Burrows v. Save-A-Lot et al

Filing 6

MEMORANDUM AND ORDER. (see order for details) 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 $13.00 within thirt y (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 r emittance is for an original proceeding. IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B). An Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge Catherine D. Perry on 10/16/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KING SOLOMON BURROWS,
Plaintiff,
v.
SAVE-A-LOT GROCERY,
Defendant.

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No. 4:14CV1453 CDP

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff, an inmate at St. Charles
County Department of Corrections, 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 $13.00.
See 28 U.S.C. § 1915(b)(1). Furthermore, based upon a review of the amended complaint, the
Court finds that this action 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 amended complaint. A
review of plaintiff's account indicates an average monthly deposit of $50.00, and an average
monthly balance of $64.93.

Plaintiff has insufficient funds to pay the entire filing fee.

Accordingly, the Court will assess an initial partial filing fee of $13.00, 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 Amended Complaint
Plaintiff brings this action under 42 U.S.C. ' 1983 against Save-A-Lot Grocery store.
His amended complaint is disjointed, rambling and incoherent, but it appears that he is
complaining that he was poisoned with food purchased from Save-A-Lot. It may also be that he

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is attempting to assert that this alleged “poisoning” was the cause for his recent arrest and
incarceration. Plaintiff also appears to be asserting a loss of his property during his arrest or
incarceration at St. Charles County Department of Corrections, as in his request for relief, he
seeks return of his property. However, Save-A-Lot Grocery is the only named defendant in this
action.
Discussion
An action is factually frivolous if the facts alleged are Aclearly baseless@; allegations are
clearly baseless if they are Afanciful,@ Adelusional,@ or Afantastic.@ Denton v. Hernandez, 504 U.S.
25, 32-33 (1992). The allegations in the amended complaint are factually frivolous under
Denton.
Additionally, Save-A-Lot Grocery is a private actor and cannot be named as a defendant
in an action brought pursuant to 42 U.S.C. § 1983. See Johnson v. Outboard Marine Corp., 172
F.3d 531, 536 (8th Cir.1999) (APrivate 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.@) . As
such, plaintiff’s allegations fail to state a claim upon which relief may 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 $13.00
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.

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IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28 U.S.C.
§ 1915(e)(2)(B).
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 16th day of October, 2014.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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