Phillips v. Murray et al

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis Doc. # 2 is GRANTED. IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel Doc. # 4 is DENIED, as moot. IT IS FU RTHER ORDERED that 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 may be granted. See 28 U.S.C. § 1915(e)(2)(B). A separate Order of Dismissal shall accompany this Memorandum and Order. Dated this 12th day of June, 2013. Signed by District Judge John A. Ross on 6/12/2013. (RAK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CLINT PHILLIPS, III,
Plaintiff,
v.
CHRISTOPHER MURRAY, et al.,
Defendants.

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No. 4:13-CV-795-FRB

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Clint Phillips, III for leave
to commence this action without payment of the required filing fee.

Upon

consideration of the financial information provided with the completed application,
the Court finds that plaintiff is financially unable to pay any portion of the filing fee.
Therefore, plaintiff will be granted leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915(a).
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 at any time 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 either

in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). 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, 127 S. Ct. 1955, 1974 (2007).
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); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
The Complaint
Plaintiff seeks monetary relief in this action against defendants Christopher
Murray (Police Officer) and the St. Louis Police Department. Plaintiff alleges that
he was falsely arrested and imprisoned and that Officer Murray used excessive force
when making the arrest.
Although plaintiff has failed to state the jurisdictional grounds for filing this
action in Federal Court, the Court will liberally construe the complaint as having been
brought under 42 U.S.C. § 1983.1
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To the extent that plaintiff is attempting to bring this action under 28 U.S.C.
§ 1332, subject matter jurisdiction does not exist, because complete diversity of
citizenship is lacking. See 28 U.S.C. § 1332.
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Discussion
Having carefully reviewed plaintiff's allegations, the Court concludes that the
complaint is legally frivolous as to the St. Louis Police Department, because police
departments are not suable 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);
Crigler v. City of St. Louis, 767 F.Supp. 197, 198 (E.D. Mo. 1991)( "St. Louis Police
Department" is not a suable entity).
As to defendant Murray, the Court notes that plaintiff is suing him 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
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(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.
For these reasons, the Court will dismiss this action as legally frivolous and for
failure to state a claim upon which relief can be granted.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in
forma pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff's motion for appointment of
counsel [Doc. #4] is DENIED, as moot.
IT IS FURTHER ORDERED that 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 may be granted. See 28 U.S.C. § 1915(e)(2)(B).
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 12th day of June, 2013.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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