Carter v. O'Toole et al
OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis (Docket No. 5 ) is GRANTED. IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $5.57 within thirty (30) days of the da te 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) the statement that the remittan ce is for an original proceeding. IT IS FURTHER ORDERED that the complaint is DISMISSED without prejudice. A separate order of dismissal will be entered herewith. IT IS FURTHER ORDERED that plaintiffs motion to appoint counsel (Docket No. 4 ) is DENIED as moot. IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in good faith. Signed by District Judge Henry E. Autrey on 9/25/17. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
LAWRENCE O’TOOLE, et al.,
No. 4:17CV1356 HEA
OPINION, MEMORANDUM AND ORDER
This matter is before the Court upon the motion of pro se plaintiff Jerry Carter, an inmate
of the Federal Bureau of Prisons at the Forrest City Low Federal Correctional Institution, for
leave to proceed in forma pauperis. (Docket No. 5). The Court has reviewed the financial
information plaintiff submitted in support, and has determined to grant the motion. In addition,
for the reasons explained below, the Court will dismiss the complaint, without prejudice.
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 sixmonth 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
$10.00, until the filing fee is fully paid. Id.
In support of the instant motion, plaintiff submitted an affidavit and a document signed
by the authorized officer at the Forrest City Low Federal Correctional Institution, averring that
plaintiff’s account balance is $27.85. The Court will therefore assess an initial partial filing fee
of $5.57, which is twenty percent of plaintiff’s account balance, and an amount the Court
determines to be reasonable. 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 prison account statement,
the Court should assess an amount “that is reasonable, based on whatever information the court
has about the prisoner’s finances.”).
Legal Standard on Initial Review
Under 28 U.S.C. § 1915(e)(2), 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. A
pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause
of action will not do,” nor will a complaint suffice if it tenders “naked assertion[s]” devoid of
“further factual enhancement.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
When conducting initial review pursuant to § 1915(e)(2), the Court must accept as true
the allegations in the complaint, and must give the complaint the benefit of a liberal construction.
Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the tenet that a court must accept the
allegations as true does not apply to legal conclusions, Iqbal, 556 U.S. at 678, and affording a
pro se complaint the benefit of a liberal construction does not mean that procedural rules in
ordinary civil litigation must be interpreted so as to excuse mistakes by those who proceed
without counsel. See McNeil v. U.S., 508 U.S. 106, 113 (1993). Even pro se complaints are
required to allege facts which, if true, state a claim for relief as a matter of law. Martin v.
Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980); see also Stone v. Harry, 364 F.3d 912, 914-15
(8th Cir. 2004) (federal courts are not required to “assume facts that are not alleged, just because
an additional factual allegation would have formed a stronger complaint”).
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. Named as defendants are police
detectives Lawrence O’Toole and Anthony Mocca, DEA Agent Scott Marlow, and plaintiff’s
former criminal defense attorney, Jeffrey Goldfarb. Plaintiff sues all defendants in their official
and individual capacities. Because plaintiff names a federal officer as a defendant, the Court
construes the complaint as having also been brought pursuant to Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).1
Plaintiff’s allegations all stem from his prior criminal proceedings in this Court in the
case of United States v. Carter, Case No. 4:13-cr-334-JAR (E.D. Mo. Jul. 2, 2014). The Court
takes judicial notice of the records in these related proceedings, which are not inconsistent with
the allegations in the complaint, for the purpose of establishing the facts leading up to this action.
MacMillan Bloedel, Ltd. v. Flintkote Co., 760 F.2d 580, 587-88 (5th Cir. 1985) (A court may
take judicial notice of records of related proceedings before the same Court).
On May 24, 2013, officers with the St. Louis Metropolitan Police Department submitted
to St. Louis County Circuit Judge Thom Clark a complaint and affidavit in support of a search
warrant for plaintiff’s residence.
The affidavit contained, inter alia, information from a
confidential informant who said s/he had observed plaintiff in possession of illegal drugs and a
A claim under Bivens involves the same analysis as one arising under 42 U.S.C. ' 1983. Gordon v. Hansen, 168
F.3d 1109, 1113 (8th Cir. 1999).
firearm inside the residence. Judge Clark issued a search warrant, which was executed on May
29, 2013 and yielded a loaded gun, heroin, and drug paraphernalia. Following a jury trial,
plaintiff was convicted of intent to distribute heroin, possessing a firearm in furtherance of a
drug-trafficking crime, and being a felon in possession of a firearm, on the basis of the evidence
recovered during the search of his home. On December 5, 2014, plaintiff was sentenced to
concurrent and consecutive terms of imprisonment that resulted in an aggregate sentence of 130
months. Plaintiff appealed to the Eighth Circuit Court of Appeals, but on October 14, 2015, the
Court affirmed plaintiff’s convictions and sentences. United States v. Carter, 618 Fed. Appx.
