Gomez v. Owens et al

Filing 4

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that plaintiffs 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 $4.00 within twenty-one (21) 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. An Order of Dismissal will be filed separately.. Signed by District Judge Ronnie L. White on 4/12/2017. (NEB)

UNITED STA TES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

AMADO R. GOMEZ,
Plaintiff,
v.
SHAWN OWENS, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

No. 4:17-CV-820 RLW

MEMORANDUM AND ORDER

Plaintiff, a prisoner, seeks leave to proceed in forma pauperis in this civil action under 42
U.S.C. § 1983. Having reviewed plaintiffs financial information, the Court assesses a partial
initial filing fee of $4.00, which is twenty percent of his average monthly deposit. See 28 U.S.C.

§ 1915(b).

Additionally, the Court finds that the case must be dismissed under 28 U.S.C.

§ 1915(e).
Standard of Review

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, 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, 556 U.S . 662, 678 (2009).

A plaintiff must

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

Id. at 679. "A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged." Id. at 678. Determining whether a complaint states a plausible claim for relief is a

context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. Id. at 679.
The Complaint

Plaintiff alleges that on April 15, 2011, defendant Owens sprayed him with mace. Owens
refused to let him go to the medical unit, he says, and he was forced to rinse off the mace in the
shower.
Discussion

"Although the statute of limitations is an affirmative defense, a district court may
properly dismiss an in forma pauperis complaint under 28 U.S.C. § 1915[e] when it is apparent
the statute of limitations has run." Myers v. Vogal, 960 F.2d 750, 751 (8th Cir. 1992). Section
1983 claims are analogous to personal injury claims and are subject to Missouri's five-year
statute of limitations. Sulik v. Taney County, Mo., 393 F.3d 765, 766-67 (8th Cir. 2005); Mo.
Rev. Stat.§ 516.120(4).
In this case, the statute of limitations expired on April 15, 2016. Plaintiff acknowledges
that the complaint is untimely, but he says he did not know he could file a lawsuit. Plaintiffs
ignorance, however, does not qualify him for tolling of the limitations period. See 0 'Reilly v.
Dock, 929 S.W.2d 297, 301 (Mo. Ct. App. 1996 ("Mere ignorance on the part of a plaintiff does

not toll the statute of limitations where reasonable diligence on his or her part would have
revealed the injury or wrongful conduct."). As a result, this action is barred by the statute of
limitations.
Additionally, the complaint does not state whether defendants are being sued in their
official or individual capacities.

Where a "complaint is silent about the capacity in which

[plaintiff] is suing defendant, [a district court must] interpret the complaint as including only

2

official-capacity claims." Egerdahl v. Hibbing Community College, 72 F.3d 615 , 619 (8th Cir.
1995); 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. Will v. Michigan Dep 't of State Police, 491 U.S. 58,
71 (1989). "[N]either a State nor its officials acting in their official capacity are 'persons' under
§ 1983." Id. As a result, the complaint fails to state a claim upon which relief can be granted.

Accordingly,
IT IS HEREBY ORDERED that plaintiffs 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 $4.00

within twenty-one (21) 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. 1
IT IS FURTHER ORDERED that this action is DISMISSED without prejudice.
An Order of Dismissal will be filed separately.

Dated this

~ay of April, 2017.
UNITED STATES DISTRICT JUDGE

1

Prisoners must pay the full amount of the $350 filing fee. 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. The agency having custody of the prisoner
will deduct the payments and forward them to the Court each time the amount in the account
exceeds $10. 28 U.S .C. § 1915(b)(2).
3