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Theisen v. State

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

August 12, 2019




         Plaintiffs, Michael and Matthew Theisen, filed this action on October 22, 2018, seeking release from Fulton State Hospital. Before the Court is plaintiffs' motions to proceed in forma pauperis[1], plaintiffs' motion for appointment of counsel and defendant's motion to dismiss plaintiffs' complaint. The Court will grant plaintiffs' motion to proceed in forma pauperis. However, after reviewing plaintiffs' complaint and their litigation history, the Court will order plaintiffs to amend their pleading on a court-form for filing a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Moreover, plaintiffs' motion for appointment of counsel will be denied at this time, given the Court's instructions to plaintiffs to amend their pleading. Last, the Court will deny defendant's motion to dismiss the complaint, without prejudice.


         In June of 2011, Michael and Matthew Theisen were en route from Fort Leonard Wood, Missouri, when they stopped at a Wal-Mart in Stoddard County, Missouri.[2] The Theisen brothers were arrested for damaging a parked car with a shopping cart. They were detained, charged with first-degree property damage, taken to the local police department, and questioned by police. The plaintiffs were then transported to Stoddard County Jail. See State v. Theisen, No. 11SD-CR00863-01 and 11SD-CR00872-01 (35th Judicial Circuit, Stoddard County Court); State v. Theisen, No. 11SD-CR00862-01 and 11SD-CR00873-01 (35th Judicial Circuit, Stoddard County Court).

         In their handwritten, two-hundred-page complaint presently before the Court, plaintiffs allege that at some point during the day of their arrest, plaintiff Matthew Theisen was raped by Stoddard County Jailor Larry Gulley. Plaintiff Matthew Theisen tried to defend himself, a struggle ensued and inmates Chad Williamson and Mike Walker, who were not confined to their cells at the time, joined Gulley in attacking Matthew and Michael Theisen. Plaintiffs claim that Michael was choked, rendered unconscious and confined to a jail cell. Plaintiffs allege that Matthew was raped by multiple individuals including Larry Gulley, inmates Walker and Williamson, and others. Plaintiffs also assert that they were assaulted with a taser.

         After the altercation with Larry Gulley and other Stoddard County deputies, plaintiffs were charged with felony assault on a law enforcement officer, as well as felony attempted escape. They allege that they were then held at Stoddard County Jail without a hearing for almost one year, until May 29, 2012. At some point, they were informed that they did not qualify for a public defender, so their father retained an attorney on their behalf, W. Rance Butler. Plaintiffs assert that without their input, the attorney requested that Stoddard County Court deem the brothers mentally incompetent, although they had not had any competency issues prior to the attacks at Stoddard County Jail. On May 30, 2012, plaintiffs were transferred to the custody of the Missouri Department of Mental Health and confined to Fulton State Hospital.

         Claims in This Action

         Although plaintiffs have titled this action, “Official Removal Petition, ” they have included evidence, by way of filings in state habeas corpus actions, that their state court criminal actions have been stayed and administratively closed at the present time as a result of the state finding plaintiffs permanently incompetent to stand trial. See, e.g., Theisen v. Stringer, No. 17CW-CV00246-01 (13th Judicial Circuit, Callaway County Court); Theisen v. Stringer, No. 17CW-CV-00230-01 (13th Judicial Circuit, Callaway County Court).[3]

         Moreover, included in plaintiff's two-hundred-and-three page complaint are “claims, ” set forth against several named defendants who are not named in the caption of the complaint. Plaintiffs' claims include allegations for: 1) intentional infliction of emotional distress; 2) excessive force in violation of the Fourth and Fourteenth Amendment[4]; 3) “assault and battery”; 4) “sexual assault”; 5) “electrocution torture”; 6) violations of the Eighth Amendment's prohibition on cruel and unusual punishment; 7) violations of plaintiffs' due process rights and ineffective assistance of counsel in their criminal proceedings, as well as their competency proceedings;[5]8) unconstitutional civil commitment based on biased evidence that plaintiffs are mentally incompetent; 9) malicious prosecution; 10) violation of the First Amendment right to the free exercise of religion; 11) violation of the First Amendment right to freedom of speech; and 12) alleged violations of other state law torts and Missouri state statutes.

         In their prayer for relief, plaintiffs seek counsel to be appointed to represent them in this action. Plaintiffs also request that jurisdiction of their criminal proceedings be remanded to the exclusive jurisdiction of the Military Police at Fort Leonard Wood, Missouri, based on their alleged AWOL status of the time of the incident. There is no indication, however, that the U.S. Army took jurisdiction over plaintiffs' state court criminal matter.

         To the extent that plaintiffs are not remanded to the custody of the Military Police, plaintiffs request that their criminal case be removed to this Court and/or an injunction placed on the guardianship/probate proceedings that plaintiffs believe to be occurring in Missouri state court. The state court criminal case plaintiffs seek to remove has been adjudicated, however, and can no longer be considered a state criminal prosecution that can be removed pursuant to 28 U.S.C. § 1443.

         Last, plaintiffs seek a finding that under Missouri state law they should not be forced to remain indefinitely in Missouri State custody under a permanent civil commitment finding. However, plaintiffs do not seek damages in this action, but rather injunctive relief only - to be released from confinement.

         Thus, from the requested relief, and the statement of claims, it appears that this action is not truly a removal of a criminal action, but instead a hybrid civil rights and habeas action, brought pursuant to what appears to be both 28 U.S.C. § 2254 and 42 U.S.C. § 1983.

         The Court notes that the Missouri Assistant Attorney General's Office filed a Motion to Dismiss the complaint on January 23, 2019, on behalf of defendant, the Missouri Department of Mental Health, citing several grounds for relief. In the motion, defendant claims that plaintiffs were found to be permanently incompetent on February 2, 2017, in their criminal actions. Thus, defendant asserts that the criminal case has been suspended and placed on an inactive docket ...

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