Jackson v. McMahon et al

Filing 5

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 plaintiff shall pay an initial filing fee of $1.70 within thirty (30) days of the date of thi s 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, because the complaint is legally frivolous and fails to state a claim upon which relief can be granted. See 28 U.S.C. 1915(e)(2)(B). I T IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [Doc. ]4]] is DENIED as moot. IT IS FURTHER ORDERED that the Clerk shall docket this case as Herman Jackson, Jr. v. Robert McMahon, Jason Davis, Bradley Light, Holly Queen, and Cindy Griffith. A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Catherine D. Perry on 4/19/16. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
HERMAN JACKSON, JR.,
Plaintiff,
v.
ROBERT MCMAHON, et al.,
Defendants.

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No. 4:16-CV-166-CDP

MEMORANDUM AND ORDER
This matter is before the Court on review of plaintiff’s motion for leave to
proceed in forma pauperis [Doc. 2]. The motion will be granted, and plaintiff will
be assessed an initial partial filing fee of $1.70, which is twenty percent of his
six-month average deposit. Moreover, after reviewing the complaint, and for the
reasons set forth below, the Court finds that this action should be dismissed pursuant
to 28 U.S.C. ' 1915(e)(2)(B).
28 U.S.C. ' 1915(e)
Pursuant to 28 U.S.C. ' 1915(e)(2)(B), the Court may 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 against a defendant who is
immune from such relief. An action is frivolous if Ait lacks an arguable basis in
either law or in fact.@ Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action

fails to state a claim upon which relief can be granted 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).
In reviewing a pro se complaint under ' 1915(e)(2)(B), the Court must give
the complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519,
520 (1972). The Court must also weigh all factual allegations in favor of the
plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504
U.S. 25, 32-33 (1992).
The Complaint
Plaintiff, an inmate at the Potosi Correctional Center, brings this 42 U.S.C. '
1983 action for alleged constitutional violations against Robert McMahon
(Correctional Officer), Jason Davis (Correctional Officer), Bradley Light
(Correctional Officer), Holly Queen (Nurse), and Cindy Griffith (Warden).
Plaintiff alleges that on May 25, 2015, he refused to comply with “directives to let
the officers secure the food port,” so defendant McMahon “proceeded to get the
crowd control canister of pepper spray and initiated the use of force.” Plaintiff
claims he was pepper-sprayed three times “and then a 5-man extraction unit was
deployed to [his] cell.” Plaintiff was “assessed by a nurse” and returned to his cell
“which had not been cleaned of pepper spray by Hazmat.” Thereafter, plaintiff
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again refused to comply with orders and was pepper-sprayed again. Plaintiff states
that he “declared suicide/self-harm” and proceeded to hit his head on the door
“[w]here the officers . . . started taunting [him].” Plaintiff further alleges that he
“bust [his] head open on the concrete bunk,” and he summarily complains that he
“was refused medical attention for the cut on [his] forehead and the migraine.”
Discussion
Plaintiff brings this action against defendants in their official capacity. See
Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th Cir. 1995) (where a
complaint is silent about defendant=s capacity, Court must interpret the complaint as
including official-capacity claims); 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, in this case the
State of Missouri. See Will, 491 U.S. at 71. A[N]either a State nor its officials
acting in their official capacity are >persons= under ' 1983.@ Id. As a result, the
complaint is legally frivolous and fails to state a claim upon which relief can be
granted as to all named defendants.
As additional grounds for dismissing this action, the Court notes that plaintiff
has failed to assert any claims or allegations against defendant Cindy Griffith, the
Warden. See Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995) (the doctrine of
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respondeat superior is not applicable in § 1983 actions); Jeffers v. Gomez, 267 F.3d
895, 915 (9th Cir. 2001) (§ 1983 liability arises only upon a showing of personal
participation by defendant); Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir.
1990) (liability under § 1983 requires a causal link to, and direct responsibility for,
the alleged deprivation of rights); Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir.
1985) (claim not cognizable under § 1983 where plaintiff fails to allege defendant
was personally involved in or directly responsible for incidents that injured
plaintiff).
For these reasons, the Court will dismiss this action pursuant to 28 U.S.C. '
1915(e)(2)(B).
Accordingly,
IT IS HEREBY ORDERED that plaintiff=s motion to proceed in forma
pauperis [Doc. 2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of
$1.70 within thirty (30) days of the date of this Order. Plaintiff is instructed to
make his remittance payable to AClerk, 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 the Clerk shall not issue process or cause
process to issue, because the complaint is legally frivolous and fails to state a claim
upon which relief can be granted. See 28 U.S.C. ' 1915(e)(2)(B).
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of
counsel [Doc. 4] is DENIED as moot.
IT IS FURTHER ORDERED that the Clerk shall docket this case as
Herman Jackson, Jr. v. Robert McMahon, Jason Davis, Bradley Light, Holly Queen,
and Cindy Griffith.
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 19th day of April, 2016.

UNITED STATES DISTRICT JUDGE

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