Saling v. St. Francois County Sheriff's Department et al

Filing 6

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 plaintiff shall pay an initial filing fee of $33.08 within thirty (30) days of the date of t his 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 a n original proceeding. IT IS FURTHER ORDERED that the Clerk of Court shall docket this case as Dallas C. Saling v. St. Francois County Sheriffs Department, John Doe (the current physician), Rodney Harris, Hardy White, Dennis Smith, Scott Moller, and Unknown Millstadt.IT IS FURTHER ORDERED that, as to defendants St. Francois County Sheriff's Department and John Doe, the Clerk shall not issue process or cause process to issue, 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). IT IS FURTHER ORDERED that defendants Rodney Harris, Hardy White, Dennis Smith, Scott Moller, and Unknown Millstadt are DISMISSED, without prejudice, because they are not pro perly joined in this action under Rule 20(a)(2) of the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel Doc. # 3 is DENIED as moot. A separate Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge John A. Ross on 10/23/12. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DALLAS C. SALING,

)
)
Plaintiff,
)
)
v.
)
)
ST. FRANCOIS COUNTY SHERIFF’S )
DEPARTMENT, et al.,
)
)
Defendants.
)

No. 4:12-CV-1596-JAR

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Dallas C. Saling (registration
no. N/A) 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).
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
$127.83, and an average monthly balance of $165.42. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing
fee of $33.08, which is 20 percent of plaintiff’s average monthly balance.
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.” Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is malicious when
it is undertaken for the purpose of harassing litigants and not for the purpose of
vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63
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(E.D.N.C. 1987), aff’d 826 F.2d 1059 (4th Cir. 1987). 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).
The Complaint
Plaintiff, an inmate at the St. Francois County Jail, seeks monetary and
injunctive relief in this action brought pursuant to 42 U.S.C. § 1983. Named as
defendants in the complaint, as liberally construed, are the St. Francois County
Sheriff’s Department, and jail employees John Doe (“the current physician”), Rodney
Harris, Hardy White, Dennis Smith, Scott Moller, and Unknown Millstadt.
In paragraph one of the complaint, plaintiff alleges that he has been “personally
singled out and retaliated against.” He claims that his personal doctor, Dr. Calmet,
prescribed him “proper & life-sustaining medication” that he is not receiving.
Plaintiff states, “This order was specifically denied & refused by the current physician
on call at this facility.” Plaintiff does not name the physician, and the Court will
liberally construe the allegations as being asserted against defendant John Doe, as well
as defendant St. Francois County Sheriff’s Department.
In the remaining paragraphs of the complaint, plaintiff asserts various claims
against defendants Rodney Harris, Hardy White, Dennis Smith, Scott Moller, and
Unknown Millstadt. Plaintiff claims that defendant Harris cancelled medication “on
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his own accord without previous doctor’s approval”; he is not being properly treated
for scabies; defendant Smith has not paid plaintiff’s hospital bill; defendant White has
not properly responded to plaintiff’s inquiry about “the problems occurring with
officials and with other inmates”; defendant White has placed plaintiff in cells with
“a very large Black man” and “two murderers and [a child molester], who assaulted
plaintiff; and defendants Millstadt and Moller have failed to do anything about the
bugs and asbestos in plaintiff’s cell, and they have destroyed plaintiff’s personal
property.
Discussion
I.

