United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY, UNITED STATES DISTRICT JUDGE.
matter is before the Court on the motion of defendants
Matthew Burle, Marcus Bush, Paul Piatchek, and Mickey Christ
to dismiss Count VI pursuant to Fed.R.Civ.P. 12(b)(6) for
failure to state a claim upon which relief can be granted
(Docket No. 14), and the motion of defendants Matthew Burle,
Marcus Bush, Christopher Tanner, and Mickey Christ to dismiss
Count VII pursuant to Fed.R.Civ.P. 12(b)(6) for failure to
state a claim upon which relief can be granted. (Docket No.
16). For the reasons discussed below, the Court will deny
filed this pro se civil action pursuant to 42 U.S.C. §
1983 on March 14, 2019. (Docket No. 1). The complaint named
Francis Slay, Richard Gray, Thomas Irwin, Erwin Switzer,
Marcus Bush, Christopher Tanner, Paul Piatchek, Matthew
Burle, and Mickey Christ as defendants. The allegations in
the complaint arose from an incident in which plaintiff was
injured while fleeing from police. There were seven separate
counts contained within the complaint.
September 20, 2019, the Court issued an order granting
plaintiff's motion to proceed in forma pauperis. (Docket
No. 6). The Court also reviewed plaintiff's complaint
pursuant to 28 U.S.C. § 1915. The Court dismissed all of
plaintiff's official capacity claims, as well as the
individual capacity claims in Count V against defendants
Christopher Tanner, Matthew Burle, Marcus Bush, and Mickey
Christ. (Docket No. 7). However, the Court directed the Clerk
of Court to issue process on defendants Piatchek and Tanner
in their individual capacities as to plaintiff's claims
of excessive force, and on defendants Piatchek, Tanner,
Burle, Bush, and Christ in their individual capacities as to
plaintiff's claims of failure to intervene. (Docket No.
filed a motion for reconsideration of the Court's partial
dismissal order on November 19, 2019. (Docket No. 9). The
Court denied the motion on November 20, 2019. (Docket No.
November 26, 2019, defendants Burle, Bush, Christ, and
Piatchek filed a motion to dismiss Count VI pursuant to
Fed.R.Civ.P. 12(b)(6). (Docket No. 14). That same day,
defendants Burle, Bush, Christ, and Tanner also filed a
motion to dismiss Count VII. (Docket No. 16).
first motion to dismiss, defendants seek the dismissal of
Count VI for failure to state a claim. (Docket No. 14). Count
VI concerns plaintiff's assertion that defendants
Piatchek, Burle, Bush, and Christ failed to stop defendant
Tanner from deploying his taser against plaintiff after
plaintiff had submitted to arrest. Defendants argue that
plaintiff failed to adequately allege that Piatchek, Burle,
Bush, and Christ knew that Tanner intended to deploy a taser,
or that the duration of Tanner's taser use was sufficient
to permit them to understand what was occurring and intervene
to stop it.
in the second motion to dismiss, defendants seek the
dismissal of Count VII for failure to state a claim. (Docket
No. 16). Count VII concerns plaintiff's assertion that
defendants Tanner, Burle, Bush, and Christ failed to
intervene when defendant Piatchek kicked and slammed
plaintiff's shoe against his injured foot. Defendants
argue that plaintiff failed to adequately allege that Tanner,
Burle, Bush, and Christ had sufficient time to permit them to
intervene and stop defendant Piatchek's alleged assault.
to Fed.R.Civ.P. 12(b)(6), a defendant may assert as a defense
the plaintiff's “failure to state a claim upon
which relief can be granted.” To survive a motion to
dismiss for failure to state a claim, a plaintiff's
allegations must contain “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The
plausibility requirement is satisfied when the plaintiff
“pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” In re SuperValu, Inc.,
925 F.3d 955, 962 (8th Cir. 2019).
reviewing court accepts the plaintiff's factual
allegations as true and draws all reasonable inferences in
favor of the nonmoving party. Torti v. Hoag, 868
F.3d 666, 671 (8th Cir. 2017). However, “[c]ourts are
not bound to accept as true a legal conclusion couched as a
factual allegation, and factual allegations must be enough to
raise a right to relief above the speculative level.”
Id. The issue is not whether the plaintiff will
ultimately prevail, but whether the plaintiff is entitled to
present evidence in support of his claim. Twombly,
550 U.S. at 583 (quoted case omitted).
evaluating whether a pro se plaintiff has asserted sufficient
facts to state a claim, a pro se complaint, however
inartfully pleaded, is held to less stringent standards than
formal pleadings drafted by lawyers. Jackson v.
Nixon, 747 F.3d 537, 541 (8th Cir. 2014).
“If the essence of an allegation is discernible...then
the district court should construe the complaint in a way
that permits the layperson's claim to be considered