Underwood

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

ANDREW UNDERWOOD )

)

Plaintiff, )

)

v. ) No.: 4:26-cv-505-JSD

)

OFFICER D ELLINGTON )

)

Defendant. )

MEMORANDUM AND ORDER

Self-represented Plaintiff Andrew Underwood brings this action under 42 U.S.C.

§ 1983, alleging violations of his civil rights. The matter is now before the Court upon

Plaintiff’s application to proceed without prepayment of the required filing fees and costs

(ECF No. 2) and motion to appoint counsel (ECF No. 3). Having reviewed the

application and the financial information submitted in support, the Court will grant the

application to proceed without prepayment of the required filing fees and costs and assess

an initial partial filing fee of $1.00. See 28 U.S.C. § 1915(b)(1). The request for counsel

will be denied. Additionally, for the following reasons, the Court will stay and

administratively close this action pursuant to Wallace v. Kato, 512 U.S. 549 U.S. 384

(2007). The case may be reopened after final disposition of Plaintiff’s underlying state

criminal proceedings in State v. Underwood, No. 25JE-CR03074-01 (23rd Jud. Cir.,

Jefferson County).

Initial Partial Filing Fee

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, until the filing fee is fully paid. Id.

Plaintiff is a pretrial detainee at Jefferson County Jail in Hillsboro, Missouri. ECF

No. 1. 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 inmate account statement in support of his claim.

Legal Standard on Initial Review

Under 28 U.S.C. § 1915A, the Court is required to review a civil complaint “in

which a prisoner seeks redress from a governmental entity or officer or employee of a

governmental entity.” 28 U.S.C. § 1915A(a). The term “prisoner” is defined 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.” 28 U.S.C. § 1915A(c).

Pursuant to this section, the Court must dismiss a complaint if it “is frivolous, malicious,

or fails to state a claim upon which relief can be granted,” or if it “seeks monetary relief

from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).

To state a claim, 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 brings this action pursuant to 42 U.S.C. § 1983 against police officer D

Ellington of the Crystal City Police Department. ECF No. 1. Plaintiff alleges that on

December 25, 2025, he found a hatchet in a field near a Wal-Mart. Id. at 6. When he

walked across the parking lot carrying the hatchet, he heard someone yell “Drop it or I’ll

blow your head off.” Id. Plaintiff looked over his shoulder and saw the defendant

pointing a gun at Plaintiff. Id. Plaintiff set the hatchet down, at which point the

defendants put his gun away and drew his taser. Id. at 6-7. Plaintiff states that the

defendant then tased Plaintiff without warning. Id. at 7. Another officer and the defendant

then jumped on Plaintiff, hitting him, and kneeling on him, ordering him to place his

hands behind his back. Id. Plaintiff claims the police report was fabricated to cover up for

the excessive force used by the defendant, and Plaintiff was unlawfully arrested. Id. at 8.

For relief, he asks for five million dollars, his pending criminal charges to be dismissed,

the defendant’s license to be revoked, and for the defendant to be criminally charged. Id.

On May 27, 2026, Plaintiff was charged with assault, armed criminal action, and

resisting/interfering with an arrest in a felony in Circuit Court of Jefferson County for the

events that occurred on December 25, 2025. State v. Underwood, No. 25JE-CR03074-01

(23rd Jud. Cir., Jefferson County). A jury trial is currently scheduled for November 2,

2026. Id.

Discussion

Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which was designed to

provide a “broad remedy for violations of federally protected civil rights.” Monell v.

Department of Social Services, 436 U.S. 658, 685 (1978). To state a claim under 42

U.S.C. § 1983, a plaintiff must establish: (1) the violation of a right secured by the

Constitution or laws of the United States, and (2) that the alleged deprivation of that right

was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48

(1988).

Plaintiff filed this action, alleging constitutional violations arising out of his arrest

for assault, armed criminal action, and resisting/interfering with an arrest in a felony. The

Court will stay and administratively close this § 1983 action while the underlying

criminal prosecution is pending. Plaintiff may reopen this case after the final disposition

of his underlying criminal case, State v. Underwood, No. 25JE-CR03074-01 (23rd Jud.

