# Payne v. Kennett, City Of

> District Court, E.D. Missouri · August 25, 2020

URL: https://www.frixlaw.com/law-library/cases/10233615

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** August 25, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10233615

## How later opinions describe it (automated extraction)

- affirming district court’s dismissal of Monell claim where plaintiff “alleged no facts in his complaint that would demonstrate the existence of a policy or custom” that caused the alleged deprivation of plaintiff's rights
- stating that federal courts are not required to “assume facts that are not alleged, just because an additional factual allegation would have formed a stronger complaint”
- noting that a finding of excessive force against defendant would not necessarily imply the invalidity of plaintiff's convictions
- noting that a finding of excessive force against defendant would not necessarily imply the invalidity of plaintiff's convictions
- recognizing “claims challenging an unconstitutional policy or custom, or those based on a theory of inadequate training, which is an extension of the same’

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JACKIE K. PAYNE, JR., )
Plaintiff,
V. No. 1:20-cv-00140-NCC
KENNETT, CITY OF, et al.,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on the motion of plaintiff Jackie K. Payne, Jr. for leave
to commence this civil action without prepayment of the required filing fee. (Docket No. 2).
Having reviewed the motion and the financial information submitted in support, the Court has
determined that plaintiff lacks sufficient funds to pay the entire filing fee, and will assess an initial
partial filing fee of $31.25. See 28 U.S.C. § 1915(b)(1). Additionally, the Court will dismiss the
claims against the City of Kennett and Dunklin County. However, the Court will direct the Clerk
of Court to issue process on defendant James Skinner in his individual capacity.
28 U.S.C. § 1915(b)(1)
Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action in forma pauperis is
required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his or her
prison account to pay the entire fee, the Court must assess and, when funds exist, collect an initial
partial filing fee of 20 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 percent of the preceding month’s income credited to the prisoner’s account. 28

U.S.C. § 1915(b)(2). The agency having custody of the prisoner will forward these monthly
payments to the Clerk of the Court each time the amount in the prisoner’s account exceeds $10.00,
until the filing fee is fully paid. Jd.
In support of his motion for leave to proceed in forma pauperis, plaintiff submitted a copy
of his certified inmate account statement. (Docket No. 4). The account statement shows an average
monthly deposit of $156.25. The Court will therefore assess an initial partial filing fee of $31.25,
which is 20 percent of plaintiff's average monthly deposit.
Legal Standard on Initial Review
Under 28 U.S.C. § 1915(e)(2), 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 under 42 U.S.C. § 1983, a plaintiff must demonstrate a plausible claim for relief,
which is more than a “mere possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
“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.” Jd. 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. /d. at 679. The
court must “accept as true the facts alleged, but not legal conclusions or threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements.” Barton v. Taber, 820
F.3d 958, 964 (8" Cir. 2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73
(8" Cir. 2016) (stating that court must accept factual allegations in complaint as true, but is not
required to “accept as true any legal conclusion couched as a factual allegation’’).
When reviewing a pro se complaint under § 1915(e)(2), the Court must give it the benefit
of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A “liberal construction”

