McNeary v. St. Louis County Justice Center et al

Filing 9

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiff's motion to reopen is GRANTED. [Doc. 6 ] IT IS FURTHER ORDERED that plaintiff's motion to proceed in forma pauperis is GRANTED. [Doc. 7 ] IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $8.58 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 shall mail to plaintiff a copy of the Court's prisoner civil rights complaint form. IT IS FURT HER ORDERED that plaintiff shall file an amended complaint no later than January 12, 2015. IT IS FURTHER ORDERED that if plaintiff fails to file a timely amended complaint, the Court will dismiss this action without prejudice. Signed by District Judge Charles A. Shaw on 12/10/14. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
REGINALD MCNEARY,

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Plaintiff,
v.
ST. LOUIS COUNTY JUSTICE
CENTER, et al.,
Defendants.

No. 4:14-CV-950 CAS

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motions to reopen this case and for leave to
proceed in forma pauperis. Both motions are granted.
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 sixmonth 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 $26.55, and an average monthly

balance of $42.89. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the
Court will assess an initial partial filing fee of $8.58, which is 20 percent of plaintiff's average
monthly balance.
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 Alacks 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 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
Aenough 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 the St. Louis County Justice
Center (“Justice Center”), Unknown Baird (correctional officer), Unknown Moore (correctional
officer, and “Medical Staff.” Plaintiff alleges that he was given a chemical cleaning agent for his
cell, and he says he had an allergic reaction to it that required medical attention. Plaintiff claims
that defendant Moore had a sexual relationship with a prisoner. Plaintiff asserts that when he
complained about the relationship, defendant Baird retaliated against him by transferring him to
a cold and dirty housing unit. And plaintiff alleges that after he had a seizure Medical Staff
failed to provide him with medical treatment.

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Discussion
Plaintiff=s claim against the Justice Center is legally frivolous because it is not a suable
entity. Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992) (departments or
subdivisions of local government are “not juridical entities suable as such.”).
The complaint is silent as to whether defendants Baird and Moore 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 fails to state a
claim upon which relief can be granted as to Baird and Moore.
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). In the case at hand, the complaint does not contain allegations sufficiently
specific to permit the identity of “Medical Staff” to be ascertained after reasonable discovery.
These particular “John Doe” defendants are both unidentified and indeterminate in number. This

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is not permissible. See Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995) (suit
naming “various other John Does to be named when identified” not permissible). As a result, the
complaint is legally frivolous as to defendant “Medical Staff.”
Because plaintiff is proceeding pro se, the Court will allow him to file an amended
complaint. Plaintiff is warned that the filing of an amended complaint replaces the original
complaint, and claims that are not realleged are deemed abandoned.

E.g., In re Wireless

Telephone Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005). In the
amended complaint, plaintiff should specify whether he is suing defendants in their individual
capacities. If plaintiff fails to file a timely amended complaint, the Court will dismiss this action
without prejudice.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to reopen is GRANTED. [Doc. 6]
IT IS FURTHER ORDERED that plaintiff's motion to proceed in forma pauperis is
GRANTED. [Doc. 7]
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $8.58
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 shall mail to plaintiff a copy of the Court’s
prisoner civil rights complaint form.
IT IS FURTHER ORDERED that plaintiff shall file an amended complaint no later
than January 12, 2015.

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IT IS FURTHER ORDERED that if plaintiff fails to file a timely amended complaint,
the Court will dismiss this action without prejudice.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 10th day of December, 2014.

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