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Stockley v. Joyce

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

February 14, 2019

JASON STOCKLEY, Plaintiff,
v.
JENNIFER MARIE JOYCE, et al., Defendants.

          MEMORANDUM AND ORDER

          CHARLES A. SHAW UNITED STATES DISTRICT JUDGE

         This matter is before the Court on separate motions to dismiss filed by defendants Jennifer Marie Joyce in her individual capacity, Kirk Deeken in his individual capacity, and the City of St. Louis (“City”).[1] Plaintiff Jason Stockley opposes the motions and they are fully briefed. For the following reasons, the defendants' motions to dismiss will be granted.

         I. Background

         Plaintiff Jason Stockley, a former police officer for the City, brings this action pursuant to 42 U.S.C. § 1983 and Missouri law to recover damages arising from events concerning his prosecution for the alleged first-degree murder of Anthony Smith that ended in plaintiff's acquittal.

         In his First Amended Complaint (“complaint”), plaintiff asserts multiple claims under § 1983 against Joyce, Deeken, and the City (Count I); § 1983 Monell claims against the City and Joyce in her official capacity (Count II)[2]; a state law defamation claim against Joyce in her individual and official capacities (Count III); and a state law malicious prosecution claim against Deeken in his individual and official capacities (Count IV).

         The Court has both federal question and diversity of citizenship jurisdiction over this matter, as plaintiff asserts federal claims, 28 U.S.C. § 1331, and the parties are citizens of different States and more than $75, 000 is in controversy, 28 U.S.C. § 1332(a)(1).[3]

         II. Legal Standard

         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)). A claim for relief is plausible on its face where “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, ” id., and “raise[s] a right to relief above the speculative level.” Twombly, 550 U.S. at 555. A complaint must offer more than “‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action'” to state a plausible claim for relief. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

         On a motion to dismiss, the Court accepts as true all of the factual allegations contained in the complaint, even if it appears that “actual proof of those facts is improbable, ” Twombly, 550 U.S. at 556, and reviews the complaint to determine whether its allegations show that the pleader is entitled to relief. Id. at 555-56; Fed.R.Civ.P. 8(a)(2). The principle that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions, however. Iqbal, 556 U.S. at 678 (stating “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice”). Although legal conclusions can provide the framework for a complaint, they must be supported by factual allegations. Id.

         While courts primarily consider the allegations in the complaint in determining whether to grant a Rule 12(b)(6) motion, they may also consider exhibits and documents attached to a complaint. See Brown v. Green Tree Servicing LLC, 820 F.3d 371, 373 (8th Cir. 2016); Miller v. Redwood Toxicology Lab, Inc., 688 F.3d 928, 931 & n.3 (8th Cir. 2012). Here, the Court will consider the state court criminal complaint and probable cause statement attached as exhibits to the complaint.

         Defendant Joyce also moves to dismiss certain of plaintiff's claims on the basis of absolute prosecutorial immunity. The Rule 12(b)(6) inquiry is distinct from the question of absolute immunity. See Buckley v. Fitzsimmons, 509 U.S. 259, 274 n.5 (1993) (noting the court below incorrectly “conflate[d] the question whether a § 1983 plaintiff has stated a cause of action with the question whether the defendant is entitled to absolute immunity for [her] actions.”).

         III. Discussion

         A. Defendant Joyce in her Individual Capacity's Motion to Dismiss

         Defendant Joyce moves to dismiss all of plaintiff's claims against her for failure to state a claim upon which relief can be granted, and to dismiss plaintiff's claims related to her pursuit of plaintiff's criminal prosecution on the basis of absolute prosecutorial immunity.

