Garrett v. Embrey et al

Filing 5

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that Plaintiff's motion to proceed in forma pauperis [ECF No. 2 ] is GRANTED. IT IS FURTHER ORDERED that Plaintiff shall pay an initial filing fee of $22.90 within thirty (30) day s after 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. IT IS FURTHER ORDERED that, if Plaintiff fails to pay the initial partial filing fee within thirty (30) days after the date of this Order, then this case will be dismissed without prejudice. IT IS FURTH ER ORDERED that the Clerk shall issue process or cause process to issue upon the complaint as to Defendants St. Louis County, St. Louis County Police Officer Kyle Embrey, and St. Louis County Police Officer Michael Hooten. Each Defendant shall be served by summons. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), Defendants St. Louis County, Kyle Embrey and Michael Hooten shall reply to Plaintiff's claims within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard. Signed by Magistrate Judge Patricia L. Cohen on 12/29/17. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MYCHAEL J. GARRETT, II,
Plaintiff,
v.
ST. LOUIS COUNTY, et al.,
Defendants.

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No. 4:17cv02492 PLC

MEMORANDUM AND ORDER
Plaintiff Mychael J. Garrett, II (registration no. 216034), a pretrial detainee at the St.
Louis County Justice Center, 1 seeks leave to proceed without paying the filing fee for this civil
action he pursues under 42 U.S.C. Section 1983 [ECF No. 2]. Additionally, this matter is before
the Court on review of Plaintiff’s pro se complaint under 28 U.S.C. Sections 1915(e)(2) and
1915A. For the reasons stated below, the Court finds that Plaintiff does not have sufficient funds
to pay the entire filing fee and assesses an initial partial filing fee of $22.90. See 28 U.S.C.
§ 1915(b)(1). Furthermore, after reviewing Plaintiff’s complaint, the Court directs the Clerk to
issue process or cause process to be issued on the complaint.
Plaintiff’s in forma pauperis status
The fee required to file a civil action, other than an application for a writ of habeas
corpus, in a district court is $350.00. 28 U.S.C. § 1914(a). 2 A plaintiff in a civil action may seek
1

In this proceeding, Plaintiff seeks relief for allegedly excessive or deadly force used by Defendant St.
Louis County police officers and allegedly inadequate training in the use of such force by Defendant St. Louis
County when Plaintiff was arrested on November 17, 2016. A review of the docket sheet for Plaintiff’s most recent
state criminal case reveals that he is charged with first degree assault, armed criminal action, and resisting or
interfering with an arrest on November 17, 2016. See docket sheet for State v. Garrett, No. 16SL-CR08658-01 (St.
Louis Cty Cir. Ct. filed Nov. 18, 2016) (available at https://www.courts.mo.gov/casenet/cases).
2

Under 28 U.S.C. Section 1914(b), the Clerk of Court must also “collect from the parties such additional
fees only as are prescribed by the Judicial Conference of the United States.” Effective December 1, 2016, the
Judicial Conference added a $50.00 administrative fee to the $350.00 statutory fee for filing a civil action or
proceeding in district court. See Par. 14 of the Judicial Conference Schedule of Fees, District Court Miscellaneous

leave to proceed without paying a filing fee, otherwise known as proceeding in forma pauperis.
See 28 U.S.C. § 1915. A court has discretion to grant or deny in forma pauperis status under
Section 1915. Lee v. McDonald’s Corp., 231 F.3d 456, 458 (8th Cir. 2000). Importantly, a
litigant does not need “to demonstrate absolute destitution” to attain in forma pauperis status. Id.
at 459.
A district court may authorize the commencement of any civil action without the
prepayment of fees by “a person who submits an affidavit that[, in addition to other information,]
includes a statement of all assets such [person] possesses [and] that the person is unable to pay
such fees.” 28 U.S.C. § 1915(a)(1). In addition to filing the affidavit, a
prisoner seeking to bring a civil action . . . without prepayment of fees . . . [must]
submit a certified copy of the trust fund account statement (or institutional
equivalent) for the prisoner for the 6-month period immediately preceding the
filing of the complaint . . . , obtained from the appropriate official of each prison
at which the prisoner is or was confined.
28 U.S.C. § 1915(a)(2). Section 1915 defines a “prisoner” as “any person incarcerated or
detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent
for, violations of criminal law or the terms and conditions of parole, probation, pretrial release or
[a] diversionary program.” 28 U.S.C. § 1915(h); see also 28 U.S.C. § 1915A(c).
When a prisoner pursues a civil action in forma pauperis, the statute requires that “the
prisoner . . . pay the full amount of [the] filing fee.” 28 U.S.C. § 1915(b)(1). A prisoner’s
payment of the full filing fee occurs through the court’s assessment and collection of an “initial
partial filing fee” followed by required “monthly payments.” 28 U.S.C. § 1915(b). The initial
partial filing fee is “20 percent of the greater of – (A) the average monthly deposits to the
prisoner’s account; or (B) the average monthly balance in the prisoner’s account for the 6-month
Fee Schedule (issued in accordance with 28 U.S.C. § 1914) (effective on Dec. 1, 2016) (as reported for 28 U.S.C.A.
§ 1914 in the 2017 Cum. Ann. Pocket Part for the 2006 bound Vol. of Title 28 U.S.C.A. §§ 1861-1960). The
Judicial Conference expressly provided, however, that the additional $50.00 “fee does not apply to applications for a
writ of habeas corpus or to persons granted in forma pauperis status under 28 U.S.C. § 1915.” Id.