298 (8th Cir. 2015). On February 26, 2015, plaintiff filed a motion to vacate his sentence
pursuant to 28 U.S.C. § 2255, which was dismissed without prejudice because plaintiff’s appeal
was still pending. Carter v. United States, Case No. 4:15-cv-389-JAR (E.D. Mo. Apr. 2, 2015).
On January 7, 2016, plaintiff filed a second motion to vacate pursuant to 28 U.S.C. § 2255.
Carter v. United States, Case No. 4:16-cv-25-JAR (E.D. Mo. Jan. 7, 2016). As of the date of this
Memorandum and Order, that motion remains pending.
In the instant complaint, plaintiff states that he intends to bring claims of “false
imprisonment and malicious prosecution.” (Docket No. 1 at 4). Plaintiff then sets forth facts in
support of his claims. He alleges that defendants omitted, ignored, or concealed exculpatory
evidence and information that would have exonerated him; that prosecutors and Goldfarb caused
the Magistrate Judge to make conclusions that led to the termination of an evidentiary hearing
that would have exonerated him; that O’Toole, Marlow and Mocca deceived the Court into
believing plaintiff sold drugs; and that O’Toole wrongfully procured the search warrant that
yielded the drugs and firearm he was convicted of possessing.
As relief, plaintiff asks to be
released from custody. He also seeks compensatory and punitive damages in an unspecified
As an initial matter, the Court notes that it cannot entertain plaintiff’s request for
expedited release from custody in this non-habeas civil case. See Preiser v. Rodriguez, 411 U.S.
475, 488–90 (1973) (a federal court cannot entertain a request for release from custody in a nonhabeas civil action); see also Heck v. Humphrey, 512 U.S. 477, 481 (“habeas corpus is the
exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and
seeks immediate or speedier release.”).
Plaintiff’s false imprisonment and malicious prosecution claims are barred by the
doctrine of Heck v. Humphrey. In Heck, the Supreme Court held that a prisoner’s claim for
damages related to a conviction or sentence that has not been reversed, expunged, or called into
question by a writ of habeas corpus is not cognizable under § 1983. Id. at 486–87 (in order to
recover damages for allegedly unconstitutional imprisonment, a prisoner must “prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determination, or called into question by a
federal court's issuance of a writ of habeas corpus.”). To determine whether a prisoner’s suit
may proceed, a “district court must consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been
invalidated.” Id. at 487. Federal courts have consistently applied the principles of Heck in
Bivens actions by federal prisoners. See Washington v. Sorrows, 107 F.3d 876 (8th Cir. 1997)
Plaintiff’s claims of false imprisonment and malicious prosecution necessarily imply the
invalidity of his convictions and sentences. Were this Court to find, as plaintiff asserts it should,
that the defendants omitted, ignored, or concealed exculpatory evidence and information that
would have exonerated him or caused the Magistrate Judge to make conclusions that led to the
termination of an evidentiary hearing that would have exonerated him, or that O’Toole, Marlow
and Mocca took various deceptive actions to secure plaintiff’s convictions, the result would
necessarily imply the invalidity of his convictions and sentences.
To the extent plaintiff can be understood to assert a Fourth Amendment claim against
O’Toole concerning the search warrant affidavit, such claim is also Heck-barred. The Court
recognizes that Fourth Amendment claims are not categorically barred by Heck. Here, however,
plaintiff was convicted of, inter alia, possessing the drugs and the gun produced by the search.
Plaintiff does not allege, nor is it apparent, that this evidence could have been obtained by means
other than searching his home, or that an independent source could have led to the inevitable
discovery of the evidence. Instead, plaintiff suggests that his convictions and his imprisonment
are unconstitutional because the search warrant was wrongfully procured. If plaintiff were to
prevail on this claim, the result would necessarily imply the invalidity of his convictions and
Because plaintiff has not demonstrated that his convictions or sentences have been
reversed, expunged, or called into question by a writ of habeas corpus, his claims are barred by
Heck v. Humphrey, and the complaint will be dismissed. However, this dismissal will be without
prejudice, in order to allow plaintiff to refile if and when he satisfies the Heck requirements. See
Schafer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995) (per curiam) (a Heck dismissal should be
without prejudice so the plaintiff can refile if he satisfies the Heck requirements).
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis
(Docket No. 5) is GRANTED.
IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $5.57 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) the statement that the remittance is for an
IT IS FURTHER ORDERED that the complaint is DISMISSED without prejudice. A
separate order of dismissal will be entered herewith.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel (Docket No. 4)
is DENIED as moot.
IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in
Dated this 25th day of September, 2017
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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