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Blount v. Nicholay

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

March 20, 2019

JAMES P. BLOUNT Plaintiff,
v.
ZACHARY NICHOLAY, MATTHEW MILLER, ALBERT NAPIER, BRENT FINCHER, RYAN STRITTMATTER, JOHN VOGT, TERRENCE HOWARD, and SCOTT AUBUCHON, Defendants.

          MEMORANDUM AND ORDER

          DAVID D. NOCE, UNITED STATES MAGISTRATE JUDGE.

         This action is before the Court on the motions of defendants Scott Aubuchon, Brent Fincher, Ryan Strittmatter, and John Vogt to dismiss Counts 4, 5, and 7 of the second amended complaint of plaintiff James P. Blount them (Doc. 163) and of defendant Terrence Howard for summary judgment (Doc. 172). The Court heard oral arguments from the parties on February 27, 2019.

         BACKGROUND

         Plaintiff alleges the following relevant facts in his second amended complaint. (Doc. 144). On January 19, 2013, plaintiff was assaulted by another patron of Casino One at Lumiere Place Casino and Hotels in St. Louis, Missouri. (Id. at ¶¶ 8-9). Certain security officers of the Casino were off-duty police officers of the St. Louis Police Department, and these officers were wearing their official uniforms when they learned of the assault. (Id. at ¶ 10). Assuming that plaintiff was the perpetrator and not the victim of the assault, these officers further assaulted and battered plaintiff until he was rendered unconscious at the scene. (Id.). An ambulance was called, and defendants Albert Napier, Matthew Miller, and Zachary Nicholay responded to the scene. (Id.). Defendant Napier reviewed security camera recordings that captured the incident and could determine that plaintiff was the victim of an assault and battery, and that the off-duty officers had used excessive force against plaintiff. (Id.). At some point, plaintiff was placed under arrest and put in handcuffs. (Id. at ¶ 12).

         While the ambulance transporting plaintiff to the hospital, he was handcuffed but unable to lie flat due to his femur being dislocated from his hip. (Id. at ¶ 13). Plaintiff was then punched in the stomach by defendant Miller, with the others failing to protect, intercede, or intervene on plaintiff's behalf. (Id. at ¶¶ 13, 63).

         Once plaintiff was at the hospital, he was guarded by St. Louis City police officers, including defendant John Vogt. (Id. at ¶ 15). One officer stated to plaintiff that the videotape confirmed plaintiff was not the aggressor, and that if plaintiff did not sue the police department, the department would not issue criminal charges against him. (Id. at ¶ 16). Plaintiff continued to receive medical care and defendants failed to pay for his medical care. (Id. at ¶ 18).

         Plaintiff underwent surgery for his injuries. (Id. at ¶ 19). Shortly after surgery, and without obtaining a “fit for confinement” form or approval from a healthcare provider, defendants Brent Fincher and Ryan Strittmatter transported plaintiff from the hospital to the St. Louis Justice Center for booking. (Id.). Plaintiff alleges this was done as part of a conspiracy to threaten plaintiff and deter him from filing a lawsuit or seeking redress for his injuries. (Id. at ¶ 20).

         Officers Keith S. Major, Ezell T. Cody, Nicolas R. Shelton, and Erich J. Vonnida prepared an incident report that contained false statements to cover up police misconduct and to prevent plaintiff from seeking redress. (Id. at ¶¶ 21-22). This incident report was approved by police officers Lucinda J. Miller and Scott A. Aubuchon. (Id. at ¶ 23). The incident refers to video surveillance of the incident. (Doc. 1, Ex. 1). Plaintiff alleges that this video shows plaintiff was not the initial aggressor but was defending himself from another patron of the Casino. (Id. at ¶¶ 25-26). Plaintiff further alleges that the video shows plaintiff did not assault any officer, and they did not issue any command to plaintiff prior to using force against him. (Id.). The video purportedly shows officers forcing witnesses away from the scene without obtaining witnesses' names or statements, in order to cover up the circumstances of the incident. (Id. at ¶ 30). The video was not shown to any prosecuting attorney and not produced by defendants. (Id. at ¶ 26).

