Bullocks v. Mayland Heights Police Department
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 $7.50 within thirty (30) days of the date of this O rder. 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 proc eeding. 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. An Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge John A. Ross on 1/29/2013. (RAK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
MARYLAND HEIGHTS POLICE
DEPARTMENT, et al.,
No. 4:12CV2401 JAR
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
1087756), an inmate at Southeast Correctional Center (“SECC”), 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 $7.50. 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
$37.50, and an average monthly balance of $0. Plaintiff has insufficient funds to pay
the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of
$7.50, 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
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 “contextspecific 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.
Plaintiff, an inmate at SECC, brings this action against the Maryland Heights
Police Department and several of its police officers pursuant to 42 U.S.C. § 1983
alleging violations of his civil rights. In addition to the Maryland Heights Police
Department, the following officers are named as defendants: Jamison White; Sandy
Vanderhack; John Wilson; John Partlock; Jeffery King; Chris Landuyt; Ryan Metz;
Scott Will; Gregory Johnston; Terry Kenniston; Chad Courson; Kelvin Stewart; Gil
Weingart; and Grant Crawley.
Plaintiff claims that in August of 2011, he was subjected to excessive force
during the course of an arrest. Plaintiff claims that he fought with and then ran from
several officers of the Maryland Heights Police Department when they were
attempting to arrest him. He states that he was hiding from the officers in a nearby
hotel room and when he came out of hiding he was chased by the officers and corned
on a load dock by “many” officers. Plaintiff claims that he was “tazed” twice and
“while the tasers were being removed,” he was struck once in the head with a hard
object and when he was being turned over for cuffing one of the officers drove his
knee into his back. Plaintiff asserts that he was verbally abused by several of the
officers and his head was bleeding. Plaintiff claims he was taken to the hospital where
he received an IV and a staple in his head as well as some motrin. Plaintiff asserts that
he continues to have back problems as a result of the incident.
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, in this case, the City of
Maryland Heights. 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
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 Maryland Heights 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.
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 $7.50 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 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.
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 28th day of January, 2013.
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
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