Schierbaum v. Canavan et al

Filing 6

MEMORANDUM AND ORDER re: 4 MOTION to Appoint Counsel filed by Plaintiff William Schierbaum, 2 MOTION for Leave to Proceed in forma pauperis filed by Plaintiff William Schierbaum. IT IS HEREBY ORDERED that plaintiffs motion seeking leave to commence this action without prepaying fees or costs (ECF No. 2) is GRANTED. IT IS FURTHER ORDERED that, within thirty (30) days of the date of this order, plaintiff must pay an initial filing fee of $75.47. 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) this case number; and (4) the statement that the remittance is for an original proceeding. IT IS FURT HER ORDERED that the Clerk of Court shall issue process or cause process to issue upon the complaint as to defendants Tom Canavan and Christ Beard in their individual capacities. The defendants shall be served by issuance of summons and service by th e U.S. Marshal's Service at the Wright City Police Department, 203 Veterans Memorial Parkway, Wright City, Missouri, 63390. IT IS FURTHER ORDERED that plaintiffs motion to appoint counsel (ECF No. 4) is DENIED without prejudice. IT IS FURTHER OR DERED that plaintiff's official capacity claims against Tom Canavan and Christ Beard are DISMISSED without prejudice. A separate order of partial dismissal will be entered herewith. IT IS FURTHER ORDERED that the Wright City Police Department an d defendants Unknown Eskew, Unknown Tomlin, Unknown Catron, Unknown Lackey, and Unknown Matthews are DISMISSED from this action, without prejudice. A separate order of partial dismissal will be entered herewith. IT IS HEREBY CERTIFIED that an appeal from this partial dismissal would not be taken in good faith. Signed by District Judge Stephen N. Limbaugh, Jr on 9/7/21. (CSG)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WILLIAM SCHIERBAUM,
Plaintiff,
V.

TOM CANAVAN, et al.,
Defendants.

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No. 4:21-cv-573 ACL

MEMORANDUM AND ORDER
This matter is before the Court on the motion of plaintiff William Schierbaum, a prisoner,
· for leave to commence this civil action without prepaying fees or costs. Having reviewed the
motion and the financial information submitted in support, the Court has determined to grant the
motion, and assess an initial partial filing fee of $75.47. Additionally, for the reasons discussed
below, the Court will direct the Clerk of Court to issue process or cause process to be issued as to
defendants Tom Canavan and Christ Beard in their individual capacities, and will dismiss from
this action defendants Wright City Police Department, Unknown Eskew, Unknown Tomlin,
Unknown Catron, Unknown Lackey, and Unknown Matthews.

28 U.S.C. § 1915(b)(l)
Pursuant to 28 U.S.C. § 1915(b)(l), a prisoner bringing a civil action informa pauperis is
required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his prison
account to pay the entire fee, the Court must assess and, when funds exist, collect an initial partial
filing fee of20 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 six-month period. After
payment of the initial partial filing fee, the prisoner is required to make monthly payments of 20

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percent of the preceding month's income credited to his 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 account exceeds $10.00, until the filing fee is fully paid. Id.
In support of the instant motion, plaintiff submitted an inmate account statement showing
an average monthly deposit of $377.36, and an average monthly balance of $192.58. The Court
will therefore assess an initial partial filing fee of $75.47, which is twenty percent of plaintiffs
average monthly deposit.
Legal Standard on Initial Review

This Court is required to review complaint filed informa pauperis, and must dismiss it if
it is frivolous, malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C. §
1915(e)(2). An actio·n is frivolous if it "lacks an arguable basis in either law or fact." Neitzke v.
Williams, 490 U.S. 319, 328 (1989). An action fails to state a claim upon which relief may be

granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell
Atlantic Corp. v. Twombly, 550 U.S. 544,570 (2007).

