United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE
matter is before the Court on the defendants' separate
motions to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), for
failure to state a claim for relief. Plaintiff has filed
responses in opposition and the issues are fully briefed.
Norman Whitney, Sr., alleges that St. Louis City
“jailing personnel” failed to adequately monitor
his son, Norman Whitney, Jr., who died of asphyxiation in a
cell at the City of St. Louis Justice Center. He filed suit
in state court against correctional officer Shelley Sharp, in
her official and individual capacities, and the City of St.
Louis, asserting claims of wrongful death under Missouri law
(§ 537.080 RSMo) and civil rights violations under 42
U.S.C. § 1983. The case was removed to this Court, with
the defendant invoking federal question jurisdiction pursuant
to 28 U.S.C. § 1331. See 28 U.S.C. § 1443.
August 4, 2014, Norman Whitney, Jr., was arrested in the City
of St. Louis. At the time of his arrest, his medical
conditions included congestive heart failure, hypertension,
diabetes mellitus, and heroin use. He was admitted to Saint
Louis University Hospital in the custody of the St. Louis
Sheriff's Office. When a deputy sheriff searched his bed
for syringes, Whitney caused an altercation and attempted to
escape. According to an investigator's report, Whitney
wanted to be killed by the deputy in lieu of returning to
prison. Whitney was evaluated and treated by psychiatric
staff for suicidal ideation and his condition improved with
August 8, 2014, Whitney was determined to be fit for
confinement and was transported to the St. Louis City Justice
Center. He was admitted to the medical unit because he was
detoxing from heroin use, had underlying medical problems,
and was a flight risk. The cell in which Whitney was placed
had a small partition to ensure privacy for the occupant when
using the toilet or shower. The bunk area was monitored by a
video camera. Justice Center policy required a corrections
officer to make a physical check whenever the cell's
occupant was not visible on camera. Because there were no
reports of suicidal ideation, depression or suicide attempts,
Whitney was not on suicide watch and he was allowed to have
bed sheets and clothing in his cell.
was said to be tolerating detox well and denied physical
complaints. He was checked frequently and, when he was not
visible on camera, a corrections officer would make a
physical check, walking to the cell and engaging Whitney in
conversation. Most of the time when checked, Whitney was
observed walking back and forth in his cell.
morning of August 10, 2014, defendant Shelley Sharp observed
Whitney at 8:49 and 9:05 and recorded that he was pacing. At
9:14, she found him hanging from the shower head with a
ligature made from his hospital gown. Following his death, an
unnamed medical practitioner at the Justice Center came
forward to report that Whitney had mentioned having suicidal
ideation and a history of psychiatric medication. This
information contradicted the answers Whitney gave to
corrections personnel when they questioned him. There are no
allegations in the complaint or statements in the Medical
Examiner's report that this information was included in
any records or otherwise conveyed to defendant Sharp.
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). Here, the Court has considered reports from
the Office of the Medical Examiner which plaintiff attached
to and incorporated in his complaint.
Count I, plaintiff alleges that defendant Sharp failed to
adequately monitor Whitney, provide adequate medical care,
and intervene to rescue him. This conduct, he claims, amounts
to negligence under state law or, in the alternative,
deliberate indifference under the Eighth and Fourteenth
Amendments. Defendant Sharp contends that plaintiff's
§ 1983 claim fails to plead ...