United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE, UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion of plaintiff
Franklin Kelley, an inmate at the Franklin County Jail, 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. Plaintiff will not be
required to pay an initial partial filing fee at this time.
See 28 U.S.C. § 1915(b)(4). Additionally, for
the reasons explained below, the Court will partially dismiss
the complaint, and stay and administratively close the
remaining proceedings pursuant to the Supreme Court case of
Wallace v. Kato, 549 U.S. 384 (2007) based on the
pendency of a Missouri State criminal case against plaintiff
arising from the same facts.
U.S.C. § 1915(b)(1)
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.
support of the instant motion, plaintiff submitted an inmate
account statement showing a zero account balance in the weeks
immediately preceding the filing of the complaint, and a
balance below $1.00 during the two months preceding the
filing of the complaint. The statement also shows that
plaintiff is subject to a $5.54 debt. Therefore, the Court
will not require plaintiff to pay an initial partial filing
fee at this time. See 28 U.S.C. § 1915(b)(4)
("In no event shall a prisoner be prohibited from
bringing a civil action or appealing a civil or criminal
judgment for the reason that the prisoner has no assets and
no means by which to pay the initial partial filing
fee."). However, plaintiff is not excused from paying
the full filing fee. The agency having custody of plaintiff
will be directed to begin forwarding payments from plaintiffs
inmate account, pursuant to 28 U.S.C. § 1915(b)(2),
until the $350.00 filing fee is paid in full.
Standard on Initial Review
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 may 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 may 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).
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
Court must liberally construe complaints filed by laypeople.
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 layperson's claim to
be considered within the proper legal framework."
Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015)
(quoting Stone v. Harry, 364 F.3d 912, 914 (8th Cir.
2004)). 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, Stone, 364 F.3d at 914-15, nor are
they required to interpret procedural rules so as to excuse
mistakes by those who proceed without counsel. See McNeil
v. United States, 508 U.S. 106, 113(1993).
2015, criminal charges were filed against plaintiff in the
Circuit Court of Franklin County, Missouri. State of
Missouri v. Franklin E. Kelley, No. 15AB-CR01399-01
(20th Jud. Cir. 2015). The Information filed by the
Prosecuting Attorney alleges that on August 10, 2015,
plaintiff committed armed robbery of a Dollar General store,
and then attempted to kill a law enforcement officer by
pointing a gun at him and then wrestling for control of the
officer's gun. Plaintiff is charged with first-degree
robbery, first-degree assault on a law enforcement officer,
and two counts of armed criminal action. As of the date of
this Memorandum and Order, a jury trial is scheduled for
January 21, 2020. This Court takes judicial notice of the
Missouri State Court record before it, as obtained through
the public records published on Missouri Case.net. See
Levy v. Ohl, 477 F.3d 988 (8th Cir. 2007) (district
court may take judicial notice of public state records);
Stutzka v. McCarville, 420 F.3d 757, 760 n. 2 (8th
Cir. 2005) (courts "may take judicial notice of judicial
opinions and public records.").
brings this action pursuant to 42 U.S.C. § 1983 against
the Franklin County Sheriffs Department and the law
enforcement officers who are involved in pursuing the state
criminal case against him. Those officers are Eric Wagner,
Andrew Rosenkoetter, Jason Weggemann, Scott Briggs, C.R.
Gibson, Jason Grellner, and an unspecified number of
"Sheriff s Dept. personnel." He sues the defendants
in their official and individual capacities. He alleges as
August 10, 2015, "a Franklin County Sheriffs
Deputy" pistol-whipped plaintiff and then shot him in
the back of the head. The bullet did not enter plaintiffs
brain, but caused a wound that plaintiff alleges was closed
with multiple staples. Wagner conspired to plant a gun, and
to coerce a witness to go along with it. Rosenkoetter made
false statements and gave perjured deposition testimony,
giving three different descriptions of a gun and its
location. He also falsely stated he did not see plaintiff get
shot. Weggemann falsely stated that plaintiff was wearing
clothing identical to clothing worn by the robbery suspect,
and attempted to plant a gun. Grellner falsely stated he
recovered a gun identical to the one used in the robbery, and
planted evidence. Gibson and Briggs interrogated plaintiff
even though plaintiff repeatedly asked for counsel, and used