Johnson v. St. Louis County Department of Justice et al

Filing 4

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 the plaintiff shall pay an initial filing fee of $43.11 within thirty (30) days of the date of th is Order. Plaintiff is instructed to make his remittance payable to Clerk, United States District Court, and to include upon it: (1) his name; (2) hisprison registration number; (3) the case number; and (4) that the remittance is for an original proc eeding. IT IS FURTHER ORDERED that if plaintiff fails to pay the initial partial filing fee within thirty (30) days of the date of this Order, then this case will be dismissed without prejudice.IT IS FURTHER ORDERED that the Clerk shall issue process or cause process toissue on plaintiffs individual capacity claims against defendant Amy Janssen for a delay inmedical/dental care in violation of the Eighth Amendment. Nurse Janssen shall be served by issuance of summons. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint as to plaintiffs official capacity claims against Nurse Amy Janssen because these claims are legally frivolous, or fail to state a claim upon which relief may be granted, or both. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint as to defendants St. Louis County Department of Justice or Herbert Bernsen, because, as to these defendants, the complaint is legally f rivolous or fails to state a claim upon which relief can be granted, or both. IT IS FURTHER ORDERED that this case is assigned to Track 5: Prisoner Standard.An Order of Partial Dismissal will accompany this Memorandum and Order. 2 Signed by District Judge Jean C. Hamilton on 1/11/18. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CARLOS DEWAYNE JOHNSON
Plaintiff,
v.
ST. LOUIS COUNTY DEPARTMENT OF
JUSTICE and AMY JANSSEN,
Defendants.

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No. 4:18-CV-41 JCH

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no. 76948), an
inmate at St. Louis County Justice Center, for leave to commence this action without payment of
the required filing fee. For the reasons stated below, the Court finds that plaintiff does not have
sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of $43.11.
See 28 U.S.C. § 1915(b)(1). Furthermore, after reviewing the complaint, the Court will order the
Clerk to issue process or cause process to be issued on a portion of the complaint. The Court will
also partially dismiss several claims and parties to this action.
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, until the filing fee is fully paid. Id.
Plaintiff has submitted an affidavit and a certified copy of his prison account statement
for the six-month period immediately preceding the submission of his complaint. Accordingly,
the Court will assess an initial partial filing fee of $43.11, which is 20 percent of plaintiff's
average monthly deposit.
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 “it 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 “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 127 S. Ct. 1955, 1974 (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); Scheuer v. Rhodes, 416 U.S. 232,
236 (1974).
The Complaint
Plaintiff, who is currently incarcerated at St. Louis County Justice Center, brings this
action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights. Named as defendants
are the St. Louis County Department of Justice, Herbert Bernsen and Amy Janssen (Nurse).
Plaintiff sues defendants in their individual and official capacities.

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Plaintiff claims that he has been incarcerated at the County Jail for over six months. He
asserts that he has lost weight and “many nights of sleep” and he “endures pain on a daily basis”
as a result of the Jail refusing to assist him with his dental needs.
Plaintiff asserts that he has several cavities and infections in his teeth,1 which hurt so bad
it makes it difficult for him to “finish a meal.” He states that he has completed dentist forms on
over ten occasions, but no dental care has been given to him. He purports that two of his teeth
are “broken down to the gum,” and on one of the teeth, his nerve is exposed, making it difficult
to function. Plaintiff alleges that although he has suffered with these same issues for over six
months, it wasn’t until December 2017, that he was told by defendant Janssen that the Jail would
set up with an appointment to see the dentist for him. Plaintiff claims that the appointment was
not set until he appealed a grievance to defendant Herbert Bernsen. Plaintiff states that he did not
receive a response from defendant Bernsen relative to his grievance.
Plaintiff seeks monetary damages and injunctive relief.
Discussion
The Court will issue process on plaintiff’s individual capacity claims against defendant
Nurse Amy Janssen for his assertion that Janssen deliberately delayed his dental treatment in
violation of the Eighth Amendment through the present time period. Plaintiff’s official capacity
claims against Defendant Janssen, as well as plaintiff’s claims against the Justice Center/County
Department of Justice2, will be dismissed.

1

These claims are laid out in plaintiff’s grievances which are attached to the complaint. The
allegations are included in the complaint according to Fed.R.Civ.P.10.
2
Plaintiff’s claim against the St. Louis County Department of Justice and/or the County Justice
Center is legally frivolous because it cannot be sued. Ketchum v. City of West Memphis, Ark.,
974 F.2d 81, 82 (8th Cir. 1992) (departments or subdivisions of local government are “not
juridical entities suable as such.”).

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Naming an official in his or her official capacity is the equivalent of naming the entity
that employs the official. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). To
state a claim against an official in his or her official capacity, plaintiff must allege that a policy
or custom of his or her employer is responsible for the alleged constitutional violation. Monell v.
Dep=t of Social Services, 436 U.S. 658, 690-91 (1978). The instant complaint does not contain
any allegations that a policy or custom of St. Louis County was responsible for the alleged
violations of plaintiff=s constitutional rights. As a result, the complaint fails to state a claim upon
which relief can be granted with respect to Amy Janssen’s official capacity claims.
The Court will also dismiss plaintiff’s claims against Herbert Bernsen. “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); Ashcroft v. Iqbal, 129 S.Ct. 1937,
1948 (2009) (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff
must plead that each Government-official defendant, through the official’s own individual
actions, has violated the Constitution.”). Here, plaintiff has not adequately alleged facts showing
that Herbert Bernsen was directly involved in or personally responsible for the alleged violations
of his constitutional rights. Rather, plaintiff has merely alleged that he sent a grievance appeal to
Herbert Bernsen. “Only persons who cause or participate in the [constitutional] violations are
responsible. Ruling against a prisoner on an administrative complaint does not cause or
contribute to the violation.” George v. Smith, 507 F. 3d 605, 609 (7th Cir. 2007) (citations
omitted). As such the claim against defendant Bernsen is also subject to dismissal.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc.
#2] is GRANTED.

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IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $43.11
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 if plaintiff fails to pay the initial partial filing fee
within thirty (30) days of the date of this Order, then this case will be dismissed without
prejudice.
IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to
issue on plaintiff’s individual capacity claims against defendant Amy Janssen for a delay in
medical/dental care in violation of the Eighth Amendment. Nurse Janssen shall be served by
issuance of summons.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to
issue upon the complaint as to plaintiff’s official capacity claims against Nurse Amy Janssen
because these claims are legally frivolous, or fail to state a claim upon which relief may be
granted, or both.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to
issue upon the complaint as to defendants St. Louis County Department of Justice or Herbert
Bernsen, because, as to these defendants, the complaint is legally frivolous or fails to state a
claim upon which relief can be granted, or both.

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IT IS FURTHER ORDERED that this case is assigned to Track 5: Prisoner Standard.
An Order of Partial Dismissal will accompany this Memorandum and Order.
Dated this

11th

day of January, 2018.

\s\ Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE

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