Jones v. Weldon et al

Filing 8

MEMORANDUM AND ORDER re: 4 MOTION to Appoint Counsel filed by Plaintiff William Jones, 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff William Jones. IT IS HEREBY ORDERED that plaintiff's mot ion to proceed in forma pauperis [Doc. #2] is GRANTED.IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of $1.50 within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance payable to &quo t;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 the Clerk of Court shall docket this case as William Jones v. Michael Weldon, Michael Hammond, Natalie Williams, St. Louis Police Department, and Chris Koster. 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 and fails to state a claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B). IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [Doc. #4] is DENIED as moot. A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Stephen N. Limbaugh, Jr on 10/2/13. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

WILLIAM JONES,

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Plaintiff,
v.
MICHAEL WELDON, et al.,
Defendants.

No. 4:13-CV-1434-SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of William Jones (registration
no. 1070774) for leave to commence this action without payment of the required
filing fee. For the following reasons, the Court will grant plaintiff’s motion and will
assess an initial partial filing fee of $1.50. In addition, the Court will dismiss this
case pursuant to 28 U.S.C. § 1915.
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
$7.50 and an average monthly balance of $.12. Plaintiff has insufficient funds to pay
the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of
$1.50, 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 may 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 against a defendant who is
immune from such relief. An action is frivolous if “it lacks an arguable basis in either
law or in fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action fails to
state a claim upon which relief can be granted if it does not plead “enough facts to
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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 1951.

When faced with alternative

explanations for the alleged misconduct, the Court may exercise its judgment in
determining whether plaintiff’s proffered conclusion is the most plausible or whether
it is more likely that no misconduct occurred. Id. at 1950-52.
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,
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unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 3233 (1992).
The Complaint and Supplement
Plaintiff, an inmate at the Jefferson City Correctional Center, seeks monetary
relief in this 42 U.S.C. § 1983 action against defendants Michael Weldon (police
officer), Michael Hammond (police officer), Natalie Williams (police officer), the St.
Louis Police Department, and Chris Koster (Attorney General). Plaintiff alleges that
the defendant police officers brutally assaulted him on September 9, 2009, resulting
in serious physical injuries.
Discussion
Plaintiff brings this action against the three individual police officers, Michael
Weldon, Michael Hammond, and Natalie Williams, in their official capacities [Doc.
#7]. 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 (1978). The
instant complaint does not contain any allegations that a policy or custom of a
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government entity was responsible for the alleged violations of plaintiff’s
constitutional rights. As a result, the complaint is legally frivolous and fails to state
a claim upon which relief can be granted as to defendants Michael Weldon, Michael
Hammond, and Natalie Williams.
The complaint is also 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; local governments can be liable under § 1983 only if injury stems from
official policy or custom).
Last, the complaint is legally frivolous as to defendant Chris Koster, because
plaintiff has failed to assert any allegations against him. See Ellis v. Norris, 179 F.3d
1078, 1079 (8th Cir. 1999) (§ 1983 claimant must allege facts supporting individual
defendant’s personal involvement or responsibility for unconstitutional action);
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); Boyd v. Knox, 47 F.3d 966, 968 (8th
Cir. 1995) (respondeat superior theory inapplicable in § 1983 suits).
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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 plaintiff shall pay an initial filing fee of
$1.50 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 the Clerk of Court shall docket this case
as William Jones v. Michael Weldon, Michael Hammond, Natalie Williams, St. Louis
Police Department, and Chris Koster.
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 and
fails to state a claim upon which relief can be granted.

See 28 U.S.C. §

1915(e)(2)(B).
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of
counsel [Doc. #4] is DENIED as moot.

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A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 2nd day of October, 2013.

UNITED STATES DISTRICT JUDGE

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