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Kavanaugh v. Lowery

United States District Court, E.D. Missouri, Eastern Division

February 13, 2019

WILLIAM DANIEL KAVANAUGH, Plaintiff,
v.
TIMOTHY LOWERY, et al., Defendants.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the motion of plaintiff William Daniel Kavanaugh, a prisoner, for leave to commence this civil action without prepayment of the required filing fee. Having reviewed the motion and the financial information submitted in support, the Court has determined to grant the motion, and assess an initial partial filing fee of $49.96. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed below, the Court will partially dismiss the complaint, and direct the Clerk of Court to issue process or cause process to be issued on the non-frivolous portions of the complaint.

         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. 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. 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 $10.00, until the filing fee is fully paid. Id.

         In support of the instant motion, plaintiff submitted an inmate account statement showing an average monthly balance of $249.78. The Court will therefore assess an initial partial filing fee of $49.96, which is twenty percent of plaintiff's average monthly balance.

         Legal Standard on Initial Review

         Under 28 U.S.C. § 1915(e)(2), 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. An action is frivolous if it “lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S. 319, 328 (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, 550 U.S. 544, 570 (2007).

         “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Determining whether a complaint states a plausible claim for relief is a context-specific task that requires the reviewing court to draw upon judicial experience and common sense. Id. at 679. The court must assume the veracity of well-pleaded facts, but need not accept as true “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. at 678 (citing Twombly, 550 U.S. at 555); see also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73 (8th Cir. 2016) (stating that court must accept factual allegations in complaint as true, but “does not accept as true any legal conclusion couched as a factual allegation”).

         Pro se complaints must be liberally construed. Estelle v. Gamble, 429 U.S. 97, 106 (1976). This means that if the essence of an allegation is discernible, the court should construe the complaint in a way that permits the plaintiff's claim to be construed within the proper legal framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, even pro se complaints must allege facts which, if true, state a claim for relief as a matter of law. Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980). Federal courts are not required to “assume facts that are not alleged, just because an additional factual allegation would have formed a stronger complaint.” Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir. 2004). Additionally, giving a pro se complaint the benefit of a liberal construction does not mean that procedural rules must be interpreted so as to excuse mistakes by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).

         The Complaint

         Plaintiff brings this action pursuant to 42 U.S.C. § 1983 against the Florissant Missouri Police Department, Police Chief Timothy Lowery, Detective Unknown Osmond, and law enforcement officers John Doe 1 - 3. Plaintiff sues the individual defendants in their official and individual capacities.

         Plaintiff claims that Osmond and John Does 1-3 violated his rights guaranteed by the United States Constitution during a July 27, 2018 traffic stop that occurred on a highway on-ramp between noon and 1:00 p.m. in Florissant, Missouri. According to the complaint, Osmond pulled plaintiff over and asked him to exit the vehicle. Plaintiff allowed Osmond to pat him down for weapons. Osmond asked for permission to search the vehicle, but plaintiff declined. Osmond then placed plaintiff in handcuffs and proceeded to illegally search the vehicle. Osmond searched the vehicle very thoroughly, inside and out, but did not find anything. During the search, Doe 1 stood guard over plaintiff.

         Osmond then said he wanted to search plaintiff better. He said plaintiff could leave as long as he did not have anything illegal on him. Plaintiff gave Osmond permission to search his pockets. Osmond said he wanted to strip search plaintiff, but that he could not do it in a public place. Plaintiff refused to consent to the strip search, and he refused to go anywhere with Osmond. Osmond returned to the vehicle and searched it again, but found nothing. He then took plaintiff to the side of his car. While plaintiff was still in handcuffs, Osmond unfastened plaintiff's belt, pulled down his pants and underwear, and used his hands as well as a cold metal object to spread plaintiff's buttocks apart and poke at his genitals. Plaintiff characterizes this as an illegal strip search, and also as a sexual assault. During the strip search, Doe 1 watched, but did not intervene or do anything to protect plaintiff from Osmond. The strip search yielded nothing.

         Osmond had removed plaintiff's handcuffs and was about to release him when John Does 2 and 3 arrived on the scene. Without plaintiff's consent, a warrant, or probable cause, Does 2 and 3 searched plaintiff's vehicle. One of them said he found something. Osmond then placed the handcuffs back on plaintiff, and locked him in his police car. At this point, the window was rolled down slightly, and the air conditioning was on. Osmond spoke to the other officers and then told plaintiff he would let him leave if he cooperated, but that if he refused to cooperate, Osmond would convince plaintiff's parole officer to issue a parole violation warrant for his arrest. Plaintiff said he had no information, and therefore could not cooperate. Osmond then rolled up the car's windows and turned off the air conditioner, leaving plaintiff locked inside the hot car. Osmond also contacted plaintiff's parole officer and, even though plaintiff had not been charged with any crimes, told the agent that plaintiff had been charged with new felony drug charges. Plaintiff was ...


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