         1. Section 1983 Claims - Count I

         a. Plaintiff's Allegations

         Plaintiff's complaint recites facts relating to the events of December 20, 2011, when plaintiff was on duty as a St. Louis City police officer. Plaintiff alleges that he and his partner were in a police vehicle when they observed what they believed to be a hand-to-hand drug transaction occurring outside of a fast-food restaurant. Plaintiff's partner attempted to block the vehicle of one of the suspected participants in the transaction, later determined to be Anthony Smith, and plaintiff and his partner exited their police vehicle. Mr. Smith began to maneuver his car out of its space by moving it backward and forward, striking the police vehicle and another car in the process. Plaintiff's partner broke the driver's side window of Mr. Smith's car with his weapon, saw a handgun inside the vehicle and yelled, “Gun!” Mr. Smith was able to extricate his car from its parking space, and the passenger side of Mr. Smith's car struck plaintiff as Mr. Smith accelerated off of the parking lot. Plaintiff alleges he saw Mr. Smith holding a silver handgun near the front passenger seat. Mr. Smith drove at high speeds in city traffic with plaintiff and his partner in pursuit. Mr. Smith eventually crashed his car and plaintiff directed his partner to drive the police vehicle into the rear of Mr. Smith's car. Plaintiff alleges that after the crash, he and his partner got out of their vehicle and plaintiff approached the driver's door. Plaintiff alleges that for fifteen seconds he gave commands directing Mr. Smith to show his hands and get out of the car, but Mr. Smith did not comply and eventually leaned toward the right side of the car, whereupon plaintiff shot Mr. Smith five times, killing him. Complaint, ¶¶ 8-13.

         Plaintiff alleges that St. Louis Police Department homicide detectives and other police officials conducted an investigation into Mr. Smith's death during 2011 and 2012, and found no basis to criminally prosecute him. Defendant Joyce was the City's elected Circuit Attorney and chief prosecutor at the time and declined to prosecute plaintiff after reviewing the evidence. The United States Attorney and the Federal Bureau of Investigation also conducted investigations into Mr. Smith's death, and reviewed all of the available evidence including laboratory reports. This evidence included a laboratory determination that plaintiff's DNA was present on the gun removed from Mr. Smith's car, but Mr. Smith's DNA was not on the gun. The United States Attorney declined to prosecute plaintiff. Mr. Smith's death was also investigated by the United States Department of Justice Civil Rights Division, which found no basis for prosecution. Defendant Joyce reviewed the evidence gathered by federal investigators and declined to prosecute plaintiff. Complaint, ¶¶14-15. Plaintiff alleges that no new evidence appeared after these investigations to indicate he committed a crime in connection with Mr. Smith's death. Id. ¶ 16.

         Plaintiff alleges that a subsequent police shooting in October 2014 that killed Vonderrit Myers was investigated by the Circuit Attorney's Office and the St. Louis Police Department's Force Investigation Unit (“FIU”), which had been recently created to investigate shootings by police officers. In May 2015, Joyce issued a written report based on the FIU's analysis and recommendation concerning the Myers shooting, and relying on the FIU investigation declined to prosecute the officer. Subsequently, activists demonstrated at Joyce's home in May 2015 protesting her decision not to prosecute the officer in the Myers shooting, putting her in great fear. Activists demonstrated at City Hall in April 2016 protesting Joyce's decision not to prosecute plaintiff for Mr. Smith's death. Plaintiff alleges these protests alarmed and intimidated Joyce, who met with protest leaders in May 2016 and informed them she would be charging plaintiff with first degree murder in the immediate future. Complaint, ¶¶ 17-20.

         Plaintiff's lengthy and detailed complaint is not a model of pleading clarity. It asserts detailed facts concerning numerous allegedly improper actions by Joyce, including the misrepresentation and withholding of evidence in the probable cause statement submitted to the state court seeking a warrant for plaintiff's arrest, id. ¶¶ 25-29; and intentionally misrepresenting multiple pieces of evidence to the grand jury to secure plaintiff's indictment, id. ¶¶ 30-61. Plaintiff affirmatively states, however, that Joyce is “absolutely immune from civil liability for certain actions and omissions attributed” to her therein, but further states that he pleads the acts and omissions for which she is immune to “show the intent and consequences of conduct and omissions for which Ms. Joyce . . . do[es] not enjoy absolute immunity[.]” Id. ¶ 87.[4]

         In his opposition memorandum, plaintiff clarifies that his § 1983 claim against Joyce asserts substantive due process violations based on two actions: (1) Joyce's effective termination of the new investigation into Mr. Smith's death by the St. Louis Police Department FIU, and (2) Joyce's public comments in 2016 that there was “new evidence” plaintiff committed a crime in connection with Mr. Smith's death. (Doc. 49 at 1, 3-4.) The Court therefore limits its discussion and analysis to these two claims.

