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McKay v. City of St. Louis, Missouri

United States District Court, E.D. Missouri, Eastern Division

September 2, 2016

CITY OF ST. LOUIS, MISSOURI, et al., Defendants.



         This matter is before the Court on Defendant City of St. Louis's (“the City”) Motion to Dismiss (Doc. 83); Defendant Jennifer Joyce's Motion to Strike (Doc. 85); Defendants Joyce, Susan Ryan, and S.C. Ryan Consulting, LLC's Motion to Dismiss (Doc. 87); Defendant Joseph Spence's Motion to Dismiss (Doc. 89); and Defendants Bettye Battle-Turner, Richard Gray, Thomas Irwin, Francis Slay, and Erwin Switzer's (“St. Louis Board of Police Commissioners”) Motion to Dismiss (Doc. 91). The issues are fully briefed and ready for disposition. For the following reasons, the Court will grant the motion to strike filed by Joyce (Doc. 85); grant, in part, the motion to dismiss filed by Joyce, Ryan, and S.C. Ryan Consulting, LLC (Doc. 87); and deny all other pending motions (Docs. 83, 89, 91).

         I. Background

         The facts in the light most favorable to McKay are as follows.[1] On August 10, 2012 at approximately 8:45 p.m., a woman (“Doe”) was robbed of her cell phone and $50 as she exited her vehicle in front of her home in the Central West End neighborhood of the City of St. Louis. Shortly thereafter, her husband returned home from walking their dog and called 911. Detectives from the St. Louis Metropolitan Police Department's (“SLMPD”) 9th District responded, and instructed Doe to continue service to her stolen cell phone, in case her assailant attempted to use it (Second Amended Complaint (“SAC”), Doc. 78 ¶¶ 25-29). Doe's husband informed the detectives that he had encountered a young man while walking their dog, that he had seen the young man about a block from their home, and that the young man had run away after he saw Doe's husband. State v. McKay, 459 S.W.3d 450, 452-53 (Mo.Ct.App. 2014).

         On August 13, 2012, Doe provided detectives a spreadsheet of calls that had been made to and from her cell phone between August 10 and August 13; she provided a second spreadsheet on August 18 (“Doe spreadsheets”)..According to Doe, she had produced the spreadsheets by downloading a complete list of calls made to and from her phone after the robbery, using her online Sprint account. The Doe spreadsheets indicated that no calls had been made to or from Doe's cell phone until more than 25 hours after the robbery. According to McKay, from August 13 until August 18, 2012, the detectives took little or no action to investigate the Doe robbery; they did not independently request the call records from Sprint, nor did they investigate the phone numbers listed in the Doe spreadsheets, even though they knew the numbers were crucial investigative leads (SAC ¶¶ 31-38).

         On August 12, 2012, Keith Esters robbed a woman of her cell phone in a St. Louis suburb (Id. ¶ 100(1)). On August 18, 2012, Esters shot and killed Megan Boken after she resisted his attempt to rob her, at gun point, of her cell phone (“Boken murder”). The Boken murder occurred in the Central West End neighborhood, only a few blocks from the scene of the Doe robbery, and it immediately gained national and local media attention (Id. ¶¶ 47-50). In the course of their investigation of the Boken murder, detectives from the SLMPD's Homicide Unit learned of the Doe robbery, and they requested information from the 9th District (Id. ¶ 54-57). As alleged by McKay, no one at the 9th District had yet conducted any meaningful investigation of the Doe robbery. The complaint alleges that Defendants Stamper, Boettigheimer, and Rudolph (“9th District detectives”) had reason to believe, even before they were contacted by the Homicide Unit, that the Doe robbery and the Boken murder had been committed by the same perpetrator, given their similar methods of operation, geographical proximity, and similarity of witness descriptions of both the perpetrator and weapon used in the crimes (Id. ¶¶ 58-60). Defendant Stamper then assigned Boettigheimer to investigate the Doe robbery. Boettigheimer entered the phone numbers from Doe's spreadsheets into a “Crime/Matrix database, ” which produced addresses of potential suspects. Based on this search, Boettigheimer initially focused on Lamont Carter, and when Carter's address was entered into the database, a list of between 15 and 20 persons who shared some association with Carter was produced. Although Boettigheimer did not document or preserve any record of this search, he claimed that McKay's name was on this list, and that McKay was the only person on the list who matched the physical description Doe had given of her assailant. Boettigheimer then put out a wanted alert for McKay (Id. ¶¶ 61-71).