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period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(b)(1). After the
initial partial filing fee is paid, the prisoner is “required to make monthly payments of 20 percent
of the preceding month’s income credited to the prisoner’s account,” with the “agency having
custody of the prisoner . . . forward[ing] payments from the prisoner’s account to the clerk of the
court each time the amount in the account exceeds $10.00 until the filing fee[ is] paid.” 28
U.S.C. § 1915(b)(2). Section 1915 provides that “[i]n no event shall a prisoner be prohibited
from bringing a civil action . . . for the reason that the prisoner has no assets and no means by
which to pay the initial partial filing fee.” 28 U.S.C. § 1915(b)(4).
In support of his motion to proceed in forma pauperis, Plaintiff submitted an affidavit
[ECF No. 2] and a certified copy of his institutional account statement for the period November
2016 until mid-September 2017 [ECF No. 3]. A review of Plaintiff’s institutional account for
the six months immediately before Plaintiff filed his complaint 3 shows an average monthly
deposit of approximately $114.52 and an average monthly balance of approximately $25.00.
Plaintiff has insufficient funds to pay the entire filing fee. Having reviewed Plaintiff’s available
financial information, the Court grants Plaintiff’s motion to proceed in forma pauperis and
assesses an initial partial filing fee of $22.90, which is twenty percent of the average monthly
deposits reported on Plaintiff’s institutional account statement since March 2017. See 28 U.S.C.
§ 1915(b)(1)(A). Having granted Plaintiff in forma pauperis status to pursue this lawsuit, the
Court must consider whether the complaint should nevertheless be dismissed under 28 U.S.C.
Sections 1915(e)(2) and § 1915A(b).
Standard of review under Sections 1915(e)(2) and 1915A(b)

3

The Court considers Plaintiff’s institutional financial information available only for the six-month period
immediately before Plaintiff filed his complaint because Plaintiff is only required to provide a statement of his
institutional account for “the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. §
1915(a)(2).

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The Court must dismiss a civil complaint filed in forma pauperis if it is frivolous, is
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. 4

28 U.S.C. §§ 1915(e)(2) and 1915A(b).

A

complaint is “frivolous” when “it lacks an arguable basis either in law or fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989) (addressing what constitutes a frivolous complaint for the
predecessor to Section 1915(e)(2), 28 U.S.C. § 1915(d)). A court may dismiss a claim as
frivolous if it is “based on an indisputably meritless legal theory,” Neitzke, 490 U.S. at 327, or
“if the facts alleged are ‘clearly baseless,’ [which includes] allegations that are ‘fanciful,’
‘fantastic,’ and ‘delusional,’” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (internal citations
omitted). More specifically, a court may dismiss an in forma pauperis complaint as factually
frivolous “when the facts alleged rise to the level of the irrational or the wholly incredible,” but
not “simply because the court finds the plaintiff’s [factual] allegations unlikely.” Id. at 33.
Notably, the requirement for a dismissal based on frivolousness is not the same as a dismissal for
failure to state a claim upon which relief can be granted. See Neitzke, 490 U.S. at 331.
A complaint fails to state a claim if it does not plead enough facts to state a claim to relief
that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

When

reviewing a complaint for failure to state a claim upon which relief can be granted, the Court
accepts the well-pled facts as true and liberally construes the allegations. See Geitz v. Overall,
62 Fed. Appx. 744, 746 (8th Cir. 2003) (unpublished per curiam opinion) (viewing the complaint
in a light most favorable to the plaintiff when deciding whether to dismiss the complaint under
28 U.S.C. Section 1915(e)(2)(B)(ii) for failure to state a claim upon which relief can be granted).
Although the court must liberally construe a pro se complaint, the allegations must provide
4

Section 1915 also requires dismissal of a civil complaint filed in forma pauperis “if the court determines
that the allegation of poverty is untrue.” 28 U.S.C. § 1915(e)(2)(A). Having reviewed Plaintiff’s allegations and
available financial information, there is no basis to dismiss the complaint at this time (1) as malicious, (2) because
Plaintiff seeks monetary relief from a defendant immune from a damages award, or (3) because Plaintiff provided an
“allegation of poverty [that] is untrue.”

