Wilson v. Richmond Heights Police Department

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

ERIC WILSON, )

)

Plaintiff, )

)

v. ) No. 4:21-cv-01302-DDN

)

RICHMOND HEIGHTS POLICE )

DEPARTMENT, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Eric Wilson 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 $1.00. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed below, the Court

will dismiss plaintiff’s complaint without prejudice.

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 Court each time the amount in the prisoner’s account exceeds $10.00,

until the filing fee is fully paid. Id.

Plaintiff has not submitted an inmate account statement as required by 28 U.S.C. §

1915(a)(2). Nevertheless, having reviewed the information contained in the motion, the Court will

require plaintiff to pay an initial partial filing fee of $1.00. See Henderson v. Norris, 129 F.3d 481,

484 (8th Cir. 1997) (explaining that when a prisoner is unable to provide the court with a certified

copy of his inmate account statement, the court should assess an amount “that is reasonable, based

on whatever information the court has about the prisoner’s finances”). If plaintiff is unable to pay

the initial partial filing fee, he must submit a copy of his prison account statement in support of his

claim.

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.” 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 upon judicial experience and common sense. Id. 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 (8th Cir. 2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73

(8th 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 28 U.S.C. § 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 plaintiff’s 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 (8th 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 (8th Cir. 1980). See also Stone v. Harry, 364 F.3d

912, 914-15 (8th 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 Missouri Eastern

Correctional Center in Pacific, Missouri.1 He brings this civil action pursuant to 42 U.S.C. § 1983,

naming the Richmond Heights Police Department and Detective Unknown Zimmermann as

defendants. (Docket No. 1 at 2-3). Detective Zimmermann is sued in both his official and

individual capacities. (Docket No. 1 at 3).

1 The Court notes that plaintiff’s complaint was received in an envelope bearing the return address of Joseph Engel.

(Docket No. 1-1 at 1). Mr. Engel is a frequent filer who has submitted over 160 cases to the United States District

Court for the Eastern District of Missouri, most of which have been dismissed pursuant to either 28 U.S.C. § 1915(e)(2)

or 28 U.S.C. § 1915(g). As in many of Mr. Engel’s cases, the instant case seeks extraordinarily high damages, as well

as “stocks in different [companies].”

In the “Statement of Claim,” plaintiff asserts that on September 1, 2019, he was arrested

by the Richmond Heights Police Department. The arrest resulted in the filing of a criminal case,

State of Missouri v. Wilson, No. 18SL-CR06838-01 (21st Jud. Cir., St. Louis County).2 In that case,

plaintiff was charged with first-degree burglary.

Plaintiff alleges that his “civil rights” were “violated” because the Richmond Heights

Police Department “did not read [him his] Miranda rights before [the] time of [his] arrest.” As

such, he contends that he is “wrongfully [imprisoned].” Plaintiff further notes that “this is horrific

and [traumatic] and inhuman.”

Based on this purported constitutional violation, plaintiff asserts violations of his civil

rights, prisoner rights, mental health, physical health, and freedom. (Docket No. 1 at 4). He is

seeking $300 million and “500 stocks in different [companies].” (Docket No. 1 at 1, 3, 5).

Discussion

Plaintiff is a self-represented litigant who brings this civil action pursuant to 42 U.S.C. §

1983 action, alleging that defendants violated his constitutional rights by not giving him his

Miranda warnings when he was arrested. Because plaintiff is proceeding in forma pauperis, the

Court reviewed his complaint under 28 U.S.C. § 1915. Based on that review, and for the reasons

discussed below, the Court must dismiss this action without prejudice.

A. Richmond Heights Police Department

Plaintiff has named the Richmond Heights Police Department as a defendant in this action.

However, a police department is a department or subdivision of local government, and not a

distinctly suable entity. See Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992)

2 The Court has reviewed plaintiff’s criminal case on Case.net, Missouri’s online case management system, and takes

judicial notice of this public record. See Levy v. Ohl, 477 F.3d 988, 991 (8th 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 (8th Cir. 2005)

(stating that courts “may take judicial notice of judicial opinions and public records”).

