United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
Melvin Nonn filed his petition in the Circuit Court of
Madison County, Missouri against defendants Officer Dan
Curtis, the City of Fredericktown, Missouri, and Frederick
Town Police Chief Eric Hovis. Plaintiff claims, among other
things, that his civil rights were violated under 42 U.S.C.
§ 1983 in connection with an incident that took place on
June 9, 2012. Defendants removed the case to this Court
pursuant to this Court's federal question jurisdiction,
28 U.S.C. §§ 1331 and 1441. Defendants have moved
to dismiss Counts III, IV, and V of the complaint (#21).
Since that motion was filed, plaintiff voluntarily dismissed
defendants City of Fredericktown and Chief Hovis. The matter
is fully briefed, and the Court will address the motion as
brought by defendant Curtis.
purpose of this motion to dismiss, plaintiff's
allegations are taken as true. As of June 9, 2012, plaintiff
had been diagnosed with and was being treated for bipolar
disorder. Plaintiff, however, had been failing to take his
medications, and his deteriorating mental condition caused
his wife to call 911 in order to help “calm down”
her husband. Plaintiff alleges that when police arrived
outsider the home, plaintiff was sitting on a chair, unarmed,
and playing a guitar. Then, plaintiff alleges that ---
without warning or provocation --- defendant Curtis broke
down the door of the home, charged at plaintiff, and struck
plaintiff violently on the head with the end of
defendant's assault weapon. Plaintiff further alleges
that, while he was incapacitated and lying on the ground,
defendant Curtis administered an electrical shock to
plaintiff using Curtis's Tazer. Plaintiff was then held
for approximately forty hours in police custody before
receiving medical attention for his injuries at a St. Louis
hospital. Plaintiff's complaint includes five counts:
Count I is for violation of 42 U.S.C. § 1983; Count II
is for a “Monell Claim” under 42 U.S.C. §
1983; Count III is for Assault; Count IV is for Battery; and
Count V is for False Imprisonment. Plaintiff filed his
complaint on October 5, 2016.
Curtis moves to dismiss Counts III-V because they are barred
by the statute of limitations.
purpose of a Rule 12(b)(6) motion to dismiss for failure to
state a claim is to test the legal sufficiency of a complaint
so as to eliminate those actions “which are fatally
flawed in their legal premises and deigned to fail, thereby
sparing litigants the burden of unnecessary pretrial and
trial activity.” Young v. City of St. Charles,
244 F.3d 623, 627 (8th Cir. 2001) (citing Neitzke v.
Williams, 490 U.S. 319, 326-27 (1989)). “To
survive a motion to dismiss, a claim must be facially
plausible, meaning that the ‘factual content. . .
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.'”
Cole v. Homier Dist. Co., Inc., 599 F.3d 856, 861
(8th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). The Court must “accept the
allegations contained in the complaint as true and draw all
reasonable inferences in favor of the nonmoving party.”
Id. (quoting Coons v. Mineta, 410 F.3d
1036, 1039 (8th Cir. 2005)). However, “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, ” will not pass muster.
Iqbal, 556 U.S. at 678.
contends that Missouri state law claims for the assault,
battery, and false imprisonment actions against him must be
commenced within three years. §516.130(1) RSMo.
Specifically, the statute states:
Within three years: (1) An action against a sheriff, coroner
or other officer, upon a liability incurred by the doing of
an act in his official capacity and in virtue of his office,
or by the omission of an official duty, including the
nonpayment of money collected upon an execution or otherwise.
Id. There is some confusion in the law regarding
whether that three-year statute of limitations or the
assault-and-battery-specific two-year statute of limitations
Within two years: an action for libel, slander, injurious
falsehood, assault, battery, false imprisonment,
criminal conversation, malicious prosecution or actions