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Aldridge v. City of Saint Louis

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

April 17, 2019

CITY OF ST. LOUIS, MISSOURI, et al., Defendants.



         This civil rights matter under 42 U.S.C. § 1983 is before the Court on a motion to dismiss and alternative motion to strike plaintiff Rasheen Aldridge's First Amended Complaint (“complaint”), filed by defendants City of St. Louis, Missouri (“City”), John Hayden, and William Olsten.[1] Plaintiff opposes the motion in all respects and the defendants have replied, so it is ready for ruling. For the reasons discussed below, the Court will grant in part and deny in part the motion to dismiss, and will deny the motion to strike. Plaintiff will be granted leave to amend his complaint.

         I. Factual and Procedural Background

         Plaintiff Rasheen Aldridge alleges that he is currently the elected Democratic Committeeman for City's 5th Ward, lives in the City, and is known for meeting with President Obama in the Oval Office to discuss police brutality and the plight of America's black youth. The complaint alleges facts concerning the Circuit Court for the Twenty-Second Judicial Circuit of Missouri's issuance of findings and verdict in State of Missouri v. Stockley, Cause No. 1622-CR02213-01, on September 15, 2017, acquitting former St. Louis police officer Jason Stockley of the charge of first-degree murder of Anthony Smith. The complaint alleges the Stockley verdict prompted some members of the public to engage in protest activities in the City and surrounding communities, as the “acquittal was yet another example of white St. Louis-area police officers killing African-American citizens with impunity, ” and “supported their view that the American criminal justice system does not believe that Black lives matter.” (Doc. 18, ¶¶ 19-21.) The complaint alleges that although most of the protests were non-violent, in response St. Louis Metropolitan Police Department (“SLMPD”) officers “amassed at several protests wearing military-like tactical dress, helmets, batons, and full-body riot shields” and carrying chemical agents. (Doc. 18, ¶¶ 19-27.)

         The complaint alleges that plaintiff took part in a peaceful public protest against police violence on September 29, 2017. The protest occurred on the streets of downtown St. Louis, including near Busch Stadium, beginning at approximately 7:00 p.m. The complaint alleges that at around 9:00 p.m., protestors who had been marching elsewhere in downtown St. Louis began making their way south on Broadway towards Busch Stadium and the intersection of Broadway and Walnut Street. The complaint alleges that when the protestors reached the intersection of Broadway and Walnut, SLMPD officers “began indiscriminately using pepper spray on civilians without provocation of violence or criminal behavior.” Video evidence shows the protestors were acting peacefully and calmly. (Doc. 18, ¶¶ 45-46.)

         The complaint alleges that without warning, a SLMPD officer violently threw one protestor, a Reverend Gray, to the ground, breaking his glasses, and the protestors then began to loudly voice their disapproval of the force used, and many people in the area, including protestors, loudly questioned why the police decided to use violence. The complaint alleges that two SLMPD officers began to chase another protestor, Calvin Kennedy, and tasered him without warning after an officer grabbed Mr. Kennedy. The protestors then began demanding why the SLMPD had deployed a Taser.

         The complaint alleges that video shows defendant Olsten, a SLMPD officer, yelled at a protestor, “Come and fuck me up then, ” and moved toward the protestors, while two other SLMPD officers tried to grab Olsten, calm him down, and move him away from the crowd. The complaint alleges the video shows defendant Hayden, at the time a SLMPD major, standing approximately five feet to the right of Olsten. The complaint alleges that although Olsten was not in danger or trying to extricate himself from a dangerous situation, he became more agitated as evidenced by his “very pronouncedly chomp[ing] on his gum and begin[ing] to flex his muscles.” (Doc. 18, ¶¶ 55-58.) Then, Olsten pulled out and fired a “large fogger like canister of pepper spray” without first giving any dispersal order or warning, and the spray hit plaintiff and three other citizens. (Id., ¶¶ 59-61.)

         The complaint alleges that plaintiff began to feel excruciating pain from the pepper spray, his eyes began to burn, mucus ran from his nose, and his breathing became labored. The complaint alleges that defendant Olsten made no attempt to effectuate any arrests after spraying plaintiff and other with the pepper spray, and instead walked away. The complaint alleges that during the incident, defendant Hayden was in the middle of the SLMPD officers wearing a white shirt, indicating he was a supervisor. The complaint alleges, “Hayden took no steps to prevent his officers from inflicting punishment on peaceful protestors and members of the media, ” and “is observed in the video using a cell phone to record the activities and the police response.” (Doc. 18, ¶ 67.)

