Gary v. Yoder et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
NATHAN A. GARY, 	)
)
Plaintiff, 	)
)
v. 	) 	No. 1:25-CV-00219 SPM
)
GABRIEL YODER, et al., 	)
)
Defendants. 	)
OPINION, MEMORANDUM AND ORDER
This matter is before the Court upon the motion of self-represented Plaintiff Nathan Gary
for leave to proceed in this action without prepaying fees or costs. [ECF 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, the Court has conducted the required
review of the complaint and will stay this case based on the principles espoused in Wallace v.
Kato, 549 U.S. 384 (2007).
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
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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 has not submitted a prison account statement. As a result, 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) (when a prisoner is unable to provide the Court with a certified copy of his prison
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.
Standard
This Court is required to review in forma pauperis and prisoner complaints, and must
dismiss them if, among other reasons, they are frivolous or fail to state a claim upon which relief
may be granted. 28 U.S.C. § 1915(e)(2). An action 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). This Court
must liberally construe a layperson’s complaint, Haines v. Kerner, 404 U.S. 519, 520 (1972), but
even laypersons must allege facts that, if true, state a claim for relief as a matter of law. Martin v.
Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980).
Background Facts
On August 5, 2025, a federal grand jury in the United States District Court for the Eastern
District of Missouri returned a six-count indictment against co-defendants Nathan Gary and
Kirsyn Phillips. See U.S. v. Gary, et al., No. 1:25-CV-119 SNLJ (E.D.Mo.). Plaintiff was
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charged with four counts in the indictment, including two counts of felon in possession of a
firearm and two counts of possession of a firearm while subject to a domestic violence protective
order. Id. At the time, Plaintiff was in state custody in Cape Girardeau County being held on a
$15,000 cash bond in State v. Gary, No. 25CG-CR01021-01 (32 nd Jud. Cir., Cape Girardeau
County), where he was awaiting trial on charges for felony domestic assault and unlawful
possession of a firearm.1 After arraignment on August 13, 2025, Plaintiff was returned to Cape
Girardeau Custody via a writ of prosequendum.
In addition to his current federal court criminal case, and the state criminal case
mentioned above, Plaintiff has two additional pending criminal cases in Cape Girardeau County.
The first case appears to relate to the factual matters in the instant complaint. On July 31, 2024,
Plaintiff was charged by criminal complaint with unlawful possession of a firearm and felony
resisting arrest. See State v. Gary, No. 24CG-CR01430-01 (32nd Jud. Cir., Cape Girardeau
County). According to the probable cause statement filed in the state court case, Plaintiff was
arrested by Cape Girardeau Sheriff’s Deputy Gabriel Yoder and Cape Girardeau Police Officer
Micheal Spies after a traffic stop that occurred on July 30, 2024. This case is currently set for
trial on April 13, 2026.
The second Cape Girardeau County case does not relate to the instant action. On January
28, 2023, Plaintiff was charged with felony stealing in State v. Gary, No. 23CG-CR00150-01. He
pled guilty on June 12, 2023, and received a suspended imposition of sentence (SIS) and was
placed on five years’ probation. However, on September 11, 2023, Plaintiff’s probation was
revoked, and he was sentenced to four years of incarceration with a suspended execution of
1The state charges in Case No. 25CG-CR01021-01 appear to arise from the same or similar circumstances
as those in the original indictment in U.S. v. Gary, et al., No. 1:25-CV-119 SNLJ (E.D.Mo.). The Cape
Girardeau County case is currently set for trial on April 13, 2026.
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sentence (SES) and then released to a new term of probation. On September 11, 2024, Plaintiff’s
probation was suspended, and a warrant was issued. On October 9, 2024, Plaintiff was released
on a $25,000 surety bond. However, while under supervision, he again incurred violations, and
he failed to report as directed. He is currently awaiting a probation revocation hearing in this
case.
On January 21, 2026, a superseding information was filed in his federal court criminal
case, U.S. v. Gary, et al., No. 1:25-CV-119 SNLJ (E.D.Mo.), charging Plaintiff with receipt of a
firearm by a person under indictment. On that same date, Plaintiff entered a guilty plea
agreement in the case. In his guilty plea agreement Plaintiff agrees to certain facts that could be
proved if the parties were to go to trial:
On July 30, 2024, defendant Nathan A. Gary was arrested and charged with the
felony offense of unlawful possession of a firearm in the Circuit Court of Cape
Girardeau County, Missouri, in Case Number 24CG-CR1430-01. This crime is
punishable by a term of imprisonment exceeding one year. On September 30,
2024, Gary posted bond and was released from custody.
On June 5, 2025, law enforcement officers executed a search warrant at Gary's
residence in Cape Girardeau. Co-defendant Kirsyn Phillips was present at the
time, and she was detained after attempting to conceal two AR-style rifles in a
bedroom closet. One of the rifles was identified as a Palmetto State Armory, PA-
15, .300 Blackout. Officers also found a receipt from Shooter's Gun Shop
showing that a quantity of ammunition was purchased on May 23, 2025.
Officers obtained surveillance footage from Shooter's Gun Shop, which showed
Gary and Phillips entering the store on May 23, 2025. Gary was holding the
Blackout rifle at the time, and the footage captured him looking at accessories for
the rifle. Gary proceeded to purchase ammunition before leaving the store with
Phillips.