means that if the essence of an allegation is discernible, the district court should construe the
plaintiffs complaint in a way that permits his or her claim to be considered within the proper legal
framework. Solomon v. Petray, 795 F.3d 777, 787 (8" Cir. 2015). However, even pro se complaints
are required to allege facts which, if true, state a claim for relief as a matter of law. Martin v.
Aubuchon, 623 F.2d 1282, 1286 (8" Cir. 1980). See also Stone v. Harry, 364 F.3d 912, 914-15 (8"
Cir. 2004) (stating that federal courts are not required to “assume facts that are not alleged, just
because an additional factual allegation would have formed a stronger complaint”). In addition,
affording a pro se complaint the benefit of a liberal construction does not mean that procedural
rules in ordinary civil litigation must be interpreted 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 is a self-represented litigant who is currently incarcerated at the Pemiscot County
Jail in Caruthersville, Missouri. He brings this civil action pursuant to 42 U.S.C. § 1983. His
complaint names the City of Kennett, Dunklin County, and Officer James Skinner as defendants.
Officer Skinner is named in his individual capacity only. (Docket No. | at 2).
In the “Statement of Claim,” plaintiff states that on November 8, 2019, at around 9:00 p.m.,
he was the passenger in a vehicle traveling east on U.S. Route 412 from Kennett to Hayti. (Docket
No. 1 at 5). Officer Skinner, of the Kennett Police Department, pulled the vehicle over. Officer
Skinner came to the “back passenger window” to ask plaintiff his name. Plaintiff responded by
saying that he was not the driver. Officer Skinner then asked for identification from the driver and
the front seat passenger.
At this point, Officer Skinner asked plaintiff to exit the vehicle and stand by the hood of
Skinner’s car. Plaintiff asked to sit inside the car because it was cold. Officer Skinner said yes, and

again asked plaintiff his name. Plaintiff “gave him a fake name” and sat in the passenger seat of
Officer Skinner’s vehicle while Skinner called in the names.
While waiting for Officer Skinner to call in the names, three to five other police officers
arrived on scene. One of the officers came over to where plaintiff was sitting, “placed his cell
phone by [plaintiff's] face[,] and said ‘yeah that’s him.’” (Docket No. 1 at 5-6). Officer Skinner
then “pulled [plaintiff] out [of] the vehicle and started punching [him].” (Docket No. 1 at 6). As
he punched plaintiff, Officer Skinner yelled “stop resisting,” even though plaintiff never resisted.
During this incident, plaintiff was also kicked in the back and tasered. As a result, plaintiff states
that he suffered a head injury, back and arm pain, memory loss, and emotional distress. (Docket
No. | at 4).
Plaintiff alleges that Officer Skinner assaulted him. (Docket No. 1 at 3). He further claims
that Dunklin County has over fifty “lawsuits of outrageous conduct.” (Docket No. 1 at 4). Plaintiff
seeks to have his “false cases” dropped, as well as $500,000 in damages. (Docket No. 1 at 6). Ina
supplement to the complaint, however, plaintiff clarifies that he is not asking the Court to overturn
any conviction, but rather to “rule or enter processing on the defendants.””' (Docket No. 5 at 1).
Discussion
Plaintiff is a self-represented litigant who brings this civil action pursuant to 42 U.S.C. §
1983, alleging excessive force at the time of his arrest. For the reasons discussed below, the Court

' This incident apparently resulted in two cases being opened against plaintiff. The first, State of Missouri v. Payne,
No. 19DU-CR01663-01 (35" Jud. Cir., Dunklin County), charged plaintiff with class B felony assault on an officer;
felony resisting arrest; and fourth degree misdemeanor assault. The second, State of Missouri v. Payne, No. 20DU-
00063-01 (35 Jud. Cir., Dunklin County), charged plaintiff with class E felony assault in the third degree. Both of
these cases have been transferred to Pemiscot County and remain pending. See State of Missouri v. Payne, No. 20PE-
CRO00317 (34 Jud. Cir., Pemiscot County); and State of Missouri v. Payne, No. 20PE-CR00318 (34" Jud. Cir.,
Pemiscot County). The Court has reviewed these cases on Case.net, Missouri’s online case management system, and
takes judicial notice of these public records. See Levy v. Ohl, 477 F.3d 988, 991 □□ Cir. 2007) (explaining that district
court may take judicial notice of public state records); and Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8" Cir. 2005)
(stating that courts “may take judicial notice of judicial opinions and public records”).