(affirming dismissal of West Memphis Police Department and West Memphis Paramedic Services

because they were “not juridical entities suable as such”). See also Owens v. Scott Cty. Jail, 328

F.3d 1026, 1027 (8th Cir. 2003) (stating that “county jails are not legal entities amenable to suit”);

and De La Garza v. Kandiyohi Cty. Jail, 18 Fed. Appx. 436, 437 (8th Cir. 2001) (affirming district

court dismissal of county jail and sheriff’s department as parties because they are not suable

entities). Since the Richmond Heights Police Department is not a suable entity, the claim against

it must be dismissed.

B. City of Richmond Heights

Even if the City of Richmond Heights was substituted as the proper party defendant,

plaintiff has still failed to state a municipal liability claim. A local governing body such as the City

of Richmond Heights 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). However, a municipality cannot be held

liable merely because it employs a tortfeasor. A.H. v. City of St. Louis, Mo., 891 F.3d 721, 728 (8th

Cir. 2018) (“In an action under § 1983, a municipality…cannot be liable on a respondeat superior

theory”). Rather, to prevail on this type of claim, the plaintiff must establish the governmental

entity’s liability for the alleged conduct. Kelly v. City of Omaha, Neb., 813 F.3d 1070, 1075 (8th

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 (8th Cir. 2018). See also Marsh v. Phelps Cty.,

902 F.3d 745, 751 (8th 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 Richmond

Heights.

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 (8th Cir. 2016). 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 (8th 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.” Id. 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 (8th 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 (8th Cir. 2013).

Finally, plaintiff can assert a municipal liability claim by establishing a deliberately

indifferent failure to train or supervise. See City of Canton, Ohio v. Harris, 489 U.S. 378, 388

(1989) (explaining that inadequate training may serve as the basis for 42 U.S.C. § 1983 liability

only when “the failure to train amounts to deliberate indifference”). To show deliberate

indifference, a plaintiff must prove that the municipality “had notice that its procedures were

inadequate and likely to result in a violation of constitutional rights.” See Jennings v. Wentzville

R-IV Sch. Dist., 397 F.3d 1118, 1122 (8th Cir. 2005). Ordinarily, this is done by a plaintiff alleging

a “pattern of similar constitutional violations by untrained employees.” See S.M. v. Lincoln Cty.,

874 F.3d 581, 585 (8th Cir. 2017).

Plaintiff does not need to specifically plead the existence of an unconstitutional policy or

custom. See Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 591 (8th 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 (8th Cir. 2003). In this case, plaintiff has not presented any facts supporting the

proposition that the City of Richmond Heights harmed him due to an unconstitutional policy,

custom, or failure to train.

First, plaintiff has not directly alleged an unconstitutional policy, or presented facts

supporting the inference of such a policy. That is, his facts do not reference any “policy statement,

ordinance, regulation, or decision officially adopted and promulgated by the municipality’s

governing body” as being at issue in this case. Furthermore, plaintiff has not alleged that any

Richmond Heights official made “a deliberate choice of a guiding principle or procedure” that

resulted in a constitutional harm to him. The Court also notes that plaintiff’s facts, such as they

are, concern a single incident wherein plaintiff was arrested. The Court cannot infer the existence

of an unconstitutional policy or custom from a single occurrence. See Wedemeier v. City of

Ballwin, Mo., 931 F.2d 24, 26 (8th Cir. 1991).

Second, with regard to custom, plaintiff has not demonstrated the “existence of a

continuing, widespread, persistent pattern of unconstitutional misconduct by” City of Richmond

Heights employees, much less that Richmond Heights policymaking officials were deliberately

indifferent to or tacitly authorized such misconduct. Rather than a “persistent pattern,” plaintiff

has mentioned only one occurrence that resulted in his arrest. As previously noted, a single

occurrence cannot support the inference of a custom.

Third, as to a failure to train, plaintiff has not established that the City of Richmond Heights

was deliberately indifferent in failing to train or supervise its employees. To show deliberate

indifference, plaintiff must prove that the City of Richmond heights “had notice that its procedures

were inadequate and likely to result in a violation of constitutional rights.” Typically, this notice

is demonstrated by a plaintiff alleging a “pattern of similar constitutional violations by untrained

employees.” Plaintiff, however, has not alleged facts regarding any sort of pattern. Rather than a

pattern, his sparse “Statement of Claim” focuses on a single incident.

