United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE
Derrick Jerome Harvey seeks leave to commence this action
without payment of the required filing fee. Upon review of
plaintiff's financial affidavit, the Court will grant the
motion. See 28 U.S.C. § 1915(b)(1).
Additionally, the Court will order plaintiff to submit an
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.
reviewing a complaint under 28 U.S.C. § 1915(e), the
Court accepts the well-pled facts as true. Furthermore, the
Court liberally construes the allegations.
brings this action under 42 U.S.C. § 1983 against the
Florissant Police Department. Plaintiff states that while he
was in police custody for a traffic warrant, an unnamed
police officer assaulted him. Plaintiff states the assault
was so severe he was rushed to the hospital with a head
injury, a bruised jaw, and a bruised hernia. For relief,
plaintiff seeks compensation in the amount of $100, 000.00
for violation of his civil rights.
has named only the Florissant Police Department as a
defendant. He has not named the police officer responsible
for his injury as a defendant, nor does he name the police
officer in the body of his claim. Relevant precedent
establishes that a department of subdivision of local
government is not a “juridical, ” or suable,
entity under 42 U.S.C. § 1983. Ketchum v. City of
West Memphis, Ark., 974 F.2d 81, 82 (1992). Therefore,
plaintiff's claim against the Florissant Police
Department fails as a matter of law. See Ballard v.
Missouri, 2013 WL 1720966, *3 (E.D. Mo. Apr. 22, 2013)
(holding that “[p]laintiff's claims against the
City of St. Louis Department of Public Safety, the St. Louis
County Justice Center, the City of St. Louis Justice Center,
and MSI/Workhouse are legally frivolous because these
defendants are not suable entities”).
addition, even if the Court were to liberally construe
plaintiff's allegations as brought against the City of
Florissant and substitute the municipality as defendant,
plaintiff's allegations would not state a claim of
municipal liability. Liability under § 1983 may attach
to a municipality if the constitutional violation resulted
from: (1) an official municipal policy; (2) an unofficial
custom; or (3) a deliberately indifferent failure to train or
supervise. Monell v. Dept. of Soc. Servs of City
of New York, 436 U.S. 658, 691 (1978), City of
Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989);
see also Veatch v. Bartels Lutheran Home, 627 F.3d
1254, 1257 (8th Cir. 2010) (explaining that under §
1983, the plaintiff must demonstrate either that the
municipality had a policy or custom that caused the
constitutional violation or that the municipality or
municipal employee exhibited deliberate indifference to the
plaintiff's constitutional rights by failing to
adequately train or supervise its employees) (citing City
of Canton, 489 U.S. at 378-92). The instant complaint
does not contain any allegations that a policy or custom of
the City of Florissant 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 against defendant City of Florissant.
of the serious nature of the allegations in the complaint,
the Court will not dismiss the case at this time. Instead,
the Court will give plaintiff the opportunity to file an
amended complaint. In his amended complaint, plaintiff shall
name as defendants (in their individual capacities) the
person or persons directly responsible for his injuries.
Plaintiff shall have twenty-one (21) days from the date of
this Memorandum and Order to file his amended complaint on a
court-provided form. Plaintiff is warned that the filing of
an amended complaint replaces the original complaint, and
claims that are not re-alleged are deemed abandoned.
E.g., In re Wireless Telephone Federal Cost
Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir.
2005). If plaintiff fails to file an amended complaint on a
court-provided form within twenty-one (21) days, the Court
will dismiss this action without prejudice.
motion for appointment of counsel will be denied at this
time. Although plaintiff has alleged serious claims, none of
his claims have, of yet, survived frivolity review. Thus,
counsel is simply not warranted at this time. Plaintiff may,
of course, move for counsel at a later time, if it appears
that counsel is warranted if this case progresses.
IT IS HEREBY ORDERED that plaintiffs motion
to proceed in forma pauperis is GRANTED.
[ECF No. 2]
IS FURTHER ORDERED that the Court shall mail to
plaintiff a copy of the ...