         After booking plaintiff for no prosecutable offense and in order to make their threat credible, the officers took plaintiff on a drive and dropped him off at an unknown location in the City of St. Louis, making final threats to him not to report the incident. (Id. at ¶ 32). There is no record that plaintiff was ever at the Justice Center. (Id. at ¶ 33).

         MOTION TO DISMISS

         Defendants move to dismiss plaintiff's claims of false imprisonment (Count 4) and fraud or injurious falsehood (Counts 5 and 7) on the grounds that they fail to state a claim upon which relief may be granted and they are outside the statute of limitations.

         1. Failure to State a Claim upon Which Relief May be Granted

         Under Rule 12(b)(6), a party may move to dismiss all or part of a complaint for its failure to state a claim upon which relief can be granted. Fed. R. Civ. Pro. 12(b)(6). To overcome a motion to dismiss under Rule 12(b)(6) a complaint “must include enough facts to state a claim to relief that is plausible on its face, ” providing more than just labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Such a complaint will “allow[] 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), and will state a claim for relief that rises above mere speculation. Twombly, 550 U.S. at 555. In reviewing the pleadings under this standard, the Court must accept all of the plaintiff's factual allegations as true and draw all inferences in the plaintiff's favor, but the Court is not required to accept the legal conclusions the plaintiff draws from the facts alleged. Retro Television Network, Inc. v. Luken Commc'ns, LLC, 696 F.3d 766, 768-69 (8th Cir. 2012). The court additionally “is not required to divine the litigant's intent and create claims that are not clearly raised, . . . and it need not conjure up unpled allegations to save a complaint.” Gregory v. Dillard's, Inc., 565 F.3d 464, 473 (8th Cir. 2009) (en banc) (citations omitted).

         A. False Imprisonment

         Plaintiff brings his claim for false imprisonment against defendants Napier, Aubuchon, Nicholay, Miller, Fincher, Strittmatter, Vogt, and Howard in their individual capacities, but the motion to dismiss is only brought by four defendants: Aubuchon, Strittmatter, Fincher, and Vogt. In order to state a claim of false imprisonment under Missouri law, plaintiff must allege that he was detained against his will and that this detention was unlawful. See Highfill v. Hale, 186 S.W.3d 277, 280 (Mo. 2006); Rankin v. Venator Grp. Retail, Inc., 93 S.W.3d 814, 822 (Mo.Ct.App. 2002). Defendants argue that such a claim must allege “each” defendant confined plaintiff without legal justification. (Doc. 164 at 2). Plaintiff responds that this is a complicated case, and the defendants were all acting in concert with one another. (Doc. 167).

         “A person can be liable for false imprisonment or false arrest if he encourages, causes, promotes, or instigates the arrest.” Highfill, 186 S.W.3d at 280. However, there is no liability for “a mere negation or failure to speak or act.” Gibbs v. Blockbuster, Inc., 318 S.W.3d 157, 170 (Mo. App. 2010).

         Defendants Aubuchon, Fincher, Strittmatter, and Vogt argue that the second amended complaint alleges only that they failed to supervise other officers who purportedly confined plaintiff, or that they failed to investigate plaintiff's confinement in order to intervene and prevent a false imprisonment. Movant-defendants argue that none of them was present at the initial arrest or transporting of him to the hospital, and that they are therefore not liable for false imprisonment.

         The Court agrees. Plaintiff's allegations indicate these officers were involved only after plaintiff's arrest, and there is no factual allegation indicating that they caused, promoted, or instigated the arrest. Defendant Aubuchon simply signed the incident report prepared by the arresting officers, defendant Vogt simply stood guard over plaintiff once he had already been taken to the hospital by other officers, and defendants Fincher and Strittmatter simply transported plaintiff from the hospital to the jail. While the complaint suggests they perhaps failed to investigate or intervene, there is no liability for failure to ...


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