Finally, to the extent that plaintiff seeks to hold the City of Richmond Heights liable

because it employed Detective Zimmermann, such a claim must fail. That is because a

municipality cannot be held liable under 42 U.S.C. § 1983 based on respondeat superior. See A.H.,

891 F.3d at 728 (“In an action under § 1983, a municipality…cannot be liable on a respondeat

superior theory”).

For all these reasons, plaintiff has failed to demonstrate that the City of Richmond Heights

violated his constitutional rights due to a policy, custom, or failure to train. Therefore, even if the

City of Richmond Heights is treated as the proper defendant – rather than the Richmond Heights

Police Department – the claim against it must be dismissed. See Ulrich v. Pope Cty., 715 F.3d

1054, 1061 (8th 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).

C. Official Capacity Claim Against Detective Zimmermann

Plaintiff has sued Detective Zimmermann in his official capacity. In an official capacity

claim against an individual, the claim is actually “against the governmental entity itself.” See White

v. Jackson, 865 F.3d 1064, 1075 (8th Cir. 2017). Thus, a “suit against a public employee in his or

her official capacity is merely a suit against the public employer.” Johnson v. Outboard Marine

Corp., 172 F.3d 531, 535 (8th Cir. 1999). See also Brewington v. Keener, 902 F.3d 796, 800 (8th

Cir. 2018) (explaining that official capacity suit against sheriff and his deputy “must be treated as

a suit against the County”); Kelly, 813 F.3d at 1075 (stating that a “plaintiff who sues public

employees in their official, rather than individual, capacities sues only the public employer”); and

Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006) (stating that a “suit against a public

official in his official capacity is actually a suit against the entity for which the official is an agent”).

Here, Detective Zimmermann is alleged to be an employee of the Richmond Heights Police

Department. As such, the official capacity claim against him is treated as a claim against the City

of Richmond Heights itself, his employer. To prevail on this claim, plaintiff must establish the

City of Richmond Heights’s liability for the alleged conduct. See Kelly, 813 F.3d at 1075.

However, as discussed at length above, plaintiff has failed to demonstrate the liability of the City

of Richmond heights by alleging an unconstitutional policy, custom, or failure to train. See Marsh,

902 F.3d at 751 (recognizing municipal liability “claims challenging an unconstitutional policy or

custom, or those based on a theory of inadequate training, which is an extension of the same”).

Therefore, the official capacity claim against Detective Zimmermann must be dismissed.

D. Individual Capacity Claim Against Detective Zimmermann

Plaintiff has also sued Detective Zimmermann in an individual capacity. Individual liability

in a 42 U.S.C. § 1983 case is personal. Frederick v. Motsinger, 873 F.3d 641, 646 (8th Cir. 2017).

In other words, “[g]overnment officials are personally liable only for their own misconduct.” S.M.

v. Krigbaum, 808 F.3d 335, 340 (8th Cir. 2015). As such, § 1983 liability “requires a causal link

to, and direct responsibility for, the deprivation of rights.” Mayorga v. Missouri, 442 F.3d 1128,

1132 (8th Cir. 2006) (quoting Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990)). See also

Kohl v. Casson, 5 F.3d 1141, 1149 (8th Cir. 1993) (dismissing plaintiff’s excessive bail claims

because none of the defendants set plaintiff’s bail, and therefore, “there can be no causal

connection between any action on the part of the defendants and any alleged deprivation” of

plaintiff’s rights). To that end, a plaintiff must allege facts connecting the defendant to the

challenged action. See Bitzan v. Bartruff, 916 F.3d 716, 717 (8th Cir. 2019).

In this case, plaintiff does not even bother to place Detective Zimmermann in the

“Statement of Claim.” Instead, he broadly accuses the “Richmond Heights Police Department” of

violating his civil rights on September 1, 2019, without ever identifying Detective Zimmermann

by name. In point of fact, Detective Zimmermann is only mentioned twice, once in the case

caption, and a second time in the section of the form complaint for naming the parties. Simply

placing a defendant’s name in the caption is not enough to assert their responsibility. See Allen v.

