United States District Court, E.D. Missouri, Southeastern Division
GARRY D. GIBBS, Plaintiff,
CITY OF NEW MADRID, et al., Defendants.
MEMORANDUM AND ORDER
L. WHITE, UNITED STATES DISTRICT JUDGE
matter is before the Court on the Motion to Dismiss by
separate Defendants City of New Madrid, Anthony Roberts,
Claude McFerren, Dave Simmons, John Dubois, and Ruben White
(collectively "City Defendants") (ECF No. 98). The
motion is fully briefed and ready for disposition. Upon
review of the motion and related memoranda, the Court will
grant the City Defendant's motion to dismiss in part and
deny in part.
filed a Complaint pro se on May 20, 2015. The
district court granted Plaintiffs motion to proceed in
forma pauperis but administratively stayed the action
pending a judgment in Plaintiffs underlying criminal action.
(ECF No. 4) On December 27, 2016, Plaintiff filed a
Memorandum for Clerk indicating that the criminal charges
were dismissed, and Plaintiff was seeking legal
representation. (ECF No. 6) On February 2, 2017, the stay was
lifted, and the court ordered Plaintiff to file an amended
complaint. (ECF No. 7) After several extensions of time,
Plaintiff filed his Amended Complaint on March 24, 2017. (ECF
No. 13) On June 20, 2017, the court issued a case management
order, after which the case was reassigned to this Court.
(ECF Nos. 44, 47)
Court granted Plaintiff leave to file three more amended
Complaints and then issued a new case management order on
August 25, 2017. (ECF No. 68) However, on October 25, 2017,
two attorneys entered their appearance on behalf of Plaintiff
and filed a Fifth Amended Complaint. (ECF No. 76) On November
21, 2017, Plaintiff filed his Sixth Amended Complaint, which
is the subject of the present to dismiss. (ECF No. 86)
Sixth Amended Complaint alleges that Plaintiff, an African
American residing in St. Louis, Missouri, owns The Next Level
Lounge located in New Madrid, Missouri. (Sixth Amended
Complaint ["SAC"] ¶¶ 5, 7, ECF No. 86)
The complaint further states, "[a]t approximately
midnight of May 20, 2012, Plaintiff was brutally attacked at
his place of business by law enforcement officers from the
City of New Madrid Police Department, the New Madrid County
Sheriffs Department, and the Missouri State Highway
Patrol." (SAC ¶ 1) According to Plaintiff, the
officers raided his business "based on a suspicion of
invalid business operating licenses despite the fact that
Plaintiff had all legally relevant licenses and authority
from the City Clerk to host an open house event."
(Id.) Plaintiff alleges that the "officers
forcefully removed [him] from his business ... [and]
repeatedly shocked Plaintiff with a taser and beat him,
breaking several bones in his face." (Id. at
¶ 2) Plaintiff claims that he suffered damages as a
result of the Defendants' actions, and he seeks monetary
damages and injunctive relief. (Id.)
respect to the licensing for The Next Level Lounge, Plaintiff
asserts he stayed current with all licensing requirements for
his business beginning in 2009. (Id. at ¶¶
17-19, 22-25) Plaintiff further alleges that in 2012, he
applied and paid for his business licenses and was told by
the Clerk of the City of New Madrid that his license would be
mailed to him and that he was free to host an open house
event. (Id. at ¶¶ 26, 28-30) However,
Plaintiff contends that the license clerk and the city
attorney misapplied Plaintiffs license fee to an unrelated
debt he owed and withheld his 2012 city license and other
licenses because they did not want "people like his kind
in the community or his type of clients in the community .
..." (Id. at ¶ 31)
complaint further alleges that around midnight on the night
of the open house, officers entered The Next Level Lounge and
informed Plaintiff that he was not authorized to operate his
business. (Id. at 32-37) Plaintiff claims that he
showed the officers his paid business license receipt;
however, the officers forcibly removed him from his business
and beat and tased Plaintiff while the Troopers and some
other officers watched and failed to intervene. (Id.
at ¶¶ 37-48) According to Plaintiff, he was taken
to the ER and later charged with three criminal counts, which
were dismissed. (Id. at ¶¶ 51-52) When
Plaintiff returned to the lounge, officers arrested Plaintiff
and charged him operation of a business without a license.
