United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the motion of plaintiff
Simon Gebregziabher for leave to commence this civil action
without prepayment of the required filing fee. (Docket No.
2). Having reviewed the motion and the financial information
submitted in support, the Court has determined that plaintiff
lacks sufficient funds to pay the entire filing fee and will
assess an initial partial filing fee of $51.30. See
28 U.S.C. § 1915(b)(1). Additionally, for the reasons
discussed below, the Court will dismiss all of
plaintiff’s official capacity claims. However, the
Court will direct the Clerk of Court to issue process on
defendants Marcus Bush, Christopher Tanner, Paul Piatchek,
Matthew Burle, and Mickey Christ in their individual
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 his motion to proceed in forma pauperis, plaintiff
submitted a copy of his certified inmate account statement.
(Docket No. 3). The account statement shows an average
monthly deposit of $256.52. The Court will therefore assess
an initial partial filing fee of $51.30, which is 20 percent
of plaintiff’s average monthly deposit.
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 can be
granted. To state a claim under 42 U.S.C. § 1983, a
plaintiff must demonstrate a plausible claim for relief,
which is more than a “mere possibility of
misconduct.” Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009). “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.” Id. at 678.
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 “accept as true the
facts alleged, but not legal conclusions or threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements.” Barton v. Taber,
820 F.3d 958, 964 (8th Cir. 2016). See also
Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73
(8th Cir. 2016) (stating that court must accept
factual allegations in complaint as true, but is not required
to “accept as true any legal conclusion couched as a
reviewing a pro se complaint under § 1915(e)(2), the
Court must give it the benefit of a liberal construction.
Haines v. Kerner, 404 U.S. 519, 520 (1972). A
“liberal construction” means that if the essence
of an allegation is discernible, the district court should
construe the plaintiff’s complaint in a way that
permits his or her claim to be considered within the proper
legal framework. Solomon v. Petray, 795 F.3d 777,
787 (8th Cir. 2015). However, even pro se
complaints are required to 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). See also Stone v. Harry, 364 F.3d 912, 914-15
(8th Cir. 2004) (stating that federal courts are
not required to “assume facts that are not alleged,
just because an additional factual allegation would have
formed a stronger complaint”). In addition, affording a
pro se complaint the benefit of a liberal construction does
not mean that procedural rules in ordinary civil litigation
must be interpreted so as to excuse mistakes by those who
proceed without counsel. See McNeil v. United
States, 508 U.S. 106, 113 (1993).
is currently incarcerated at the Greenville Federal
Correctional Institution in Greenville, Illinois. He brings
this action pursuant to 42 U.S.C. § 1983, alleging that
excessive force was used against him during his arrest by
Saint Louis Metropolitan Police officers. His complaint names
the following defendants: Francis G. Slay; Richard Gray;
Thomas Irwin; Erwin Switzer; Marcus Bush; Christopher Tanner;
Paul Piatchek; Matthew Burle; and Mickey Christ. (Docket No.
1 at 2-3). Defendants Slay, Gray, Irwin, and Switzer are
members of the Board of Police Commissioners and are sued in
their official capacities only. (Docket No. 1 at 1).
Defendants Bush, Tanner, Piatchek, Burle, and Christ are law
enforcement officers and are sued in both their individual
and official capacities. (Docket No. 1 at 1-2).
March 16, 2017, at approximately 12:30 in the afternoon,
plaintiff was traveling in his parent’s Ford Freestyle
automobile westbound on Martin Luther King Drive in St.
Louis, Missouri. (Docket No. 1 at 4). While on Martin Luther
King Drive, he noticed a dark sedan following his vehicle.
Nevertheless, he continued to his parent’s residence on
Brown Road in North County. When he pulled into his
parent’s driveway, he was flagged down by a friend who
asked plaintiff for a ride. Plaintiff states that he advised
his friend that he thought he was being followed.
point thereafter, plaintiff drove to a carwash on Natural
Bridge Road, where he parked in the second stall. A dark
sedan pulled into the first stall, directly to his left.
