Teen v. Poland

Filing 12

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to amend, construed as a motion for reconsideration of the dismissal of this action under 28 U.S.C. § 1915, is GRANTED. [ECF No. 11 ] IT IS FURTHER ORDEREDthat the Court& #039;s Memorandum and Order and Order of Dismissal dated August 14, 2017 are vacated. [ECF Nos. 9 and 10 ] IT IS FURTHER ORDERED that the Clerk of Court shall detach and docket plaintiff's second amended complaint, which was submitted as a n attachment to the motion to amend. IT IS FURTHER ORDERED that the Clerk of Court shall issue process or cause process to issue on the second amended complaint as to defendant Drew Poland in his individual capacity. Signed by District Judge Ronnie L. White on February 23, 2018. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ANTRELL ANTHONY TEEN,
Plaintiff,
v.

DREW POLAND,
Defendant.

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No. 4:17-CV-1787 RLW

MEMORANDUM AND ORDER

This closed case is before the Court on prose plaintiff Antrell Anthony Teen's motion to
amend the complaint, which the Court will construe as a motion for reconsideration of the
dismissal of this action under 28 U.S.C. § 1915(e). For the following reasons, the Court will
grant plaintiffs motion and vacate its Memorandum and Order and Order of Dismissal dated
August 14, 2017. Upon review of plaintiffs second amended complaint under 28 U.S.C. §
1915(e), the Court will direct the Clerk of Court to issue process on the second amended
complaint. 1
Standard of Review

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, 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."

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A plaintiff must

Plaintiff filed his original complaint on June 15, 2017 (ECF No. 1). He filed an amended
complaint on July 18, 2017 (ECF No. 8). The Court will refer to the amended complaint
attached to plaintiffs motion to amend as plaintiffs "second amended complaint" (ECF No. 111).

demonstrate a plausible claim for relief, which is more than a "mere possibility of misconduct."

Id. at 679. "A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged." Id. at 678. Determining whether a complaint states a plausible claim for relief is a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. Id. at 679.
When reviewing a complaint under 28 U.S.C. § 1915(e), the Court accepts the well-pled
facts as true. Furthermore, the Court liberally construes the allegations.

The Second Amended Complaint
Plaintiff brings this action under Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388 (1971).

Defendant is a Deputy United States Marshal.

Plaintiff states that on the morning of December 11, 2015, while he was asleep, defendant and
six unknown marshals entered his apartment. Plaintiff states he awoke, heard the marshals, and
"made [himself] visible with his hands in the air." In a declaration dated June 29, 2017, plaintiff
states as follows:
I awoke to strange voices. Once I got up I saw 7 marshals behind bullet proof
[shields] with guns pointed at me. I was not irate, I wasn't yelling, I was afraid
for my life, I kept my hands up didn't move closed my eyes. I could only
remember the wrongful killing of Mike Brown and didn't want to be a statistic. I
had no desire to die, be shot or hurt. My goal was to make it out alive. I was not
a threat, didn't pose any harm, and was trying to get on the ground. Before that
happened two officers tased me. I thought I had been shot by a gun, I started to
pray. The tasing continued for a little less than a minute but seemed like forever.

ECFNo. 5.

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Plaintiff states defendant and an unknown marshal each fired their taser at plaintiff,
striking him. Plaintiff fell backward hitting his head. He states that the officers cuffed him
while he was on the floor. For relief, plaintiff seeks damages in the amount of $60,000.
Discussion

On August 14, 2017, the Court reviewed plaintiffs first amended complaint under 28
U.S.C. § 1915(e) and found it subject to dismissal for failure to state a claim. Specifically, the
Court analyzed plaintiffs complaint as alleging only a failure-to-protect claim. The Court found
no facts demonstrating that defendant could have drawn the inference that plaintiff was in danger
of a substantial risk of serious harm. Moreover, the Court found defendant entitled to qualified
immunity. The Court entered an Order of Dismissal on August 14, 2017.
Plaintiffs second amended complaint, however, states specifically that defendant was
one of the marshals who shot plaintiff with a taser. The Court must analyze plaintiffs second
amended complaint as alleging unlawful use of force in violation of the Fourth Amendment. As
Bivens makes clear, the Fourth Amendment guarantees United States citizens "the absolute right

to be free from unreasonable searches and seizures carried out by virtue of federal authority."
Bivens, 403 U.S. at 392. To determine whether a particular seizure was conducted reasonably,

courts must examine "whether the totality of the circumstances justified a particular sort of
search and seizure," including how it was carried out and the force used. See Tennessee v.
Garner, 471U.S.1, 8-9 (1985).

Having carefully reviewed and liberally construed plaintiffs second amended complaint,
the Court finds that plaintiff has stated a non-frivolous claim of excessive force against
defendant. Although defendant may be entitled to qualified immunity, qualified immunity is an
affirmative defense. The burden of pleading it rests with the defendant. See Gomez v. Toledo,

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446 U.S. 635, 640 (1980) ("[T]his Court has never indicated that qualified immunity is relevant
to the existence of the plaintiffs cause of action; instead we have described it as a defense
available to the official in question.").
For these reasons, the Court will construe plaintiffs motion to amend as a motion for
reconsideration of the dismissal of this action under 28 U.S.C. § 1915(e), and grant the motion.
The Court will vacate its Memorandum and Order and Order of Dismissal dated August 14,
2017.

The Court will order the Clerk of Court to detach and docket the second amended

complaint and to issue process on it.
Accordingly,

IT IS HEREBY ORDERED that plaintiffs motion to amend, construed as a motion for
reconsideration of the dismissal of this action under 28 U.S.C. § 1915, is GRANTED. [ECF No.
11]

IT IS FURTHER ORDERED·that the Court's Memorandum and Order and Order of
Dismissal dated August 14, 2017 are vacated. [ECF Nos. 9 and 10]

IT IS FURTHER ORDERED that the Clerk of Court shall detach and docket plaintiffs
second amended complaint, which was submitted as an attachment to the motion to amend.

IT IS FURTHER ORDERED that the Clerk of Court shall issue process or cause
process to issue on the second amended complaint as to defendant Drew Poland in his individual
capacity.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

fl!/

Dated thi~ day of February, 2018.

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