A claim is facially plausible when the plaintiff "pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft
v. Iqbal, 556 U.S. 662,678 (2009). Although a plaintiff need not allege facts in painstaking detail,

the facts alleged "must be enough to raise a right to relief above the speculative level." Twombly,
550 U.S. at 555. This standard "demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation." Iqbal, 556 U.S. at 678. Determining whether a complaint states a
plausible claim for relief is a context-specific task that requires the reviewing court to draw upon
judicial experience and common sense. Id. at 679. The court must assume the veracity of wellpleaded facts, but need not accept as true "[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements." Id. at 678 (citing Twombly, 550 U.S. at 555).
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This Court must liberally construe complaints filed by laypeople. Estelle v. Gamble, 429
U.S. 97, 106 (1976). This means that "if the essence of an allegation is discernible," the court
should "construe the complaint in a way that permits the layperson's claim to_be considered within
the proper legal framework." Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015) (quoting Stone

v. Harry, 364 F.3d 912,914 (8th Cir. 2004)). However, even prose complaints must allege facts
which, if true, state a claim for relief as a matter oflaw. Martin v. Aubuchon, 623 F.2d 1282, 1286
(8th Cir. 1980). Federal courts are not required to assume facts that are not alleged, Stone, 364
F.3d at 914-15, nor are they required to interpret procedural rules so as to excuse mistakes by those
who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).

The Complaint
Plaintiff filed the complaint pursuant to 42 U.S.C. § 1983 against the Wright City Police
Department and the following seven individuals: Tom Canavan, Christ Beard, Unknown Tomlin,
Unknown Catron, Unknown Lackey, Unknown Matthews and Unknown Eskew. Plaintiff can be
understood to identify all of the individual defendants as law enforcement officers employed by
the Wright City Police Department. He sues them in their official and individual capacities.
Plaintiffs claims arise from the execution of a search warrant on December 16, 2016 at a
home he identifies as the home "of which I was paroled to." It is not entirely clear whether plaintiff
intends to claim he had a legal interest in the home. He specifies he was not criminally charged
following the execution of the search warrant, and that his claims are unrelated to his current
incarceration. Plaintiffs claims and supporting allegations are as follows.
On December 20, 2016, Canavan, Beard, Tomlin, Catron, Lackey and Matthews forced
entry into a home while plaintiff was inside, and announced they were there to execute a search
warrant. Plaintiff was in bed at the time, and was under a sheet attempting to dress when Canavan

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hit him on the forehead with the butt of a firearm. The blow injured plaintiffs forehead and caused
bleeding, and caused plaintiff to tumble to the other side of the bed. Canavan and Beard then
"began to kick and stomp plaintiff with excessive force." Plaintiff was handcuffed and taken to the
living room.
An EMS crew arrived, and began attending to plaintiffs injuries. The EMS crew asked
other defendants for permission to remove plaintiffs handcuffs. The request was conveyed to
Canavan, who denied it. The EMS crew then took plaintiff to the ambulance, removed his
handcuffs, attended to his injuries, and took him to the hospital.
Plaintiff claims the search warrant. was procured "through the obstruction of the
administration of justice and falsifying the records of the Record Room of the Wright City Police
Department" by "defendants." He claims Matthews "approved all unconstitutional actions of the
defendants," and Eskew "as the Respondeat Superior is sole[ly] responsible for the actions of his
subordinates whether good or bad."
Plaintiff claims Canavan "committed fraud and obstruction of the administration of justice
when he violated State and Federal law to beguild [sic] the Judge of the Court by way of false
evidence to issue a Search Warrant lawfully ordered to violate plaintiffs constitutional rights." He
also claims the "defendants" obstructed justice by "falsifying .the record" to persuade a judge "to
i~sue a lawful search warrant on December 16, 2016." Plaintiff states Beard conspired with
Canavan, and he also refers to the defendants collectively as "the Defendants" and states they
"CONSPIRED to obstruct the administration of justice and Falsified the Record at the Wright City
Police Department" in order to violate his constitutional rights. Again referring to the defendants
collectively, he claims there was a "meeting of the minds" to assault him and "invade his dwelling
with Malfeasance intent and execution." He seeks declaratory and monetary relief.

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Discussion
Plaintiff has named the Wright City Police Department as a defendant. However, the
Wright City Police Department is a department or subdivision oflocal government, and is not itself
an entity that can be sued under§ 1983. See Ketchum v. City of West Memphis, Ark., 974 F.2d 81,
82 (8th Cir. 1992) (entities such as police departments are "not juridical entities suable as such.
They are simply departments or subdivisions of the City government"); see also De La Garza v.

