United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
D. NOCE UNITED STATES MAGISTRATE JUDGE
matter is before the Court upon the motions of plaintiff
(registration no.32957), an inmate at St. Louis County
Justice Center, for leave to commence this action without
payment of the required filing fee [Doc. #7 and #10]. For the
reasons stated below, the Court finds that the plaintiff does
not have sufficient funds to pay the entire filing fee and
will not assess an initial partial filing fee at this
time. See 28 U.S.C. § 1915(b)(1).
Furthermore, after reviewing the complaint, the Court will
order plaintiff submit an amended pleading within thirty (30)
days of the date of this Memorandum and Order.
U.S.C. § 1915(e)
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).
brings this action pursuant to 42 U.S.C. § 1983 alleging
violations of his civil rights. Named as defendants are
Police Officers Unknown Presson, Unknown Carmen and Unknown
Sullivan. Defendants are named in their official capacities.
asserts that Police Officer Presson violated his
constitutional rights by allegedly "assaulting" him
and "striking him" in the face. Plaintiff also
asserts that Police Officer Carmen violated his rights by
"assisting Presson in depriving [him] of [his] liberty
without due process of law and assisting [him] with cruel and
unusual punishment." Plaintiff alleges that Police
Officer Sullivan "did nothing to enforce [his] rights
knowing that [he] was placed under arrest before the bag was
even searched." He seeks monetary damages and injunctive
motions to supplement his complaint [Doc. #5 and 6],
plaintiff seeks to add additional claims and additional
defendants to this action. He has not included a proposed
amended complaint, instead merely filing with the Court
"supplemental" documents seeking to add, by
interlineation, his additional claims and parties. Such
practices are not proper under the Federal Rules. See
also Popoalii v. Correctional Medical Services, 512 F.3d
488, 497 (8th Cir.2008) (finding that it is appropriate to
deny leave to amend a complaint when a proposed amendment was
not submitted with the motion).
Rule of Civil Procedure 7 does not contemplate a
"supplemental complaint." Thus, plaintiff will be
required to file a full amended complaint in order to amend
his pleadings and his motions to supplement his complaint
will be denied. [Doc. #5 and #6].
has sued defendants in their "official capacities."
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 custom of a government entity, such as the
Brentwood Police Department, was responsible for the alleged
violations of plaintiff s constitutional rights. As a result,
the complaint currently fails to state a claim upon which
relief can be granted.
as plaintiffs complaint is currently written, the only
defendant personally involved in allegedly violating his
constitutional rights was Officer Presson, who plaintiff
states unlawfully struck him during the course of his arrest.
In order to show liability under § 1983, a plaintiff
must allege that a state actor was directly responsible for
an alleged violation of plaintiffs purported deprivation of
rights. See Madewell v. Roberts, 909 F.2d 1203, 1208
(8th Cir. 1990) ("Liability under § 1983 requires a
causal link to, and direct responsibility for, the alleged
deprivation of rights.");See also Martin v.
Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim not
cognizable under § 1983 where plaintiff fails to allege
defendant was personally involved in or directly responsible
for incidents that injured plaintiff); Boyd v. Knox,
47 F.3d 966, 968 (8th Cir. 1995) (respondeat superior theory
inapplicable in § 1983 suits). As a result, even if
plaintiff had made allegations against the defendants in
their individual capacities, he has not clearly alleged
personal responsibility for an Eighth Amendment violation on
behalf of Officers Carmen and Sullivan.
to the extent plaintiff alleges that he was falsely arrested
by any of the alleged defendants, these claims may, in fact,
need to be stayed during the pendency of his underlying state
criminal action pursuant to the case of Wallace v.
Koto, 549 U.S. 384 (2007).
Wallace v. Kato, the United States Supreme Court
held that "the statute of limitations upon a § 1983
claim seeking damages for a false arrest in violation of the
Fourth Amendment, where the arrest is followed by criminal
proceedings, begins to run at the time the claimant is
detained pursuant to legal process." Wallace,
549 U.S. at 397. The Court observed that "[f]alse ...