         With respect to these claims, the complaint alleges that Joyce “elected to bypass investigation of Mr. Smith's death by the [FIU] . . . and charge [plaintiff] with first degree murder and armed criminal action” even though a protocol Joyce previously established for the investigation of police shootings required the FIU to investigate before any prosecutorial decision was made to initiate criminal charges. Id. ¶ 21. Plaintiff alleges the officers in the FIU assigned to reopen the investigation had the police file on Mr. Smith's death for only one day “when they were instructed to return the file because Ms. Joyce intended to charge [plaintiff] with murder no matter what they found or recommended.” Id. Plaintiff does not allege who instructed the FIU to return the file. Plaintiff also alleges:

By co-opting any reinvestigation of Mr. Smith's death during 2016, Ms. Joyce violated the Circuit Attorney's own protocol of having all police shootings investigated first by the [FIU], [p]recluded any true reinvestigation at all, conducted her own sham investigation or no investigation at all, and avoided a finding by the [FIU] that [plaintiff] had committed no crime and that no prosecution was warranted. Such a finding was inevitable in view of the facts that there was no new evidence and every local and federal investigative agency and prosecuting authority that reviewed the existing evidence concluded that prosecution was not warranted. Such a finding would have avoided the constitutional wrongs and damage alleged herein by highlighting the self-interests and prevarications upon which the charging and prosecution of [plaintiff] were based and precluding the issuance of a warrant for [plaintiff']'s arrest, the return of an indictment charging him with the commission of felonies in connection with Mr. Smith's death, and the unsuccessful first degree murder prosecution that ensued.
Ms. Joyce intentionally rigged and manipulated the reinvestigation of [plaintiff] that she purportedly conducted during 2016 to ensure [plaintiff's] arrest, indictment, and trial on charges of first degree murder and armed criminal action, despite her knowledge that the charges were unfounded. In particular Ms. Joyce:
a. Caused an investigation by the St. Louis Police Department's [FIU] to be shut down in order to insure that her self-serving sham investigation was not exposed and derailed through fair and competent investigation by the specialized police department unit.

Complaint, ¶¶ 88-89.a (italics added).

         Plaintiff also alleges that Joyce announced in one or more press conferences and public declarations that “through her own investigation she had found ‘new evidence' proving that [plaintiff] murdered Mr. Smith.” Id. ¶ 22. Joyce's claim there was “new evidence” was false, as the evidence analyzed in 2011 and 2012 was deemed insufficient to justify criminal charges then, and Joyce “never had ‘new evidence' discovered after 2012 capable of justifying or proving a first degree murder charge” against plaintiff. Id. ¶¶ 22; 62. Joyce later made a public statement that she brought charges against plaintiff “because she had . . . ‘newly available evidence.'” Id. ¶ 64.

         Plaintiff alleges that the only “new evidence” or “newly available evidence” mentioned by Joyce “included the DNA tests” showing the absence of Mr. Smith's DNA on the gun retrieved from his car, id. ¶¶ 66-67, and “the cell phone video of Antonio French” which plaintiff alleges Joyce did not see until weeks after she charged him. Id. ¶¶ 68-69. Plaintiff also alleges Joyce made repeated public statements that she “had not seen the in-dash video from [plaintiff]'s police vehicle until April 2016, right before she charged [plaintiff], which justified the change in her decision to now bring charges and proved [plaintiff] murdered Smith, ” though Joyce had seen the video in 2012 and again in 2013. Id. ¶¶ 72-73.

         Plaintiff alleges that Joyce's “intentional and knowing promulgation and publication of the false claim that she had discovered ‘new evidence' proving [plaintiff] guilty of first degree murder” served her personal interests by appeasing protest leaders, enhancing her reputation prior to establishing a private consultancy after she left office, and “[d]emonstrating . . . her technique for and skill at inculcating anti-defendant prejudice within a community prior to the commencement of criminal proceedings.” Complaint ¶¶ 90-91.

