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Kelley v. Franklin County Sheriff's Department

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

September 17, 2019

FRANKLIN KELLEY, Plaintiff,
v.
FRANKLIN COUNTY SHERIFF'S DEPARTMENT, et al, Defendants.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE, UNITED STATES DISTRICT JUDGE

         This 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.

         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 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.

         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 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).

         "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).

         This 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).

         Background

         In 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.").

         The Complaint

         Plaintiff 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 follows.

         On 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 ...


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