         On August 21, 2012, McKay turned himself in at the 9th District station. The 9th District detectives questioned him about both the Doe robbery and the Boken murder, but became frustrated when Reverend Chris Douglas provided McKay an alibi and produced three other alibi witnesses. According to McKay, detectives refused to interview the witnesses, and instead arranged for Doe and her husband to view a photographic lineup containing a photo of McKay. Doe identified McKay from the photographic lineup, but her husband did not. The next morning, Boettigheimer arranged a live lineup, which included McKay but not Esters; Doe identified McKay as the man who had robbed her, and her husband identified McKay as the young man he had seen while walking their dog (Id. ¶¶ 72-79).

         Also on August 22, 2012, detectives in the Homicide Unit called each of the phone numbers on the Doe spreadsheets, and learned that one of the numbers belonged to Esters's girlfriend, Kaylin Perry. After Perry was arrested by Homicide detectives, she implicated Esters in both the Doe robbery and the Boken murder. Specifically, Perry revealed that Esters had given her Doe's cell phone, that he had admitted to her that he had committed both crimes, and that he had told her he had robbed a woman of her cell phone and $50. On August 23, 2012, Esters was arrested and questioned by Homicide detectives. He confessed to the Boken murder, and stated that he had been at the scene of the Doe robbery, that he knew who had committed the robbery, and that McKay was not the perpetrator (Id. ¶¶ 81-83).

         Multiple Homicide detectives then contacted the 9th District detectives, warning them that they had apprehended the wrong person for the Doe robbery, and urging them to interview Perry (Id. ¶¶ 85-86). McKay alleges that, despite their knowledge of evidence tending to incriminate Esters in the Doe robbery, the 9th District detectives ignored the Homicide detectives' warnings, did not expand their investigation, did not have Doe view a photographic or in-person lineup that included Esters, and instead sought and obtained criminal charges against McKay for the crime (Id. ¶¶ 88-89). Defendant Spence, McKay's probation officer at the time, initiated probation revocation proceedings, and as alleged by McKay, knowingly filed a false probation-violation report, stating that officers had discovered pictures of McKay on Doe's stolen cell phone. This false statement led a judge to set bail higher in McKay's revocation proceeding than in his criminal case. McKay could not afford to post the higher bail and was thus detained until his criminal trial (Id. ¶¶ 102(j)-(k), 121(c), 130).

         In the meantime, the Homicide detectives had subpoenaed Sprint for records detailing calls made to and from Doe's cell phone, and they received those records on September 19 (Id. ¶¶ 42-44). Unlike Doe's self-prepared spreadsheets, the call-detail records from Sprint showed that a call had been made from Doe's cell phone to Perry's phone at 9:10 p.m. on August 10, or approximately 20 to 25 minutes after the Doe robbery (Id. ¶¶ 45-46). The Homicide detectives also found-hidden under Esters's couch-clothing matching Doe's description of the clothing her assailant had been wearing during the robbery; and based on information Perry provided, they recovered Doe's cell phone from a gas station, where employees identified Perry and Esters as the individuals who had sold them the phone (Id.¶ 100; Docs. 78.6 at 4, 15-16, 18, 26; McKay, 459 S.W.3d at 454, 459).

         Before his criminal trial, McKay notified the state trial court that he intended to rely on an alternative perpetrator defense, i.e. that Esters had committed the Doe robbery (SAC ¶ 102(g)(iii); McKay, 459 S.W.3d at 454). Prosecutors from the Circuit Attorney's Office sought to exclude evidence supporting McKay's defense and to prevent any mention of Esters or Boken at trial. The state trial court sustained most of the prosecutors' motions, ruling that McKay could not present, inter alia, Esters's incriminating admissions regarding the Doe robbery or the clothing found at his residence, and that no reference could be made to the Boken case or Esters's involvement in the Boken murder (McKay, 459 S.W.3d at 454-58). McKay also alleges that, before his trial, the 9th District detectives damaged or destroyed Doe's cell phone in bad faith and to such a degree that no information-including text messages which would have established a direct connection to an alternative perpetrator-could be retrieved from it by defense experts (SAC ¶¶ 102(p), 115). He further asserts that, prompted by representatives of the Circuit Attorney's Office and in an effort to get Doe to ratify her previous misidentification of McKay, Boettigheimer approached Doe six months after the Doe robbery; warned her that McKay planned to raise an alternative-perpetrator defense; told her that her robber had transferred her cell phone to someone else after the robbery; falsely informed her that McKay and Esters were “associates”; and presented her a photograph of Esters for identification (Id. ¶ 102(g)). Doe did not identify Esters as her robber. According to McKay, there was no evidence suggesting that McKay and Esters were connected, and Boettigheimer knew that McKay and Esters were not associates (Id.).

