Neal v. City of St. Louis et al

Filing 3

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff shall, within thirty (30) days of the date of this Memorandum and Order, show cause why this action should not be dismissed. IT IS FURTHER ORDERED that the plaintiff shall pay an initial fili ng fee of $1.00 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 comply with this Order, this action will be dismissed.. Signed by District Judge John A. Ross on 8/20/13. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DURWIN NEAL,
Plaintiff,
v.
CITY OF ST. LOUIS, et al.,
Defendants.

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No. 4:13CV1607 JAR

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Durwin Neal (registration
no. 33436-044), an inmate at Yankton FPC, for leave to commence this action without
payment of the required filing fee. For the reasons stated below, the Court finds that
plaintiff does not have sufficient funds to pay the entire filing fee and will assess an
initial partial filing fee of $1.00. See 28 U.S.C. § 1915(b)(1). Furthermore, the Court
will order plaintiff to show cause why this action should not be dismissed.
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. 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 not submitted a prison account statement. As a result, the Court
will require plaintiff to pay an initial partial filing fee of $1.00. See Henderson v.
Norris, 129 F.3d 481, 484 (8th Cir. 1997) (when a prisoner is unable to provide the
Court with a certified copy of his prison account statement, the Court should assess
an amount “that is reasonable, based on whatever information the court has about the
prisoner’s finances.”). If plaintiff is unable to pay the initial partial filing fee, he must
submit a copy of his prison account statement in support of his claim.
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
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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 brings this action under 42 U.S.C. § 1983. Named as defendants are
the City of St. Louis, the St. Louis County Police Department, and Leo Rice, who is
a police officer for the City of St. Louis.
Plaintiff alleges that on September 28, 2005, defendant Rice conducted a search
of his home without probable cause. Plaintiff claims that he has suffered mental and
emotional trauma as a result.
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). In this case, the statute
of limitations expired on about September 28, 2010. As a result, this action is barred
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by the limitations period, and the Court will order plaintiff to show cause why this
action should not be dismissed.
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. 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
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 does not state a plausible claim for
relief against either the City of St. Louis or defendant Rice.
Plaintiff’s claim against the St. Louis County Police Department is legally
frivolous because it is not a suable entity. Ketchum v. City of West Memphis, Ark.,
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974 F.2d 81, 81 (8th Cir. 1992) (departments or subdivisions of local government are
“not juridical entities suable as such.”).
Accordingly,
IT IS HEREBY ORDERED that plaintiff shall, within thirty (30) days of the
date of this Memorandum and Order, show cause why this action should not be
dismissed.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee
of $1.00 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 comply with this Order,
this action will be dismissed.
Dated this 20th day of August, 2013.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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