United States District Court, E.D. Missouri, Eastern Division
JAMES P. BLOUNT Plaintiff,
ZACHARY NICHOLAY, MATTHEW MILLER, ALBERT NAPIER, BRENT FINCHER, RYAN STRITTMATTER, JOHN VOGT, TERRENCE HOWARD, and SCOTT AUBUCHON, Defendants.
MEMORANDUM AND ORDER
D. NOCE, UNITED STATES MAGISTRATE JUDGE.
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.
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).
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).
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).
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 ¶
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).
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).
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
Failure to State a Claim upon Which Relief May be
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).
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).
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).
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
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 ...