         Plaintiff alleges that as a result of Joyce's “bogus investigation and predetermined decision to charge [him] despite the absence of evidence sufficiently probative of guilt, ” he was subjected to the risk of wrongful conviction and imprisonment, anxiety, emotional distress, physical illness during the pendency and trial of the murder charge, and expenses. Plaintiff alleges he was “deprived of his right to due process and fair treatment by police and prosecuting authorities in [sic].” Id. ¶ 93.

         b. Absolute Prosecutorial Immunity

         The Supreme Court has observed that a “defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State's advocate[.]” Imbler v. Pachtman, 424 U.S. 409, 425 (1976). In Imbler, the Supreme Court expanded the doctrine of absolute judicial immunity and held that prosecutors are absolutely immune from liability under § 1983 for their actions in “initiating a prosecution and in presenting the State's case, ” id., at 431, to the extent those actions are “intimately associated with the judicial phase of the criminal process, ” id. at 430; Burns v. Reed, 500 U.S. 478, 487 (1991). The Supreme Court declined to decide if absolute immunity extends to “those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of an advocate, ” Imbler, 424 U.S. at 430-31, but acknowledged that “the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom.” Id. at 431, n.33. Subsequent cases have clarified the scope of absolute immunity for prosecutors to include “[a]cts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of [their] role as an advocate of the State.” Buckley, 509 U.S. at 273. A prosecutor is not entitled to absolute immunity if his or her conduct is administrative or investigative in nature, however, but instead only to qualified immunity. Id.

         “[T]he official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question.” Burns, 500 U.S. at 487. “It is important to determine the precise claim” that a plaintiff makes against a prosecutor. Id. The correct inquiry is “whether the prosecutor's actions are closely associated with the judicial process.” Id. at 496 (holding prosecutor was entitled to absolute immunity for allegations that he facilitated the issuance of a search warrant by presenting evidence to the court knowing the witness was giving false testimony, but was not entitled to absolute immunity for providing legal advice to the police). Once a court determines that absolute immunity applies, such immunity “is not defeated by allegations of malice, vindictiveness, or self-interest.” Reasonover v. St. Louis County, Mo., 447 F.3d 569, 579 (8th Cir. 2006). Absolute immunity “applies even if the prosecutor's steps to initiate a prosecution are patently improper” or in the face of “[a]llegations of unethical conduct and improper motives in the performance of prosecutorial functions[.]” Sample v. City of Woodbury, 836 F.3d 913, 916 (8th Cir. 2016) (citing cases).

         i. Joyce Is Absolutely Immune for Terminating the FIU Investigation

         The Court concludes Joyce is entitled to absolute immunity on plaintiff's § 1983 substantive due process claim based on allegations she effectively prematurely terminated the FIU's investigation. Plaintiff's claims do not relate to action by Joyce that has qualities or attributes of a police investigative function, but rather assert that Joyce's actions served to terminate a police investigation the results of which would have precluded the filing of any charges against him, had it been allowed to progress to its conclusion.[5] Thus, plaintiff's allegations effectively claim that Joyce brought charges against him without first conducting an adequate investigation. “A prosecutor enjoys absolute immunity for acts performed ‘in initiating a prosecution and in presenting the State's case.'” Reasonover, 447 F.3d at 579 (quoting Imbler, 424 U.S. at 431). A prosecutor's professional determination that sufficient evidence exists to seek criminal charges is an act undertaken in direct preparation for the initiation of judicial proceedings, and is therefore closely related to the judicial process. “Preparation both for the initiation of the criminal process and for trial, may require the obtaining, reviewing, and evaluating of evidence.” Imbler, 424 U.S. at 431 n.33.

