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O'Rourke v. King

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

March 28, 2017

SCOTT O'ROURKE, Plaintiff,
v.
DAVID KING, et al., Defendants.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the motion to dismiss Count VIII of Plaintiff Scott O'Rourke's complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). Count VIII is a claim for municipal liability under 42 U.S.C. § 1983 asserted against Defendant Board of Police Commissioners of the City of St. Louis (“Board”), comprised of Defendants Richard Gray, Thomas Irwin, Erwin O. Switzer, Bettye Battle-Turner, and Mayor Francis G. Slay, solely in their official capacities as members of the Board (“Board Members”), and against Defendant Daniel Isom, in his official capacity as the Chief of the St. Louis Metropolitan Police Department (“SLMPD”). For the reasons set forth below, this motion shall be denied.

         BACKGROUND

         In the complaint, Plaintiff alleges that when he was engaging in peaceful political protest on May 24, 2012, SLMPD Officers Ari Zelmanow and Does 1-3 unlawfully assaulted him with pepper spray, shoved him to the ground, and arrested him. Plaintiff then alleges that SLMPD Detective David King threatened, intimidated, and violently attacked him as SLMPD Detective Steven Burle watched. Plaintiff further alleges that King and Burle covered up their actions by fabricating charges against him, of which he was acquitted. In Counts I through VII, Plaintiff seeks monetary damages against Defendants King, Burle, Zelmanow, and Does 1-3, in their individual capacities, pursuant to 42 U.S.C. § 1983.[1]

         At issue in this motion is Count VIII, in which Plaintiff seeks monetary damages against Isom and the Board, comprised of the Board Members, pursuant to 42 U.S.C. § 1983 for municipal liability. Plaintiff alleges in Count VIII that the policies, customs, practices, and usages of the SLMPD were set by the Board Members and Isom. According to the complaint, the Board Members were vested with the duty and authority to train, supervise, and discipline the SLMPD officers, and failed to act when they knew or should have known of misconduct, including but not limited to: improperly using force; issuing false charges after using force; and lying about the facts of the incident. Plaintiff alleges that the Board Members delegated the power and authority to control SLMPD officers to Isom, as Chief of the SLMPD, and that Isom, too, failed to properly train, control, or discipline officers for misconduct. As a result, Plaintiff alleges that the Board Members and Isom, directly or indirectly, under the color of law, approved the SLMPD policy of tolerating “constitutionally violative conduct.”

         Plaintiff further alleges that both the Board Members and Isom had actual knowledge of Defendants King's and Burle's history of utilizing excessive force, failing to intervene, and/or filing false charges against persons they injured or persons whose right they violated. Therefore, Plaintiff alleges that the Board Members and Isom knew that Defendants King and Burle posed an “objectively substantial risk” to others, including Plaintiff, but nevertheless, failed to instruct, supervise, and/or discipline Defendants King and Burle.

         According to Plaintiff, as a direct and proximate cause of the policies, customs, practices, and/or usages of the Board Members and Isom, Plaintiff suffered injuries and damages, including: being detained in custody, suffering pain from being pepper sprayed, suffering from a broken nose and black eye, and losing money due to incurring legal expenses to defend false charges.

         ARGUMENTS OF THE PARTIES

         Isom, the Board Members, and the Board (“Defendants”) move to dismiss Count VIII of Plaintiff's complaint against them pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants first argue that the Board is not amenable to suit because it is not a suable entity under Missouri law. Second, Defendants contend that state officials, such as the individual Board Members, cannot be sued for damages in their official capacity under § 1983. Lastly, Defendants argue the Board cannot be held liable under § 1983 on a theory of respondent superior.

         Plaintiff responds that this Court should deny Defendants' motion to dismiss against Isom because Defendants fail to assert any arguments supporting dismissal with regard to Isom, who is admittedly not a member of the Board, and because Plaintiff properly sues Isom in his official capacity as the Chief of the SLMPD. Plaintiff also clarifies that he did not intend to assert any claims against the Board as an entity but only against “the individual Board Members” in their official capacities. Plaintiff further argues that under well-established federal precedent, the Board Members are not state officials within the meaning of the Eleventh Amendment and are therefore subject to suit for damages under § 1983. Finally, Plaintiff responds that he does not allege respondent superior liability, but instead alleges that the Board's unconstitutional policies and customs were the direct and proximate cause of Plaintiff's injuries, which gives rise to the Board Members' § 1983 liability under Monell v. Dep't Soc. Servs., 436 U.S. 658 (1978).

         In reply, Defendants argue that “to the extent” the Board itself has been named as a defendant, it should be dismissed. Defendants further argue that the Board Members are state officials because Missouri statutes and case law characterize the Board as an agency of the state of Missouri, not the city of St. Louis. Defendants contend that Plaintiff's argument and reliance on federal case law is misplaced because it contradicts a decision of the Missouri Supreme Court. Finally, Defendants drop their respondent superior argument in light of Plaintiff's acknowledgement that his municipal liability claim is not based on that doctrine.

         DISCUSSION

         For a plaintiff to survive a 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, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. The reviewing court must accept the plaintiff's factual allegations as true and construe them in the plaintiff's favor, but the court is not required to accept the legal conclusions the plaintiff draws from the facts alleged. Id.; Retro Television Network, Inc. v. Luken Commc'ns, LLC, 696 F.3d 766, 768-69 (8th Cir. 2012).

         Section 1983 is a remedial statute that creates “no substantive rights, ” but rather “is merely a vehicle for seeking a federal remedy for violations of federally protected rights.” Foster v. Wyrick, 823 F.2d 218, 221 (8th Cir. 1987). Section 1983 provides that “[e]very person, who under color of any statute, ordinance, regulation, custom or usage, of a State or Territory or the District of Columbia” causes “the deprivation of any ...


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