Johns v. McFerron et al

Filing 5

MEMORANDUM AND ORDER -....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 $1.84 within thirty (30) da ys of the date of this Order......IT IS FURTHER ORDERED that all proceedings in this case are STAYED pending final disposition of the criminal charges, as well as plaintiff's probationary process, any appeals and post-conviction remed ies, in State v. Johns, No. 16SL-CR00718-01 (21st Judicial Circuit, St. Louis County Court). IT IS FURTHER ORDERED that plaintiff's motion for counsel [Doc. 3] is DENIED without prejudice. IT IS FURTHER ORDERED that this c ase is ADMINISTRATIVELY CLOSED pending final disposition of the criminal charges against plaintiff, and may be reopened by this Court.( Initial Partial Filing Fee due by 2/23/2018.). Signed by District Judge Charles A. Shaw on 1/24/2018. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BRENT J. JOHNS,
Plaintiff,
v.
UNKNOWN MCFERRON, et al.,
Defendants.

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No. 4:17-CV-2762 CAS

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff, Brent Jeffrey Johns, who is
currently detained at St. Louis County Justice Center, 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
$1.84. 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 cases
against plaintiff that arises out of the same facts.
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court shall 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 Alacks an arguable basis either in law or in fact.@ Denton v. Hernandez, 504 U.S.
25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 325 (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, 460-63 (E.D.N.C. 1987),

aff=d 826 F.2d 1059 (4th Cir. 1987). A complaint fails to state a claim if it does not plead
Aenough facts to state a claim to relief that is plausible on its face.@ Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
The Complaint
Plaintiff Brent J. Johns brings this action pursuant to 42 U.S.C. § 1983 alleging violations
of his civil rights. Named as defendants are: Detective Unknown McFerron; Sgt. Henry Moore
(Missouri State Highway Patrol Officer); Police Officer Unknown Brown; Unknown Owners of
the River City Casino; Missouri Highway Patrol; Federal Gaming Commission; Dale
Montgomery, Jr. (Security Director, River City Casino); John and Jane Doe Employees of River
City Casino.
Plaintiff states that on or about March 4, 2015, he was unlawfully seized and falsely
imprisoned by defendant Montgomery, Sgt. Moore, and other unnamed officials employed by
the River City Casino. He asserts that his truck was searched in the River City Casino parking
lot, and he was taken to the St. Louis County Police precinct, where he was further held and
questioned by Police Officer Brown relating to a weapon that was kept in a locked box in his
truck, which plaintiff claims belonged to his father. Plaintiff was eventually charged with
unlawful possession of a firearm. See State v. Johns, No. 16SL-CR00718-01 (21st Judicial
Circuit, St. Louis County Court).
In his request for relief, plaintiff seeks compensatory and punitive damages.
Criminal Background
The Court takes judicial notice that a review of Missouri Case.Net shows that Officer
Weber swore out an affidavit in support of a felony complaint against plaintiff on January 28,
2016, in State v. Johns, No. 16SL-CR00718-01 (21st Judicial Circuit, St. Louis County Court).
In the affidavit, Officer Weber stated:

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I, Joshua Weber, DSN 238 A, St. Louis County Police Department, knowing that
false statements on this form are punishable by law, state that the facts contained
herein are true. I have probable cause to believe that on March 4, 2015, at 777
River City Casino Blvd., St. Louis County, Mo. Brent Johns, White Male, . . .,
225 lbs, committed on or more criminal offense(s).
Count: 01 UNLAWFUL POSSESSION OF A FIREARM CLASS C FELONY
The facts supporting this belief are as follows:
Defendant is seen entering a room where guns and drugs were previously
discovered by police. Defendant was questioned by police and admitted to being a
drug user and gave officer permission to search his vehicle. Defendant admitted to
having a gun in his car. Search of the vehicle revealed a black and gray semiautomatic handgun. Defendant has prior felony convictions. 1
The Court has reviewed plaintiff’s criminal case in State v. Johns, No. 16SL-CR0071801, and found that plaintiff was initially arrested on the evening of the incident, but he was then
released until the criminal complaint was filed in January of 2016. A warrant was issued for his
arrest on or about February 2, 2016, it was served on plaintiff, and he was taken into custody at
the end of February 2016. Although plaintiff initially posted bond, his bond was revoked on
three separate occasions for various reasons. Plaintiff has been consistently incarcerated since
March 2017 awaiting trial. Plaintiff’s case is currently set for trial on April 30, 2018.
In State v. Johns, No. 16SL-CR00807-01 (21st Judicial Circuit, St. Louis County Court),
the State of Missouri filed a four-count complaint alleging that plaintiff committed four Class C
felonies of forgery by writing fraudulent checks out of the bank account of Whelan Security on
or about October 11, 2015. This matter is currently set for trial on April 30, 2018.
In State v. Johns, No. 16SL-CR02012-01 (21st Judicial Circuit, St. Louis County Court),
the State of Missouri filed a one-count complaint alleging that plaintiff committed the Class C
felony of forgery. The complaint alleged that on or about December 14, 2015, plaintiff was

