Ballard v. City of St. Louis et al

Filing 5

OPINION, MEMORANDUM AND ORDER-- HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. # 2 ] is GRANTED. FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint because the complain t is legally frivolous or fails to state a claim upon which relief can be granted, or both. FURTHER ORDERED that plaintiff's motion for appointment of counsel [Doc. # 4 ] is DENIED. An appropriate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Henry E. Autrey on 05/30/2013. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WALTER BALLARD,

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Plaintiff,
v.
CITY OF ST. LOUIS, et al.,
Defendants.

No. 4:13CV1011 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff 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 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). 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 "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.
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The Complaint
Plaintiff seeks monetary relief in this 42 U.S.C. § 1983 action against the City
of St. Louis Police Department and City Police Officers Marcos Silva, Adama
Feaman and Mark German. Plaintiff alleges that he was deprived of his liberty
without a warrant or probable cause when he was arrested and "falsely imprisoned"
on January 1, 2013, on Market Street in St. Louis for allegedly sitting in a car
smoking marijuana. Plaintiff seeks damages in excess of six million dollars in
compensation because he believes his arrest and imprisonment violated his rights
under the Constitution.
Discussion
The complaint is legally frivolous and fails to state a claim upon which relief
may be granted against the St. Louis City Police Department because the Police
Department is not a suable entity. Ketchum v. City of West Memphis, Ark., 974 F.2d
81, 82 (8th Cir. 1992) (departments or subdivisions of local government are “not
juridical entities suable as such.”); Catlett v. Jefferson County, 299 F. Supp. 2d 967,
968-69 (E.D. Mo. 2004).

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Moreover, plaintiff's allegations against the St. Louis City Police Officer
defendants1 fail to state a claim upon which relief may be granted because he has not
claimed that the actions taken by defendants occurred as a result of an official policy
or custom.2 “Policy or custom official-capacity liability is imposed by 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 decision-making channels.” 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)). As such, this action will be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B).
1

To the extent plaintiff also names the City of St. Louis as a defendant in
this action, his claims are also subject to dismissal under this same analysis.
2

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. 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 a municipality 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.
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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 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.
IT IS FURTHER ORDERED that plaintiff's motion for appointment of
counsel [Doc. #4] is DENIED.
An appropriate Order of Dismissal shall accompany this Memorandum and
Order.
Dated this 30th day of May, 2013.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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