Bonds v. City of St. Louis et al

Filing 4

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 the plaintiff shall pay an initial filing fee of $5.20 within thirty (30) days of the dat e 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. ( Initial Partial Filing Fee due by 4/10/2013.). Signed by District Judge Carol E. Jackson on 3/11/13. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DONNELL BONDS,
Plaintiff,
v.
CITY OF ST. LOUIS, et al.,
Defendants.

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No. 4:13CV250 CEJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
11970), an inmate at St. Louis County 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 $5.20. 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
$26.00, 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
$5.20, 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.
The Complaint
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Plaintiff, an inmate at St. Louis County Justice Center, brings this action pursuant
to 42 U.S.C. § 1983, alleging violations of his civil rights. Named as the defendants
in this action are the City of St. Louis and the “St. Louis City Police Dept. (official
capacity).”
Plaintiff alleges that St. Louis City police officers used excessive force in
attempting to arrest him. In the complaint, plaintiff describes the events surrounding
the encounter with the police and alleges that he did not resist arrest. Plaintiff alleges
that he experienced convulsions and sustained injuries to his head as a result of the
police officers’ conduct. He seeks both monetary and injunctive relief, including
removal of the officers from the police force.
Discussion
The complaint is frivolous against the St. Louis City Police Department because
police departments are not suable entities under § 1983. Ketchum v. City of West
Memphis, Ark., 974 F.2d 81, 82 (1992).
An assertion of “official capacity” does not save plaintiff’s claims against
defendants. “Policy or custom official-capacity liability is imposed under 42 U.S.C. §
1983 only for ‘constitutional deprivations visited pursuant to governmental “custom”
even though such a custom has not received formal approval through the body’s official

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decisionmaking channels.”1 Grayson v. Ross, 454 F.3d 802. 811 (8th Cir. 2006)
(quoting Monell v. Dep’t Of Soc. Serv. of City of New York, 436 U.S. 658, 690-91
(1978)); Tilson v. Forest City Police Dept., 28 F.3d 803, 807 (8th Cir. 1994) (policy
or custom analysis applies to police departments); but see Ketchum, 974 F.2d at 82
(police departments are not suable entities because they are subdivision of city
government). “[O]fficial capacity liability must be based on deliberate indifference or
tacit authorization.” Grayson, 454 F.3d at 811.
Plaintiff does not allege that the constitutional deprivations he suffered were the
result of a policy or custom of the City of St. Louis. Indeed, plaintiff does not allege
that either defendant was responsible for the alleged violations of his rights.
For these reasons, the complaint fails to state a claim upon which relief can be granted.
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The Eighth Circuit has declared that a "policy" and a "custom" are not
synonymous. A "policy" is an official policy, a deliberate choice of a guiding
principal or procedure made by the municipal official who has final authority
regarding such matters. A "custom" is a persistent widespread pattern of
unconstitutional conduct of which officials have notice and subsequently react with
deliberate indifference or tacit authorization. Mettler v Whitledge, 165 F.3d
1197, 1204 (8th Cir. 1999). The elements of a cause of action pursued under the
"custom" theory are: (1) the existence of a continuing widespread persistent pattern
of unconstitutional misconduct by the governmental entities employees, (2)
deliberate indifference to or tacit authorization of such conduct by the
governmental entities policy making officials after notice to the officials of that
misconduct; and (3) the plaintiff's injury by acts pursuant to the governmental
entities custom, i.e. proof that the custom was the moving force behind the
constitutional violation. Id.
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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
$5.20 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 11th day of March, 2013.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

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