Christian v. St. Louis Board of Police Commissioners et al

Filing 5

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 HEREBY ORDERED that plaintiff's motion to appoint counsel [Doc. 3 ] is DENIED as moot. 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 shall accompany this Memorandum and Order. Signed by District Judge Catherine D. Perry on 04/03/2013. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FRED E. CHRISTIAN,
Plaintiff,
v.
ST. LOUIS BOARD OF POLICE,
COMMISSIONERS, et al.,
Defendants.

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No. 4:13CV466 CDP

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Fred Christian for leave to
commence this action without prepayment of the filing fee pursuant to 28 U.S.C.
§ 1915. Upon consideration of the financial information provided with the motion,
the Court finds that plaintiff is financially unable to pay any portion of the filing fee.
As a result, plaintiff will be granted leave to proceed in forma pauperis pursuant to
28 U.S.C. § 1915. Additionally, the Court has reviewed the amended complaint and
will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).
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); Denton v. Hernandez, 504 U.S.
25, 31 (1992). 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). A complaint fails to state a claim 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 Amended Complaint
Plaintiff brings this action under 42 U.S.C. § 1983. Named as defendants are
the City of St. Louis, the St. Louis Board of Police Commissioners (the “Board”), the
Missouri Department of Revenue (the “Department”), Bette Battle Turner (Member,
the Board), Francis Slay (same), Col. Richard Gray (same), Col. Jerry Lee (same), and
Col. Thomas Irwin (same). Plaintiff sues the individual Board members in their
official capacities only. Plaintiff seeks monetary relief.
Plaintiff asserts that on April 16, 2006, the Board members filed false affidavits
with the Department stating that plaintiff’s vehicle was towed by the police
department and that it had been abandoned. Plaintiff says that the Board members
then sold the vehicle to U-Wrench It, a salvage company. Plaintiff alleges that the
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Board members filed a false affidavit stating that plaintiff had been noticed by
certified mail of the sale.
Plaintiff claims that in 2010 the Department refused to issue him a title on the
vehicle. He also claims that in 2010 the Department cancelled the license plates on
the vehicle.
Discussion
“Although the statute of limitations is an affirmative defense, a district court
may properly dismiss an in forma pauperis complaint under 28 U.S.C. § 1915[] when
it is apparent the statute of limitations has run.” Myers v. Vogal, 960 F.2d 750, 751
(8th Cir. 1992). Section 1983 claims are analogous to personal injury claims and are
subject to Missouri’s five-year statute of limitations. Sulik v. Taney County, Mo.,
393 F.3d 765, 766-67 (8th Cir. 2005); Mo. Rev. Stat. § 516.120(4). Plaintiff’s claims
regarding the Board member’s actions in 2006 occurred more than five years before
the complaint was filed. As a result, these claims are barred by the statute of
limitations, and the Court will dismiss these claims under 28 U.S.C. § 1915(e).
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, plaintiff must allege that a policy
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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 alleged violations of plaintiff’s
constitutional rights. As a result, the complaint fails to state a claim upon which
relief can be granted as to the individual members of the Board. Moreover, the
complaint fails to state a claim against the City of St. Louis for this reason as well.
The complaint is legally frivolous as to the St. Louis Board of Police
Commissioners because it is not a suable entity. Edwards v. Baer, 863 F.2d 606, 609
(8th Cir. 1988).
Finally, the complaint is legally frivolous as to the Missouri Department of
Revenue. E.g., Barket, Levy & Fine, Inc. v. St. Louis Thermal Energy Corp., 948
F.2d 1084, 1086 (8th Cir. 1991) (agency exercising state power is not “person”
subject to § 1983 suit).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. 2] is GRANTED.
IT IS HEREBY ORDERED that plaintiff’s motion to appoint counsel [Doc.
3] is DENIED as moot.
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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.
An Order of Dismissal shall accompany this Memorandum and Order.
Dated this 3rd day of April, 2013.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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