Stufflebean v. Faith et al

Filing 6

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. # 2 ] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of $32.65 within thirty (3 0) days of the date of this Order. IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to be issued upon the complaint as to defendants Unknown Falzone and Unknown Tetemble in their individual capacities. IT IS FURTHER ORDERED that, pursuant to the Court's differentiated case management system, this case is assigned to Track 5B (standard prisoner actions). Signed by District Judge Catherine D. Perry on 09/16/2013. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JASON STUFFLEBEAN,
Plaintiff,
v.
SALLY FAITH, et al.,
Defendants.

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No. 4:13-CV-1156-CDP

MEMORANDUM AND ORDER
This matter is before the Court on the motion of Jason Stufflebean (registration
no. 297189) 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 therefore, the motion will be granted
and plaintiff will be assessed an initial partial filing fee. See 28 U.S.C. § 1915(b)(1).
Furthermore, based upon a review of the complaint, the Court will instruct the Clerk
to issue process on the complaint as to plaintiff’s Fourth Amendment and pendent
state-law claims against defendants Unknown Falzone and Unknown Tetemble in
their individual capacities and will dismiss the complaint in all other respects.

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 or her 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, until the filing fee is fully paid. Id.
Plaintiff has submitted an affidavit and a certified copy of his prison account
statement for the six-month period immediately preceding the submission of his
complaint. A review of plaintiff’s account indicates an average monthly deposit of
$163.26 and an average monthly balance of $2.88. Accordingly, the Court will assess
an initial partial filing fee of $32.65, which is 20 percent of plaintiff’s average
monthly deposit.

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28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a complaint
filed in forma pauperis if the action is frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief from a defendant who is immune
from such relief. An action is frivolous if it "lacks an arguable basis in either law or
fact." Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is malicious if it is
undertaken for the purpose of harassing the named defendants and not for the purpose
of vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63
(E.D.N.C. 1987), aff'd 826 F.2d 1059 (4th Cir. 1987). An action fails to state a claim
upon which relief can be granted if it does not plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,570
(2007).
To determine whether an action fails to state a claim upon which relief can be
granted, the Court must engage in a two-step inquiry. First, the Court must identify
the allegations in the complaint that are not entitled to the assumption of truth.
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009).

These include "legal

conclusions" and "[t]hreadbare recitals of the elements of a cause of action [that are]
supported by mere conclusory statements." Id. at 1949. Second, the Court must
determine whether the complaint states a plausible claim for relief. Id. at 1950-51.
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This is a "context-specific task that requires the reviewing court to draw on its
judicial experience and common sense." Id. at 1950. The plaintiff is required to
plead facts that show more than the "mere possibility of misconduct." Id. The Court
must review the factual allegations in the complaint "to determine if they plausibly
suggest an entitlement to relief."

Id. at 1951.

When faced with alternative

explanations for the alleged misconduct, the Court may exercise its judgment in
determining whether plaintiff's conclusion is the most plausible or whether it is more
likely that no misconduct occurred. Id. at 1950, 51-52.
Moreover, in reviewing a pro se complaint under § 1915(e)(2)(B), the Court
must give the complaint the benefit of a liberal construction. Haines v. Kerner, 404
U.S. 519, 520 (1972). The Court must also weigh all factual allegations in favor of
the plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504
U.S. 25, 32 (1992).
The Complaint
Plaintiff, an inmate at the Northeast Correctional Center, seeks monetary relief
in this 42 U.S.C. § 1983 action for a violation of his Fourth and Fourteenth
Amendment rights. In addition, plaintiff asserts pendent state-law claims for assault
and battery, intentional infliction of emotional distress, negligence, and gross
negligence. The named defendants are Sally Faith (Mayor, City of St. Charles),
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Randall D. McKinley (Chief of Police, City of St. Charles), Unknown Falzone (St.
Charles police officer), Unknown Tetemble (St. Charles police officer), and City of
St. Charles, Missouri. Plaintiff is suing defendants in both their individual and
official capacities [Doc. #5].
Plaintiff alleges that defendants Falzone and Tetemble violated his Fourth and
Fourteenth Amendment rights when they brutally assaulted him in the course of
arresting him on or about September 10, 2012, thereby causing plaintiff serious
physical and emotional injuries. Plaintiff further alleges that defendants Faith and
McKinley failed to train and supervise Officers Falzone and Tetemble.
Discussion
I. Claims against defendant City of St. Charles
“Liability under § 1983 requires a causal link to, and direct responsibility for,
the alleged deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th
Cir. 1990). Although the Court must liberally construe plaintiff's factual allegations,
it will not supply additional facts or construct a legal theory for plaintiff that assumes
facts that have not been pleaded. In the instant case, plaintiff has failed to assert any
facts or allegations against defendant City of St. Charles, Missouri, and consequently,
the complaint will be dismissed as to this defendant.