Purkett, 5 F.3d 1151, 1153 (8th Cir. 1993) (agreeing with district court dismissal of two defendants

who were named as defendants in the complaint, but who had no factual allegations made against

them); and Krych v. Hvass, 83 Fed. Appx. 854, 855 (8th Cir. 2003) (agreeing with district court

dismissal of defendants who were merely listed in the complaint, and who were not alleged to have

been personally involved in the constitutional violations).

Even if the Court was to assume that Detective Zimmermann is the officer who “did not

read [plaintiff his] Miranda rights before [the] time of [his] arrest,” plaintiff has still failed to

demonstrate a causal link between Zimmermann’s actions and a violation of plaintiff’s

constitutional rights. “The requirements of Miranda are triggered only when a defendant is both

in custody and being interrogated.” United States v. Head, 407 F.3d 925, 928 (8th Cir. 2005).

However, plaintiff has not alleged any facts to demonstrate that he was interrogated by Detective

Zimmermann, let alone that he was in custody during this interrogation. Merely stating that the

Miranda warnings were not given to him is not sufficient to state a constitutional violation, as

plaintiff has not shown that the warnings were required. Without any supporting facts whatsoever,

plaintiff’s allegations amount to a conclusion, which the Court is not required to accept as true.

See Torti v. Hoag, 868 F.3d 666, 671 (8th Cir. 2017) (“Courts are not bound to accept as true a

legal conclusion couched as a factual allegation, and factual allegations must be enough to raise a

right to relief above the speculative level”).

For these reasons, plaintiff has not stated a claim against Detective Zimmermann in his

individual capacity. Therefore, the individual capacity claim against him must be dismissed.

E. Failure to Give Miranda Warning Not a Constitutional Violation

Beyond plaintiff’s failure to allege sufficient facts demonstrating that the defendants in this

case violated his constitutional rights, the Court observes that his complaint is based on a faulty

premise. Specifically, plaintiff wrongly believes that the failure to provide him the Miranda

warnings constitutes a violation of his rights for which he can seek redress under 42 U.S.C. § 1983.

Pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), “certain warnings must be given

before a suspect’s statement made during custodial interrogation [can] be admitted into evidence.”

Dickerson v. United States, 530 U.S. 428, 431-32 (2000). The Miranda rule is a prophylactic

measure that is employed to protect against the violation of the Self-Incrimination Clause. See

United States v. Patane, 542 U.S. 630, 636 (2004) (plurality opinion). The rule’s purpose is to

prevent “the admission into evidence in a criminal case of confessions obtained through coercive

custodial questioning.” Chavez v. Martinez, 538 U.S. 760, 772 (2003).

“Rules designed to safeguard a constitutional right, however, do not extend the scope of

the constitutional right itself, just as violations of judicially crafted prophylactic rules do not violate

the constitutional rights of any person.” Id. As such, law enforcement’s failure to read the Miranda

warnings to a suspect does not violate the suspect’s constitutional rights and cannot be grounds for

a 42 U.S.C. § 1983 action. Id. See also Hannon v. Sanner, 441 F.3d 635, 636 (8th Cir. 2006)

(agreeing “with the district court that a litigant cannot maintain an action under § 1983 based on a

violation of the Miranda safeguards”); Brock v. Logan County Sheriff’s Dept. of Arkansas, 3 F.3d

1215, 1217 (8th Cir. 1993) (“The remedy for the alleged Miranda violation is the exclusion from

evidence of any compelled self-incrimination, not a civil rights action”); and Warren v. City of

Lincoln, Neb., 864 F.2d 1436, 1442 (8th Cir. 1989) (explaining that “[t]he reading of Miranda

warnings is a procedural safeguard rather than a right arising out of the fifth amendment itself,”

and that “the remedy for a Miranda violation is the exclusion from evidence of any compelled

self-incrimination, not a section 1983 action”). In short, a suspect’s remedy for the violation of the

Miranda rule is suppression of the evidence, not a damages action under § 1983. See Hannon, 441

F.3d at 637.