As part of the investigation, officers conducted a trace of the Blackout rifle and
discovered that it was purchased at Dash Pawn in Scott City on May 23, 2025.
Records from the pawn shop confirmed that Phillips purchased the Blackout rifle
on that date. During an interview with Phillips, she confirmed that she
accompanied Gary to Dash Pawn on May 23, 2025, so that she could purchase the
Blackout rifle for him. Phillips further admitted that Gary took possession of the
Blackout rifle after they left the pawn shop. At that time, the felony charge in the
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Circuit Court of Cape Girardeau County (Case Number 24CG-CR1430-01) was
still pending against him.
The Complaint
In the instant action, Plaintiff sues Cape Girardeau County Sheriff Deputy Gabriel Yoder
and Cape Girardeau Police Officer Michael Spies in both their individual and official capacities.
Plaintiff claims the law enforcement officer Defendants acted to violate his constitutional rights
during a traffic stop on July 30, 2024, and his claims arise from the same facts as his pending
criminal case in State v. Gary, No. 24CG-CR01430-01 (32nd Jud. Cir., Cape Girardeau County)
in which Plaintiff was charged with unlawful possession of a firearm and felony resisting arrest.2
Condensed and summarized, Plaintiff claims the Defendants unlawfully arrested and detained
him and used excessive force against him. Plaintiff appears to seek monetary relief for “pain and
suffering.”
Discussion
Plaintiff’s false arrest and false imprisonment claims are based on the same facts that led
to his arrest and prosecution in State v. Gary, No. 24CG-CR01430-01 (32nd Jud. Cir., Cape
Girardeau County), and relate to rulings that will likely be made in Plaintiff’s upcoming state
criminal trial. The Supreme Court has instructed that “[i]f a plaintiff files a false arrest claim
before he has been convicted (or files any other claim 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.” Wallace, 549 U.S. at 393-94 (citation omitted). Otherwise, the court and
the parties are left to speculate about whether the prosecution “will result in conviction, and
2Plaintiff’s claims also appear to relate to his recent guilty plea in his federal criminal case in U.S. v. Gary,
et al., No. 1:25-CV-119 SNLJ (E.D.Mo.).
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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 (citation omitted).
The Court recognizes that Plaintiff’s excessive force claims do not necessarily need to be
stayed under Wallace, however, this Court has discretion to enter a stay until a final ruling has
been made on the facts and circumstances surrounding Plaintiff’s arrest on July 30, 2024. Given
that Plaintiff has been charged with felony resisting arrest, and he insists he was instead treated
with excessive force during his arrest, there will no doubt be factual determinations made at trial
as to what occurred during the arrest. Thus, staying the case furthers the doctrines of comity and
federalism. See Cedar Rapids Cellular Telephone, L.P. v. Miller, 280 F.3d 874, 881 (8th Cir.
2002) (holding that a federal court should abstain from exercising jurisdiction over a civil claim
that would interfere with a pending state court action because federal courts should endeavor to
protect federal rights in ways that do not unduly interfere with the legitimate activities of the
states (quoting Younger v. Harris, 401 U.S. 37, 44 (1971)). Further, by entering a stay under
such circumstances, this Court avoids prematurely ruling on the validity of parallel prosecutions
without all pertinent information. See Ross v. Nehoff, No. 4:21-CV-159 SEP, 2021 WL 3885575,
at *3 (E.D. Mo. Aug. 31, 2021) (noting that courts would be forced to speculate about the result
of a prosecution and the strength of the state's evidence if they do not enter a stay) (citing
Wallace, 549 U.S. at 393); Vonneedo v. Dennis, No. 1:17-CV-183 NAB, 2017 WL 5904005, at
*2 (E.D. Mo. Nov. 30, 2017) (same).
Given the aforementioned, this Court finds that the principles of Wallace v. Kato dictate
that this case should be stayed until the final disposition of Plaintiff’s Missouri State criminal
case in State v. Gary, No. 24CG-CR01430-01 (32nd Jud. Cir., Cape Girardeau County. Plaintiff
may move to reopen this case after final disposition of his proceedings.
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Motion for Appointment of Counsel
Plaintiff has filed a motion for appointment of counsel. [ECF No. 3]. The motion will be
denied at this time. In civil cases, a pro se 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 (8 th 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 at this time. Plaintiff has demonstrated, at this point, that he can adequately present his
claims to the Court. Additionally, neither the factual nor the legal issues in this case appear to be
complex. The Court will entertain future motions for appointment of counsel as the case
progresses.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff's motion to proceed in forma pauperis [ECF
No. 2] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff shall 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
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“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.
IT IS FURTHER ORDERED that this case is STAYED pursuant to Wallace v. Kato,
549 U.S. 384 (2007).
IT IS FURTHER ORDERED that the Clerk shall ADMINISTRATIVELY CLOSE
this case.
IT IS FURTHER ORDERED that Plaintiff may move to reopen the current case after
final disposition of State v. Gary, No. 24CG-CR01430-01 (32nd Jud. Cir., Cape Girardeau
County).
IT IS FURTHER ORDERED that Plaintiff’s motion for appointment of counsel [ECF
No. 3] is DENIED without prejudice at this time.
IT IS FURTHER ORDERED that Plaintiff’s motion to amend his complaint by
interlineation to add his claim for damages [ECF No. 4] is GRANTED.
Dated this 23 rd day of January, 2026.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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