United States District Court, E.D. Missouri, Eastern Division
MICHAEL J. POWERS, et al., Plaintiffs,
CITY OF FERGUSON, et al., Defendants.
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE
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.
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.
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.
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
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
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.
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.
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.
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).
Official Capacity Claims
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.