United States District Court, E.D. Missouri, Eastern Division
AMADO R. GOMEZ, Plaintiff,
SHAWN OWENS, et al., Defendants.
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
a prisoner, seeks leave to proceed in forma pauperis in this
civil action under 42 U.S.C. § 1983. Having reviewed
plaintiffs financial information, the Court assesses a
partial initial filing fee of $4.00, which is twenty percent
of his average monthly deposit. See 28 U.S.C. §
1915(b). Additionally, the Court finds that the case must be
dismissed under 28 U.S.C. § 1915(e).
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, 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 on April 15, 2011, defendant Owens sprayed him
with mace. Owens refused to let him go to the medical unit,
he says, and he was forced to rinse off the mace in the
the statute of limitations is an affirmative defense, a
district court may properly dismiss an in forma pauperis
complaint under 28 U.S.C. § 1915[e] when it is apparent
the statute of limitations has run." Myers v.
Vogal, 960 F.2d 750, 751 (8th Cir. 1992). Section 1983
claims are analogous to personal injury claims and are
subject to Missouri's five-year statute of limitations.
Sulik v. Taney County, Mo., 393 F.3d 765, 766-67
(8th Cir. 2005); Mo. Rev. Stat. §516.120(4).
case, the statute of limitations expired on April 15, 2016.
Plaintiff acknowledges that the complaint is untimely, but he
says he did not know he could file a lawsuit. Plaintiffs
ignorance, however, does not qualify him for tolling of the
limitations period. See O 'Reilly v. Dock, 929
S.W.2d 297, 301 (Mo.Ct.App. 1996 ("Mere ignorance on the
part of a plaintiff does not toll the statute of limitations
where reasonable diligence on his or her part would have
revealed the injury or wrongful conduct."). As a result,
this action is barred by the statute of limitations.
the complaint does not state whether defendants are being
sued in their official or individual capacities. 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); Mx 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, in this case
the State of Missouri. Will v. Michigan Dep't of
State Police, 491 U.S. 58, 71 (1989). "[N]either a
State nor its officials acting in their official capacity are
'persons' under § 1983." Id. As a
result, the complaint fails to state a claim upon which
relief can be granted.
IT IS HEREBY ORDERED that plaintiffs motion
to proceed in forma pauperis [ECF No. 2] is
GRANTED IT IS FURTHER
ORDERED that the plaintiff must pay an initial
filing fee of $4.00 within twenty-one (21) 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.
IS FURTHER ORDERED that this action is
DISMISSED without prejudice.
Order of Dismissal will ...