(Id. at 54)
Sixth Amended Complaint raises five claims. Count I alleges a
violation of Plaintiffs Fourth Amendment rights, pursuant to
42 U.S.C. § 1983, against Defendants Claude McFerren,
Chief of Police for the City of New Madrid Police Department,
and Officers John Dubois and Ruben White, officers with the
City of New Madrid Police Department ("City
Officers"); Officers Troy Shelly, Charles Brandenburg,
Ricky Rhoades, and Joshua Johnson, officers with the New
Madrid County Sheriffs Department ("County
Officers"); the City of New Madrid ("City");
and the County of New Madrid ("County"). Plaintiff
alleges that these Defendants subjected Plaintiff to an
unreasonable search and seizure and excessive force.
(Id. at ¶¶ 58-62)
Count II, Plaintiff brings a § 1983 action for
conspiracy to violate Plaintiffs Fourth Amendment Rights
against the County Officers, City Officers,  and Troopers D.L.
DeJournett and C.L. Purnell with the Missouri State Highway
Patrol ("Troopers"). Plaintiff contends that
Defendants reached a mutual understanding in a meeting before
approaching Plaintiffs business and conspired to violate his
civil rights. (Id. at ¶¶ 63-68)
Third Count, Plaintiff alleges that the City violated his
right to due process under the Fourteenth Amendment and use
of property under the Fifth Amendment. Plaintiff asserts that
the City misapplied his business license fee with no notice
or opportunity to be heard, refused to issue a new business
license, arrested him without probable cause, and took his
property. (Id. at ¶¶ 69-78) Count IV
alleges municipal liability against the City for delegating
authority to the City Officers to make policy and for failure
to properly hire, train, supervise, control, and/or
discipline the City Officers. Plaintiff further contends that
the City had a policy or custom of failing to investigate
claims and improperly training officers which resulted in
damages to Plaintiff. In addition, Plaintiff asserts that
purchase of insurance by the City constitutes a waiver of
sovereign immunity. (Id. at 79-96) Finally, Count V
alleges municipal liability against the County for reasons
similar as those brought against the City in Count IV.
(Id. at ¶¶ 97-114)
regard to motions to dismiss for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6), a complaint
must be dismissed if it fails to plead "enough facts to
state a claim to relief that is plausible on its face."
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007) (abrogating the "no set of facts" standard
set forth in Conley v. Gibson, 355 U.S. 41, 45-46
(1957)). While the Supreme Court cautioned that the holding
does not require a heightened fact pleading of specifics,
"a plaintiffs obligation to provide the
'grounds' of his ' entitle[ment] to relief
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do." Id. at 555. In other words,
"[f]actual allegations must be enough to raise a right
to relief above the speculative level. . .."
Id. This standard simply calls for enough facts to
raise a reasonable expectation that discovery will reveal
evidence of the claim. Id. at 556.
must liberally construe the complaint in the light most
favorable to the plaintiff and accept the factual allegations
as true. See Id. at 555; see also Schaafv.
Residential Funding Corp.,517 F.3d 544, 549 (8th Cir.
2008) (stating that in a motion to dismiss, courts accept as
true all factual allegations in the complaint); Eckert v.
Titan Tire Corp.,514 F.3d 801, 806 (8th Cir. 2008)
(explaining that courts should liberally construe the
complaint in the light most favorable to the plaintiff).
Further a court should not dismiss the complaint simply
because the court is doubtful that the plaintiff will be able
to prove all of the necessary factual allegations.
Twombly, 550 U.S. at 556. However, "[w]here the
allegations show on the face of the complaint there is some
insuperable bar to relief, dismissal under Rule 12(b)(6) is
appropriate." Benton v. Merrill Lynch &
Co.,524 F.3d 866, 870 (8th Cir. 2008) (citation
omitted). Courts '"are not bound to accept as true a
legal conclusion couched as a factual allegation.'"
Ashcroft v. Iqbal,556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555). When considering a ...