Kandiyohi County Jail, 18 F. App'x 436, 437 (8th Cir. 2001) (sheriffs departments and police
departments are not usually considered legal entities subject to suit under§ 1983). Even if plaintiff
had named the municipality as a defendant, the complaint would not state a claim of municipal
liability. See Monell v. Dept. ofSocial Services of City ofNew York, 436 U.S. 658, 690-91 (1978)
(describing the elements of a municipal liability claim). Therefore, the Wright City Police
Department will be dismissed from this action.
Plaintiff has also sued Canavan, Beard, Tomlin, Catron, Lackey, Matthews and Eskew in
their official capacities. Naming a government official in his official capacity is the equivalent of
naming the government entity that employs him. Will v. Michigan Dept. ofState Police, 491 U.S.
58, 71 (1989). Here, plaintiff identifies the individual defendants as law enforcement officers
employed by the Wright City Police Department. However, as noted above, that entity is not one
that is suable under§ 1983, see Ketchum, 974 F.2d at 82, and the complaint would not state a claim
of municipal liability. See Monell, 436 U.S. at 690-91. Therefore, plaintiffs official capacity
claims against Canavan, Beard, Tomlin, Catron, Lackey, Matthews and Eskew are subject to
dismissal.
The Court now turns to plaintiffs individual capacity claims. First, plaintiff claims
Canavan and Beard used excessive force against him when Canavan hit him on the forehead with

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the butt of a gun, and he and Beard then kicked and stomped him. These claims arise under the
Fourth Amendment, which "protects citizens from being seized through excessive force by law
enforcement officers." Thompson v. City of Monticello, Ark., 894 F.3d 993, 998 (8th Cir. 2018).
See Andrews v. Fuoss, 417 F.3d 813, 818 (8th Cir. 2005) ("The right to be free from excessive

force is included under the Fourth Amendment's prohibition against unreasonable seizures of the
person") and Wilson v. Spain, 209 F.3d 713, 715 (8th Cir. 2000) ("The Fourth Amendment's
prohibition against unreasonable seizures of the person applies to excessive-force claims that arise
in the context of an arrest or investigatory stop of a free citizen"). The violation of this right is
sufficient to support an action under§ 1983. Crumley v. City of St. Paul, Minn., 324 F.3d 1003,
1007 (8th Cir. 2003).
"To determine whether a particular use of force was excessive, the court considers whether
it was objectively reasonable under the circumstances, relying on the perspective of a reasonable
officer present at the scene, rather than the 20/20 vision of hindsight." Awnings v. Fullerton, 912
F.3d 1089, 1100 (8th Cir. 2019) (quoting Ehlers v. City of Rapid City, 846 F.3d 1002, 1011 (8th
Cir. 2017)). See Ellison v. Lesher, 796 F.3d 910, 916 (8th Cir. 2015) (whether force is excessive
under the Fourth Amendment requires a determination of whether or not law enforcement officers'
actions were "objectively reasonable in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation."). Factors relevant to the reasonableness
of an officer's conduct include "the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is actively resisting arrest
or attempting to evade arrest by flight." Burnikel v. Fong, 886 F.3d 706, 710 (8th Cir. 2018). "[N]ot
every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers,
violates the Fourth Amendment." Robinson v. Hawkins, 937 F.3d 1128, 1135-36 (8th Cir. 2019).

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"When an arrestee flees or resists, some use of force by the police is reasonable." Awnings, 912
F.3d at 1100 (quoting Greiner v. City of Champlin, 27 F.3d 1346, 1355 (8th Cir. 1994)). See also

Chambers v. Pennycook, 641 F.3d 898, 907 (8th Cir.2011) (law enforcement officers undoubtedly
have a right to use some degree of physical force, or threat of physical force, to effect a lawful
seizure).
Here, plaintiff alleges he was in bed, and he can be understood to allege he was not posing
a threat, resisting the officers, or trying to flee when Canavan hit him on the forehead with the butt
of a gun. Plaintiff can also be understood to allege that the blow incapacitated him, and that while
he was incapacitated and bleeding, Canavan and Beard kicked and stomped him. Having liberally
construed plaintiffs allegations, the Court concludes they adequately state individual capacity
claims for excessive force in violation of the Fourth Amendment to the United States Constitution.
Canavan and Beard will therefore be required to respond to those claims.
In a footnote in the complaint, plaintiff states that Beard "conspired with defendant
Canavan," and in other portions of the complaint he claims "the defendants" conspired against him
and had a "meeting of the minds." To plead a § 1983 claim for conspiracy, a plaintiff must allege,

inter alia, a meeting of the minds among the conspirators "sufficient to support the conclusion that
the defendants reached an agreement to deprive the plaintiff of constitutionally guaranteed rights."