Cir., Jefferson County).

In Wallace v. Kato, the Supreme Court observed that it was common practice in §

1983 actions to stay the civil proceedings until the criminal case had ended. 549 U.S.

384, 393-94 (2007). The Court explained that where a plaintiff files a claim before he is

convicted, and that claim is related to rulings that will likely be made in a pending or

anticipated criminal trial, “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. Otherwise, the court and the parties are left to “speculate

about whether a prosecution will be brought, whether it will result in 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. at 393 (internal

citation omitted).

Plaintiff’s underlying criminal case is pending before the Jefferson County Circuit

Court and is scheduled for jury trial in November of this year. Plaintiff’s § 1983 action is

based on the same set of facts and circumstances that led to his indictment in the above-

named state criminal case and relate to rulings that will likely be made in those pending

proceedings and in the anticipated jury trial. As such, the principles of Wallace v. Kato

dictate that further consideration of Plaintiff’s § 1983 claims should be stayed until the

underlying criminal matter against Plaintiff has been resolved through criminal

proceedings

Additionally, a stay or abstention until resolution of the criminal matter would be

appropriate because a prisoner may not recover damages in a § 1983 suit where the

judgment would necessarily imply the invalidity of his conviction, continued

imprisonment, or sentence, unless the conviction or sentence is reversed, expunged or

called into question by issuance of a writ of habeas corpus. See Heck v. Humphrey, 512

U.S. 477, 486-487 (1994); Schafer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995).

Motion to Appoint Counsel

Plaintiff has filed a motion to appoint counsel. ECF No. 3. In civil cases, a self-

represented litigant does not have a constitutional or statutory right to appointed counsel.

Ward v. Smith, 721 F.3d 940, 942 (8th Cir. 2013). See also Stevens v. Redwing, 146 F.3d

538, 546 (8th Cir. 1998) (stating that “[a] pro se litigant has no statutory or constitutional

right to have counsel appointed in a civil case”). Rather, a district court may appoint

counsel in a civil case if the court 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.” Patterson v. Kelley, 902 F.3d 845,

850 (8th Cir. 2018). When determining whether to appoint counsel for an indigent

litigant, a court considers relevant factors such as the complexity of the case, the ability

of the pro se litigant to investigate the facts, the existence of conflicting testimony, and

the ability of the pro se litigant to present his or her claim. Phillips v. Jasper Cty. Jail, 437

F.3d 791, 794 (8th Cir. 2006).

After reviewing these factors, the Court finds that the appointment of counsel is

not warranted currently. This case appears to involve straightforward factual and legal

issues, and there is no indication that Plaintiff cannot investigate the facts and present his

claims to the Court. The Court will entertain future motions for appointment of counsel

as the case progresses, if appropriate.

Accordingly,

IT IS HEREBY ORDERED that Plaintiff’s motion for appointment of counsel

(ECF No. 3) is DENIED at this time without prejudice.

IT IS FURTHER ORDERED that Plaintiff’s motion for leave to proceed in

forma pauperis (ECF No. 2) is GRANTED.

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

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) the statement that

the remittance is for an original proceeding.

IT IS FURTHER ORDERED that all proceedings in this case are STAYED

pending final disposition of the criminal charges pending against Plaintiff in State v.

Underwood, No. 25JE-CR03074-01 (23rd Jud. Cir., Jefferson County).

IT IS FURTHER ORDERED that Plaintiff shall notify this Court in writing

concerning the final disposition of the criminal charges pending against him in State v.

Underwood, No. 25JE-CR03074-01 (23rd Jud. Cir., Jefferson County), within thirty (30)

days after final disposition of the charges is made.

IT IS FURTHER ORDERED that this case is administratively closed pending

final disposition of the criminal charges against Plaintiff and may be reopened by

Plaintiff’s filing of a motion to reopen the case after such final disposition.

Dated this 4th_ day of August, 2026.

AUDREY G. FLEISSIG 4

UNITED STATES DISTRICT JUDGE