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Johns v. City of Florissant Police Department

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

March 13, 2019

BRENT J. JOHNS, Plaintiff,
v.
CITY OF FLORISSANT POLICE DEPARTMENT, et al., Defendants.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE.

         This matter is before the Court upon the motion of plaintiff Brent J. Johns (registration no. 1327955), an inmate at Eastern Reception, Diagnostic and Correctional Center (“ERDCC”), for leave to commence this action without payment of the required filing fee. For the reasons stated below, the Court finds that the plaintiff does not have sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of $14.93. See 28 U.S.C. § 1915(b)(1). Furthermore, after reviewing the complaint, the Court will partially dismiss the complaint and will issue process 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 or her 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, 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. A review of plaintiff's account indicates an average monthly deposit of $74.62. Accordingly, the Court will assess an initial partial filing fee of $14.93.

         28 U.S.C. § 1915(e)

         Pursuant 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).

         The Complaint

         Plaintiff brings this action pursuant to 42 U.S.C. § 1983 against the following twelve defendants: The City of Florissant; police officers Brian Panus, Steven Beckman, Joshua Smith[1], Phil Busby and Stephen Williams; Florissant Mayor Tom Schnieder; St. Louis County; the FBI; Florissant Police Chief Timothy Lowery, Sergeant Anthony Mocca; and Lieutenant Dennis Dehart. Plaintiff states that he sues the defendants in their official and individual capacities.

         Plaintiff asserts that he was being followed by Florissant Police Officers Joshua Smith, Steven Beckman and Brian Panus, despite a direct order from Sergeant Anthony Mocca to stop following plaintiff in his vehicle. Plaintiff claims that he stopped his vehicle in the City of Florissant, and he put his hands out his driver's side window, but Officer Smith “rammed” his vehicle with his patrol car. Plaintiff further asserts that even though he had his hands out the window, Officer Beckman tased him without warning, causing him to lose control of his vehicle and hit his head on the door of his vehicle.

         Plaintiff claims that these actions by defendants resulted in plaintiff being charged with property damage, assault in the second degree and leaving the scene of an accident. Plaintiff asserts that defendants acted in a conspiracy against plaintiff, giving false testimony to Phil Busby about the actions that occurred, as well as the City of Florissant's insurance company. Plaintiff claims that defendants violated his due process rights during the course of his arrest in violation of the Fourth Amendment, as well as caused him emotional distress. In essence, plaintiff is asserting that he was falsely arrested and imprisoned in violation of the Fourth Amendment by defendants Mocca, Smith, Beckman and Panus on March 1, 2017.

         Furthermore, Plaintiff states that Sergeant Mocca and Officers Panus, Smith and Beckman approached him while he was lying face down posing no threat, and stomped on him and assaulted him with their fists and batons. Plaintiff asserts that defendants violated his Fourth Louis County Drug Task Force Agent at the time of the allegations in the complaint, his assertions are entirely conclusory, as there is no indication that this defendant was acting in any capacity as anything other than a City of Florissant Police Officer at the time of the altercation. Amendment rights when they used excessive force in the course of his arrest and false imprisonment. Plaintiff alleges that as a result of the beating he received, he suffers from extensive back, neck and spinal injuries, as well as concussion syndrome, migraine headaches, Post-traumatic Stress Syndrome, black-outs, vertigo and vision loss.

         Plaintiff states that Chief Lowery, as well as Sergeant Anthony Mocca, failed to supervise and train Officers Panus, Beckman and Smith, causing him to be injured by them during the altercation on March 1, 2017. Additionally, plaintiff alleges that The City of Florissant (and unnamed City Counselors), as well as Mayor Tom Schneider, failed to act and failed to intervene to set forth or change policies, customs and procedures that resulted in plaintiff being injured on March 1, 2017. However, there is no indication that any of the aforementioned supervisory defendants were at the scene on March 1, 2017, except for Sergeant Anthony Mocca.

         Plaintiff additionally complains that Officer Williams denied him medical care on March 1, 2017 by threatening his life if he accepted medical treatment. Plaintiff asserts that Officers Panus and Beckman also denied him medical care on March 1, 2017 on the way to Christian Northwest Hospital and again in the emergency room by threatening to beat him if he accepted medical treatment.

         Plaintiff states that Mayor Schneider failed to intervene to change laws, statutes, ordinances, policies and customs which resulted in further harm to him through the denial of medical care due to the threats of Officers Panus, Beckman and Williams on March 1, 2017.

         Plaintiff alleges that The City of Florissant and Schneider failed to properly screen the hiring of Chief Lowery, Lieutenant Dehart, Sergeant Mocca, and Florissant Police Officers Panus, Beckman, Smith, Williams, an unknown police dispatcher, and a police headquarters intake jailer, causing plaintiff to be injured on March 1, 2017.

         Plaintiff seeks monetary damages in his complaint against defendants.

         Legal Standard on Initial Review

         Under 28 U.S.C. § 1915(e)(2)(B), the Court is required to dismiss a complaint filed in forma pauperis if it 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). 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). 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).

         To determine whether an action fails to state a claim upon which relief can be granted, the Court must engage in a two-step inquiry. First, the Court must identify the allegations in the complaint that are not entitled to the assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). These include “legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory statements.” Id. at 678. Second, the Court must determine whether the complaint states a plausible claim for relief. Id. at 679. This is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. The plaintiff is required to plead facts that show more than the “mere possibility of misconduct.” Iqbal, 556 U.S. at 679. The Court must review the factual allegations in the complaint “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. When faced with alternative explanations for the alleged misconduct, the Court may exercise its judgment in determining whether plaintiff's proffered conclusion is the most plausible or whether it is more likely that no misconduct occurred. Id. at 680-82.

         Pro se complaints are to be liberally construed, Estelle v. Gamble, 429 U.S. 97, 106 (1976), but they still 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). The Court must 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). 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).

         Discussion

         A. Excessive Force Claims Against Defendants Beckman, Mocca, Panus and Smith

         Plaintiff alleges that defendant Beckman used excessive force when he tased plaintiff as he sat in his car with his arms in clear view and held out the car window. Plaintiff alleges that defendants Mocca, Panus, Smith and Beckman approached him while he was lying face down posing no threat, and stomped on him and assaulted him with their fists and batons. Having liberally construed the complaint, the Court concludes, for purposes of initial review, that plaintiff has adequately stated claims of excessive force in violation of the Fourth Amendment[2] against Beckman, Mocca, Panus, and Smith in their individual capacities, and these claims will be allowed to proceed.

         B. False Arrest/False Imprisonment and Conspiracy Claims Against ...


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