         “The decision whether to bring charges-and even the decision to bring charges in the absence of adequate evidence-falls squarely within a prosecutor's role as advocate and, therefore, is protected by absolute immunity.” Byrne v. City of New York, 736 Fed.Appx. 263, 265 (2d Cir. 2018) (summary order) (citing Bernard v. County of Suffolk, 356 F.3d 495, 503 (2d Cir. 2004)). “Investigative acts undertaken in direct preparation of judicial proceedings, including the professional evaluation of evidence, warrant absolute immunity . . . .” Ireland v. Tunis, 113 F.3d 1435, 1445 (6th Cir. 1997) (emphasis added) (citing Buckley, 509 U.S. at 273); see also Latta v. Chapala, 221 Fed.Appx. 443, 445 (7th Cir. 2007) (“Deciding when the evidence is sufficient to stop investigating and seek an indictment is a standard prosecutorial function and covered by absolute immunity because-unlike searches, seizures, interrogations, and other out-of-court activity-a decision not to extend a probe does not invade the accused's extra-judicial entitlements.” (citing Buckley, 509 U.S. 259).

         Plaintiff's assertion that Joyce's effective termination of the police investigation should be evaluated as “investigative misconduct” is not supported by any factual allegations in the complaint, as opposed to mere conclusory statements. As stated above, the gravamen of the relevant facts pleaded in support of this claim is that Joyce bypassed or short-circuited the FIU investigation, the results of which plaintiff asserts would have precluded the filing of criminal charges against him. Plaintiff does not allege facts tending to show that Joyce engaged in investigative conduct in the nature of a police investigative function, or that she fabricated evidence against him. Plaintiff's allegation that a completed FIU investigation would have precluded the filing of any charges against him is pure speculation. Plaintiff's contorted argument that Joyce's termination of the investigation equates to the intentional suppression of evidence is unsupported and unpersuasive. Further, even if plaintiff alleged facts tending to show that Joyce knowingly suppressed exculpatory evidence, she would be absolutely immune. See Reasonover, 447 F.3d at 580. That plaintiff ascribes improper and personal motives for Joyce's action is of no consequence, because absolute immunity provides complete protection from judicial scrutiny of the motives for her alleged actions.[6] S a m p l e, 836 F.3d at 916.

         Plaintiff's § 1983 substantive due process claim against Joyce based on her effective termination of the FIU investigation will be dismissed on the basis of absolute immunity.

         ii. Joyce is Not Absolutely Immune for Statements to Media and Public

         Plaintiff also alleges that Joyce violated his substantive due process rights when she made false statements to the media and public that she had “new evidence” plaintiff committed a crime when he shot and killed Mr. Smith. Joyce asserts that she is entitled to absolute immunity on this claim. The Court disagrees. In Buckley, the Supreme Court held that prosecutors are not entitled to absolute immunity for out-of-court statements to the press. 509 U.S. at 278. “Comments to the media have no functional tie to the judicial process because they are made by a prosecutor.” Id. at 277. The Supreme Court explained that absolute immunity is not appropriate because “[t]he conduct of a press conference does not involve the initiation of a prosecution, the presentation of the state's case in court, or actions preparatory for these functions.” Id. at 278. Prosecutors are entitled only to qualified immunity, rather than absolute immunity, for statements to the press. Id.

         The Court finds that Joyce's press conference or other media or public statements were part of an administrative duty, and not incidental to the performance of her duties as an advocate. As a result, the statements are not entitled to absolute immunity. Joyce's motion to dismiss this claim on the basis of absolute immunity will therefore be denied. Because Joyce did not raise a qualified immunity defense in her motion to dismiss, the Court does not address whether she might be entitled to qualified immunity for her statements to the media and public.

         c. Plaintiff Fails to State a Substantive Due Process Claim Based on Joyce's Comments to the Media and Public

         Joyce also moves to dismiss plaintiff's § 1983 substantive due process claim based on her public statements under Rule 12(b)(6), Fed. R. Civ. P., for failure to state a claim upon which relief can be granted. Joyce argues that these allegations attempt to shoehorn a defamation claim into a § 1983 claim, but defamation per se is not actionable under § 1983, citing Underwood v. Pritchard, 638 F.2d 60, 61 (8th Cir. 1981) (citing Paul v. Davis, 424 U.S. 693, 701-02 (1976)).

