United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
M. BODENHAUSEN UNITED STATES MAGISTRATE JUDGE
matter is before the Court on defendant's motion to
dismiss plaintiff's first amended complaint for failure
to state a claim for relief pursuant to Rule 12(b)(6),
Fed.R.Civ.P., and to strike certain paragraphs, pursuant to
Rule 12(f)(2). Plaintiff has filed a response in opposition
and the issues are fully briefed. The parties have consented
to the jurisdiction of the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c).
Michael Krupp alleges that Steven Blakeney stalked and
harassed him while Blakeney was employed by defendant City of
Pine Lawn as a police officer. Plaintiff reported
Blakeney's conduct to regulatory and law enforcement
authorities. Plaintiff alleges that Blakeney then increased
his harassing conduct to retaliate against him and to deter
him from engaging in protected speech. Plaintiff filed suit
against the City of Pine Lawn in the Circuit Court of St.
Louis County, asserting a claim under 42 U.S.C. § 1983
that the City had a policy, custom or practice of permitting
its officers to engage in abusive, harassing conduct or, in
the alternative, was deliberately indifferent to its duty to
correct, supervise, control and discipline its police
officers. Defendant removed the action, asserting this
Court's subject-matter jurisdiction pursuant to 28 U.S.C.
Allegations in the Complaint
Lawn hired Blakeney in 2009. In June 2011, shortly after
Blakeney and his wife separated, plaintiff began a
relationship with Blakeney's wife. First Amended
Complaint at ¶¶ 4, 6 [Doc. # 11]. Later in 2011,
someone left on plaintiff's porch a package of
“numerous pictures and other evidence demonstrating
that Blakeney had been surveilling [plaintiff] using
Department resources.” Id. at 7. In 2012,
Blakeney was “arrested for forcible rape” and
“tested positive for cocaine.” Id. at
December 2012, plaintiff reported Blakeney's conduct to
the Peace Officer Standards & Training (POST) Program. He
gave POST “a large amount of evidence” for its
investigation of Blakeney. He also contacted the FBI,
speaking with at least three FBI agents between 2012 and
2014. In March 2013, plaintiff sought a restraining order
against Blakeney. At the hearing, plaintiff testified that he
had reported his concerns about Blakeney to POST and the FBI.
Id. at ¶¶ 13-18.
the hearing, at which Blakeney was present, Blakeney's
abusive and harassing conduct worsened. Throughout 2014, he
engaged in persistent unjustified surveillance of plaintiff,
including appearing at events outside Pine Lawn's
jurisdiction in a Pine Lawn police vehicle, wearing his
uniform and accompanied by other uniformed Pine Lawn
officers. Blakeney would flash his firearm at plaintiff, even
though the restraining order entered against him barred him
from carrying a weapon. Plaintiff believed that Blakeney was
trying to intimidate him into remaining silent about
Blakeney's conduct. Id. at ¶¶ 20-27.
alleges that multiple people complained about Blakeney's
behavior to the Pine Lawn Police Department. In August 2011,
the Chief of Police received a letter from someone
complaining that Blakeney was harassing him. In 2013,
Blakeney arrested a woman who recorded him allegedly
harassing people in a barber shop. When she “released
the footage, ” Blakeney retaliated against her by
harassing her at her residence. In September 2014,
plaintiff's lawyer emailed Pine Lawn's city attorney
to report the ways in which Blakeney was harassing plaintiff.
In response, the city attorney stated that Pine Lawn
“would like to stay away from digging into the personal
affairs of its officers, unless they have a direct connection
to the department.” Blakeney was fired in December
2014. Id. at ¶¶ 28-35.
purpose of a motion to dismiss for failure to state a claim
is to test the legal sufficiency of the complaint. To survive
a motion to dismiss pursuant to Rule 12(b)(6), “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 Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A complaint
states a plausible claim for relief if its ‘factual
content . . . allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.'” Braden v. Wal-Mart Stores,
Inc., 588 F.3d 585, 594 (8th Cir. 2009) (quoting
Iqbal, 556 U.S. at 678).
considering a 12(b)(6) motion, the district court accepts as
true all factual allegations in the complaint and grants all
reasonable inferences in favor of the nonmoving party.
Crooks v. Lynch, 557 F.3d 846, 848 (8th Cir. 2009).
A claim for relief “must include sufficient factual
information to provide the ‘grounds' on which the
claim rests, and to raise a right to relief above a
speculative level.” Schaaf v. Residential Funding
Corp., 517 F.3d 544, 549 (8th Cir. 2008) (quoting
Twombly, 550 U.S. at 555 & n.3). This obligation
requires a plaintiff to plead “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550
U.S. at 555. The principle that a court must accept as true
all of the allegations contained in a complaint does not
apply to legal conclusions. Iqbal, 556 U.S. at 678
(“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
Rule of Civil Procedure 12(f) provides that a court may
strike from a pleading “any redundant, immaterial,
impertinent, or scandalous matter.” Courts have liberal
discretion to strike pleadings under Rule 12(f).
Nationwide Ins. Co. v. Cent. Mo. Elec. Co-op, Inc.,
278 F.3d 742, 748 (8th Cir. 2001). However, striking a
party's pleading is an extreme measure that is viewed
with disfavor and infrequently granted. Stanbury Law
Firm, P.A. v. IRS, 221 F.3d 1059, 1063 (8th Cir. 2000).
“In ruling on a motion to strike, the Court views the
pleadings in the light most favorable to the pleader.”
Shirrell v. St. Francis Med. Ctr., No. 1:13-CV-42
SNLJ, 2013 WL 3457010, at *1 (E.D. Mo. July 9, 2013)
general, “a local government may not be sued under
§ 1983 for an injury inflicted solely by its employees
or agents” on a respondeat superior theory of
liability. Marsh v. Phelps Cty., 902 F.3d 745, 751
(8th Cir. 2018) (citing Monell v. New York Dep't of
Soc. Servs., 436 U.S. 658, 694 (1978)). To establish a
municipal custom based on a failure to prevent police
misconduct, a plaintiff must show that the municipality acted
with deliberate indifference to the rights of persons with
whom the officers come into contact. Perkins v.
Hastings, No. 17-2079, 2019 WL 469718, at *6 (8th Cir.
Feb. 7, 2019); see also Harris v. City of Pagedale,
821 F.2d 499, 504 (8th Cir. 1987) (applying a deliberate
indifference standard to a claim of “a municipal custom
of failing to receive, investigate or act on citizen