Burton v. St. Louis Bd. of Police Com 'rs, 731 F.3d 784, 798 (8th Cir. 2013) (quoting White v.
McKinley, 519 F.3d 806,814 (8th Cir. 2008)). While an express agreement between the purported
conspirators need not be alleged, there must be something more than the summary allegation of a
conspiracy. See Mershon v. Beasely, 994 F.2d 449, 451 (8th Cir. 1993). Here, plaintiff offers
nothing more than summary allegations of a conspiracy. He alleges no facts permitting the
inference that Beard and Canavan, or any other defendant, reached an agreement to deprive him

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of any of his federally-protected rights. The Court therefore concludes the complaint fails to state
a § 1983 claim for conspiracy against Beard, Canavan, or any other defendant.
Plaintiff can be understood to claim that Canavan is liable to him for wrongfully denying
medical treatment. In support, he alleges that while he was inside the residence, Canavan said the
EMS crew could not remove his handcuffs, so the EMS crew took him to the ambulance, removed
his handcuffs, and provided medical treatment. Plaintiffs allegations simply fail to establish that
Canavan did or failed to do something that amounted to a denial of medical treatment. Therefore,
the complaint fails to state a claim against Canavan premised upon a denial of medical care.
Plaintiff also claims Canavan "committed fraud and obstruction of the administration of
justice when he violated State and Federal law to beguild [sic]" a judge, "by way of false
evidence," to issue a "lawful" search warrant. Plaintiff advances similar claims against "the
defendants" collectively, claiming they procured the search warrant by falsifying records and had
a "meeting of the minds." Those allegations are nothing more than legal conclusions that are not
entitled to the presumption of truth. Plaintiff makes no attempt to allege the most basic of facts,
such as what evidence or records were allegedly false, or what Canavan or any other defendant did
or failed to do that amounted to a violation of his rights. See Madewell v. Roberts, 909 F.2d 1203,
1208 (8th Cir. 1990) ("Liability under § 1983 requires a causal link to, and direct responsibility
for, the alleged deprivation of rights."). Finally, as discussed above, plaintiffs allegations are
insufficient to state a § 1983 conspiracy claim against any defendant. While pro se complaints
must be construed liberally and additional details may be exposed later after discovery, the
complaint must still allege sufficient facts to support the claims advanced. Stone, 364 F.3d at 914.
Plaintiff also claims Canavan and "the defendants" obstructed justice and violated State
and Federal law. To the extent plaintiff can be understood to seek a criminal investigation or

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prosecution of Canavan or anyone else, he is advised he has no basis to do so. See Mitchell v.

McNeil, 487 F.3d 374,378 (6th Cir. 2007) ("There is no statutory or common law right, much less
a constitutional right, to an investigation"); see also Linda R.S. v. Richard D., 410 U.S. 614, 619
(1973) ("a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution
of another.").
Next, plaintiff claims Matthews is liable to him because he "approved all unconstitutional
actions of the defendants," and Eskew is liable to him "as the Respondeat Superior" and is "sole[ly]
responsible for the actions of his subordinates." Plaintiff identifies Matthews and Eskew as having
supervisory authority. However, he does not allege they were personally involved in or directly
responsible for any incidents that deprived him of his constitutional rights, nor does he allege they
were involved in creating, applying or interpreting a policy that gave rise to unconstitutional
conditions. Instead, he claims Matthews and Eskew are liable to him because they had supervisory
authority over others who allegedly violated his rights. These claims sound in respondeat superior,
and are not cognizable under§ 1983. See Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995); see also

Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (to be cognizable under§ 1983, a claim
must allege that the defendant was personally involved in or directly responsible for the incidents
that deprived the plaintiff of his constitutional rights).
Finally, plaintiff lists the names of Catron, Beard, Matthews, Tomlin, Catron,_and Lackey
and claims they "forced entry" into a home while he was inside, and announced they were there to
execute a search warrant. As indicated above, plaintiff does not clearly claim he had a legal interest
in the home. Additionally, he alleges no facts permitting the inference that the listed defendants
lacked a lawful reason to enter the residence. There is simply no basis to conclude that Catron,
Beard, Matthews, Tomlin, Catron, and Lackey violated any of plaintiffs federally-protected rights

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by entering the residence. Plaintiff therefore fails to state a valid § 1983 claim against these
defendants. See West v. Atkins, 487 U.S. 42, 48 (1988) (to state a claim under 42 U.S.C. § 1983, a
plaintiff must establish, inter alia, the violation of a right secured by the Constitution or laws of
the United States). For all of the reasons explained above, the Court concludes that with the
exception of plaintiffs individual capacity claims for excessive force, the complaint fails to state
a plausible claim for relief against Catron and Beard. The Court further concludes that the
complaint fails to state any plausible individual capacity claims for relief against Eskew,
Matthews, Tomlin, Catron and Lackey.
Plaintiff has also filed a motion to appoint counsel. A pro se litigant has "neither a
constitutional nor a statutory right to appointed counsel in civil cases." Patterson v. Kelley, 902
F.3d 845, 850 (8th Cir. 2018) (citing Phillips v. Jasper Cty. Jail, 437 F.3d 791, 794 (8th Cir.
2006)). A district court may appoint counsel in a civil case if it is "convinced that an indigent
plaintiff has stated a non-frivolous claim ... and where the nature of the litigation is such that
plaintiff as well as the court will benefit from the assistance of counsel." Id (citing Johnson v.

Williams, 788 F.2d 1319, 1322 (8th Cir. 1986)). When determining whether to appoint counsel for
an indigent litigant, a court considers relevant factors such as the factual complexity of the issues,
the litigant's ability to investigate the facts and present his or her claims, the existence of
conflicting testimony, and the complexity of the legal arguments. Id (citing Phillips, 437 F.3d at
794).
In this case, there is no indication that plaintiff is incapable of representing himself, and
nothing in the instant motion or in the record before the Court indicates that the factual or legal
issues are sufficiently complex to justify the appointment of counsel. Moreover, the defendants
have yet to be served with process and discovery has not begun, so there is no conflicting

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testimony. However, recognizing that circumstances may change, the Court will deny the motion
for appointment of counsel without prejudice, and will entertain future such motions, if
appropriate, as the case progresses.
IT IS HEREBY ORDERED that plaintiffs motion seeking leave to commence this action

without prepaying fees or costs (ECF No. 2) is GRANTED.
IT IS FURTHER ORDERED that, within thirty (30) days of the date of this order,

plaintiff must pay an initial filing fee of $75.47. 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) this case number; and (4) the statement that the remittance is for an
original proceeding.
IT IS FURTHER ORDERED that the Clerk of Court shall issue process or cause process

to issue upon the complaint as to defendants Tom Canavan and Christ Beard in their individual
capacities. The defendants shall be served by issuance of summons and service by the U.S.
Marshal's Service at the Wright City Police Department, 203 Veterans Memorial Parkway, Wright
City, Missouri, 63390.
IT IS FURTHER ORDERED that plaintiffs motion to appoint counsel (ECF No. 4) is
DENIED without prejudice.
IT IS FURTHER ORDERED that plaintiffs official capacity claims against Tom

Canavan and Christ Beard are DISMISSED without prejudice. A separate order of partial
dismissal will be entered herewith.
IT IS FURTHER ORDERED that the Wright City Police Department and defendants

Unknown Eskew, Unknown Tomlin, Unknown Catron, Unknown Lackey, and Unknown

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Matthews are DISMISSED from this action, without prejudice. A separate order of partial
dismissal will be entered herewith.

IT IS HEREBY CERTIFIED that an appeal from this partial dismissal would not be
taken in good faith.
Dated this

7ft.

day of September, 2021.

STEP'HENN.LlMBAUGH~J-.
SENIOR UNITED STATES DISTRICT JUDGE

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