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Gebregziabher v. Slay

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

September 20, 2019

SIMON GEBREGZIABHER, Plaintiff,
v.
FRANCIS G. SLAY, et al., Defendants.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY, UNITED STATES DISTRICT JUDGE.

         This 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 capacities.

         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 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.

         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 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 factual allegation”).

         When 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).

         The Complaint

         Plaintiff 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).

         On 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.

         At some 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.

         Plaintiff 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 passenger-side window.[1]

         Plaintiff 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.

         Plaintiff 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.

         Upon 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.

         Plaintiff 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.

         While 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.

         Eventually, 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 ...


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