         Plaintiff responds that Joyce's conduct in making false statements to the media and public violated his substantive due process rights, but his arguments in opposition focus primarily on his allegations that Joyce effectively terminated the FIU investigation. Plaintiff does not articulate how Joyce's public statements support his constitutional claim. Implicit in this aspect of plaintiff's complaint is the contention there was no factual basis for the murder charges filed against him, and that Joyce knowingly made false public claims of new evidence for improper, self-serving reasons, to support her implied assertion that plaintiff was guilty of murdering Mr. Smith.

         “In the context of substantive due process, an individual must overcome a very heavy burden to show a violation of the Fourteenth Amendment.” Hall v. Ramsey County, 801 F.3d 912, 917 (8th Cir. 2015). “To establish a substantive due process violation, [plaintiff] must demonstrate that a fundamental right was violated and that [Joyce's] conduct shocks the conscience.” Folkerts v. City of Waverly, Ia., 707 F.3d 975, 980 (8th Cir. 2013). Plaintiff's complaint does not identify what fundamental right was violated by Joyce's alleged false statements to the media and public.

         “[I]n a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998); see Moran v. Clarke, 296 F.3d 638, 647 (8th Cir. 2002) (en banc) (“[S]ubstantive due process is concerned with violations of personal rights . . . so severe . . . so disproportionate to the need presented, and . . . so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience.”) (internal quotations omitted) (quoted case omitted).

         “Whether conduct shocks the conscience is a question of law.” Folkerts, 707 F.3d at 980 (citing Terrell v. Larson, 396 F.3d 975, 981 (8th Cir. 2005) (en banc)). “[T]o ‘shock the conscience,' it is not enough that the government official's behavior meets the ‘lowest common denominator of customary tort liability.'” White v. Smith, 696 F.3d 740, 757 (8th Cir. 2012) (quoting Lewis, 523 U.S. at 848-49). “[C]onduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.” Lewis, 523 U.S. at 849.

         As Joyce asserts, the gravamen of plaintiff's claim based on her comments to the media and public appears to be defamation. Defamation by itself is insufficient to support a claim under § 1983. Paul, 424 U.S. at 701; see Wade v. Goodwin, 843 F.2d 1150, 1152 (8th Cir. 1988) (a cause of action for damage to character or reputation is not cognizable under § 1983). In Paul, the Supreme Court concluded that a person's interest in his reputation is not considered liberty or property protected by the Due Process Clause. Paul, 424 U.S. at 701. The Eighth Circuit, relying on Paul, held that a person's reputation is not a property or liberty interest protected by the Fourteenth Amendment, and that “allegations of a loss of business as a result of the damage to [one's] reputation, without more, does not change this conclusion.” Green v. DeCamp, 612 F.2d 368, 370 (8th Cir. 1980). See also Gunderson v. Hvass, 339 F.3d 639, 644 (8th Cir. 2003) (“The loss of reputation must be coupled with some other tangible element to rise to the level of a protectible property interest. Sometimes this is referred to as the ‘stigma plus' test”) (internal citation omitted); Mangan v. Cullen, 870 F.2d 1396, 1399 (8th Cir. 1989) (“To establish a liberty interest under the Fourteenth Amendment for injury to reputation a party must show not only that he was stigmatized but also that he was stigmatized in connection with a denial of a right or status previously held under state law.”); Wade, 843 F.2d at 1152 (plaintiff's claim of injury to his ability to make a living did not implicate any state action beyond the alleged general injury to his reputation).

         Plaintiff's § 1983 claim based on Joyce's comments to the media and public fails to satisfy the “stigma plus” test, as he fails to allege facts showing that the comments deprived him of any liberty or property interest protected by the Due Process Clause. It therefore fails to state a claim upon which relief can be granted and the motion to dismiss should be granted.

         In the alternative, assuming without deciding that plaintiff's allegations show the violation of some fundamental right, the Court holds as a matter of law that plaintiff's substantive due process claim fails because the alleged conduct on which plaintiff relies does not rise to the level of being “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” See Lewis, 523 U.S. at 847 n.8. Plaintiff's allegations do not allege a most severe violation of individual rights resulting from the brutal and inhumane abuse of official power unjustified by any governmental interest. As discussed infra at § B.2.b.i., the Court concludes that probable cause existed to charge plaintiff with first-degree murder. There is clearly a strong governmental interest associated with bringing charges against persons who commit criminal acts. As a result, the Court will grant Joyce's Rule 12(b)(6) motion to dismiss plaintiff's § 1983 claim based on her public statements, for failure to state a claim upon which relief can be granted.