Plaintiff states that defendant Tanner, a detective with the
Saint Louis Metropolitan Police Department, placed spike
strips in front of plaintiff’s vehicle, without
plaintiff’s knowledge. Meanwhile, other vehicles pulled
into the carwash, attempting to box plaintiff into the stall.
Plaintiff alleges that these vehicles were unmarked and did
not have sirens.
claims he did not know that law enforcement was attempting to
take him into custody. (Docket No. 1 at 5). Instead, fearing
for his life because his brother had recently been killed, he
pulled out of the carwash onto Natural Bridge Road. In doing
so, plaintiff ran over the spike strips, puncturing his
tires. Despite the damage to his vehicle, he made it to
Interstate 70. At this point, he acknowledges that he knew
law enforcement was in pursuit of his vehicle. Indeed, during
the pursuit, plaintiff threw a firearm out of the
attempted to merge onto Highway 170 South, but due to the
blown-out tires, he had to pull over onto the exit ramp. He
exited the vehicle and began to run away on foot. Plaintiff
states that within a matter of seconds, he noticed an
unmarked vehicle coming directly towards him. He alleges that
defendant Piatchek, a lieutenant with the Saint Louis
Metropolitan Police Department, was driving the vehicle.
Plaintiff further alleges that Lieutenant Piatchek
“willfully” hit him with the vehicle, despite
plaintiff’s efforts to get out of the way.
claims that this incident was observed by Detective Tanner,
and by defendants Burle, Bush, and Christ, who are officers
of the Saint Louis Metropolitan Police Department. (Docket
No. 1 at 12). He further claims that Detective Tanner,
Officer Burle, Officer, Bush, and Officer Christ did nothing
to intervene to prevent Lieutenant Piatchek from striking
plaintiff with Lieutenant Piatchek’s vehicle.
being struck by the automobile, plaintiff states that his
shoe came off and that he was “instantly in extreme
severe pain and agony” and “could not
move.” (Docket No. 1 at 5). Plaintiff claims that he
was surrounded by roughly ten law enforcement officers, their
guns drawn and pointed at him. While on the ground, he was
cuffed with his hands behind his back.
states that he heard an unknown officer yelling “hold
up, hold up, don’t do it, we’ve got a witness in
the car.” Thereafter, without further warning,
plaintiff alleges that Detective Tanner deployed a taser
against him. Plaintiff states that he screamed “in
agony.” (Docket No. 1 at 6). Plaintiff claims that this
incident was observed by Lieutenant Piatchek, Officer Burle,
Officer Bush, and Officer Christ. (Docket No. 1 at 13). He
further claims that Lieutenant Piatchek, Officer Burle,
Officer Bush, and Officer Christ all had the ability to
intervene to keep him from being tasered, but that none
attempted to stop Detective Tanner.
still on the ground, plaintiff accused Lieutenant Piatchek of
running him over and trying to kill him. (Docket No. 1 at 6).
Plaintiff states that Lieutenant Piatchek responded by
saying: “I don’t give a f**k, f**k your leg, you
lucky we didn’t kill you.” Then, Lieutenant
Piatchek picked up plaintiff’s shoe and attempted to
slam it on his foot, causing him “unnecessary pain and
distress.” Plaintiff states that Lieutenant Piatchek
attempted to put his shoe on his injured foot several times,
by both kicking and slamming the shoe against his foot.
(Docket No. 1 at 14). This was observed by Detective Tanner,
Officer Burle, Officer Bush, and Officer Christ. None of
these officers intervened to stop Lieutenant Piatchek.
plaintiff was picked up by two unknown officers and
“thrown in the back seat of a dark colored
sedan.” (Docket No. 1 at 6). Upon questioning,
plaintiff refused to provide his identifying information. He
alleges that an officer pulled a firearm and pointed it at