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II. Claims against defendants Unknown Falzone and Unknown Tetemble
Plaintiff is suing defendants Falzone and Tetemble in their individual and
official capacities for violations of his Fourth and Fourteenth Amendment rights. In
addition, he asserts pendent state-law claims for assault and battery, intentional
infliction of emotional distress, negligence, and gross negligence.
A. Official Capacity Claims
Naming a government official in his or her official capacity is the equivalent
of naming the government entity that employs the official. See Will v. Michigan
Dep’t of State Police, 491 U.S. 58, 71 (1989). To state a claim against a municipality
or a government official in his or her official capacity, a plaintiff must allege that a
policy or custom of the government entity is responsible for the alleged constitutional
violation. Monell v. Dep't of Social Services, 436 U.S. 658, 690-91 (1978). The
instant complaint does not contain any allegations that a policy or custom of a
government entity was responsible for the alleged violations of plaintiff's
constitutional rights. As a result, the complaint is legally frivolous and fails to state
a claim upon which relief can be granted as to defendants Unknown Falzone and
Unknown Tetemble in their official capacities, and the Court will dismiss all said
claims.

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B. Individual Capacity Claims
Plaintiff alleges that defendants Falzone and Tetemble used excessive and
unnecessary force in the course of his arrest in September 2012, thereby causing him
serious physical and emotional injuries. The Court finds that plaintiff has stated
actionable claims for relief against these two defendants in their individual capacities
relative to the violation of his Fourth Amendment rights, as well as his pendent statelaw claims for assault and battery, intentional infliction of emotional distress,
negligence, and gross negligence. Therefore, the Court will order defendants Falzone
and Tetemble to file a responsive pleading to these claims in their individual
capacities. See 42 U.S.C. § 1997e(g)(2).
In addition to his Fourth Amendment claims, plaintiff generally asserts that
defendants’ actions deprived him “of his liberty and property without due process of
law.” The Court will liberally construe these allegations as attempting to assert
Fourteenth Amendment substantive due process claims.
At this point, it is important to note the difference between constitutional
claims arising under the Due Process Clause of the Fourteenth Amendment and those
arising under a more specific provision of the Constitution, such as the Fourth
Amendment. United States Supreme Court precedent suggests that these two types
of claims should not be conflated. See Graham v. Connor, 490 U.S. 386 (1989). In
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Graham, the Supreme Court rejected various lower courts’ reliance on substantive
due process standards in evaluating an excessive-use-of-force claim, where such
claims were covered by explicit provisions in the Constitution, namely the Fourth
Amendment. Id. at 392-95.1 Later, in Albright v. Oliver, 510 U.S. 266 (1994), the
Supreme Court explained that “[w]here a particular Amendment ‘provides an explicit
textual source of constitutional protection’ against a particular sort of government
behavior, ‘that Amendment, not the more generalized notion of substantive due
process, must be the guide for analyzing these claims.’” Albright, 510 U.S. at 273
(quoting Graham, 490 U.S. at 395); see also, Thaddeus-X v. Blatter, 175 F.3d 378,
387 (6th Cir. 1999) (applying analytical framework of First Amendment to plaintiffs’
claims they were retaliated against for engaging in the constitutionally-protected
activity of accessing the courts; abrogating the Circuit’s prior decisions imposing
Fourteenth Amendment substantive due process test to prisoners’ claims of retaliation
in violation of an enumerated constitutional right).
Applying these precepts to the case at bar, the Court concludes that because
plaintiff’s excessive-use-of-force claims occurred in the course of his arrest, it is the

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More specifically, the Court pointed to the Second Circuit’s four-factor
substantive due process test in Johnson v. Glick, 481 F.2d 1028 (2nd Cir. 1973),
cert. denied, 414 U.S. 1033 (1973), as an illustration of what should not be used
when an enumerated constitutional right is available as a source of protection.
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Fourth Amendment that must be the exclusive guide for analyzing his claims. In
other words, it is this particular amendment that provides the explicit textual source
of constitutional protection, and therefore, the more generalized notion of Fourteenth
Amendment substantive due process should not be used. Because the Fourth
Amendment properly covers plaintiff’s excessive-use-of-force claims against
defendants Falzone and Tetemble, the Court will dismiss his Fourteenth Amendment
substantive due process claims.
III. Claims against defendants Sally Faith and Randall McKinley
Concerning defendants Sally Faith and Randall McKinley, plaintiff states:
The Chief of Police . . . has been at all times material herein, under a
duty to exercise ‘a vigilant control over the peace and quiet of the City,”
. . . as well as to have control over all subordinate police officers, to see
that the City ordinances and the rules, orders and regulations for the
government of the police force are preserved and enforced, and to
suspend any subordinate officer who fails to perform his duties in a
reasonable and lawful manner.
. . . Defendants Faith and McKinney have negligently and/or
intentionally failed to perform the duties described [above], and as a
result plaintiff’s civil rights have been violated as herein alleged.
Specifically, said defendants knew or should have known of defendant
police officers’ propensity to engage in the type of brutal and excessive
conduct alleged, and negligently or intentionally failed to take adequate
supervisory, training, disciplinary and/or other action to prevent such
conduct.

