Jones v. Boyer

Filing 7

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF # 2 ] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $3.75 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 if plaintiff fails to pay the initial partial filing fee within thirty (30) days of the date of this Order, then this case will be dismissed without prejudice. IT IS FURTHER ORDERED that t he Clerk shall issue process or cause process to issue upon the complaint as to defendants Unknown Banks, Unknown Kemp, Unknown Lamping, and Jefferson County. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendants Banks, Kemp, Lamping, and Jefferson County shall reply to plaintiff's claims within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that defendant Oliver Boyer is D ISMISSED from the complaint without prejudice. IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard. An appropriate Order of Partial Dismissal shall accompany this Memorandum and Order. (Initial Partial Filing Fee due by 9/29/2013.) Signed by District Judge E. Richard Webber on August 30, 2013. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ORLANDO JONES,
Plaintiff,
v.
OLIVER GLENN BOYER, et al.,
Defendants.

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No. 4:13CV01407 TCM

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Orlando Jones (registration
no. 1000484), an inmate at Southeast Correctional Center, for leave to commence this
action without payment of the required filing fee. For the reasons stated below, the
Court finds that the plaintiff does not have sufficient funds to pay the entire filing fee
and will assess an initial partial filing fee of $3.75. See 28 U.S.C. § 1915(b)(1).
Furthermore, after reviewing the complaint, the Court will partially dismiss the
complaint and will order the Clerk to issue process or cause process to be issued on the
non-frivolous portions of the 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 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
$18.75, and an average monthly balance of less than $18.75. Plaintiff has insufficient
funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial
filing fee of $3.75, 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); Denton v. Hernandez, 504 U.S. 25, 31
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(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 Complaint
Plaintiff alleges that he was falsely arrested and that he was beaten while
handcuffed by the John Doe defendants, who are alleged to be police officers for
Jefferson County. Plaintiff maintains that defendants Banks, Kemp, and Lamping are
Police Commissioners for Jefferson County, and he alleges that they knew of the John
Doe defendants propensity to commit bad acts but deliberately failed to reprimand or
supervise them. And plaintiff asserts that a policy of Jefferson County led to his
constitutional injuries. There are no allegations pertaining to defendant Boyer, Sheriff
of Jefferson County.
Discussion
The complaint states a prima facie case under 42 U.S.C. § 1983 against
defendants Banks, Kemp, Lamping, in their individual and official capacities, and
Jefferson County. Therefore, the Court will order the Clerk to serve process on these
defendants.
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“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 that defendant was personally
involved in or directly responsible for the incidents that injured plaintiff); Boyd v.
Knox, 47 F.3d 966, 968 (8th Cir. 1995) (respondeat superior theory inapplicable in §
1983 suits). In the instant action, plaintiff has not set forth any facts indicating that
defendant Boyer was directly involved in or personally responsible for the alleged
violations of his constitutional rights. As a result, the Court will dismiss Boyer from
this action.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [ECF # 2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of
$3.75 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.

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IT IS FURTHER ORDERED that if plaintiff fails to pay the initial partial
filing fee within thirty (30) days of the date of this Order, then this case will be
dismissed without prejudice.
IT IS FURTHER ORDERED that the Clerk shall issue process or cause
process to issue upon the complaint as to defendants Unknown Banks, Unknown
Kemp, Unknown Lamping, and Jefferson County.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2),
defendants Banks, Kemp, Lamping, and Jefferson County shall reply to plaintiff’s
claims within the time provided by the applicable provisions of Rule 12(a) of the
Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that defendant Oliver Boyer is DISMISSED
from the complaint without prejudice.

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IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner
Standard.
An appropriate Order of Partial Dismissal shall accompany this Memorandum
and Order.
So Ordered this 30th day of August, 2013.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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