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Plaintiff had a prior felony conviction for forgery in the 207th Judicial District Court for the
State of Texas.
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possessing, with the intent of using, seven counterfeit $50 bills. This matter is currently set for
trial on April 30, 2018.
In State v. Johns, No. 16SL-CR07730-01 (21st Judicial Circuit, St. Louis County Court),
the State of Missouri filed a one-count complaint alleging that, between March 16, 2016 and
March 17, 2016, plaintiff committed the Class C felony of identity theft, by using a checking
account number not lawfully issued for his use, which resulted in a theft of money in excess of
$500. This matter is currently set for trial on April 30, 2018.
In State v. Johns, No. 16SL-CR07867-01 (21st Judicial Circuit, St. Louis County Court),
the State of Missouri filed a one-count complaint alleging that between July 26, 2016 and August
17, 2016, plaintiff committed the Class C felony of identity theft by using the name, date of
birth, address and social security number of a particular individual that resulted in the theft of
credit in excess of $500. This matter is currently set for trial on April 30, 2018.
On or about March 1, 2017, as alleged in State v. Johns, No. 17SL-CR01553-01 (21st
Judicial Circuit, St. Louis County Court), Florissant police pulled over a car, operated by
plaintiff, for traffic violations.
It is alleged that plaintiff provided a false name and pedigree information. As the officer
informed plaintiff that the name he provided was not connected to a valid Missouri driver's
license, plaintiff drove away from the stop at a high rate of speed. As officers followed, plaintiff
drove directly at one officer's patrol car, forcing the officer to swerve to elude a collision.
Plaintiff drove at a high rate of speed in a residential area and failed to yield to oncoming traffic.
Officers eventually located the stopped vehicle, and plaintiff refused commands to exit the
vehicle and reversed the car in an attempt to get away. In doing so, he struck Officer Joshua
Smith in the leg. Police pursued the car again to a parking lot, where plaintiff abandoned the car
and attempted to hide behind a business. Plaintiff then resisted arrest by swinging his fists and

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kicking at the officers, but was eventually subdued and taken into custody. In the complaint filed
on March 2, 2017, plaintiff was charged with two counts of felony assault in the second degree
and two counts of felony resisting arrest. 2 Id.
Discussion
As the record shows, plaintiff filed this “false arrest” and “false imprisonment” case
while he is awaiting trial in the underlying criminal case against him. See State v. Johns, No.
16SL-CR00718-01 (21st Judicial Circuit, St. Louis County Court).
In Wallace v. Kato, 549 U.S. 384, 397 (2007), the United States Supreme Court held that
“the 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.” The Court also instructed that
where, as here, “a plaintiff files a false arrest claim before he has been convicted . . . it is 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 “speculate about whether a prosecution will be brought, whether
it will result in a 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.
After careful consideration, the Court finds that the principles established in Wallace
dictate that further consideration of plaintiff’s § 1983 claims should be stayed until the
underlying criminal charges pending against plaintiff are completely resolved, through plaintiff’s
probationary period, the appeals process and through post-conviction relief. See Wallace, 549
U.S. at 394.
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Plaintiff has several other outstanding criminal actions at this time in St. Louis County, as well
as Jefferson County, St. Francois County and Saint Genevieve County.
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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 $1.84
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) 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 criminal charges, as well as plaintiff’s probationary process, any appeals
and post-conviction remedies, in State v. Johns, No. 16SL-CR00718-01 (21st Judicial Circuit, St.
Louis County Court).
IT IS FURTHER ORDERED that plaintiff shall have thirty (30) days to notify the
Court in writing concerning the final disposition of all criminal charges, as well as plaintiff’s
probationary process, any appeals and post-conviction remedies, in State v. Johns, No. 16SLCR00718-01 (21st Judicial Circuit, St. Louis County Court).
IT IS FURTHER ORDERED that plaintiff’s motion for counsel [Doc. 3] is DENIED
without prejudice.

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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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IT IS FURTHER ORDERED that this case is ADMINISTRATIVELY CLOSED
pending final disposition of the criminal charges against plaintiff, and may be reopened by this
Court.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
Dated this 24th day of January, 2018.

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