Gibbs v. City of New Madrid et al

Filing 4

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF No. 2] is GRANTED. IT IS FURTHER ORDERED that this action is ADMINISTRATIVLEY STAYED pending a final judgment in Missouri v. Gibbs, No. 12NM-CR00544 (New Madrid County). Plaintiff must notify the Court when the judgment becomes final. Signed by District Judge Stephen N. Limbaugh, Jr on 6/8/2015. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
GARRY D. GIBBS,
Plaintiff,
v.
CITY OF NEW MADRID, et al.,
Defendants.

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No. 1:15CV88 SNLJ

MEMORANDUM AND ORDER
Plaintiff moves for leave to proceed in forma pauperis in this civil action under 42 U.S.C.
§1983. The motion is granted. Additionally, the Court will administratively stay this case
pending the outcome of plaintiff’s criminal action in state court.
Under 28 U.S.C. § 1915(e), 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 for relief under § 1983, a complaint must plead more than “legal conclusions”
and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). A plaintiff must
demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.”
Background
Plaintiff alleges that the individual defendants, who are police officers in New Madrid
County, violated his Fourth and Fifth Amendment rights. According to the complaint, plaintiff
was hosting an open house at his business place, Next Level Lounge & Restaurant on May 20,
2012. Several police officers arrived there around midnight, charging plaintiff with operating the
business without the proper licenses. Plaintiff denied the charge and showed the officers some

receipts, which he said were for the licenses. He does not allege that he actually possessed the
licenses.1
Plaintiff alleges that defendant McFerren, Chief of Police for New Madrid County, then
ordered his officers to take plaintiff outside. Plaintiff says that defendants McFerren, White,
Brandenburg, Simmons, Dubois, Roberts, Shelly, Rhades, and Johnson then kicked him, choked
him, and tasered him without provocation. The officers took plaintiff to jail, and he was released
the following day.
Plaintiff says that he returned to his business on May, 26 2012, and that “defendants”
arrested him “with no basis in fact or law to do so.” Plaintiff brings one count of excessive force
and one count of false arrest.
On May 22, 2012, the New Madrid County Prosecutor filed a complaint against plaintiff,
charging him with one count of assault of a law enforcement officer and one count of resisting
arrest. Missouri v. Gibbs, No. 12NM-CR00544 (New Madrid County). A jury trial is set for
June 17, 2015. Id.
Discussion
In Wallace v. Kato, the United States Supreme Court held that “the statute of limitations
upon a § 1983 claim seeking damages for a false arrest in violation of the Fourth Amendment,
where the arrest is followed by criminal proceedings, begins to run at the time the claimant is
detained pursuant to legal process.” 549 U.S. 384, 397 (2007). The Court observed that “[f]alse
arrest and false imprisonment overlap; the former is a species of the latter.” Id. at 388. The
Court instructed that where “a plaintiff files a false arrest claim before he has been convicted . . .
it is within the power of the district court, and in accord with common practice, to stay the civil

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Plaintiff is currently being prosecuted for license violation occurring on May 20, 2012. Missouri v. Gibbs, No.
12NM-CR00971 (New Madrid County).

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action until the criminal case or the likelihood of a criminal case is ended.” Id. at 393-94.
Otherwise, the court and the parties are left to “speculate about whether a prosecution will be
brought, whether it will result in conviction, and whether the impending civil action will impugn
that verdict, all this at a time when it can hardly be known what evidence the prosecution has in
its possession.” Id. at 393 (internal citation omitted).
Because plaintiff has not yet been tried for the alleged crimes committed on May 20,
2012, the Court stays this case until a final judgment is entered in Case No. 12NM-CR00544.
Plaintiff is directed to notify the Court once the judgment is final.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF
No. 2] is GRANTED.
IT IS FURTHER ORDERED that this action is ADMINISTRATIVLEY STAYED
pending a final judgment in Missouri v. Gibbs, No. 12NM-CR00544 (New Madrid County).
Plaintiff must notify the Court when the judgment becomes final.
Dated this 8th day of June, 2015.

STEPHEN N. LIMBAUGH
UNITED STATES DISTRICT JUDGE

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