Russell v. Lewis et al

Filing 9

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 $24.18 within thirty (30) days of the date of t his 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 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 plaintiff relating to his criminal case of See State v. Russell, Case No. 14SL- CR10130-01 (21st Judicial Circuit, St. Louis 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. Russell, Case No.1 4SL-CR10130-01 (21st Judicial Circuit, St. Louis 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. Russell, Case No.14SL-CR10130-01 (21st Judicial Circuit, St. Louis County Court). This case may be reopened by plaintiff's filing of a motion to reopen the case after such final disposition. ( Initial Partial Filing Fee due by 11/24/2017.) Signed by District Judge Jean C. Hamilton on 10/25/17. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FORREST RUSSELL, JR.,
Plaintiff,
v.
STEVEN ERIC LEWIS, et al.,
Defendants.

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No. 4:17-CV-1981 NAB

MEMORANDUM AND ORDER
This matter is before the Court on the motion of plaintiff, Forrest Russell, Jr. (registration
no. 189366), an inmate at Eastern Reception Diagnostic and Correctional Center (“ERDCC”),
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 $24.18. 1 See 28 U.S.C. § 1915(b)(1).
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.
Background
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 asserting violations of his Fourth
Amendment rights. Prior to this case being filed, a related underlying criminal case was filed
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A review of plaintiff’s account indicates an average monthly deposit of $120.91. Plaintiff has
insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial
filing fee of $24.18, which is 20 percent of plaintiff’s average monthly deposit.

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against plaintiff in Missouri State Court. See State v. Russell, Case No.14SL-CR10130-01 (21st
Judicial Circuit, St. Louis County Court). After a jury trial in St. Louis County Court, plaintiff
was found guilty of three counts of Armed Criminal Action, Robbery in the First Degree,
Unlawful Possession of a Firearm, Kidnapping in the First Degree and Burglary in the First
Degree.
The Honorable Nancy Watkins sentenced plaintiff to a total of thirty (30) years’
imprisonment. Plaintiff subsequently appealed his conviction to the Missouri Court of Appeals
where the matter is currently under review. See State v. Russell, Case No. ED105842.
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 December 23, 2014. He brings
this action against the four police officers who were involved in his arrest, as well as the St.
Louis County Public Defender’s Office and his assigned public defender, Steven Lewis.
In the complaint, plaintiff alleges that the defendant police officers found his vehicle at a
crime scene on the night of December 20, 2014, in Wildwood, Missouri, causing the officers to
believe that he had committed burglary, kidnapping and armed criminal action. Plaintiff claims
that his vehicle was at the crime scene because the persons who committed the crime used his
vehicle to do so.
Plaintiff states that the police failed to listen to his assertions regarding why his vehicle
was at the crime scene. Plaintiff alleges that in order to fit their idea of the crime, the defendant
police officers coerced a witness to describe plaintiff as the assailant even though he did not
match the first description of the man the witness gave to the police. Moreover, plaintiff states

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that the victim did not at first mention that a gun was used in the crime, nevertheless, plaintiff
was charged with unlawful possession of a firearm after the officers spoke to the witness again
and coerced the witness into believing that a gun was used in commission of the crime.
Plaintiff also asserts that his public defender, Steven Lewis provided him with ineffective
assistance of counsel, when he failed to “represent him” properly or “shift blame” away from
plaintiff.2
After a jury trial in St. Louis County Court, plaintiff was found guilty of three counts of
Armed Criminal Action, Robbery in the First Degree, Unlawful Possession of a Firearm,
Kidnapping in the First Degree and Burglary in the First Degree.
Plaintiff’s claims in this lawsuit arise under the Fourth Amendment and include: lack of
probable cause to bring charges against plaintiff; manufacturing evidence against plaintiff;
malicious prosecution; false arrest; and false imprisonment.
Discussion
In Wallace v. Kato, the United States Supreme Court held that Athe 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 A[f]alse
arrest and false imprisonment overlap; the former is a species of the latter.@ Id. at 388. The Court
instructed that where Aa plaintiff files a false arrest claim before he has been convicted . . . it is

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Ineffective assistance of counsel claims are not justiciable in the context of 42 U.S.C. § 1983.
They are more properly brought in habeas corpus, pursuant to 28 U.S.C. § 2254. Furthermore, “a
public defender does not act under color of state law when performing a lawyer’s traditional
functions as counsel to a defendant in a criminal proceeding.” Polk County v. Dodson, 454 U.S.
312, 325 (1981).

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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 Aspeculate 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).
In this case, plaintiff asserts claims for false arrest and false imprisonment.

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principles of Wallace v. Kato dictate that further consideration of plaintiff’s § 1983 claims
should be stayed until the underlying criminal matter against plaintiff has been resolved through
his 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 (8th 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 plaintiff’s motion to proceed in forma pauperis [Doc.
#2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $24.18
within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance

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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
IT IS FURTHER ORDERED that all proceedings in this case are STAYED pending
final disposition of the appellate proceedings and post-conviction proceedings against plaintiff
relating to his criminal case of See State v. Russell, Case No.14SL-CR10130-01 (21st Judicial
Circuit, St. Louis 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. Russell, Case
No.14SL-CR10130-01 (21st Judicial Circuit, St. Louis 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. Russell, Case No.14SL-CR10130-01
(21st Judicial Circuit, St. Louis County Court). This case may be reopened by plaintiff=s filing of
a motion to reopen the case after such final disposition.
Dated this 25th day of October, 2017.

/s/ Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE

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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. 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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