         2. State Law Defamation Claim Against Joyce

         a. The Complaint's Allegations

         In Count III of the complaint, plaintiff alleges that Joyce engaged in a “publicity campaign during 2016, in which she repeatedly published false statements to news reporters and the public regarding the existence of ‘new evidence' that would prove [plaintiff] guilty of first degree murder, caused great and lasting damage to [plaintiff's] reputation and ability to find employment, as well as mental anguish and attendant physical harm.” Complaint ¶ 110. Count III incorporates all other allegations of the complaint. Id. ¶ 108. Other relevant paragraphs of the complaint allege that Joyce “announced at one or more press conferences and in one or more public declarations that through her own investigation she had found ‘new evidence' proving that [plaintiff] murdered Mr. Smith” but her “claim of ‘new evidence' was false, ” id. ¶ 22; made “false declarations authoritatively assuring the public that she had new proof that [plaintiff] had committed premeditated murder . . .” id. ¶ 24; “initiated a public relations strategy . . . consist[ing] of a series of announcements that she had obtained ‘new evidence' proving that [plaintiff] murdered Mr. Smith, ” id. ¶ 62; “announced in a public statement and to the Court that she brought charges in 2016 because she had new evidence which she later changed to ‘newly available evidence.' (St. Louis American May 26, 2016)”, id. ¶ 64; “claimed repeatedly and stated to the public that she had not seen the in-dash video from Stockley's police vehicle until April 2016, right before she charged Stockley, which justified the change in her decision to now bring charges and proved Stockley murdered Smith. (St. Louis Post Dispatch May 17, 2016)”, id. ¶ 72; “claimed there was new evidence, not available to the FBI or the Department of Justice, or her own office when they originally declined to prosecute in 2012, and that new evidence persuaded her to charge [plaintiff] ¶ 2016, ” id. ¶ 76, her “gratuitous administrative statement to a major media outlet suggesting that the police video now was new evidence warranting [plaintiff's] prosecution was false and defamatory, ” id. ¶ 84; “[t]hrough her intentional and knowing promulgation and publication of the false claim that she had discovered ‘new evidence' proving [plaintiff] guilty of first degree murder, Ms. Joyce intentionally caused this untrue and misleading information to be disseminated throughout the City of St. Louis, the metropolitan St. Louis area and the nation, ” id. ¶ 90; and “publi[shed] false and misleading statements suggesting that ‘new evidence' proved [plaintiff's] guilt when the ‘old evidence' consistently had been found insufficient to warrant charging him with any crime.” Id. ¶ 100.b.

         b. The Parties' Arguments

         Joyce moves to dismiss Count III for failure to state a claim upon which relief can be granted, arguing plaintiff fails to state a claim for defamation under Missouri law for the following reasons: (1) the Missouri Supreme Court requires that the specific words alleged to be defamatory be set forth, citing Missouri Church of Scientology v. Adams, 543 S.W.2d 776 (Mo. 1953) (en banc), but the complaint fails to quote Joyce's allegedly defamatory statement other than the words “new evidence” along with an unattributed statement that the new evidence proves plaintiff murdered Mr. Smith; because plaintiff does not provide a direct quote of the alleged defamatory statement, the Court cannot review it in context as required by relevant analytical standards; (2) the alleged statement that Joyce discovered “new evidence” in the case against plaintiff is not defamatory as it does not by itself tend to disgrace or degrade plaintiff or expose him to public hatred, contempt, or ridicule, or cause him to be shunned or avoided; and (3) plaintiff admits the allegedly defamatory statement that Joyce discovered “new evidence” was true, as plaintiff alleges the “new evidence” discovered was the absence of Mr. Smith's DNA on the gun recovered from his car, complaint ¶ 66, but does not allege this statement was false because Joyce had not newly learned of the absence of DNA, and instead alleges the absence of DNA was “meaningless.” Id. ¶ 67.

