Burke v. St. Louis City Jails et al

Filing 27

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Court's Order dated January 12, 2015, is VACATED. IT IS FURTHER ORDERED that plaintiff's motion to proceed in forma pauperis [ECF No. 2 ] is GRANTED. IT IS FURTHER ORDERED that the plain tiff must pay an initial filing fee of $1.00 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. IT IS FURTHER ORDERED that the Clerk is directed to send plaintiff a prisoner civil rights complaint form. IT IS FURTHER ORDERED that plaintiff must complete the form and return it to the Court within thirty (30) days from the date of this Order. (Response to Court due by 7/31/2015.) Signed by District Judge Ronnie L. White on July 1, 2015. (Attachments: # 1 Prisoner Civil Rights Complaint Form)(BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CALVIN BURKE,
Plaintiff,
v.
ST. LOUIS CITY JAILS ,
Defendants.

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No . 4:14CV2107 RLW

MEMORANDUM AND ORDER
Plaintiff, a prisoner, seeks leave to proceed in forma pauperis in this civil action under 42
U.S .C. § 1983 and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42
U. S.C. § 2000cc, et seq. Plaintiff is unable to submit a certified copy of his prison account
statement, so the Court will assess a partial initial filing fee of $1.00. 1
Under 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted.
To state a claim for relief under § 1983, a complaint must plead more than "legal conclusions"
and " [t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

A plaintiff must

demonstrate a plausible claim for relief, which is more than a "mere possibility of misconduct."

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On January 12, 2015, the Court denied plaintiffs motion for leave to proceed in forma pauperis
because it determined that he had three strikes under 28 U.S.C. § 1915(g) and failed to show he
was in imminent danger. Plaintiff filed an amended complaint and a motion for reconsideration,
but the Court denied it because plaintiff had not shown imminent danger when the case was
filed.. Plaintiff appealed. The Eighth Circuit Court of Appeals directed the Court to determine
whether plaintiff alleged imminent danger in his amended complaint, and the Court found that he
did. So, the Eighth Circuit remanded the case for proceedings consistent with that finding. The
Court' s Order dated January 12, 2015 is therefore vacated.

Plaintiffs claims against the St. Louis City Jails are legally frivolous because jails are not
suable entities. · See Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992).
Plaintiff sues the individual defendants in their official capacities only.

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 plaintiffs constitutional rights .
As a result, the complaint fails to state a claim upon which relief can be granted.
Because plaintiff is proceeding pro se, and because his claims appear to have merit, the
Court will allow plaintiff to file an amended complaint. Plaintiff shall have thirty days from the
date of this Order to file an amended complaint. Plaintiff is warned that the filing of an amended
complaint replaces the original complaint, and so he must include each and every one of his
claims in the amended complaint. E.g. , In re Wireless Telephone Federal Cost Recovery Fees
Litigation, 396 F.3d 922, 928 (8th Cir. 2005). In order to sue defendants in their individual
capacities, plaintiff must specifically say so in the complaint. If plaintiff fails to file an amended
complaint within thirty days, the Court will dismiss this action without prejudice.
Accordingly,
IT IS HEREBY ORDERED that the Court' s Order dated January 12, 2015, is
VACATED .

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IT IS FURTHER ORDERED that plaintiff's motion to proceed in forma pauperis [ECF
No . 2] is GRANTED .

IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $1.00
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.

IT IS FURTHER ORDERED that the Clerk is directed to send plaintiff a prisoner civil
rights complaint form.

IT IS FURTHER ORDERED that plaintiff must complete the form and return it to the
Court within thirty (30) days from the date of this Order.
/ST

Dated this 1__ day of July, 2015.

UNITED STA TES DISTRICT JUDGE

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