will dismiss the claims against the City of Kennett and Dunklin County. Additionally, the Court
will direct the Clerk of Court to issue process on Officer Skinner in his individual capacity.
A. City of Kennett and Dunklin County
Local governing bodies such as the City of Kennett and Dunklin County can be sued
directly under 42 U.S.C. § 1983. See Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S.
658, 690 (1978). To prevail on this type of claim, plaintiff must establish the governmental entity’s
liability for the alleged conduct. See Kelly v. City of Omaha, Neb., 813 F.3d 1070, 1075 (8" Cir.
2016). Such liability may attach if the constitutional violation “resulted from (1) an official
municipal policy, (2) an unofficial custom, or (3) a deliberately indifferent failure to train or
supervise.” Mick v. Raines, 883 F.3d 1075, 1079 (8" Cir. 2018). See also Marsh v. Phelps Cty.,
902 F.3d 745, 751 (8" Cir. 2018) (recognizing “claims challenging an unconstitutional policy or
custom, or those based on a theory of inadequate training, which is an extension of the same’).
Thus, there are three ways in which plaintiff can prove the liability of the City of Kennett and
Dunklin County.
First, plaintiff can show the existence of an unconstitutional policy. “Policy” refers to
“official policy, a deliberate choice of a guiding principle or procedure made by the municipal
official who has final authority regarding such matters.” Corwin v. City of Independence, Mo., 829
F.3d 695, 700 (8" Cir. 2016). See also Russell v. Hennepin Cty., 420 F.3d 841, 847 (8" Cir. 2005).
For a policy that is unconstitutional on its face, a plaintiff needs no other evidence than a statement
of the policy and its exercise. Szabla v. City of Brooklyn, Minn., 486 F.3d 385, 389 (8" Cir. 2007).
However, when “a policy is constitutional on its face, but it is asserted that a municipality should
have done more to prevent constitutional violations by its employees, a plaintiff must establish the
existence of a ‘policy’ by demonstrating that the inadequacies were a product of deliberate or

conscious choice by the policymakers.” Jd. at 390. “A policy may be either a policy statement,
ordinance, regulation, or decision officially adopted and promulgated by the municipality’s
governing body.” Angarita v. St. Louis Cty., 981 F.2d 1537, 1546 (8 Cir. 1992).
Second, plaintiff can establish a claim of liability based on an unconstitutional “custom.”
In order to do so, plaintiff must demonstrate:
1) The existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the governmental entity’s
employees;
2) Deliberate indifference to or tacit authorization of such conduct
by the governmental entity’s policymaking officials after notice
to the officials of that misconduct; and
3) That plaintiff was injured by acts pursuant to the governmental
entity’s custom, i.e., that the custom was a moving force behind
the constitutional violation.
Johnson v. Douglas Cty. Med. Dep’t, 725 F.3d 825, 828 (8" Cir. 2013).
Finally, plaintiff can assert a municipal liability claim by establishing a deliberately
indifferent failure to train or supervise. To do so, plaintiff must allege a “pattern of similar
constitutional violations by untrained employees.” See S.M. v. Lincoln Cty., 874 F.3d 581, 585 (8"
Cir. 2017).
Plaintiff does not need to specifically plead the existence of an unconstitutional policy or
custom. Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 591 (8" Cir. 2004).
However, at a minimum, the complaint must allege facts supporting the proposition that an
unconstitutional policy or custom exists. Doe ex rel. Doe v. Sch. Dist. of City of Norfolk, 340 F.3d
605, 614 (8" Cir. 2003).
Here, plaintiff has not adequately alleged facts to show that his constitutional rights were
violated due to an unconstitutional policy, custom, or failure to train on behalf of either the City