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“sufficient facts to support the claims advanced.” Stone v. Harry, 364 F.3d 912, 914 (8th Cir.
2004). In giving a pro se complaint a “liberal construction,” the United States Court of Appeals
for the Eighth Circuit instructed, a “district court should construe the complaint in a way that
permits the layperson’s claim to be considered within the proper legal framework” when “the
essence of an allegation is discernible.” Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015)
(internal quotation marks and citation omitted).
More specifically, 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must
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.
The complaint
Pursuant to 42 U.S.C. Section 1983 Plaintiff seeks monetary and other relief 5 for
Defendants’ alleged violation of his civil rights on November 17, 2016. Plaintiff named three
defendants: St. Louis County, St. Louis County Police Officer Kyle Embrey, and St. Louis
County Police Officer Michael Hooten. Plaintiff sues the individual Defendants in their official
and individual capacities.
Plaintiff claims that Defendants Embrey and Hooten violated Plaintiff’s federal
constitutional rights by using “deadly and excessive force” against him when they fired their
5

Specifically, Plaintiff seeks $1,000,000 in actual damages; $3,000,000 in punitive damages; an “apology
letter from [St. Louis County]; and the dropping of the charges against him. Pl.’s Compl. at 8 [ECF No. 1].

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police-issued handguns at him eighteen times, striking his body three times with bullets from the
officers’ firearms. Plaintiff asserts that the bullets hit him in his back, purportedly showing that
at the time he was shot he was facing away from Defendant officers and “was not a threat to
them.” Plaintiff further states that, at the time he was shot by Police Officers Embrey and
Hooten, he was “on foot” and in “no way an immediate threat to those around” him. Plaintiff
suffered, he alleges, both physical and mental impairment as a result of the shooting.
Additionally, Plaintiff alleges that St. Louis County failed to adequately train Officers Embrey
and Hooten in subduing Plaintiff without the use of “deadly and excessive force.”
Discussion
To state a claim under Section 1983, a plaintiff must allege a violation of a federal
constitutional or statutory right committed under color of state law. Lind v. Midland Funding,
L.L.C., 688 F.3d 402, 405 (8th Cir. 2012). For Section 1983 liability, there must be a causal link
to and direct responsibility for the alleged deprivation of a federal constitutional or statutory
right. Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (citing Rizzo v. Goode, 423
U.S. 362, 370-71 (1976)).
While the “[t]he Fourth Amendment protects citizens from unreasonable . . . seizure[s]”
by police officers, police officers “may use some degree of force in effecting a lawful arrest.”
Krueger v. Fuhr, 991 F.2d 435, 438 (8th Cir. 1993). If a suspect is not threatening anyone and
not resisting arrest, it may be unreasonable for an officer “to use more than de minimis force
against” the suspect. Shannon v. Koehler, 616 F.3d 855, 862-64 (8th Cir. 2010). A use of deadly
force to seize a person may, however, “be reasonable if the use of force was justified.” Ransom
v. Grisafe, 790 F.3d 804, 811 (8th Cir. 2015) (per curiam), cert denied, 136 S. Ct. 838 (2016).
A governmental entity, such as St. Louis County, may be liable under Section 1983 for a
failure to train employees when the failure is deliberately indifferent to the rights of others.

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Yellow Horse v. Pennington Cty., 225 F.3d 923, 928 (8th Cir. 2000). To establish liability, a
Section 1983 failure to train claim ordinarily requires the demonstration of a pattern of prior
similar constitutional violations by untrained employees. Connick v. Thompson, 563 U.S. 51,
62, 63 n.7 (2011). The United States Supreme Court has, however, left open the rare possibility
that “the unconstitutional consequences of failing to train could be so patently obvious that a
[county] could be liable under § 1983 without proof of a pre-existing pattern of violations.” Id.
at 64. Such a possibility may exist when armed police officers do not receive training about the
“constitutional limitation on the use of deadly force.” Id. at 63 (discussing City of Canton, Ohio
v. Harris, 489 U.S. 878 (1989)).
Liberally construing the allegations in Plaintiff’s complaint, the Court concludes that, at
this stage of the proceedings, Plaintiff states a facially plausible Section 1983 claim against
Defendants Embrey and Hooten for their allegedly excessive use of force during their arrest of
Plaintiff on November 17, 2016, and against Defendant St. Louis County for failure to train
officers about the use of excessive force during an arrest. Additionally, Plaintiff’s claims are not
frivolous because they are not based on an indisputably meritless legal theory or on clearly
baseless facts. The Court will issue process on Plaintiff’s claims against each Defendant.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff's motion to proceed in forma pauperis [ECF
No. 2] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff shall pay an initial filing fee of $22.90
within thirty (30) days after 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.

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IT IS FURTHER ORDERED that, if Plaintiff fails to pay the initial partial filing fee
within thirty (30) days after the date of this Order, then this case will be dismissed without
prejudice.
IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to
issue upon the complaint as to Defendants St. Louis County, St. Louis County Police Officer
Kyle Embrey, and St. Louis County Police Officer Michael Hooten. Each Defendant shall be
served by summons.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), Defendants St.
Louis County, Kyle Embrey and Michael Hooten shall reply to Plaintiff's claims within the time
provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard.

PATRICIA L. COHEN
UNITED STATES MAGISTRATE JUDGE
Dated this 29th day of December, 2017

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