         Plaintiff responds that the complaint alleges only oral statements by Joyce to the media and public, i.e., slander, and the requirement that a claim for defamation must set forth the offending statement in haec verba applies only to libel claims, not slander, citing Nazeri v. Missouri Valley College, 860 S.W.2d 303, 313 (Mo. 1993) (en banc).[7] Without citing any factual allegation in the complaint, plaintiff further responds that Joyce told the media and public she had “new evidence” that would prove plaintiff murdered Mr. Smith, which defamed plaintiff and harmed his reputation by asserting he was guilty of murder, citing Hohlt v. Complete Health Care, Inc., 936 S.W.2d 223, 224 (Mo.Ct.App. 1996) (statement charging a person is guilty of a criminal offense is defamatory). Finally, plaintiff responds that Joyce's argument he concedes her statement of “new evidence” was true is “astonishing” (Doc. 49 at 17), as the “complaint alleges, and as prosecutors and police know, ‘DNA often is not recovered from guns [and] is not always shed by an individual touching an object, and . . . the absence of DNA from an item is incapable of proving that a particular individual did not touch that item.'” (Id., quoting complaint ¶ 15.) Plaintiff also argues that Mr. Smith's DNA did not disappear from the gun between the initial investigations in 2011 and 2012 and Joyce's announcement of “new evidence” several years later. (Id.)

         c. Discussion

         “Defamation law protects an individual against harm to his or her reputation.” Smith v. Humane Society of United States, 519 S.W.3d 789, 798 (Mo. 2017) (en banc) (quoting Henry v. Halliburton, 690 S.W.2d 775, 779 (Mo. 1985) (en banc)). Under Missouri law, “To prevail on a defamation claim, both public-figure and private-figure plaintiffs must prove 1) publication, 2) of a defamatory statement, 3) that identifies the plaintiff, 4) that is false, 5) that is published with the requisite degree of fault, and 6) damages the plaintiff's reputation.” Smith, 519 S.W.3d at 798 (quoting Farrow v. Saint Francis Med. Ctr., 407 S.W.3d 579, 598-99 (Mo. 2013) (en banc) (cleaned up)).

         “A statement is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to defer third persons from associating or dealing with him.” Henry, 690 S.W.2d at 789 (quoting Restatement (Second) of Torts § 559). Determining whether allegedly defamatory words are “capable of the defamatory meaning ascribed to them is a question of law for the court to decide on a motion to dismiss.” Brown v. Kitterman, 443 S.W.2d 146, 150 (Mo. 1969) (internal quotation marks and citations omitted); Henry, 690 S.W.2d at 789.

         “To determine whether a statement is defamatory, ‘the alleged defamatory words must be considered in context, giving them their plain and ordinarily understood meaning.'” Smith, 519 S.W.3d at 798 (quoting Nazeri, 860 S.W.2d at 311). “The words in an allegedly defamatory statement must ‘be taken in the sense which is most obvious and natural and according to [the] ideas they are calculated to convey to those to whom they are addressed.'” Id. at 800 (quoting Nazeri, 860 S.W.3d at 314). “To allow the ‘breathing space' necessary for free expression and debate under the First Amendment, certain statements, such as statements of ‘opinion' not provable as false, cannot be the basis of a defamation claim.” Id. at 798 (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974); New York Times Co. v. Sullivan, 376 U.S. 254, 283 (1964)). “Whether an alleged statement is capable of being treated as an opinion or as an assertion of fact is a question of law[.]” Nazeri, 860 S.W.2d at 314.

         As a preliminary matter, Joyce's reliance on a Missouri Supreme Court decision for the proposition the complaint is subject to dismissal because plaintiff does not allege the exact words at issue is unavailing, because this Court is not bound by pleading standards based in state law. Although plaintiff's claims are brought under state law, the Court must look to federal precedent to determine whether plaintiff has pleaded the statements with sufficient specificity. Asay v. Hallmark Cards, Inc., 594 F.2d 692, 698-99 (8th Cir. 1979) (“The manner of setting forth allegations is a matter of procedure, not substance, and a federal court cannot be bound by a state's technical ...


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