Turner v. St. Louis City Sheriff's Office

Filing 6

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis (Docket No. 2) is GRANTED. IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $7.62 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 this case is DISMISSED without prejudice, pursuant to 28 U.S.C. § 1915(e)(2). A separate order of dismissal will be entered herewith. IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in good faith. Signed by District Judge E. Richard Webber on November 21, 2017. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DAMAL J. TURNER,
Plaintiff,
V.

ST. LOUIS CITY SHERIFF'S OFFICE,
Defendant.

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No. 4:17-cv-2280-DDN

MEMORANDUM AND ORDER

This matter is before the Court on the motion of plaintiff Damal J. Turner for leave to
commence this civil action without prepayment of the required filing fee. Having reviewed the
motion and the financial information submitted in support, the Court has determined to grant the
motion, and assess an initial partial filing fee of$7.62. See 28 U.S.C. § 1915(b)(l). In addition,
for the reasons discussed below, the Court will dismiss the complaint, without prejudice.

28 u.s.c. § 1915(b)(l)
Pursuant to 28 U.S. C. § l 915(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
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 an inmate account statement showing
an average monthly balance of $38.11. The Court will therefore assess an initial partial filing fee
of $7.62, which is twenty percent of plaintiffs 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.
Pro se complaints are to be liberally construed. Estelle v. Gamble, 429 U.S. 97, 106
(1976). However, they still must allege sufficient facts to support the claims alleged. Stone v.

Harry, 364 F.3d 912, 914-15 (8th Cir. 2004); see also Martin v. Aubuchon, 623 F.2d 1282, 1286
(8th Cir. 1980) (even pro se complaints are required to allege facts which, if true, state a claim
for relief as a matter of law). Federal courts are not required to "assume facts that are not
alleged, just because an additional factual allegation would have formed a stronger complaint."

Stone, 364 F.3d at 914-15.

In addition, giving a pro se complaint the benefit of a liberal
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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. US., 508 U.S.
106, 113 (1993).
The Complaint
Plaintiff is a pretrial detainee at the St. Louis City Justice Center. He brings this action
pursuant to 42 U .S.C. § 1983 against the St. Louis City Sheriffs Office. He alleges as follows.
On June 3, 2017, plaintiffs father died unexpectedly.

Plaintiff called his defense

attorney, who filed a motion in plaintiffs pending criminal case asking that plaintiff be allowed
to leave prison to view his father's body at the funeral home. Plaintiff attaches to the complaint
a copy of the docket sheet in his criminal case, which shows that an order entitled "Funeral
Transportation Order" was entered on June 13, 2017 by the Honorable Barbara Peebles. Indeed,
review of plaintiffs pending criminal case on Missouri Case.net, the State of Missouri's online
docketing system, shows that on June 13, 2017, Judge Peebles entered that order, which provided
as follows:
The Sheriffs of the City of St. Louis are ordered, if reasonably practicable, to
transport [plaintiff] to the Pilgrim Temple CME Church, located at 1800 Treadley
Avenue, East St. Louis, IL, at or before 9:00 am on 6/14/17. [Plaintiff] is to view
the body of his father, Duane Turner, pursuant to the rules and regulations of the
Sheriffs Department.

See State v. Turner, Case No. 1622-CR05186 (22nd Jud. Cir. Dec. 8, 2016).
Plaintiff alleges that his constitutional rights were violated when, on June 14, 2017,
defendant did not obey that state court order.

Plaintiff alleges that he suffered mental and

physical distress, and he seeks monetary damages in the amount of $5,000,000. (Docket No. 1 at
6).

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Discussion

To state a claim under 42 U.S.C. § 1983, a plaintiff must establish that he was deprived
of a federal right by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48
(1988); see also Iqbal, 556 U.S. 662 (a plaintiff must allege facts showing that each defendant,
through his or her own actions, violated the Constitution). Section 1983 does not itself confer
rights; rather, it creates a right of action for the vindication of rights conferred elsewhere.
Plaintiff has named the City of St. Louis Sheriffs Department as the sole defendant.
However, the Sheriffs Office is a municipal department of the City of St. Louis, and is not itself
an entity that can be sued under § 1983. Therefore, the complaint is legally frivolous. See
Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82 (1992) (entities such as police

departments are "not juridical entities suable as such.

They are simply departments or

subdivisions of the City government"); see also De La Garza v. Kandiyohi County Jail, 18 Fed.
Appx. 436, 437 (8th Cir. 2001) (sheriffs departments and police departments are not usually
considered legal entities subject to suit under § 1983).
Even if plaintiff had named a person or entity subject to suit under§ 1983, the complaint
would be subject to dismissal because plaintiff has not plead facts showing that any of his federal
statutory or constitutional rights were violated. Plaintiffs claims are premised upon his belief
that he had a federally-protected right to be taken to the funeral home to view his father's body,
and/or for the defendant to follow a state court order. However, neither is the case. Federal
courts have repeatedly held that prisoners do not have a federally-protected right to attend

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funerals. 1 These holdings logically extend from attending funerals to being taken to a funeral
home to view a relative's body. While the Court is sympathetic to plaintiffs desire to view his
father's body, his claim that defendant did not take him to do so does not state a claim of
constitutional dimension. In addition, plaintiff did not have a constitutionally-protected right to
have defendant follow Judge Peebles's June 13, 2017 order. See Ebmeier v. Stump, 70 F.3d
1012, 1013 (8th Cir. 1995) ("violations of state laws, state-agency regulations, and more
particularly, state-court orders, do not by themselves state a claim under 42 U.S.C. § 1983.
Section 1983 guards and vindicates federal rights alone."). Therefore, the Court concludes that
plaintiffs allegations fail to state claims that are cognizable under§ 1983.
After carefully reading and liberally construing the complaint, the Court concludes that it
is subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2). The Court has determined that this is
not a situation in which leave to amend should be given. The complaint was obviously carefully
prepared. Plaintiff sets forth his allegations in a thoughtful and comprehensive fashion, and he is
clear about the defendant he wishes to sue and the claims he wishes to bring. However, as
discussed above, the defendant is not an entity subject to suit under § 1983, and there is no
federally-protected right to view a relative's body or to have a defendant follow a state court
order of the sort at issue here. Because no new pleading will change that, allowing leave to
amend would be futile. The complaint will therefore be dismissed, without prejudice.
Accordingly,

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Merritt v. Brog/in, 891 F.2d 169, 174-75 (7th Cir. 1989); Lamb v. Burke, 59 F.3d 170 (6th Cir. 1995) (Table
Decision) (holding that an inmate had no constitutionally-protected liberty interest in attending his mother's funeral);
Cruz v. Sielaff, 767 F. Supp. 547, 550 (S.D. N.Y. 1991); Sorenson v. Minnesota Department of Corrections, 2012
WL 3150722 (D. Minn. Jun. 20, 2012) (collecting cases); Walters v. Washington County Jail, 2007 WL 2710433
(W.D. Ark. Sep. 13, 2007).

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IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma
pauperis (Docket No. 2) is GRANTED.

IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $7 .62 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 this case is DISMISSED without prejudice, pursuant
to 28 U.S.C. § 1915(e)(2). A separate order of dismissal will be entered herewith.

IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in
good faith.
Dated this

"f,{!Jf, day ofNovember, 2017.

$.
E. RICHARD WEBBER
UNITED STATES DISTRICT JUDGE

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