         At McKay's trial, Doe testified that, during the in-person lineup, she had immediately recognized McKay as the person who robbed her, that she took time to look at each person in the lineup, and that she was sure she recognized McKay as the man who had robbed her (McKay, 459 S.W.3d at 453). Prosecutors from the Circuit Attorney's Office introduced the Doe spreadsheets into evidence, knowing that they did not accurately reflect the phone's usage after it was stolen; and Doe testified that her self-prepared spreadsheets were complete, specifically denying that any calls had been omitted (SAC ¶¶ 39-41). This gave the jury the false impression that Doe's phone had not been used to call Perry until 25 hours after the robbery, during which time McKay could have given the phone to Esters. McKay tried to introduce the Sprint call-detail records as rebuttal to Doe's spreadsheets, but the prosecutors successfully objected to their admissibility in the absence of supporting expert testimony (Id. ¶¶ 94-99). The prosecutors also successfully objected to proffered testimony that Esters owned a small, silver handgun that matched Doe's description of the gun her assailant used (McKay, 459 S.W.3d at ¶ 454; Doc. 78.6 at 12-13). The jury found McKay guilty of first-degree robbery and armed criminal action, and he was sentenced to 12 years in prison (SAC ¶ 103).

         After McKay served more than two years of his sentence, the Missouri Court of Appeals vacated his convictions and remanded the case for a new trial, specifically concluding that the trial court's exclusion of the Sprint call-detail records and the additional evidence linking Esters to the Doe robbery had been manifestly unjust (SAC ¶¶ 7, 180; McKay, 459 S.W.3d at 456, 458). The Circuit Attorney's Office declined to try McKay a second time, and on May 6, 2015, all criminal charges against him were dismissed (SAC ¶¶ 8, 184, 186). Joyce issued a press release, and held a press conference during which she stated, inter alia, that she did not doubt McKay's guilt, and that the charges against him had been dismissed only because Doe was unwilling to testify at another trial (Id. ¶¶ 186-196). Joyce and a prosecutor from the Circuit Attorney's Office thereafter appeared on a local radio show, and made several statements regarding their continued belief that McKay committed the Doe robbery and their desire to prosecute McKay for the robbery but for the Does' decision not to testify at his retrial (Id. ¶ 197; Doc 78.6). Ryan is the official spokesperson for the St. Louis Circuit Attorney's Office, and her firm, SC Ryan Consulting, provides public relations services to the St. Louis Circuit Attorney's Office (SAC ¶¶ 19-20). According to McKay, the City has procured an insurance policy that provides coverage for the misconduct of its employees and agents that he alleges in his second amended complaint (Id. ¶ 22).

         II. McKay's Claims

         In his complaint, as amended, McKay alleges that the 9th District detectives violated his due process rights by suppressing the Sprint call-detail records and neighborhood surveillance videos, by damaging or destroying Doe's cell phone after it was recovered, but before defense experts could examine it, and by engaging in “highly suggestive behavior” designed to elicit misidentifications of McKay as the perpetrator of the Doe robbery (Id. ¶¶ 113-119). He also claims that the 9th District detectives fabricated evidence against him, in violation of his due process rights, by coaching Doe and her husband to misidentify him as the perpetrator of the Doe robbery, and by fabricating the Doe spreadsheets to inaccurately reflect that no calls were made from the phone until the day after it was stolen (Id. ¶¶ 115, 121(a)-(b)). He also asserts a claim that Spence fabricated evidence against him by preparing and submitting a fabricated report in his probation-revocation proceeding (Id. ¶ 121(c)). In addition, McKay claims that the 9th District detectives recklessly or intentionally failed to investigate the Doe robbery, in violation of his due process rights, by purposefully ignoring evidence that established his innocence and directly connected Esters to the Doe robbery; that Defendant Spence violated his due process rights by filing the false probation violation report; and that the 9th District detectives, Spence, Joyce, and Ryan conspired to unlawfully bring about his wrongful arrest and conviction (Id. ¶¶ 120-125).

