Daniel v. Darter et al

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $1.00 within thirty (30) days of the date of this Ord er. Plaintiff is instructed to make his remittancepayable to "Clerk, United States District Court," and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that the remittance is for an origina l proceeding. IT IS FURTHER ORDERED that all proceedings in this case are STAYED pending final disposition of the appellate proceedings and post-conviction proceedings against plaintiffrelating to his criminal case of See State v. Daniel, Case No. C ase No.l 7DU-CR00948-01 (35th Judicial Circuit, Dunklin County Court). IT IS FURTHER ORDERED that plaintiff shall notify the Court in writing concerning the final disposition of the criminal charges pending against him in See State v. Daniel, Case No . l 7DU-CR00948-01 (35th Judicial Circuit, Dunklin County Court). IT IS FURTHER ORDERED that this case is ADMINISTRATIVELY CLOSEDpending final disposition of the appellate proceedings and post-conviction proceedings related to the criminal charges pe nding against plaintiff in See State v. Daniel, Case No. Case No. l 7DU-CR00948-01 (35th Judicial Circuit, Dunklin County Court). This case may be reopened by plaintiffs filing of a motion to reopen the case after such final disposition. ( Initial Partial Filing Fee due by 10/27/2017.) Signed by District Judge Ronnie L. White on 9/27/2017. (JMC)

UNITED ST ATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
KEVIN DEWAYNE DANIEL,
Plaintiff,

v.
NICK DARTER, et al.,
Defendants.

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No. 1:17-CV-168 NCC

MEMORANDUM AND ORDER
This matter is before the Court on the motion of plaintiff, Kevin Dewayne Daniel,
(registration no. 016968), an inmate at Dunklin County Jail, for leave to commence this action
without payment of the required filing fee. For the reasons stated below, the Court finds that
plaintiff does not have sufficient funds to pay the entire filing fee and will assess an initial partial
filing fee of $1.00. 1 See 28 U.S.C. § 1915(b)(l).

Furthermore, based upon a review of the

complaint, the Court will stay and administratively close this action pursuant to the Supreme
Court case of Wallace v. Kato, 549 U.S. 384 (2007), based on the pendency of an underlying
criminal case against plaintiff that arises out of the same facts.

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Plaintiff s inmate account only shows the past two months of his account transactions, rather than
the six months required by statute. As a result, the Court will require plaintiff to pay an initial
partial filing fee of $1.00. See Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997) (when a
prisoner is unable to provide the Court with a certified copy of his six-month prison account
statement, the Court should assess an amount "that is reasonable, based on whatever information
the court has about the prisoner's finances.").

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Background
Plaintiff, a pretrial detainee in Dunklin County Jail, brings this action pursuant to 42
U.S.C. § 1983 asserting violations of his Fourth and 14th Amendment rights. Plaintiff has named
two individuals as defendants in this action:

Nick Darter, a Sergeant with the Malden Missouri

Police Department and Jeff McCormick, the Prosecuting Attorney in his state criminal action.
Prior to this case being filed, a related underlying criminal case was filed against plaintiff
in Missouri State Court. See State v. Daniel, Case No.17DU-CR00948-01 (35th Judicial Circuit,
Dunklin County Court). On July 9, 2017, defendant Nick Darter filed a probable cause statement
in Dunklin County Court. He stated that on the prior day, he conducted a traffic stop on
plaintiffs Buick for driving "left of center."
Defendant Darter alleged in his statement that when he conducted a stop on plaintiff and
asked for his license, plaintiff told him he did not have a license and when plaintiff stepped out
of the vehicle at defendant's request, plaintiff admitted to having a small bag of marijuana.
Defendant Darter indicated that plaintiff had a small plastic bag in his wallet with "crystal-like
residue" that tested positive for methamphetamine. Defendant Darter claimed that plaintiff had
three $100.00 counterfeit bills. After plaintiff was taken into custody and transferred to the
Malden County Jail booking process, plaintiff allegedly "closed his legs together real fast" and
defendant Darter purportedly heard something that sounded like glass fall from plaintiffs pants.
Defendant Darter alleged in his probable cause statement that a glass pipe fell from plaintiffs
pants to the ground, whereupon plaintiff stepped on the pipe and attempted to destroy evidence.

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Plaintiff has been charged with felony possession of a controlled substance and tampering
with physical evidence in a felony prosecution. See State v. Daniel, Case No.17DU-CR00948-01
(35th Judicial Circuit, Dunklin County Court).