         The complaint contains factual allegations describing other instances when SLMPD officers without warning deployed chemical agents against individuals observing, recording, or participating in protest activity; and this Court's issuance in a prior case, Templeton, [2] of a temporary restraining order and its subsequent approval of a settlement agreement restricting the SLMPD from enforcing any rule, policy, or practice that granted law enforcement officials the authority or discretion to utilize chemical agents for the purpose of dispersing groups of individual engaged in non-criminal activity without, among other things, first issuing clear and unambiguous warnings that chemical agents would be utilized, and providing sufficient opportunity for the individual to heed the warnings and exit and area; or to utilize chemical agents on individuals engaged in non-criminal activity for the purpose of frightening them or punishing them for exercising their constitutional rights. (Doc. 18, ¶¶ 26-36.)

         The complaint also contains factual allegations concerning this Court's issuance of a preliminary injunction in a subsequent case, Ahmad, [3] that the SLMPD's customs or policies of (1) committing discretionary authority to police officers to declare unlawful assemblies in the absence of any threat of force or violent activity, (2) permitting officers to issue vague dispersal orders to protestors exercising First Amendment rights in an arbitrary and retaliatory way and then enforce those orders without sufficient notice and opportunity to comply before being subjected to use or force or arrest, and (3) using chemical agents without warning on citizens engaged in expressive activity that is critical of police or who are recording police, in retaliation for the exercise of their First Amendment rights; all permit officers to exercise their discretion in a manner that impermissibly curtails citizens' First Amendment rights of assembly and free speech, and Fourteenth Amendment due process rights. (Doc. 18 ¶¶ 68-71.)

         Attached to the complaint as exhibits are the Findings and Verdict issued in State of Missouri v. Stockley, No. 1622-CR02213-01 (22nd Jud. Cir., State of Missouri); the Temporary Restraining Order issued in Templeton on Dec. 11, 2014; a Settlement Agreement in Templeton dated March 25, 2015; the transcript of a preliminary injunction hearing held in Ahmad on October 28, 2017; and a Memorandum and Order of Preliminary Injunction issued in Ahmad on November 15, 2017.[4] T h e exhibits are part of the complaint for all purposes. See Rule 10(c), Fed. R. Civ. P.

         Plaintiff filed this action on October 2, 2018, asserting the existence of federal question jurisdiction. The complaint asserts the following federal claims under 42 U.S.C. § 1983: Violation of plaintiff's First and Fourteenth Amendment rights to assembly, association, free speech, and a free press against defendants Olsten and Hayden (Count I); conspiracy claims against all defendants for violating plaintiff's civil rights by using excessive force against him, assaulting him, depriving him of his right to be free from unreasonable search and seizure, and maliciously prosecuting him (Count II); a Monell claim against the City claiming the violations of plaintiff's civil rights were caused by a policy, practice, or custom of the City, and by its failure to train, discipline, and supervise SLMPD officers with respect to use of force (Count III);[5] and a Fourth and Fourteenth Amendment excessive force claim against defendant Olsten (Count VII). The complaint also asserts supplemental state law claims, see 28 U.S.C. § 1367(a), against all of the defendants: assault (Count IV); intentional infliction of emotional distress (Count V); negligent infliction of emotional distress (Count VI); and battery (Count VIII).

         All of the defendants move to dismiss the complaint in its entirety for failure to comply with the “short and plain statement” requirement of Rule 8(a), Federal Rules of Civil Procedure. Defendant Hayden moves to dismiss plaintiff's § 1983 claims against him in Count I on the basis that the complaint fails to show he personally participated in or tacitly collaborated in Olsten's use of force against plaintiff. Defendant City moves to dismiss plaintiff's Section 1983 claims against it in Counts II and III for failure to state a claim upon which relief can be granted under Rule 12(b)(6), Fed. R. Civ. P., and the state law tort claims in Counts IV, V, VI, and VIII on the basis of sovereign immunity. Defendants Hayden and Olsten move to dismiss plaintiff's state law claims against them in Counts IV, V, VI, and VIII on the basis of the Missouri official immunity doctrine. In the alternative, all defendants move to strike certain paragraphs of the complaint as immaterial or impertinent pursuant to Rule 12(f), Fed. R. Civ. P.

         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 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. Iqbal, 556 U.S. at 678. Although legal conclusions can provide the framework for a complaint, they must be supported by factual allegations. Id. Plausibility is assessed by considering only the materials that are “necessarily embraced by the pleadings and exhibits attached to the complaint[.]” Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012) (quoted case omitted).

