Henderson v. U.S. Marshal Service et al

Filing 4

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 $7.67 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 p roceeding. 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. 2 ( Initial Partial Filing Fee due by 4/5/2015.) Signed by District Judge Henry Edward Autrey on 3/5/15. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LARRY HENDERSON,
Plaintiff,
v.
U.S. MARSHALS SERVICE, et al.,

Defendants.

)
)
)
)
)
)
)
)
)
)

No. 4:15CV399 HEA

MEMORANDUM AND ORDER
Plaintiff, a prisoner seeking leave to proceed in forma pauperis, brings this action under
42 U.S.C. § 1983 for alleged deliberate indifference to his serious medical needs. Having
reviewed plaintiff’s financial information the Court assesses a partial initial filing fee of $7.67,
which is twenty percent of his average monthly deposit. See 28 U.S.C. § 1915(b).
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.”
Id. at 1950-51.
Plaintiff is imprisoned at the St. Louis County Justice Center. Named as defendants are
the United States Marshals Service; St. Louis County; the St. Louis County Justice Center (the
“Justice Center”); Herbert Bernsen, Director of the Justice Center; Paul Listenberger, Food
Service Manager at the Justice Center; Milton Mitchell; other persons known or unknown; and

the United States Secret Service. Plaintiff alleges that he requires a gluten-free diet because he
has celiac disease. Gluten is found in wheat, barley, and rye. Cmplt. at 5. Plaintiff says that all
of the defendants have conspired to injure him “by serving uncertified items for gluten-free diet,
eggs, other items of questionable food and searching, in direct conflict to the noted special diet
needs.” Id. Plaintiff has not alleged that he has been given any food containing wheat, barley, or
rye. Nor has he alleged that he has suffered any injuries or ill results from the food he has been
provided.
The allegations in the complaint are the type of threadbare recitals of a cause of action
supported by merely conclusory statements that fail to state a plausible claim under Iqbal.
Therefore, the complaint must be dismissed.
Moreover, defendants U.S. Marshals Service and U.S. Secret Service are not proper
defendants to support a Bivens claim, and plaintiff has not brought this suit under the Federal
Torts Claim Act. The Justice Center is not a suable defendant, see Ketchum v. City of West
Memphis, Ark., 974 F.2d 81, 82 (1992), and plaintiff has not alleged that a policy or custom of
St. Louis County caused his injuries, Monell v. Dep’t of Social Services, 436 U.S. 658, 690-91
(1978).

The individual defendants are sued in their official-capacities only, id., and the

complaint lacks allegations showing that they are directly responsible for his injuries, Madewell
v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990).

The complaint fails to state a claim for each

of these reasons as well.
For each of these reasons this action is dismissed under 28 U.S.C. § 1915(e).
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF
No. 2] is GRANTED.

2

IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $7.67
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 pursuant to 28 U.S.C.
§ 1915(e)(2)(B).
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 5th day of March, 2015.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

3