Marshall v. St. Louis Metropolitan Police Department et al

Filing 4

MEMORANDUM AND ORDER: 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 $6.07 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 not issue process or cause process to issue upon the complaint because the complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both. See 28 U.S.C. § 1915(e)(2)(B). An Order of Dismissal will accompany this Memorandum and Order.. Signed by District Judge Rodney W. Sippel on 8/29/14. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOHN MARSHALL,
Plaintiff,
v.
ST. LOUIS POLICE DEPT., et al.,
Defendants.

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No. 414CV1141 RWS

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff John Marshall (registration
no.131854), an inmate at St. Louis City Justice 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 $6.07. See 28 U.S.C. § 1915(b)(1). Furthermore, based upon a review of the
complaint, the Court finds that the complaint should be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B).
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 $30.33, and an average monthly
balance of $10.35. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the
Court will assess an initial partial filing fee of $6.07, 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 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).
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

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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 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 are the St. Louis Police Department and two St. Louis Police
Detectives, Denise Strittmatter and Kara Roberts. Plaintiff alleges that defendants failed to
thoroughly investigate a domestic dispute he had with his wife, which led to his arrest. He
claims that defendants disregarded his statements about the dispute and as a result he was subject
to “false arrest” and “wrongful incarceration.” He claims that it was wrong for the police
department to use only “female officers in a domestic case.”
Plaintiff seeks monetary damages and injunctive relief in his complaint.
Discussion
The complaint is frivolous against the St. Louis Police Department because police
departments are not suable entities under ' 1983. Ketchum v. City of West Memphis, Ark., 974
F.2d 81, 82 (1992).
The complaint is silent as to whether defendants Strittmatter and Roberts are being sued
in their official or individual capacities. Where a Acomplaint is silent about the capacity in which
[plaintiff] is suing defendant, [a district court must] interpret the complaint as including only

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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. 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.
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 $6.07
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 not issue process or cause process to
issue upon the complaint because the complaint is legally frivolous or fails to state a claim upon
which relief can be granted, or both. See 28 U.S.C. § 1915(e)(2)(B).
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 29th day of August, 2014.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

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