court must identify the
allegations in the complaint that are not entitled to the assumption of truth. Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009). These include “legal conclusions” and
“[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements.” Id. at 1949. Second, the Court must determine whether the
complaint states a plausible claim for relief. Id. at 1950-51. This is a “context-specific
task that requires the reviewing court to draw on its judicial experience and common
sense.” Id. at 1950. The plaintiff is required to plead facts that show more than the
“mere possibility of misconduct.” Id. The Court must review the factual allegations
in the complaint “to determine if they plausibly suggest an entitlement to relief.” Id.
at 1951. When faced with alternative explanations for the alleged misconduct, the
Court may exercise its judgment in determining whether plaintiff’s conclusion is the
most plausible or whether it is more likely that no misconduct occurred. Id. at 1950,
51-52.
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The Complaint
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his
civil rights. Named as defendants are: Paula Perkins Bryant (Circuit Judge); Timothy
Boyer (Circuit Attorney/Prosecutor); Courtney Harness (Public Defender); St. Louis
City Sheriff’s Department; and the St. Louis City Justice Center.
Plaintiff claims that he was falsely held by the St. Louis Department of
Corrections from March 16, 2012 to March 27, 2012 after his case was dismissed by
Judge Perkins Bryant. Plaintiff blames defendants for not providing notice to the
Department of Corrections such that he could be released from custody. Plaintiff seeks
monetary damages for the alleged false imprisonment.
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. To state a claim against a
municipality or a government official in his or her official capacity, plaintiff must
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allege that a policy or custom of the municipality is responsible for the alleged
constitutional violation. Monell v. Department 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 municipality 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.
Additionally, plaintiff’s complaint is legally frivolous as to Judge Perkins
Bryant because she is “entitled to absolute immunity for all judicial actions that are
not ‘taken in a complete absence of all jurisdiction.’” Penn v. United States, 335
F.3d 786, 789 (8th Cir. 2003) (quoting Mireles v. Waco, 502 U.S. 9, 11-12 (1991)).
Plaintiff’s claim against the St. Louis City Sheriff’s Department and the St.
Louis City Justice Center are legally frivolous because the Sheriff’s Department and
the Jail are not suable entities. 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.”); Catlett v. Jefferson County, 299 F. Supp. 2d 967,
968-69 (E.D. Mo. 2004).
Plaintiff’s complaint is legally frivolous as to defendant Boyer because, where
“the prosecutor is acting as advocate for the state in a criminal prosecution, [] the
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prosecutor is entitled to absolute immunity.” Brodnicki v. City of Omaha, 75 F.3d
1261, 1266 (8th Cir. 1996).
And lastly, the complaint fails to state a claim upon which relief can be
granted against defendant Harness because “a public defender does not act under
color of state law when performing a lawyer's traditional functions as counsel to a
defendant in a criminal proceeding.” Polk County v. Dodson, 454 U.S. 312, 325
(1981).
As a result of the aforementioned, this action shall be dismissed without
prejudice.
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 $.83 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.
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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
or fails to state a claim upon which relief can be granted, or both.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of
counsel [Doc. #4] is DENIED AS MOOT.
An Order of Dismissal will accompany this Memorandum and Order.
So Ordered this 4th day of October, 2012.
E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE
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