United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE
seeks leave to proceed in forma pauperis in this civil action
under 42 U.S.C. § 1983. The motion is granted.
Additionally, plaintiff will be required to show cause within
thirty (30) days of the date of this Memorandum and Order why
this action should not be dismissed pursuant to 28 U.S.C.
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 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
draw on its judicial experience and common sense.
Id. at 679.
alleges that in August of 2012, defendant Dr. David
Loiterstein, a physician at the Veterans Administration
Hospital, placed him on an “ex parte certificate of
insanity, ” or a 96-hour hold at the Jefferson Barracks
VA hospital, which plaintiff alleges was akin to “false
also alleges that certain unnamed police officers and EMS
officers acted together to transport him to the VA hospital
in order to assist in placing him on the involuntary hold,
“without probable cause.” However, these individuals
are not named as defendants in this lawsuit.
seeks monetary damages in his complaint.
is suing both Dr. David Loiterstein, his VA physician, as
well as the United States of America. The Court presumes
plaintiff's claims against Dr. Loiterstein are being
brought pursuant to Bivens v. Six Unknown Named Agents of
the Federal Bureau of Narcotics, 403 U.S. 388 (1971), as
he has filled out the civil rights complaint form and alleged
violations of his rights pursuant to 42 U.S.C. §§
1983 and 1985. A claim under Bivens involves the
same analysis as one arising under 42 U.S.C. § 1983.
Gordon v. Hansen, 168 F.3d 1109, 1113 (8th Cir.
did not specify in his complaint whether he is suing
defendant Loiterstein in his official or individual capacity.
Where a “complaint is silent about the capacity in
which [plaintiff] is suing defendant, [a district court must]
interpret the complaint as including only 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. Will v. Michigan Dep't of State
Police, 491 U.S. 58, 71 (1989). Thus, in this case,
plaintiff's claims against defendant Loiterstein have
been made only against the United States of America.
sue the United States, [a plaintiff] must show both a waiver
of sovereign immunity and a grant of subject matter
VSLtd.P=shipv.Dep=tofHous.andUrbanDev., 235 F.3d
1109, 112 (8th Cir. 2000).
true that a plaintiff may pursue a claim against the United
States under the Federal Tort Claims Act
(“FTCA”), but in order to do so, the plaintiff
must first present his claim in writing to the appropriate
Federal Agency within two years after such claim accrues
unless the action is begun within six months after the date
of mailing, by certified or registered mail, of a notice of
final denial of the claim by the Agency to which it was
presented. See 28 U.S.C. § 2401(b).
the statute of limitations provision in § 2401(b) has
been narrowly construed, and a plaintiff must both file his
administrative claim within two years after accrual of the
claim and file his action in the District Court within six
months of the Agency's final action for jurisdiction to
be proper. See Ellison v. United States, 531 F.3d