United States District Court, W.D. Missouri, Central Division
DOUGLAS HARPOOL, UNITED STATES DISTRICT JUDGE
the Court is Defendants’ Partial Motion to Dismiss
(Doc. 9). After full and careful consideration, the Court
hereby GRANTS Defendants’ motion.
commenced the present action in federal court against the
City of Fulton and two employees of the City of Fulton in
their individual and official capacities. Plaintiff alleges
that “each and all of the acts of the Defendants
alleged herein were taken and accomplished by Defendants
acting in their administrative capacity . . . under the
authority of their offices as city officials” and, at
all relevant times, Defendants Dunlap and Johnson “were
employees for the Defendant City of Fulton, acting within the
course of their employment and on behalf of the City of
Complaint alleges Plaintiff was employed by the City of
Fulton and that, prior to his termination, Plaintiff reported
certain compliance issues to city and state officials
including multiple sanitary sewer overflows, wastewater
treatment facility process failures that resulted from long
term neglect and poor maintenance practices, and several
“near miss” safety incidents that identified long
term neglect and poor maintenance of equipment as the primary
cause of the incidents. The Complaint alleges Defendants were
aware of Plaintiff’s complaints regarding lack of
compliance yet Defendants took no steps to address
Plaintiff’s complaints and, instead, Defendants took
steps to terminate Plaintiff’s employment for speaking
out about the alleged safety concerns and Clean Water law
violations. The Complaint alleges that, subsequent to
Plaintiff’s termination, Defendants made false,
malicious, and defamatory statements about Plaintiff that
resulted in revocation of an offer of employment given to
Plaintiff and commencement of a criminal investigation
against Plaintiff. The Complaint asserts four counts against
all Defendants: (I) Section 1983 claim for deprivation of
constitutional rights, (II) retaliatory discharge, (III)
wrongful discharge, and (IV) slander.
moved to dismiss all counts against Defendant City of Fulton
and to dismiss Counts II and III against Defendants Dunlap
and Johnson. Upon review of documentation provided by
Defendants, Plaintiff conceded that Counts II through IV
against Defendant City of Fulton and Counts II and III
against Defendants Dunlap and Johnson should be dismissed.
The sole issue remaining for the Court is whether Count I
should be dismissed as to Defendant City of Fulton.
survive a motion to dismiss [under 12(b)(6)], 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). A
complaint is facially plausible where its factual content
“allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. The plaintiff must plead facts that show more
than a mere speculation or possibility that the defendant
acted unlawfully. Id.; Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). While the Court
accepts the complaint’s factual allegations as true, it
is not required to accept the plaintiff’s legal
conclusions. Ashcroft, 556 U.S. at 678.
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
court’s assessment of whether the complaint states a
plausible claim for relief is a “context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Ashcroft, 556
U.S. at 679. The reviewing court must read the complaint as a
whole rather than analyzing each allegation in isolation.
Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594
(8th Cir. 2009).
argue Count I fails to state a claim against the City of
Fulton because the City of Fulton is not a
“person” subject to suit under 42 U.S.C. §
1983. Plaintiff argues a municipality can be a
“person” subject to suit under 42 U.S.C. §
1983 if the violation resulted from an official municipal
policy, an unofficial custom, or a deliberately indifferent
failure to train or supervise, citing Monell v.
Dep’t of Soc. Servs. of City of New York, 436 U.S.
658 (1978) and Atkinson v. City of Mountain View,
Mo., 709 F.3d 1201, 1214 (8th Cir. 2013). Plaintiff
argues “[i]n the absence of any discovery, it is
impossible for Plaintiff to know, or for this Court to
determine” whether any of these three situations apply
and, therefore, Defendants’ motion should be denied
absent further discovery. Defendants argue the Complaint
“does not allege anywhere that a policy or custom of
City of Fulton was responsible for the alleged First
Amendment violation” and “[b]ecause Peaks has not
plead any facts to bring a Monell claim in this
case, Defendant City of Fulton is not a person under §
1983 and should be dismissed from Count I of the
are correct that Plaintiff has failed to plead any factual or
even conclusory allegations that suggest the alleged
whistleblower retaliation at issue here resulted from the
City of Fulton’s official policy, unofficial custom, or
deliberately indifferent failure to train or supervise. The
Court finds Count I is therefore subject to dismissal for
failure to state a claim as to Defendant City of Fulton.
See, e.g., Kelly v. City of Omaha, Neb., 813 F.3d
1075-76 (8th Cir. 2016) (affirming dismissal of 1983 claim
against municipality where plaintiff failed to plead any
facts showing the harassment at issue represented part of a
municipal policy or custom supporting such behavior).
Plaintiff’s arguments in briefing, the early stage of
this litigation, and the fact that Plaintiff may be able to
plead and prove additional facts to support a claim of relief
as to the City of Fulton on Count I, the Court will grant
Plaintiff leave to amend his Complaint, if he so desires, in
order to plead additional facts to support his 1983 claim
against the municipality. See generally Fed. R. Civ.
P. 15(a)(2) (“The court should freely give leave when
justice so requires.”). Plaintiff may file an amended
pleading including such allegations within 21 days of the
date of this order.