Lebon v. St. Louis Metro Police Department et al

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Clerk of Court shall docket this case as Thomas Paul Lebon v. St. Louis Metro Police Department, Thomas Scanlon, and Daniel Isom. IT IS FURTHER ORDERED that plaintiff's motion for leave to pro ceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing fee of $1.75 within thirty (30) days from the date of this Order. Plaintiff is instructed to make his remittance payable to & quot;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 if plaintiff fails to pay the initial partial filing fee within thirty (30) days, without first showing good cause, the Court will dismiss this action without prejudice and without further notice to plaintiff. IT IS FURTHER ORDERED that plaintiff shall file an amended complaint on or before April 15, 2013, that complies with this Memorandum and Order. IT IS FURTHER ORDERED that, in addition to a copy of this Order, the Clerk shall mail plaintiff a copy of the Courts form for prisoners to file a "Complaint U nder the Civil Rights Act, 42 U.S.C. § 1983." IT IS FURTHER ORDERED that if plaintiff fails to comply with this Order, the Court will dismiss this action without prejudice and without further notice. If the case is dismissed for non-compli ance with this Order, the dismissal will not constitute a strike under 28 U.S.C. § 1915(g). ( Initial Partial Filing Fee due by 4/13/2013., Response to Court due by 4/15/2013.). Signed by Magistrate Judge Terry I. Adelman on 3/14/2013. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

THOMAS PAUL LEBON,
Plaintiff,
v.
ST. LOUIS METRO POLICE DEPT.
et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

No. 4:13-CV-256-TIA

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Thomas Paul Lebon
(registration no. 358989), an inmate at the Missouri Eastern Correctional Center, for
leave to commence this action without payment of the required filing fee [Doc. #2].
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 order 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 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 $.44. 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 balance.
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
2

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). 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).
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
3

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.
Moreover, in reviewing a pro se complaint under § 1915(e)(2)(B), the Court
must give the complaint the benefit of a liberal construction. Haines v. Kerner, 404
U.S. 519, 520 (1972). The Court must also weigh all factual allegations in favor of the
plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S.
25, 32 (1992).
The Complaint
Plaintiff, an inmate at the Missouri Eastern Correctional Center, seeks monetary
relief in this action brought pursuant to 42 U.S.C. § 1983 against defendants St. Louis
Metro Police Department, Officer Thomas Scanlon, and Chief of Police Daniel Isom.
Plaintiff alleges that he was severely beaten and denied medical treatment on or about
April 25, 2012, while he was being booked-in at the St. Louis Metropolitan Police
Station.
Discussion
The Court has reviewed the complaint under 28 U.S.C. § 1915(d) and believes
that, although plaintiff may be able to assert a claim based upon the denial of his
Constitutional rights, he has failed to state a claim upon which relief may be granted
4

at this time, because the complaint is silent as to whether he is suing the named
individual defendants in their official and/or individual capacities.1 In addition, he has
failed to set forth, in a simple, concise, and direct manner as to each named defendant,
the specific factual allegations supporting each of his claims. "Liability under § 1983
requires a causal link to, and direct responsibility for, the alleged deprivation of rights."
Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990); 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
responsible for incidents that injured plaintiff); Glick v. Sargent, 696 F.2d 413, 414-15
(8th Cir. 1983) (respondeat superior theory inapplicable in § 1983 suits). Moreover,
the Federal Rules of Civil Procedure require litigants to formulate their pleadings in an
organized and comprehensible manner. Even pro se litigants are obligated to abide by
the Federal Rules of Civil Procedure. See U.S. v. Wilkes, 20 F.3d 651, 653 (5th Cir.
1994); Boswell v. Honorable Governor of Texas, 138 F.Supp.2d 782, 785 (N.D. Texas
2000); Fed.R.Civ.P. 8(a)(2)(complaint should contain “short and plain statement” of
claims); Fed.R.Civ.P. 8(e)(2)(each claim shall be “simple, concise, and direct”);
Fed.R.Civ.P. 10(b)(parties are to separate their claims within their pleadings “the

"[N]either a State nor its officials acting in their official capacity are 'persons'
under § 1983." See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989).
1

5

contents of which shall be limited as far as practicable to a single set of
circumstances”). Although the Court is to give the complaint the benefit of a liberal
construction, the Court will not create facts or claims that have not been alleged.
Plaintiff is required, to the best of his ability, to set out in a simple, concise, and direct
manner, not only his constitutional claims, but also the facts supporting these claims as
to each named defendant.
Because plaintiff is proceeding pro se, the Court will allow him time to file an
amended complaint in accordance with this Memorandum and Order. In the amended
complaint, plaintiff shall complete in its entirety the court-provided form for filing a
complaint pursuant to 42 U.S.C. § 1983. Specifically, in the "Caption" of the form
complaint, plaintiff shall set forth the name of each defendant he wishes to sue and the
capacity in which he is suing the defendant (i.e., individual capacity, official capacity,
or both); and in the "Statement of Claim," plaintiff shall start by typing the first
defendant’s name, and under that name, he shall set forth in separate numbered
paragraphs the allegations supporting his claim(s) as to that particular defendant, as
well as the right(s) that he claims that particular defendant violated. Plaintiff shall
proceed in this manner with each of the named defendants, separately setting forth each
individual name and under that name, in numbered paragraphs, the allegations specific
to that particular defendant and the right(s) that he claims that particular defendant
6

violated. The amended complaint must contain short and plain statements showing that
plaintiff is entitled to relief, the allegations must be simple, concise, and direct, and the
numbered paragraphs must each be limited to a single set of circumstances. If plaintiff
needs more space, he may attach additional sheets of paper to the amended complaint
and identify them as part of the "Caption" or "Statement of Claim." Plaintiff shall sign
the amended complaint.
Although police departments, such as the St. Louis Metro Police Department,
are not suable entities under § 1983, Ketchum v. City of West Memphis, Ark., 974 F.2d
81, 82 (8th Cir. 1992), the Court will take no action as to the named defendants at this
time, because it is allowing plaintiff to amend his complaint. Plaintiff is advised that
his amended complaint will replace his original complaint and will be the only
complaint this Court reviews. The Court will not consider any claims that are not
included in the amended complaint, even if they were asserted in the earlier complaint.
In accordance with the foregoing,
IT IS HEREBY ORDERED that the Clerk of Court shall docket this case as
Thomas Paul Lebon v. St. Louis Metro Police Department, Thomas Scanlon, and
Daniel Isom.
IT IS FURTHER ORDERED that plaintiff's motion for leave to proceed in
forma pauperis [Doc. #2] is GRANTED.
7

IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing fee
of $1.75 within thirty (30) days from 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 if plaintiff fails to pay the initial partial
filing fee within thirty (30) days, without first showing good cause, the Court will
dismiss this action without prejudice and without further notice to plaintiff.
IT IS FURTHER ORDERED that plaintiff shall file an amended complaint on
or before April 15, 2013, that complies with this Memorandum and Order.
IT IS FURTHER ORDERED that, in addition to a copy of this Order, the
Clerk shall mail plaintiff a copy of the Court’s form for prisoners to file a "Complaint
Under the Civil Rights Act, 42 U.S.C. § 1983."
IT IS FURTHER ORDERED that if plaintiff fails to comply with this Order,
the Court will dismiss this action without prejudice and without further notice. If the

8

case is dismissed for non-compliance with this Order, the dismissal will not constitute
a “strike” under 28 U.S.C. § 1915(g).
Dated this 14th day of March, 2013.

/s/ Terry I. Adelman
UNITED STATES MAGISTRATE JUDGE

9