Plaintiffs alleges in his complaint that on July 8, 2017, he was leaving a friend's house
when he noticed a police car tailing him. He claims he turned into the gas station to get gas, and
the police turned on their lights and pulled behind him. Plaintiff claims that he does not believe
that he had broken any traffic laws when he was pulled over by defendant Darter.
When defendant Darter asked him for his identification, plaintiff states he told Sergeant
Darter he only had his ID card on him at the time and asked permission to get it from his wallet.
Plaintiff states that rather than give him permission to do so, defendant Darter told plaintiff to get
out of the car and put his hands on the top of the vehicle. Plaintiff insists that he did not give
defendant Darter permission to search either himself or his car or his wallet; however, defendant
Darter took it upon himself to search all three, telling plaintiff he "knew why he was being pulled
over." Plaintiff surmised that defendant Darter was referring to his race, which is African
American. Plaintiff alleges that defendant Darter planted a clear bag of something containing
crystal-like residue in plaintiffs wallet and then arrested plaintiff for purportedly carrying drugs.
Plaintiff states he was taken to the Malden Police Department for booking, where
defendant Darter conducted a pat search. After the search, plaintiff states that he noticed a glass
vial on the floor next to him. He claims he accidentally stepped on the vial. Plaintiff alleges that
after he stepped on the glass, defendant Darter pushed him to the side, looked down and took
pictures of the broken vial and told plaintiff he was charging him with contraband at a jail
facility.

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Plaintiff asserts violations of his rights, pursuant to the 4th Amendment of the
Constitution.2 Plaintiff also asserts violations of his Equal Protection rights in violation of the

14th Amendment. Plaintiff additionally asserts violations of his substantive due process rights in
violation of the 14th Amendment. Further, plaintiff asserts violations of Missouri state law,
including claims of false arrest, malicious prosecution and intentional infliction of emotional
distress.
The Complaint

In this case, plaintiff asserts claims for false arrest, false imprisonment and malicious
prosecution as a result of an alleged false arrest that occurred on July 8, 2017. He brings this
action against the police officer and the prosecutor pursuing the state criminal case against him.
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." Wallace, 549 U.S. at 397. 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
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

2

The vast majority of plaintiffs claims in this lawsuit arise under the 4th Amendment and include:
lack of probable cause; manufacturing evidence; malicious prosecution; false arrest; false
imprisonment; warrantless search; warrantless seizure.

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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).
In this case, plaintiff asserts claims for illegal seizure, false arrest and false imprisonment.
The principles of Wallace v. Kato dictate that further consideration of plaintiffs § 1983 claims
should be stayed until the underlying criminal matter currently pending against plaintiff has been
resolved through criminal appeals, as well as through post-conviction processes.
Additionally, a stay or abstention until resolution of the criminal matter would be
appropriate because a prisoner may not recover damages in a § 1983 suit where the judgment
would necessarily imply the invalidity of his conviction, continued imprisonment or sentence
unless the conviction or sentence is reversed, expunged or called into question by issuance of a
writ of habeas corpus. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); Schafer v. Moore,
46 F.3d 43, 45 (8 1h Cir. 1995); Edwards v. Balisok, 520 U.S. 641, 648 (1997) (applying rule in§
1983 suit seeking declaratory relief).
Accordingly,
IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [Doc.
#2] is GRANTED.

IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $1.00
within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance
payable to "Clerk, United States District Court," and to include upon it: (1) his name; (2) his
prison registration number; (3) the case number; and (4) that the remittance is for an original
proceeding. 3

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After payment of the initial partial filing fee, the prisoner is required to make monthly payments

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IT IS FURTHER ORDERED that all proceedings in this case are ST AYED pending
final disposition of the appellate proceedings and post-conviction proceedings against plaintiff
relating to his criminal case of See State v. Daniel, Case No. Case No.l 7DU-CR00948-01 (35th
Judicial Circuit, Dunklin County Court) ..
IT IS FURTHER ORDERED that plaintiff shall notify the Court in writing concerning
the final disposition of the criminal charges pending against him in See State v. Daniel, Case
No. l 7DU-CR00948-01 (35th Judicial Circuit, Dunklin County Court).
IT IS FURTHER ORDERED that this case is ADMINISTRATIVELY CLOSED
pending final disposition of the appellate proceedings and post-conviction proceedings related to
the criminal charges pending against plaintiff in See State v. Daniel, Case No. Case
No. l 7DU-CR00948-01 (35th Judicial Circuit, Dunklin County Court). This case may be
reopened by plaintiffs filing of a motion to reopen the case after such final disposition.
Dated this

d-

day of September, 2017.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

of 20 percent of the preceding month's income credited to the prisoner's account. The agency
having custody of the prisoner will deduct the payments and forward them to the Court each time
the amount in the account exceeds $10. 28 U.S.C. § 1915(b)(2).

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