         McKay further alleges that Joyce and the Board-as policymaking officials for the City-ratified and adopted the misconduct of the 9th District detectives and Spence, thereby making their misconduct the official policy or custom of the City and SLMPD (Id. ¶¶ 117, 122, 131). According to McKay, the City of St. Louis is liable for the misconduct of its agents and employees-here, Joyce, the 9th District detectives, Spence, Ryan, and S.C. Ryan Consulting- because it had unconstitutional policies or customs of, inter alia, conducting investigations not designed to ascertain the truth, intentionally failing to investigate leads, suppressing exculpatory evidence, fabricating evidence, using unreliable identification techniques, presenting false evidence and arguments to grand and petit juries, encouraging and concealing prosecutorial misconduct, improperly training its agents and employees, failing to discipline officers who violated suspects' constitutional rights, and acting with deliberate indifference to its law enforcement officers' violations of accused persons' constitutional rights (Id. ¶ 156). McKay also asserts Missouri state-law claims against the 9th District detectives for false arrest and malicious prosecution; and against Joyce, Ryan, and S.C. Ryan Consulting for defamation, slander, and libel (Id. ¶¶ 169-207).

         McKay alleges that the 9th District detectives destroyed or suppressed exculpatory evidence, fabricated evidence against him, recklessly or intentionally failed to investigate the Doe robbery, and conspired with Spence, Joyce, and Ryan to deprive him of his constitutional rights (SAC at ¶¶ 113-146.) The 9th District detectives have not moved to dismiss McKay's claims against them, and the other defendants do not dispute that he has stated viable § 1983 claims against the 9th District detectives based on their allegedly recklessly investigation of the Doe robbery. The remaining defendants now move to dismiss on various grounds.

         III. Motion to Dismiss Legal Standard

         Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” The pleading standard of Rule 8 “does not require ‘detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a complaint must show that the pleader is entitled to relief, in order to give the defendant fair notice of what the claims are and the grounds upon which they rest. Id.

         Fed. R. Civ. P. 12(b)(6) provides for a motion to dismiss based on the failure to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) 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, 129 S.Ct.1937, 1950 (2009). In the complaint, a plaintiff must include sufficient factual information to provide the grounds on which his claims rest, and to raise a right to relief above a speculative level. Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008) (citing Twombly, 550 U.S. at 555 & n.3). This obligation requires a plaintiff to plead “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. A complaint must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory. Id. at 562. This standard “simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of [the claim or element].” Id. at 556.

         When ruling on a motion to dismiss, this Court must take the allegations of the complaint as true and liberally construe the complaint in a light most favorable to the plaintiff. Kottschade v. City of Rochester, 319 F.3d 1038, 1040 (8th Cir. 2003). The Court is “free to ignore legal conclusions, unsupported conclusions, unwarranted inferences and sweeping legal conclusions cast in the form of factual allegations.” Wiles v. Capitol Indem. Corp., 280 F.3d 868, 870 (8th Cir. 2002). Also, at the motion to dismiss stage, a court generally may not consider matters outside the pleadings. Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999). It may, however, consider matters of public record, materials that do not contradict the complaint, exhibits attached to the pleadings, and materials necessarily embraced by the complaint. Mills v. City of Grand Forks, 614 F.3d 495, 498 (8th Cir. 2010).

         IV. Analysis

         A. The Board's Motion to Dismiss

         In support of its motion to dismiss, the St. Louis Board of Police Commissioners (hereinafter “the Board”) argues that McKay has failed to state a claim against the City because he has not identified any unconstitutional policy or custom pursuant to which the 9th District detectives allegedly violated his rights, because he has not identified any deficiencies in the training the Board provided the 9th District detectives, and because he has not plausibly alleged that the Board was deliberately indifferent to a pattern of unconstitutional misconduct by SLMPD officers (Docs. 92, 103). In response, McKay contends that he has stated viable § 1983 claims. First, he asserts his amended complaint states a claim because it alleges that the Board adopted a policy that caused his rights to be violated. Second, he argues that he has stated a claim based on his allegation that the Board failed to adequately train its police officers, including the 9th District detectives, to avoid violating the constitutional rights of suspects in criminal investigations by utilizing improper investigations and eyewitness identification techniques, failing to document and disclose witnesses' statements, failing to preserve evidence, suppressing exculpatory evidence, or fabricating ...

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