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Gebregziabher v. Slay

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

December 18, 2019

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

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY, UNITED STATES DISTRICT JUDGE.

         This 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 defendants' motions.

         Background

         Plaintiff 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.

         On 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. 6).

         Plaintiff 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. 13).

         On 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).

         Motions to Dismiss

         In the 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.

         Similarly, 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.

         Standard of Review

         Pursuant 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).

         The 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).

         When 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 ...


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