Moore v. Shipley et al

Filing 4

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [#2] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $1.50 within thirty (30) days of the date of t his 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 the Clerk shall issue process or cause process to issue on defendants David Shipley and Unknown Dickey (COII), both of whom are alleged to be employed at ERDCC. IT IS FURTHER ORDERED that defendants shall reply to plaintiff's claims within the time provided by the Federal Rules of Civil Procedure. ( Initial Partial Filing Fee due by 11/2/2013.) Signed by District Judge Catherine D. Perry on October 3, 2013. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ELIJAH WILLIAM MOORE,
Plaintiff,
v.
DAVID SHIPLEY, et al.,
Defendants.

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No. 4:13CV1928 TCM

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Elijah Moore (registration
no. 1019608), an inmate at Potosi Correctional Center, 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 $1.50. Furthermore, after reviewing the
complaint, the Court will order the Clerk to issue process or cause process to be
issued on 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
$7.50, and an average monthly balance of less than $7.50. 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 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.
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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 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 against David Shipley
(Corrections Officer II), Unknown Dickey (Corrections Officer II), Movement Team
Members 2-5, and Use of Force Operator. Plaintiff sues defendants in their official
and individual capacities.
Plaintiff alleges that on September 28, 2012, while he was incarcerated at the
Eastern Reception Diagnostic and Correctional Center (“ERDCC”), he became
disruptive in his cell because he had been deprived of his property. Plaintiff says he
was verbally disruptive and that he broke things in his cell.
Plaintiff claims that a five-man movement team was assigned to remove him
from his cell, along with a movement team supervisor and a camera operator.
Plaintiff asserts that defendant Shipley was the first corrections officer to enter his
cell. Plaintiff says he did not resist Shipley. Plaintiff alleges that Shipley began
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punching him in the face and head as soon as he approached plaintiff. And plaintiff
claims that Shipley continued to punch him after he was restrained by the other
movement team members. Plaintiff asserts that defendant Dickey and the other
unknown defendants failed to protect him.
Plaintiff avers that he suffered serious injuries as a result of the assault,
including broken teeth, hearing loss, and vision impairment. Plaintiff seeks monetary
and injunctive relief.
Discussion
The complaint states a plausible claim for relief against defendants Shipley and
Dickey in their individual capacities. As a result, the Court will order these
defendants to respond to the complaint.
Naming a government official in his or her official capacity is the equivalent
of naming the government entity that employs the official, in this case the State of
Missouri. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). “[N]either
a State nor its officials acting in their official capacity are ‘persons’ under § 1983.”
Id. As a result, plaintiff’s claim for money damages against defendants in their
official capacities must be dismissed.
Plaintiff also seeks injunctive relief against defendants in their official
capacities. Plaintiff is no longer confined at ERDCC; he has since been transferred
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to Potosi Correctional Center(“PCC”). For plaintiff to prevail on his claim for
injunctive relief, he must allege that he is likely to be subjected to the unlawful
activity in the future. E.g., O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974). “Past
exposure to illegal conduct does not in itself show a present case or controversy
regarding injunctive relief, however, if unaccompanied by any continuing, present
adverse effect.” Id. Petitioner has not alleged that he is likely to be subjected to the
same unlawful activity at PCC. Therefore, his claim for injunctive relief is moot.
In general, fictitious parties may not be named as defendants in a civil action.
Phelps v. United States, 15 F.3d 735, 739 (8th Cir. 1994). An action may proceed
against a party whose name is unknown, however, if the complaint makes sufficiently
specific allegations to permit the identity of the party to be ascertained after
reasonable discovery. Munz v. Parr, 758 F.2d 1254, 1257 (8th Cir. 1985). Plaintiff
has made sufficient allegations against the unknown defendants to learn their
identities after reasonable discovery. As a result, the Court will not dismiss them
from the complaint at this time.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [ECF No. 2] is GRANTED.

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IT IS FURTHER ORDERED that the 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 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 on defendants David Shipley and Unknown Dickey (COII), both of
whom are alleged to be employed at ERDCC.
IT IS FURTHER ORDERED that defendants shall reply to plaintiff’s claims
within the time provided by the Federal Rules of Civil Procedure.
Dated this 3rd day of October, 2013.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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