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“A supervisor may not be held liable under § 1983 for the constitutional
violations of a subordinate on a respondeat superior theory.” Tlamka v. Serrell, 244
F.3d 628, 635 (8th Cir. 2001) (citing Boyd v. Knox, 47 F.3d 966, 968 (8th Cir.1995)).
Rather, “a supervisor's liability arises if ‘he directly participates in a constitutional
violation or if a failure to properly supervise and train the offending employee caused
a deprivation of constitutional rights.’” Id. (quoting Andrews v. Fowler, 98 F.3d
1069, 1078 (8th Cir.1996) (citations omitted)); see also Otey v. Marshall, 121 F.3d
1150, 1155 (8th Cir. 1997).
In the case at bar, plaintiff does not allege that defendants Faith and McKinley
directly participated in the violation of his constitutional rights, but rather claims they
are liable in a supervisory capacity for Falzone and Tetemble’s excessive use of force
against him. A supervisor may be liable under § 1983 for failing to properly train or
supervise a subordinate if he or she:
(1) had ‘notice of a pattern of unconstitutional acts committed by
subordinates’; (2) was deliberately indifferent to or tacitly authorized
those acts; and (3) failed to take ‘sufficient remedial action’; (4)
proximately causing injury to [plaintiff]. In order to show deliberate
indifference or tacit authorization, [a plaintiff] must allege and
ultimately prove [the defendant] ‘had notice that the training procedures
and supervision were inadequate and likely to result in a constitutional
violation.’

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Livers v. Schenck, 700 F.3d 340, 355-56 (8th Cir. 2012) (quoting Andrews v. Fowler,
98 F.3d at 1078) (quoting Jane Doe A. v. Special Sch. Dist. of St. Louis Cnty., 901
F.2d 642, 645 (8th Cir. 1990)).
Plaintiff does not allege that defendants Faith and McKinley acted with
deliberate indifference or had ever received notice of similar misconduct by Falzone
and Tetemble. Moreover, plaintiff does not causally link Faith and McKinley’s
alleged failure to train and supervise to the officers’ alleged use of force in this case.
In short, plaintiff’s allegations are mere conclusions and recitals of the elements of
a cause of action, which are not entitled to the assumption of truth. See Iqbal, 129 S.
Ct. at 1949-51. For these reasons, the Court will dismiss this action as to defendants
Faith and McKinley.
In accordance with the foregoing,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of
$32.65 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

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it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that
the remittance is for an original proceeding.
IT IS FURTHER ORDERED that if plaintiff fails to pay the initial partial
filing fee within thirty (30) days, without first showing good cause, the Court will
dismiss this action without prejudice and without further notice to plaintiff.
IT IS FURTHER ORDERED that the complaint is DISMISSED, without
prejudice, as to defendants Unknown Falzone and Unknown Tetemble in their official
capacities. See 28 U.S.C. § 1915(e)(2)(B).
IT IS FURTHER ORDERED that plaintiff’s Fourteenth Amendment
substantive due process claims against defendants Unknown Falzone and Unknown
Tetemble will be DISMISSED, without prejudice, as legally frivolous. See 28 U.S.C.
§ 1915(e)(2)(B).
IT IS FURTHER ORDERED that, as to defendants Sally Faith, Randall D.
McKinley, and City of St. Charles, Missouri, the Clerk shall not issue process or
cause process to issue, because the complaint is legally frivolous and fails to state a
claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B).

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IT IS FURTHER ORDERED that the Clerk shall issue process or cause
process to be issued upon the complaint as to defendants Unknown Falzone and
Unknown Tetemble in their individual capacities.
IT IS FURTHER ORDERED that, in their individual capacities and
consistent with this Order, defendants Unknown Falzone and Unknown Tetemble
shall file an answer or other responsive pleading directed to the complaint within the
time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil
Procedure.
IT IS FURTHER ORDERED that, pursuant to the Court's differentiated case
management system, this case is assigned to Track 5B (standard prisoner actions).
An Order directing the dismissal of specific claims and parties will be filed
separately.
Dated this 16th day of September, 2013.

_________________________________
UNITED STATES DISTRICT JUDGE

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