Hales v. Grisham et al

Filing 8

OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis (Docket No. 2 ) is GRANTED. IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $2.20 within thirty (30) days of the da te 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) the statement that the remittan ce is for an original proceeding. IT IS FURTHER ORDERED that all of plaintiffs claims against defendant Joe Taylor are DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). IT IS FURTHER ORDERED that all of plaintiffs claims agains t defendant Richard Lisenbe are DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). IT IS FURTHER ORDERED that plaintiffs official capacity claims against defendant Grisham are DISMISSED without prejudice pursuant to 28 U.S.C. & #167; 1915(e)(2)(B). IT IS HEREBY CERTIFIED that an appeal from this partial dismissal would not be taken in good faith. IT IS FURTHER ORDERED that the Clerk of Court shall issue process, or cause process to issue, upon the complaint as to defendant Grisham in his individual capacity. A separate order of partial dismissal will accompany this Opinion, Memorandum and Order. Signed by District Judge Henry Edward Autrey on 10/23/17. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROBERT C. HALES,
Plaintiff,
v.
OFFICER GRISHAM, et al.,
Defendants.

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No. 4:17CV1965-HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Robert C. Hales for leave to
commence this action without prepayment of the filing fee. (Docket No. 2). Having reviewed
the motion and the financial information submitted in support, the Court has determined to grant
the motion, and will assess an initial partial filing fee of $2.20. In addition, for the reasons
discussed below, the Court will: (1) dismiss all of plaintiff’s claims against defendants Joe
Taylor and Richard Lisenbe; (2) dismiss plaintiff’s official capacity claims against defendant
Grisham; and (3) direct the Clerk of Court to issue process as to defendant Grisham in his
individual capacity.
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
$10.00, until the filing fee is fully paid. Id.
In support of the instant motion, plaintiff submitted a resident account summary form that
shows an average monthly balance of $11.00. The Court will therefore assess an initial partial
filing fee of $2.20, which is twenty percent of plaintiff’s average monthly balance.
Legal Standard on Initial Review
Under 28 U.S.C. § 1915(e)(2), 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, 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, inter alia, draw upon judicial
experience and common sense. Id. at 679.
When reviewing a pro se complaint under § 1915(e)(2), the Court must give it the benefit
of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, this does not
mean that pro se complaints may be merely conclusory. Even pro se complaints are required to
allege facts which, if true, state a claim for relief as a matter of law. Martin v. Aubuchon, 623
F.2d 1282, 1286 (8th Cir. 1980); see also Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir. 2004)
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(federal courts are not required to “assume facts that are not alleged, just because an additional
factual allegation would have formed a stronger complaint”). In addition, affording a pro se
complaint the benefit of a liberal construction does not mean that procedural rules in ordinary
civil litigation must be interpreted so as to excuse mistakes by those who proceed without
counsel. See McNeil v. U.S., 508 U.S. 106, 113 (1993).
The Complaint
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. Named as defendants are Mr.
Grisham and Sergeant Joe Taylor (officers with the Phelps County Sheriff’s Department), and
Sheriff Richard Lisenbe. Plaintiff sues all defendants in their official and individual capacities.
According to the complaint, on May 15, 2017, while plaintiff was an inmate at the Phelps
County Jail, he asked Grisham for a clean uniform. Grisham became enraged. He ordered
plaintiff to come into the hallway, and told plaintiff he would “beat [his] ass now and throw
[him] back in the pod.” (Docket No. 1 at 6). Grisham then ordered plaintiff to sit on the hallway
floor. As plaintiff was kneeling down onto the floor, Grisham fired his taser at plaintiff, hitting
him in the abdomen and thigh. Plaintiff alleges that, after the incident, Taylor told plaintiff he
would take appropriate action, and that plaintiff did not need to file a grievance. Plaintiff alleges
that he was never contacted by internal affairs or anyone else and that Grisham was never
suspended, and concludes that this means that Taylor never took any action against Grisham.
Plaintiff was able to file a grievance. Plaintiff does not allege any specific conduct on the part of
Lisenbe.
Plaintiff alleges that the tasing incident caused him to experience extreme pain and
suffering. He also alleges that, since the tasing incident, he has suffered from insomnia and
nightmares, and he experiences extreme stress when spoken to by an officer and is having

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trouble functioning normally. Plaintiff seeks monetary relief, and he asks that Grisham be fired
and that all officers be required to undergo sensitivity training.
Discussion
Plaintiff’s allegations against Taylor fail to state a claim of constitutional dimension, and
will be dismissed. Regarding Lisenbe, plaintiff does not allege that he engaged in any specific
conduct that violated his constitutional rights. “Liability under § 1983 requires a causal link to,
and direct responsibility for, the alleged deprivation of rights.” Madewell v. Roberts, 909 F.2d
1203, 1208 (8th Cir. 1990). To be cognizable under § 1983, a claim must allege that the
defendant was personally involved in or directly responsible for the incidents that deprived the
plaintiff of his constitutional rights. Claims sounding in respondeat superior are not cognizable
under § 1983. Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995).
Plaintiff’s official capacity claims against Grisham will be dismissed.

Naming a

government official in his official capacity is the equivalent of naming the government entity that
employs the official, which in this case is the Phelps County Sheriff’s Department. Will v.
Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Municipal departments, such as local
sheriff’s departments, are not suable entities under § 1983. Ketchum v. City of West Memphis,
Ark., 974 F.2d 81, 82 (1992) (departments or subdivisions of local government are “not juridical
entities suable as such”). Even if plaintiff had named a proper party defendant, the complaint
would not state a claim of municipal liability because it fails to allege a direct causal link
between a municipal policy or custom and the alleged constitutional violation. Monell v. Dept.
of Social Services of City of New York, 436 U.S. 658, 690-91 (1978).
The Court now turns to plaintiff’s individual capacity claim against Grisham. Construed
liberally, plaintiff has alleged that Grisham used a taser on him for the purpose of punishment or

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causing harm. This claim survives initial review, and will be permitted to proceed. The Court
will therefore direct the Clerk of Court to issue process upon the complaint as to Grisham in his
individual capacity.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis
(Docket No. 2) is GRANTED.
IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $2.20 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) the statement that the remittance is for an
original proceeding.
IT IS FURTHER ORDERED that all of plaintiff’s claims against defendant Joe Taylor
are DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).
IT IS FURTHER ORDERED that all of plaintiff’s claims against defendant Richard
Lisenbe are DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).
IT IS FURTHER ORDERED that plaintiff’s official capacity claims against defendant
Grisham are DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).
IT IS HEREBY CERTIFIED that an appeal from this partial dismissal would not be
taken in good faith.
IT IS FURTHER ORDERED that the Clerk of Court shall issue process, or cause

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process to issue, upon the complaint as to defendant Grisham in his individual capacity.
A separate order of partial dismissal will accompany this Opinion, Memorandum and
Order.
Dated this 23rd day of October, 2017

___________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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