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Simmons v. Drum

United States District Court, W.D. Missouri, Southwestern Division

March 18, 2019




         Plaintiff Juan Simmons (“Simmons”) brings this damages action under 42 U.S.C. § 1983 against Missouri State Highway Patrol (“MSHP”) and against state trooper, Joseph Drum (“Drum”) in both Drum's individual capacity and official capacity (collectively, “Defendants”). Before the Court is Defendants' Motion to Dismiss. (Doc. 5.) The motion is fully briefed. (Docs. 6, 8, 9.) For the reasons below, the motion is GRANTED in part in that claims against MSHP in Counts I, II, and III are DISMISSED; claims against Drum in his official capacity in Counts I, II, and III are DISMISSED; and the claim against Drum in his individual capacity in Count II is DISMISSED. The remaining claims are against Drum in his individual capacity in Counts I and III.


         I. Facts

         The Court accepts as true the well-plead factual allegations in Simmons' Complaint and views them in the light most favorable to Simmons. See Meiners v. Wells Fargo & Co., 898 F.3d 820, 821 (8th Cir. 2018).

         The Complaint alleges that on May 2, 2014, MSHP Trooper Drum arrested Simmons for driving with a suspended license and municipal warrants. At the scene of the arrest, Drum conducted a pat down search of Simmons and searched the vehicle Simmons was driving. Drum found no weapons or illegal contraband. Drum then drove Simmons to the Joplin City Jail (the “Jail”). During the drive, “Drum began lecturing [Simmons] and [Simmons] told Drum that he did not need a lecture.” (Doc. 1 at ¶ 11.) In response, Drum said “something along the lines of[:]” “Oh, so that's how it's going to be? We'll see about that when we get to the jail.” (Doc. 1 at ¶ 12.)

         At the Jail, jail personnel conducted a search of Simmons in Drum's presence. No. weapons or contraband were found. Drum indicated that he wanted Simmons strip searched. Jail personnel told Drum that a strip search was unnecessary and “that they were not going to conduct a strip search.” (Id. at ¶ 16.) Jail personnel told Drum “that he did not have authority or permission to conduct a strip search of Plaintiff at their facility and that he was not following their established procedures for conducting such a search.” (Id. at ¶ 17.) The Complaint also alleges that the jail personnel were “not going to place [Simmons] in the general population or in substantial contact with other inmates.” (Id. at ¶ 25.) Drum indicated he was still going to conduct a strip search. At this point, jail personnel went to find supervisors to intervene, and Drum proceeded with the strip search of Simmons.

         Drum's search of Simmons at the Jail is the subject of Simmons' lawsuit. During the search, “while [] Simmons was handcuffed behind his back, [] Drum unbuttoned and unzipped [] Simmons' pants and purposely made contact with [] Simmons' penis with a pen.” (Id. at ¶ 20.) The Complaint also alleges that during the search, Drum made “embarrassing and scornful comments . . . about [Simmons'] body and genitals.” (Id. at ¶ 28.) It is undisputed that, at all times relevant, Drum was acting in the course and scope of his employment and under color of state law.

         II. The Complaint and Pending Motion

         In August 2018, Simmons filed his Complaint asserting two constitutional claims pursuant to 42 U.S.C. § 1983. Specifically, Simmons alleges that the search conducted by Drum at the Jail violated his Fourth Amendment right to be free from unreasonable searches (Count I) and violated his First Amendment right to free speech (Count III).[1] He also asserts that the search constituted assault (Count II).[2] As to all counts, Simmons sues MSHP, and Drum in both his individual and official capacities.

         Defendants moves to dismiss the claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), raising four grounds: (1) the claims against MSHP are barred by the Eleventh Amendment; (2) the claims brought under § 1983 against Drum in his official capacity are barred by Eleventh Amendment immunity; (3) the claims brought under § 1983 against Drum in his individual capacity are barred by qualified immunity because he did not violate a clearly established First and Fourth Amendment right; and (4) the state law claim in Count II is barred by the statute of limitations. In response, Simmons concedes grounds 1, 2, and 4. The Court will grant Defendants' motion on these three grounds. The Court proceeds to address ground 3, the question of whether Drum is entitled to qualified immunity on Simmons' constitutional claims in Counts I and III.


         I. Legal Standard

         To survive a motion to dismiss, a complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible if “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court “accept[s] the well-pled allegations in the complaint as true and draw[s] all reasonable inferences in the plaintiff's favor.” Meiners, 898 F.3d at 821.

         II. Qualified Immunity

         “Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects “all but the plainly incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (citation omitted). “Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established' at the time of the challenged conduct.” Id.

         In the motion to dismiss, Drum focuses on the second prong and does not address the first prong. Regarding the second prong, Drum argues that Simmons has not pleaded sufficient facts to establish that Drum violated clearly established constitutional rights. On this point, “[a] Government official's conduct violates clearly established law when, at the time of the challenged conduct, [t]he contours of [a] right [are] sufficiently clear that every reasonable official would [have understood] that what he is doing violates that right.” Id. at 741 (quotation marks and citation omitted). This does not “require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Id. (citations omitted). “Although the defendant bears the burden of proof for this affirmative defense [of qualified immunity], the plaintiff must demonstrate that the law was clearly established.” Smith v. City of Minneapolis, 754 F.3d 541, 546 (8th Cir. 2014) (citations omitted). “To overcome qualified immunity, a plaintiff typically must identify either ‘cases of controlling authority in ...

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