United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, Jr., District Judge.
This matter is before the Court upon the motion of Taddius Parnell, an inmate at Pemiscot County Jail, 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 $6.66. See 28 U.S.C. § 1915(b)(1). Furthermore, based upon a review of the complaint, the Court finds that the complaint should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
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 six-month 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. A review of plaintiff's account indicates an average monthly deposit of $33.33, and an average monthly balance of less than $33.33. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $6.66, 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 must 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 from a defendant who is immune from such relief. An action is frivolous if it "lacks an arguable basis in either law or fact." Neitzke v. Williams , 490 U.S. 319, 328 (1989); Denton v. Hernandez , 504 U.S. 25, 31 (1992). An action is malicious if it is undertaken for the purpose of harassing the named defendants and not for the purpose of vindicating a cognizable right. Spencer v. Rhodes , 656 F.Supp. 458, 461-63 (E.D. N.C. 1987), aff'd 826 F.2d 1059 (4th Cir. 1987). A complaint fails to state a claim if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007).
Plaintiff brings this action under 42 U.S.C. § 1983. He originally brought this action in the United Stated District Court for the Western District of Kentucky. Venue, however, is proper in this Court, so the Western District of Kentucky transferred the action to this Court under 28 U.S.C. § 1406(a). Subsequently, plaintiff filed an amended complaint.
In his amended complaint, plaintiff names officer Randall Lee as defendant. Plaintiff alleges that Lee pulled him over and arrested him pursuant to an outstanding warrant. Plaintiff says he told Lee he had an open beer in his car. Lee took plaintiff to the Pemiscot County Jail (the "Jail"). Plaintiff claims that when they arrived at the Jail, there was something on the seat where he had been sitting. Plaintiff alleges that Lee asked him about it but that he denied knowing what it was. Plaintiff states that Lee then charged him with possession of a controlled substance. Plaintiff asserts that the charges were subsequently dropped.
The allegations in the complaint fail to state an actionable claim under § 1983 because they do not rise to the level of a constitutional violation. As a result, the complaint must be dismissed under 28 U.S.C. § 1915(e).
Additionally, plaintiff sues Lee in his official capacity only. See Egerdahl v. Hibbing Community College , 72 F.3d 615, 619 (8th Cir. 1995) (where complaint does not allege capacity, it is an official-capacity complaint). Naming a government official in his or her official capacity is the equivalent of naming the government entity that employs the official. Will v. Michigan Dep't of State Police , 491 U.S. 58, 71 (1989). To state a claim against a municipality or a government official in his or her official capacity, plaintiff must allege that a policy or custom of the government entity 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 ...