United States District Court, E.D. Missouri, Northern Division
MEMORANDUM AND ORDER
E. RICHARD WEBBER, Senior District Judge.
This matter comes before the Court on "Defendant Gove-Ortmeyer's Motion to Dismiss Plaintiff's Second Amended Complaint" [ECF No. 32].
On October 11, 2013, Plaintiff James Brittingham ("Plaintiff") filed a "Complaint for Damages Pursuant to 42 U.S.C. § 1983 & Malicious Prosecution, Abuse of Process, False Arrest, Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress, " naming the following as defendants: James McConnell; R. Timothy Bickhaus; Stacie Gove-Ortmeyer ("Gove-Ortmeyer"); County of Macon, Missouri ("County"); and State of Missouri ("State") [ECF No. 1]. Plaintiff filed a First Amended Complaint on February 11, 2014, naming only Gove-Ortmeyer, County, and State as defendants [ECF No. 4].
Plaintiff's First Amended Complaint ("Amended Complaint") asserted nine counts: 1) Violation of 42 U.S.C. § 1983 (Wrongful Arrest); 2) Violations of 42 U.S.C. § 1983 (Wrongful Detention); 3) Violations of 42 U.S.C. § 1983 (Conspiracy); 4) Violations of 42 U.S.C. § 1983 (Refusing or Neglecting to Prevent Violations)(against County and State only); 5) Malicious Prosecution; 6) Abuse of Process; 7) False Arrest and Imprisonment; 8) Intentional Infliction of Emotional Distress; and 9) Negligent Infliction of Emotional Distress.
On February 12, 2014, the United States Magistrate Judge issued a Show Cause Order, noting 124 days had elapsed since Plaintiff had filed his original Complaint and the file did not reflect Plaintiff had obtained service upon the defendants. The magistrate ordered Plaintiff to either serve Defendants within thirty days, or show cause why his cause should not be dismissed for failure to comply with Federal Rule of Civil Procedure 4(m) [ECF No. 5]. On February 26, 2014, Plaintiff filed executed summons showing service of the Amended Complaint on Gove-Ortmeyer, County, and State [ECF Nos. 6-8].
Thereafter, County filed a Motion to Dismiss Plaintiff's Amended Complaint, and Gove-Ortmeyer and State jointly filed a Motion to Dismiss the Amended Complaint [ECF Nos. 13, 18]. On May 27, 2014, the case was reassigned from the Magistrate to this Court. On June 24, 2014, this Court granted County's and State's Motions to Dismiss, and dismissed with prejudice, all claims against those two defendants contained in Plaintiff's Amended Complaint [ECF No. 28]. However, the Court denied Gove-Ortmeyer's Motion to Dismiss, and directed Plaintiff to file a Second Amended Complaint ("SAC") asserting claims against Gove-Ortmeyer solely, no later than July 15, 2014.
Plaintiff filed his SAC on July 14, 2014 [ECF No. 29]. The SAC asserts thirteen claims, solely against Gove-Ortmeyer: Count I, 42 U.S.C. § 1983 - Submission of False Affidavit (4th Amendment); Count II, 42 U.S.C. § 1983 - Suppression of Exculpatory Evidence (14th Amendment - Procedural Due Process); Count III, 42 U.S.C. § 1983 - Reckless or Intentional Failure to Investigate (14th Amendment - Substantive Due Process); Count IV, 42 U.S.C. § 1983 - Wrongful Arrest (4th, 6th, and 14th Amendments); Count V, 42 U.S.C. § 1983 - Malicious Prosecution (4th, 6th, and 14th Amendments); Count VI, 42 U.S.C. § 1983 - Wrongful Detention (5th and 14th Amendments); Count VII, 42 U.S.C. § 1983 - Conspiracy (5th and 14th Amendments); Count VIII, 42 U.S.C. § 1983 - Refusing or Neglecting to Prevent Violations (4th, 5th, 6th, and 14th Amendments); Count IX, Missouri State Law - False Arrest; Count X, Missouri State Law - Malicious Prosecution; Count XI, Missouri State Law - Abuse of Process; Count XII, Missouri State Law - Intentional Infliction of Emotional Distress; and Count XIII, Missouri State Law - Negligent Infliction of Emotional Distress.
Subsequently, Gove-Ortmeyer filed an Answer, as well as her Motion to Dismiss Plaintiff's Second Amended Complaint, requesting dismissal of Counts V, VIII, and XIII [ECF Nos. 32. 34]. Plaintiff filed Suggestions in Opposition to Defendant Gove-Ortmeyer's Motion to Dismiss SAC on August 27, 2014 [ECF No. 35]. Gove-Ortmeyer has not filed a timely Reply.
II. LEGAL STANDARD: MOTION TO DISMISS
A party may move under Rule 12(b)(6) to dismiss a complaint for "fail[ing] to state a claim upon which relief may be granted." Fed.R.Civ.P. 12(b)(6). The purpose of a motion to dismiss is to test "the sufficiency of a complaint[.]" M.M. Silta, Inc. v. Cleveland Cliffs, Inc., 616 F.3d 872, 876 (8th Cir. 2010).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citation omitted). "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. Ordinarily, only the facts alleged in the complaint are considered for purposes of a motion to dismiss; however, materials attached to the complaint may also be considered in construing its sufficiency. Reynolds v. Dormire, 636 F.3d 976, 979 (8th Cir. 2011).
When ruling on a motion to dismiss, a court "must liberally construe a complaint in favor of the plaintiff[.]" Huggins v. FedEx Ground Package Sys., Inc., 592 F.3d 853, 862 (8th Cir. 2010). However, if a claim fails to allege one of the elements necessary to recovery on a legal theory, that claim must be dismissed for failure to state a claim upon which relief can be granted. Crest Constr. II, Inc. v. Doe, 660 F.3d 346, 355 (8th Cir. 2011). "Threadbare recitals of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678; Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). Although courts must accept all factual allegations as true, they are ...