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Powers v. City of Ferguson

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

January 17, 2017

MICHAEL J. POWERS, et al., Plaintiffs,
v.
CITY OF FERGUSON, et al., Defendants.

          MEMORANDUM AND ORDER

          CAROL E. JACKSON UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the defendants' motion for partial dismissal of plaintiffs' complaint, pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiffs have filed a response in opposition and the issues are fully briefed.

         In August 2014, plaintiffs Michael J. Powers, Jasmine Woods, Keith Rose, and Michael Lhotak were arrested in Ferguson, Missouri for failing to comply with lawful police orders. In 2016, plaintiffs were tried and acquitted of the failure-to-comply charges. In this action, brought pursuant to 42 U.S.C. § 1983, plaintiffs allege that the City of Ferguson, arresting police officers John Does 1-3, charging police officers Tim Harris and Sean Gibbons, and Ferguson prosecuting attorneys Stephanie Karr and J. Patrick Chassaing violated their rights under the First, Fourth, Fifth, and Fourteenth Amendments. Plaintiffs assert § 1983 claims ofunlawful seizure and false arrest (Count I); malicious prosecution (Count II); conspiracy (Count III); and municipal liability (Count IV); and state law claims of malicious prosecution (Count V); abuse of process (Count VI); and false arrest and imprisonment (Count VII). They seek $20 million in compensatory damages, punitive damages, and attorneys' fees and costs.

         I. The Complaint

         On August 9, 2014, Michael Brown was shot and killed in an encounter with a Ferguson police officer. In the days that followed, the City of Ferguson was the site of protests and vigils. Several participants in the protests were arrested and charged for allegedly violating a municipal ordinance making it unlawful for a person to “fail to comply with the lawful order or request of a police officer in the discharge of the officer's official duties where such failure interfered with, obstructed or hindered the officer in the performance of such duties.” 14 Ferguson Mun. Code § 29-16. Many who were tried on failure-to-comply charges were acquitted when defendants Karr and Chassaing were unable to produce witnesses. Complaint at ¶¶ 11, 28-35. [Doc. #1]. As relevant to this case, the John Doe defendants arrested plaintiffs Jasmine Woods, Keith Rose and Michael Lhotak on August 11, 2014, and plaintiff Michael Powers on August 14, 2014, allegedly in retaliation for exercising their First Amendment rights to free speech and assembly. Complaint at ¶ 46. Following the arrests, defendants Harris and Gibbons falsely alleged in police reports and criminal complaints that the plaintiffs failed to comply with orders to disperse. Defendant Karr signed the false criminal complaints. Complaint at ¶¶ 12-15.

         On March 4, 2015, the Civil Rights Division of the United States Department of Justice released a report of its investigation of the Ferguson Police Department (the Ferguson Report). As relevant here, the Justice Department found that City of Ferguson police officers frequently relied on the failure-to-comply ordinance to arrest individuals without probable cause and to infringe on or retaliate against free expression. The Justice Department also found that the ordinance was applied in a racially discriminatory manner, with African Americans accounting for 94% of all fail-to-comply charges between 2011 and 2103. Complaint at ¶ 20.

         On March 17, 2016, the City of Ferguson entered into a consent decree with the Department of Justice in which it agreed, inter alia, to ensure that officers did not infringe on the First Amendment rights of protestors. Complaint at ¶ 24. The consent decree did not require the City to dismiss existing charges for failure to comply and, in April 2016, defendants Karr and Chassaing proceeded to trial against the plaintiffs. All four were acquitted. Complaint at ¶¶ 44-47.

         The City of Ferguson obtains the services of defendants Karr and Chassaing through a contract with their employer, the Curtis Heinz law firm. Complaint at ¶¶ 3-4. Attorneys in the law firm's “local government” practice group serve as city and village attorneys for more than 20 municipalities in the area, as well as serving as prosecutors in many municipal courts. Complaint at ¶ 64. The City of Ferguson pays $150 an hour for the services of Karr and Chassaing. Complaint at ¶ 5. There is no limit on the number of hours Karr and Chassaing can bill for their services to Ferguson. Complaint at ¶ 36. Plaintiffs allege that defendants Karr and Chassaing thus have a financial incentive to prosecute charges even when they have no evidence that a crime was committed. Plaintiffs also allege that Karr and Chassaing were motivated by retaliatory intent and to deter other protestors from engaging in protected activity. Complaint at ¶¶ 33-35.

         In addition to her role as a prosecutor for the City of Ferguson, defendant Karr also acted as city attorney until May 24, 2016. Complaint at ¶ 37. As city attorney, Karr worked closely with the mayor and other officials regarding the City's law enforcement policies and response to public protests. Complaint at ¶ 66. According to her law firm's billing documents, Karr also drafted news releases, talking points, and memoranda addressing document requests. She spent many hours in meetings with the City Council. Complaint at ¶ 67.

         II. Legal Standard

         The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint. Fed.R.Civ.P. 12(b)(6). The factual allegations of a complaint are assumed true and construed in favor of the plaintiff, “even if it strikes a savvy judge that actual proof of those facts is improbable.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002)); Neitzke v. Williams, 490 U.S. 319, 327 (1989) (“Rule 12(b)(6) does not countenance . . . dismissals based on a judge's disbelief of a complaint's factual allegations.”); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (stating that a well-pleaded complaint may proceed even if it appears “that a recovery is very remote and unlikely”). The issue is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to present evidence in support of his claim. Scheuer, 416 U.S. at 236. A viable complaint must include “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see id. at 563 (stating that the “no set of facts” language in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), “has earned its retirement”); see also Ashcroft v. Iqbal, 556 U.S. 662, 678-84 (2009) (holding that the pleading standard set forth in Twombly applies to all civil actions). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

         Ordinarily, if the parties present, and the Court considers, matters outside of the pleadings, the motion must be treated as a motion for summary judgment. Fed.R.Civ.P. 12(d). However, the Court may consider materials that are necessarily embraced by the complaint, as well as any exhibits attached to the complaint, without converting the motion into one for summary judgment. Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n. 4 (8th Cir. 2003). In addition, the Court may properly consider public records, including court records, on a motion to dismiss. Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007). In conjunction with their opposition to the dismissal motion, plaintiffs have submitted a copy of the Ferguson Report, from which they quoted in their complaint and which can therefore be viewed as an attachment to the complaint. See Mattes, 323 F.3d at 697 n. 4 (introduction of two exhibits at hearing did not require conversion of dismissal motion).

         III. Discussion

         A. Official Capacity Claims

         Plaintiffs fail to specify the capacity in which the individual defendants are sued. Where a complaint is silent about capacity, the court must interpret the complaint as including only official-capacity claims. Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th Cir. 1995). A § 1983 suit against an officer in his official capacity is functionally equivalent to a suit against the employing governmental entity and must be dismissed as redundant to the claims asserted against the government entity. Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010) (dismissing § 1983 claims against public officials in their official capacities as redundant to § 1983 claims made against the governmental entity); Johnson v. ...


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