Lebon v. St. Louis City Metro Police Department et al

Filing 4

MEMORANDUM AND ORDER. (see order for details) 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 $1.75 within thirty (30) days of the date of this Order. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue in this case, 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). A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge E. Richard Webber on 11/6/2013. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
THOMAS PAUL LEBON,
Plaintiff,
v.
ST. LOUIS CITY METRO POLICE
DEPARTMENT, et al.,
Defendants.

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No. 4:13CV01695 ERW

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Thomas Paul Lebon (registration no.
358989) 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
$1.75. 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 $8.75 and an average monthly balance of $.60.
Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial
partial filing fee of $1.75, 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 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
state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(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, 32-33 (1992).
The Complaint
Plaintiff, an inmate at the Missouri Eastern Correctional Center, seeks monetary relief in this
42 U.S.C. § 1983 action against the St. Louis City Metro Police Department and Sam Dotson (Police

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Chief). Plaintiff alleges that, in the context of an arrest on April 25, 2012, he was beaten by a St.
Louis City police officer1 and was denied medical treatment. Plaintiff claims that “this shows the
behavior of the police department” and that defendant Sam Dotson “had to have known of this
officer’s behavior.”
Discussion
Plaintiff brings this action against defendant Sam Dotson 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 (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 is legally frivolous and fails to state a claim upon
which relief can be granted as to defendant Sam Dotson.
As additional grounds for dismissing this case against Sam Dotson, the Court notes that
plaintiff’s allegations simply do not state a constitutional claim against Dotson, and the respondeat

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Plaintiff brought a separate civil rights action against the police officer who allegedly
assaulted him; the action is currently pending in this Court. See Lebon v. Scanlon, No. 4:13-CV-256TIA (E.D. Mo.).

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superior theory of liability is inapplicable in § 1983 suits. See Boyd v. Knox, 47 F.3d 966, 968 (8th
Cir. 1995).
The complaint is also legally frivolous as to the St. Louis City Metro 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).
For these reasons, the Court will dismiss this action pursuant to 28 U.S.C. § 1915(e)(2)(B).
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 $1.75 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 the Clerk shall not issue process or cause process to issue
in this case, 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).
A separate Order of Dismissal shall accompany this Memorandum and Order.
So Ordered this 6th day of November, 2013.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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