As explained above, plaintiff cannot bring an action for damages under 42 U.S.C. § 1983

based on law enforcement’s purported failure to read him his Miranda warnings. Rather, his

remedy for a Miranda violation is the exclusion of the evidence obtained as a result of the violation.

Because plaintiff has not established the violation of a constitutional right, his § 1983 claim fails.

See Zutz v. Nelson, 601 F.3d 842, 848 (8th Cir. 2010) (explaining that to state a § 1983 claim, “a

plaintiff must allege sufficient facts to show (1) that the defendant(s) acted under color of state

law, and (2) that the alleged wrongful conduct deprived the plaintiff of a constitutionally protected

federal right”). Therefore, for this reason as well, this action must be dismissed.

F. Heck Bar

Even if the Court were to ignore the deficiencies listed above, plaintiff’s claim would still

be subject to dismissal under Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court

faced the issue of whether a state prisoner could challenge the constitutionality of his criminal

conviction in a suit for damages under 42 U.S.C. § 1983. Id. at 478. The Court determined that the

plaintiff’s § 1983 action for damages was not cognizable. Id. at 483. In doing so, the Court noted

that a § 1983 action was not the appropriate vehicle for challenging criminal judgments. Id. at 486.

[I]n order to recover damages for allegedly unconstitutional

conviction or imprisonment, or for other harm caused by actions

whose unlawfulness would render a conviction or sentence invalid,

a § 1983 plaintiff must prove that the conviction or sentence has

been reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such

determination, or called into question by a federal court’s issuance

of a writ of habeas corpus… A claim for damages bearing that

relationship to a conviction or sentence that has not been so

invalidated is not cognizable under § 1983.

Id. at 487-88. Thus, when a state prisoner seeks damages pursuant to 42 U.S.C. § 1983, the district

court has to consider whether a judgment for the plaintiff would “necessarily imply the invalidity

of his conviction or sentence.” Id. at 488. If it would, the district court must dismiss the complaint

unless the plaintiff can show that the conviction or sentence has already been invalidated. Id. See

also Edwards v. Balisok, 520 U.S. 641, 648 (1997) (concluding that state prisoner’s “claim for

declaratory relief and money damages based on allegations of deceit and bias on the part of the

decisionmaker that necessarily imply the invalidity of the punishment imposed, is not cognizable

under § 1983”); and Sheldon v. Hundley, 83 F.3d 231, 233 (8th Cir. 1996) (discussing application

of Heck rule in § 1983 cases).

Here, judgment for the plaintiff would “necessarily imply the invalidity of his conviction

or sentence.” That is, plaintiff appears to argue that he was “wrongfully [imprisoned]” based on

law enforcement’s failure to “read [him his] Miranda rights.” However, plaintiff has not shown

that his conviction or sentence has been invalidated. To the contrary, review of plaintiff’s criminal

case shows that he pleaded guilty and was sentenced to six years’ imprisonment on October 24,

2019. There is no indication that plaintiff filed an appeal, or that his case was overturned by the

filing of a postconviction motion. According to the online records of the Missouri Department of

Corrections, plaintiff is still incarcerated and serving his six-year sentence. Therefore, plaintiff’s

claims are subject to dismissal under Heck.

G. Motion to Appoint Counsel

Plaintiff has filed a motion to appoint counsel. (Docket No. 3). The motion will be denied

as moot as this case is being dismissed without prejudice. See 28 U.S.C. § 1915(e)(2)(B).

Accordingly,

IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in forma pauperis

(Docket No. 2) is GRANTED.

IT IS FURTHER ORDERED that plaintiff must pay an initial partial filing fee of $1.00

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 motion for appointment of counsel (Docket

No. 3) is DENIED AS MOOT.

IT IS FURTHER ORDERED that this action is DISMISSED without prejudice. See 28

U.S.C. § 1915(e)(2)(B). A separate order of dismissal will be entered herewith.

IT IS FURTHER ORDERED that an appeal from this dismissal would not be taken in

good faith.

Dated this 21st day of January, 2022.

/s/ Jean C. Hamilton

JEAN C. HAMILTON

UNITED STATES DISTRICT JUDGE