United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. RICHARD WEBBER, Senior District Judge.
This matter vcomes before the Court on Defendants City of Ferguson ("City"), Former Police Chief Thomas Jackson ("Jackson"), and Former Police Officer Darren Wilson's ("Wilson") Joint Motion to Partially Dismiss Plaintiffs' Petition [ECF No.5]. After written and oral arguments,  the Court makes the following rulings.
I. Counts I and III
Pursuant to Plaintiffs' voluntary dismissal, Counts I and III are dismissed.
II. Count II, Count IV, and Count VI against Defendants Jackson and Wilson in their Official Capacities
Count II against Defendant Jackson in his official capacity, and Counts IV and VI against Defendant Wilson in his official capacity are dismissed, without prejudice, as redundant to the claims against Defendant City of Ferguson. Artis v. Francis Howell North Band Booster Ass'n, Inc., 161 F.3d 1178, 1182 (8th Cir. 1998).
III. Count II against Defendant City and Defendant Jackson in his Individual Capacity
A. Count II against Defendant City
As ordered orally, Plaintiffs are granted leave to amend their complaint to include allegations of the existence of a liability insurance policy, covering the claims at issue, to establish an exception to sovereign immunity against Defendant City. See Topps v. City of Country Club Hills, 272 S.W.3d 409, 414 (Mo.Ct.App. 2008).
Plaintiffs are also permitted to amend their complaint to include allegations relating to the negligent operation of a motor vehicle by Defendant Wilson in an attempt to establish an exception to sovereign immunity for Count II against Defendant City. "[F]inding a municipality liable for torts is the exception to the general rule of sovereign immunity, and a plaintiff must plead with specificity facts demonstrating his claim falls within an exception to sovereign immunity." Parish v. Novus Equities Co., 231 S.W.3d 236, 241-42 (Mo.Ct.App. 2007). Sovereign immunity in Missouri is waived for "[i]njuries directly resulting from the negligent acts and omissions by public employees arising out of the operation of motor vehicles or motorized vehicles within the course of their employment." Mo. Rev. Stat. § 537.600.1(1). Count II against Defendant City is for the failure to properly hire, train, supervise, retain, and conduct a fair and impartial investigation. It includes allegations Defendant City did not properly train or supervise officers in the use of deadly force, in fair and impartial investigations, in how to treat and properly serve in areas predominantly populated by African-Americans, or in cultural diversity. This claim does not fit into the negligent operation of a motor vehicle exception of sovereign immunity. Although the complaint includes allegations Defendant Wilson operated his vehicle in a manner harming Michael Brown Jr., the complaint does not "implicate and encumber the City" within any of these allegations of negligent conduct and operation of a police car by Defendant Wilson. See Hawkins v. City of Farmington, 189 F.3d 695, 706 (8th Cir. 1999). Allegations of negligent hiring, training, supervising, retaining, and conducting a fair and impartial investigation are not enough to establish this exception. Id. The exception to sovereign immunity for negligent operation of a motor vehicle does not apply to Defendant City in Count II of Plaintiffs' complaint, as currently pled.
Therefore, Plaintiffs' are granted leave to amend their complaint to include, if they can, allegations of the existence of an insurance policy covering the liability at issue and to include allegations against Defendant City of Ferguson regarding the negligent operation of a motor vehicle operation.
B. Count II against Defendant Jackson in his Individual Capacity
As currently pled, Count II against Defendant Jackson is insufficient to survive Defendants' Motion to Dismiss because Plaintiffs have not included allegations to overcome official immunity.
The official immunity doctrine insulates public officials "from suit in their individual capacities when liability arises from discretionary acts or omissions" taken by them. Betts-Lucas v. Hartmann, 87 S.W.3d 310, 327 (Mo.Ct.App.2002). However, this doctrine does not prevent liability for failure to perform a ministerial duty. Brown v. Tate, 888 S.W.2d 413, 415 (Mo.Ct.App.1994). A discretionary act requires "the exercise of reason in the adaption of means to an end and discretion in determining how or whether an act should be done or a course pursued." Deuser v. King, 24 S.W.3d 251, 254 (Mo.Ct.App.2000) (quoting Rustici v. Weidemeyer, 673 S.W.2d 762, 769 (Mo.1984)). In contrast, a ministerial act is "of a clerical nature and is performed in a prescribed manner according to legal mandate without regard to the public official's personal judgment or opinion." Id. In determining whether an act is discretionary or ministerial, the Court must conduct a "case-by case ...