Permissive Joinder

At issue is whether the seven named defendants are properly joined in the
instant lawsuit. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (district court
should question joinder of defendants and claims in prisoner cases). The Court holds
that they are not.
Rule 18(a) of the Federal Rules of Civil Procedure states, “A party asserting a
claim to relief as an original claim, counterclaim, cross-claim, or third-party claim,
may join, either as independent or as alternate claims, as many claims, legal, equitable,
or maritime, as the party has against an opposing party.”
Rule 20(a)(2) of the Federal Rules of Civil Procedure allows for joinder of
defendants if “any right to relief is asserted against them jointly, severally, or in the
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alternative with respect to or arising out of the same transaction, occurrence, or series
of transactions or occurrences; and . . . any question of law or fact common to all
defendants will arise in the action.”
The allegations in paragraph one of the complaint do not pertain to the same
defendants or arise out of the same series of transactions and occurrences as those in
the remaining paragraphs of the complaint. As a result, defendants are not properly
joined under Rule 20(a)(2).
Because plaintiff’s allegations first address claims against defendants St.
Francois County Sheriff’s Department and John Doe, and because all defendants are
not properly joined under Rule 20(a)(2), the Court will dismiss this action without
prejudice as to defendants Rodney Harris, Hardy White, Dennis Smith, Scott Moller,
and Unknown Millstadt. If plaintiff wishes to bring claims against these individuals,
he must file separate complaints against them, in compliance with the Federal Rules
of Civil Procedure.
II.

Title 28 U.S.C. § 1915(e)(2)(B)

Having carefully reviewed plaintiff’s claims relative to the failure of defendants
St. Francois County Sheriff’s Department and John Doe to give plaintiff medication
prescribed by his personal physician, as set forth in paragraph one of the complaint,
the Court concludes that this action should be dismissed as legally frivolous. Sheriff’s
departments, such as the St. Francois County Sheriff’s Department, are not suable
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entities under § 1983. See Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82
(8th Cir. 1992); see also 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).
Moreover, to state a claim for unconstitutional medical mistreatment, a plaintiff
must plead facts sufficient to indicate deliberate indifference to serious medical needs.
Estelle v. Gamble, 429 U.S. 97, 106 (1976); Camberos v. Branstad, 73 F.3d 174, 175
(8th Cir. 1995). To show deliberate indifference, a plaintiff must allege that he
suffered objectively serious medical needs and that the defendants actually knew of
but disregarded those needs. Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir.
1997). Medical malpractice alone is not actionable under the Eighth Amendment.
Smith v. Clarke, 458 F.3d 720, 724 (8th Cir. 2006). To state a claim of deliberate
indifference, “the prisoner must show more than negligence, more even than gross
negligence, and mere disagreement with treatment decisions does not rise to the level
of a constitutional violation.” Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th
Cir. 1995). Similarly, legal conclusions and threadbare recitals of the elements of a
cause of action that are supported by mere conclusory statements are not entitled to
the assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009); see also
Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim not cognizable under
§ 1983 where plaintiff fails to allege defendant was personally involved in or directly
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responsible for incidents that injured plaintiff); Boyd v. Knox, 47 F.3d 966, 968 (8th
Cir. 1995)(theory of supervisory liability is inapplicable in § 1983 suits). In the
instant case, plaintiff has failed to assert any non-conclusory claims against defendant
John Doe, and the allegations that have been asserted against this defendant simply
do not rise to the level of deliberate indifference.
Furthermore, the Court notes that plaintiff is bringing this action against
defendant John Doe 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 complaint as 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
violations of plaintiff’s constitutional rights. As a result, the complaint is legally
frivolous and fails to state a claim upon which relief can be granted as to defendant
John Doe.
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For these reasons, the complaint will dismissed against defendants St. Francois
County Sheriff’s Department and John Doe, pursuant to § 1915(e)(2)(B).
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
$33.08 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 of Court shall docket this case
as Dallas C. Saling v. St. Francois County Sheriff’s Department, John Doe (“the
current physician”), Rodney Harris, Hardy White, Dennis Smith, Scott Moller, and
Unknown Millstadt.
IT IS FURTHER ORDERED that, as to defendants St. Francois County
Sheriff’s Department and John Doe, the Clerk shall not issue process or cause process
to issue, 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).
IT IS FURTHER ORDERED that defendants Rodney Harris, Hardy White,
Dennis Smith, Scott Moller, and Unknown Millstadt are DISMISSED, without
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prejudice, because they are not properly joined in this action under Rule 20(a)(2) of
the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of
counsel [Doc. #3] is DENIED as moot.
A separate Order of Dismissal will accompany this Memorandum and Order.
Dated this 23rd day of October, 2012.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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