West v. Joe's SPH LLC

Filing 5

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF No. 2] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $23 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 this action is DISMISSED without prejudice. IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [ECF No. 4] is DENIED. An Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge Catherine D. Perry on July 2, 2014. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANTHONY B. WEST,
Plaintiff,
v.
JOE’S SPH LLC,
Defendant.

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No. 4:14CV1169 CDP

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Anthony West (registration no.
1180513), an inmate at Eastern Reception Diagnostic and 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 $23. 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 $117, and an average monthly balance
of $37. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will
assess an initial partial filing fee of $23, 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).
The Complaint
Plaintiff brings this action under 42 U.S.C. § 1983. The only named defendant is Joe’s
SPH LLC (“Joe’s”). Plaintiff alleges that on August 6, 2011, he purchased a chicken sandwich
from Joe’s, a private establishment, that was moldy. Plaintiff says he showed an employee the
sandwich, who acknowledged the presence of mold. Plaintiff claims he became sick on August

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10, 2011, and that he had to seek medical treatment. Plaintiff seeks monetary compensation for
his medical bills and pain and suffering.
Discussion
Section 1983 imposes liability on government actors acting under color of state law. 42
U.S.C. ' 1983.

“Private actors may incur section 1983 liability only if they are willing

participants in a joint action with public servants acting under color of state law.” Johnson v.
Outboard Marine Corp., 172 F.3d 531, 536 (8th Cir.1999). To state a claim against a private
actor under ' 1983, a plaintiff “must establish, at the very least, an agreement or meeting of the
minds between the private and state actors, and a corresponding violation of the plaintiffs’ rights
under the Constitution or laws of the United States.” Id. There are no allegations showing that
Joe’s was working in concert with state actors when it prepared and sold the chicken sandwich.
Moreover, the allegations do not rise to the level of a constitutional violation. As a result, the
complaint fails to state a claim under § 1983.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF
No. 2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $23
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 this action is DISMISSED without prejudice.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel [ECF
No. 4] is DENIED.

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An Order of Dismissal will accompany this Memorandum and Order.
Dated this 2nd day of July, 2014.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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