of Kennett or Dunklin County. With regard to policy, plaintiff points to no “policy statement,
ordinance, regulation, or decision officially adopted and promulgated by the municipality’s
governing body” as being at issue. With regard to custom, plaintiff vaguely alludes to fifty lawsuits
regarding “outrageous [conduct]” being filed in Dunklin County. However, there is no indication
as to what this conduct entailed, much less that policymaking officials were deliberately indifferent
to or tacitly authorized the alleged conduct. Finally, with regard to a failure to train, plaintiff has
not established a “pattern of similar constitutional violations by untrained employees.” Because
plaintiff has not shown that the City of Kennett or Dunklin County is liable for the alleged violation
of plaintiff's constitutional rights, these claims must be dismissed. See Ulrich v. Pope Cty., 715
F.3d 1054, 1061 (8" Cir. 2013) (affirming district court’s dismissal of Monell claim where plaintiff
“alleged no facts in his complaint that would demonstrate the existence of a policy or custom” that
caused the alleged deprivation of plaintiff's rights).
B. Individual Capacity Claim Against Officer Skinner
Plaintiff alleges that Officer Skinner used excessive force against him during the course of
plaintiff's arrest.? “The Fourth Amendment protects citizens from being seized through excessive
force by law enforcement officers.” Thompson v. City of Monticello, Ark., 894 F.3d 993, 998 □□
Cir. 2018). See also Andrews v. Fuoss, 417 F.3d 813, 818 (8 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 (8 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

2 A finding of excessive force would not necessarily imply the invalidity of any conviction in plaintiff's criminal case,
meaning that dismissal pursuant to Heck v. Humphrey, 512 U.S. 477 (1994) is not required. See, e.g., Colbert v. City
of Monticello, Ark., 775 F.3d 1006, 1008 (8 Cir. 2014) (noting that a finding of excessive force against defendant
would not necessarily imply the invalidity of plaintiff's convictions).

of this right is sufficient to support an action under § 1983. Crumley v. City of St. Paul, Minn., 324
F.3d 1003, 1007 (8" Cir. 2003).
Whether force is excessive under the Fourth Amendment requires a determination of
whether or not law enforcement officers’ actions are “objectively reasonable in light of the facts
and circumstances confronting them, without regard to their underlying intent or motivation.”
Ellison vy. Lesher, 796 F.3d 910, 916 (st Cir. 2015). Factors that are 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 (8 Cir. 2018).
“However, not 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 (8"
Cir. 2019). To that end, law enforcement officers undoubtedly have a right to use some degree of
physical force, or threat of physical force, to effect a lawful seizure. Chambers v. Pennycook, 641
F.3d 898, 907 (8" Cir. 2011). “A de minimis use of force is insufficient to support a claim, and it
may well be that most plaintiffs showing only de minimis injury can show only a corresponding
de minims use of force.” Robinson, 937 F.3d at 1136.
Here, plaintiff alleges that he was sitting in the passenger seat of Officer Skinner’s vehicle
when additional officers arrived on scene. One of these officers placed a cell phone by plaintiff's
face, saying “yeah that’s him.” The implication is that plaintiff fit the description of someone the
officers were looking for. Following this, plaintiff alleges that Officer Skinner “pulled [him] out
of the vehicle and started punching [him],” even though plaintiff was not resisting. Plaintiff alleges
that as a result of Officer Skinner’s actions, he suffered injuries. The Court must accept these
allegations as true and make all reasonable inferences in favor of the plaintiff. See Jones v. Douglas

Cty. Sheriff’s Dep't, 915 F.3d 498, 499 (8" Cir. 2019). Therefore, the Court will direct the Clerk
of Court to issue process or cause process to issue on Officer Skinner in his individual capacity as
to plaintiff's excessive force claim.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis (Docket
No. 2) is GRANTED.
IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $31.25 within
twenty-one (21) 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) the statement that the remittance is for an original
proceeding.
IT IS FURTHER ORDERED that plaintiff's claim against the City of Kennett and
Dunklin County are DISMISSED without prejudice. See 28 U.S.C. § 1915(e)(2)(B). A separate
order of partial dismissal will be entered herewith.
IT IS FURTHER ORDERED that the Clerk of Court shall issue process or cause process
to issue on defendant James Skinner of the Kennett Police Department in his individual capacity
as to plaintiff's claim of excessive force.
IT IS FURTHER ORDERED that an appeal from this partial dismissal would not be
taken in good faith.
Dated this ast. of Wy , 2020.
Retin Ma
RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10233615. Public record. Not legal advice.