United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion of plaintiff Larry
Tarver, Jr., an inmate at Pemiscot County Jail, for leave to
commence this action without payment of the required filing
fee. For the reasons stated below, the Court finds that
plaintiff does not have sufficient funds to pay the entire
filing fee and will assess an initial partial filing fee of
$16.93. See 28 U.S.C. § 1915(b)(1).
Furthermore, based upon a review of the complaint, the Court
will stay and administratively close this action pursuant to
the Supreme Court case of Wallace v. Kato, 549 U.S.
384 (2007), based on the pendency of an underlying criminal
case against plaintiff that arises out of the same facts.
brings this action pursuant to 42 U.S.C. § 1983
asserting violations of his Fourth, Sixth, and Eighth
Amendment rights. Prior to this case being filed, on June 22,
2018, an underlying criminal case was filed against plaintiff
in Missouri State Court. See State v. Tarver, No.
18NM-CR00452-01 (34th Judicial Circuit, New Madrid County).
Plaintiff has been charged with felony first degree robbery
in violation of Missouri Revised Statute § 570.023. The
case is pending, and plaintiff's trial is scheduled for
May 15, 2019.
§ 1983 case, plaintiff asserts claims for unlawful
arrest, unlawful imprisonment and malicious prosecution as a
result of his arrest on May 10, 2018. He brings this action
against two officers of the New Madrid County Drug Task
Force, defendants Troy Shelly and Robert Newton. Plaintiff
alleges defendant Shelly was involved in his arrest;
plaintiff makes no allegations against defendant Newton.
amended complaint, plaintiff alleges defendant Shelly entered
plaintiff's mother's home, beat plaintiff, and
arrested him in violation of this Fourth Amendment rights. He
also states defendant Shelly “failed to perform chain
of custody Amendment 8 has been violated. Also Amendment 6
has been violated along with many civil rights such as
malicious prosecution.” For relief, plaintiff seeks $5
million and to have his criminal charges dismissed.
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 arrest and false imprisonment overlap; the
former is a species of the latter.” Id. at
388. The Court instructed that where “a plaintiff files
a false arrest claim before he has been convicted . . . it is
within the power of the district court, and in accord with
common practice, to stay the civil action until the criminal
case or the likelihood of a criminal case is ended.”
Id. at 393-94. Otherwise, the court and the parties
are left to “speculate about whether a prosecution will
be brought, whether it will result in conviction, and whether
the impending civil action will impugn that verdict, all this
at a time when it can hardly be known what evidence the
prosecution has in its possession.” Id. at 393
(internal citation omitted).
case, plaintiff asserts claims for unlawful arrest and
imprisonment. The principles of Wallace v. Kato
dictate that further consideration of plaintiff's §
1983 claims should be stayed until the underlying criminal
matter currently pending against plaintiff has been resolved
through trial, criminal appeals, as well as through
a stay or abstention until resolution of the criminal matter
would be appropriate because a prisoner may not recover
damages in a § 1983 suit where the judgment would
necessarily imply the invalidity of his conviction, continued
imprisonment or sentence unless the conviction or sentence is
reversed, expunged or called into question by issuance of a
writ of habeas corpus. See Heck v. Humphrey, 512
U.S. 477, 486-87 (1994); Schafer v. Moore, 46 F.3d
43, 45 (8th Cir. 1995); Edwards v. Balisok, 520 U.S.
641, 648 (1997) (applying rule in § 1983 suit seeking
IT IS HEREBY ORDERED that plaintiff's
motion to proceed in forma pauperis is
GRANTED. [ECF No. 5]
IS FURTHER ORDERED that the plaintiff must pay an
initial filing fee of $16.93 within thirty (30) 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 all proceedings in this case
are STAYED pending final disposition of the
proceedings against plaintiff in his criminal case State
v. Tarver, No. ...