McAllister v. Boyd et al

Filing 9

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $45.82 within thirty (30) days of the date of this O rder. 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 proc eeding. 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 proc ess or cause process to issue upon the complaint as to the individual capacity claims of excessive force against defendants Eddie Boyd and Robert Dean. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendants Boyd and Dean sh all reply to plaintiffs claims of excessive force, brought against them in their individual capacities, within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that the Cler k shall not issue process or cause process to issue upon the complaint as to defendants Ferguson Police Department, St. Louis County Police Department, St. Louis Police Department K-9 Unit, Officer Percich, Officer Jackson or the Scanning Program at South Central Correctional Center because, as to these defendants, the complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both. IT IS FURTHER ORDERED that plaintiffs request for production of documents and motion for discovery [Doc. #7 and Doc. #8] are denied without prejudice. IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard. An order of partial dismissal will be filed separately. Signed by District Judge Carol E. Jackson on 3/14/2014. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
EUGENE MCALLISTER,
Plaintiff,
v.
FERGUSON POLICE
DEPARTMENT, et al.,
Defendants.

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No. 4:13CV2492 CEJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
1236974), an inmate at South Central Correctional Center, for leave to commence this
action without payment of the required filing fee [Doc. #2]. Also before the Court are
the plaintiff’s request for production of documents and motion for discovery.
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 $45.82. 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.
Additionally, plaintiff’s discovery motions will be denied as premature.

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
$229.10, and an average monthly balance of $33.75. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing
fee of $45.82, which is 20 percent of plaintiff’s average monthly deposit.

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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). 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).
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
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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 conclusion is the most plausible or whether it is more
likely that no misconduct occurred. Id. at 1950, 51-52.
The Complaint
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of
his civil rights. Named as defendants in this action are the Ferguson Police
Department, St. Louis County Police Department, St. Louis Police Department K-9
Unit, Officer Robert Dean, Officer Percich, Officer Jackson, Officer Eddie Boyd and
the Scanning Program at South Central Correctional Center. Plaintiff brings suit
against the defendants in their individual and official capacities.
Plaintiff asserts that in January of 2011, the car in which he was riding was
chased by Police Officer Eddie Boyd of the Ferguson Police Department. Plaintiff
claims that he was riding in the back seat of the car. Plaintiff states that when the
driver of the car finally pulled over, several of the police officers, including Officer
Boyd, broke the car windows and plaintiff was struck several times on the head and
arms and was pulled to the ground. Plaintiff claims that K-9 Police Officer Robert

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Dean allowed his dog to bite him all over his body, causing several injuries which
required medical attention.
Plaintiff alleges that he was transferred to a new institution immediately after
he filed a written complaint about the incident and that he was transferred a second
time when he attempted to file a second complaint. Plaintiff asserts that these actions
were taken in retaliation for his attempts to seek redress for his injuries. Plaintiff
does not identify the individual(s) whom he believes retaliated against him.
Plaintiff claims in a general manner that he believes his due process rights, as
well as his equal protection rights, may have been violated when Officers Boyd and
Dean failed to respond to his written complaints in a timely manner. Plaintiff has
failed to make any specific allegations against Officers Percich or Jackson. He has
also failed to make any specific factual assertions against the “Scanning Program at
South Central Correctional Center.”
Plaintiff seeks monetary damages and injunctive relief.
Discussion
Plaintiff’s complaint is legally frivolous against the Ferguson Police
Department, the St. Louis County Police Department and the St. Louis Police K-9
Unit because police departments are not suable entities under § 1983. Ketchum v.
City of West Memphis, Ark., 974 F.2d 81, 82 (1992).
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Additionally, because plaintiff makes no allegations against defendant Police
Officers Percich or Jackson or the Scanning Program at South Central Correctional
Center, his claims against these defendants will also be dismissed as frivolous. See
Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990)(“Liability under § 1983
requires a causal link to, and direct responsibility for, the alleged deprivation of
rights.”); see also 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).
Plaintiff’s general and conclusory allegations of First Amendment, due process
and equal protection violations also fail, as plaintiff has not articulated these claims
in a full and organized manner. For example, although plaintiff believes that he was
subjected to retaliatory transfers for filing complaints relating to his arrest, he has
failed to articulate exactly what his complaints entailed, who they were directed
against, and who the complaints were sent to. Plaintiff has also failed to allege a
causal connection between the individual(s) who made the decisions to transfer
plaintiff and the person, or persons, who received the complaints. Mere conclusory
statements and legal conclusions cannot provide a cause of action. Iqbal, 129 S. Ct.
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at 1949.

Similarly, plaintiff’s assertions that his “due process” and “equal

protection” rights were violated when defendant Officers Boyd and Dean failed to
respond to his complaints does not state a constitutional violation.1 “In the context
of a state prison system, an inmate grievance procedure is not constitutionally
required.” Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986). “If the state
elects to provide a grievance mechanism, violations of its procedures do not deprive
prisoners of federal constitutional rights. Therefore, a state’s failure to follow its
grievance procedures does not give rise to a § 1983 claim.” Id.
The Court will, however, order the Clerk to issue process on plaintiff’s
individual capacity2 claims of excessive force against defendant Police Officers Dean

1

The equal protection clause “prohibits government officials from
selectively applying the law in a discriminatory way.” Central Airlines, Inc. v.
United States, 138 F.3d 333, 334-35 (8th Cir.1998) (citation omitted). “It protects
‘fundamental rights,’ ‘suspect classifications,’ and ‘arbitrary and irrational state
action.’” Brandt v. Davis, 191 F.3d 887, 893 (8th Cir.1999). Plaintiff has not
asserted that he belong to a suspect class or has a fundamental right at stake.
2

Plaintiff’s claims against defendants in their official capacity will be
dismissed. Naming a government official in his or her official capacity is the
equivalent of naming the government entity that employs the official. 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 municipality is
responsible for the alleged constitutional violation. Monell v. Department 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 municipality was responsible
for the alleged violations of plaintiff’s constitutional rights. As a result, the
complaint fails to state a claim upon which relief can be granted.
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and Boyd. However, since the alleged force occurred in the course of plaintiff’s
arrest, the Court finds that it should be analyzed under the 4th Amendment, rather
than the 8th Amendment of the Constitution. Kuha v. City of Minnetonka, 328 F.3d
427, 434 (8th Cir.2003) (citing Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct.
1865, 104 L. Ed.2d 443 (1989)).
Plaintiff has also file motions seeking production of documents and other
discovery.

Because no scheduling order has been entered, discovery cannot

commence and the plaintiff’s requests are premature. See Fed. R. Civ. P. 26(d)(1).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee
of $45.82 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.
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IT IS FURTHER ORDERED that the Clerk shall issue process or cause
process to issue upon the complaint as to the individual capacity claims of excessive
force against defendants Eddie Boyd and Robert Dean.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2),
defendants Boyd and Dean shall reply to plaintiff’s claims of excessive force, brought
against them in their individual capacities, within the time provided by the applicable
provisions of Rule 12(a) of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue upon the complaint as to defendants Ferguson Police Department, St.
Louis County Police Department, St. Louis Police Department K-9 Unit, Officer
Percich, Officer Jackson or the Scanning Program at South Central Correctional
Center because, as to these defendants, the complaint is legally frivolous or fails to
state a claim upon which relief can be granted, or both.
IT IS FURTHER ORDERED that plaintiff’s request for production of
documents and motion for discovery [Doc. #7 and Doc. #8] are denied without
prejudice.
IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner
Standard.

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An order of partial dismissal will be filed separately.

Dated this 14th day of March, 2014.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

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