Opinion
No. 4:07CV1995 TCM.
February 15, 2008
OPINION, MEMORANDUM AND ORDER
This matter is before the Court upon the application of Charles Edward Chambers (registration no. 382) for leave to commence this action without payment of the required filing fee.
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 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. See 28 U.S.C. § 1915(b)(1). 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. See 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. See 28 U.S.C. § 1915(a)(1), (2). A review of plaintiff's account statement indicates an average monthly deposit of $55.33, and an average monthly account balance of $18.99. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $10.67, 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 may dismiss a complaint filed in forma pauperis at any time if the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. An action is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007).
In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). The Court must also weigh all factual allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 32 (1992); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
The complaint
Plaintiff, an inmate at the St. Louis City Justice Center, seeks monetary relief in this 42 U.S.C. § 1983 action against the St. Louis Metropolitan Police Department and its police officers, Mark A. Sorocko, Angela Hawkins, Douglas Reinholz, and Harry J. Howell. Plaintiff alleges, "I was arrested Dec. 17th '06 and the police took about $2,000 of my money. I did receive SSI checks and told them. I would like to have a (replevin) Rule 99.01 form."
Having carefully reviewed the complaint, the Court concludes that, to the extent plaintiff is attempting to assert a Fourteenth Amendment due process claim based on the loss of property, the allegations fail to state a claim cognizable under § 1983 and are legally frivolous. There is no cause of action under § 1983 for an unconstitutional taking of personal property where the state provides an adequate postdeprivation remedy. See Clark v. Kansas City Missouri School Dist., 375 F.3d 698, 703 (8th Cir. 2004). The State of Missouri provides the postdeprivation remedy of replevin for the recovery of personal property. Id. at 703; see Mo. R. Civ. P. 99.01 — 99.15. Moreover, the "St. Louis Police Department" is not a suable entity, and therefore, is not a proper party defendant in this action. See Crigler v. City of St. Louis, 767 F.Supp. 197, 198 (E.D. Mo. 1991) (in § 1983 action for constitutional violations by St. Louis Police Department, Missouri law requires that action be brought against individual members of Board of Police Commissioners). For these reasons, plaintiff's complaint shall be dismissed.
In accordance with the foregoing,
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial partial filing fee of $10.67 within thirty (30) days from 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. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint, because the complaint is legally frivolous and fails to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B).
An appropriate order shall accompany this order and memorandum.