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Gibbs v. City of New Madrid

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

April 17, 2018

GARRY D. GIBBS, Plaintiff,
v.
CITY OF NEW MADRID, et al., Defendants.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE, UNITED STATES DISTRICT JUDGE

         This 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.

         I. Background

         Plaintiff 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)

         The 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)

         Plaintiffs 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.)

         With 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)

         The 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)

         Plaintiffs 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)

         In Count II, Plaintiff brings a § 1983 action for conspiracy to violate Plaintiffs Fourth Amendment Rights against the County Officers, City Officers, [1] 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)

         For his 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)

         II. Legal Standard

         With 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.

         Courts 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 ...


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