         III. Discussion

         A. Defendants' Motion to Dismiss Under Rule 8(a)

         Defendants move to dismiss the complaint for failure to comply with the “short and plain” statement requirement of Rule 8(a), Fed. R. Civ. P., arguing it is “replete with tendentious and immaterial allegations attacking the integrity of Missouri courts, injecting spurious issues to which defendants cannot possibly frame a response, and including voluminous exhibits and references to other litigation including improper reference to a settlement agreement, without specifying wherein and how the exhibits reflect facts germane to plaintiff's claims.” (Doc. 27 at 2). Defendants assert they are prejudiced because they are forced to “try to guess at how much of the scattershot allegations actually pertain to plaintiff's claims against defendants, as opposed to pertaining to plaintiff's objections to the Missouri criminal justice system and policing in general.” (Id.) Defendants object to plaintiff's “inclusion of voluminous exhibits, such as the transcript of a preliminary injunction hearing in a parallel case, ” and assert that plaintiff's allegations concerning their alleged violation of a “consent decree are improper in light of F.R.Ev. [sic] 408(a).” (Id. at 3.)

         Under Rule 8(a), a claim for relief is required to contain a short and plain statement of the claim. Because a plaintiff must now show plausibility, complaints naturally tend to include more factual detail and be longer than before the Supreme Court decided Twombly and Iqbal. Here, plaintiff's complaint is twenty-four pages long, contains numbered paragraphs, identifies each defendant by name, makes specific factual allegations as to each defendant's conduct, and sets forth separate counts that identify each claim and the defendant(s) against which it is asserted.

         The complaint's factual allegations and supporting exhibits to which defendants object, i.e., those concerning the Stockley verdict, the nature of public protests in response thereto, and prior orders of this Court concerning SLMPD actions in response to public protests, are relevant to plaintiff's Monell claim against the City at minimum. Defendants' bald assertion that the complaint's reference to the Templeton settlement agreement violates Federal Rule of Evidence 408(a) is without merit, as the Rules of Evidence concern the admission of evidence, not pleading standards.

         In contrast to cases where dismissal for violation of Rule 8(a) is appropriate, the complaint here is not so lengthy, disorganized, vague, or ambiguous as to be unintelligible. Cf. Michaelis v. Nebraska State Bar Ass'n, 717 F.2d 437, 439 (8th Cir. 1983) (affirming dismissal of a 98-page pro se complaint, the “style and prolixity” of which “would have made an orderly trial impossible.”); Smith v. Republic Servs., Inc., 2017 WL 4038143, at *3 (E.D. Mo. Sept. 13, 2017) (dismissing complaint under Rule 12(b)(6), noting it violated Rule 8(a) because it did not contain numbered paragraphs, was “overly wordy with an incomprehensible pattern of capitalized and not capitalized words, ” and failed to clearly identify each defendant by name and articulate specific facts about that defendant's wrongful conduct); Favaloro v. BJC Healthcare, 2015 WL 1603054, at *2 (E.D. Mo. Apr. 9, 2015) (denying leave to file amended complaint for failure to comply with Rule 8 in relatively simple employment action where complaint was “90 pages long, include[d] 959 paragraphs, multiple subparagraphs, sub-subparagraphs (i.e., ¶¶ 800.68.1, 800.68.2, 800.68.2, et seq.), and contain[ed] wholly irrelevant and scandalous material.”).

         Defendants' motion to dismiss the complaint for failure to comply with Rule 8(a) will be denied.

         B. Defendant Hayden's Motion to Dismiss

         In a one-paragraph argument, defendant Hayden moves to dismiss plaintiff's § 1983 claims, which he does not identify by count or title. Hayden states there is no respondeat superior liability under § 1983, and argues he cannot be held liable as a supervisor based on his subordinate Olsten's use of force, in the absence of any allegations that Hayden personally participated in or tacitly collaborated in a constitutional tort. Hayden states the complaint does not allege he personally participated in a constitutional tort, and fails to allege he was aware of the illegal behavior by Olsten, or that the duration of the incident was sufficient to have allowed him to intervene, such that an inference of tacit approval could arise, citing White v. Jackson, 865 F.3d 1064, 1081 (8th Cir. 2017).

         As a threshold matter, Hayden's bare-bones argument for dismissal does not address plaintiff's § 1983 First and Fourteenth Amendment claims in Count I or the § 1983 civil conspiracy claims in Count II. The single paragraph addresses only plaintiff's excess force claim, a Fourth and Fourteenth Amendment claim set forth in Count VII. The Court therefore concludes Hayden's motion to dismiss is directed only to plaintiff's excess force claim and limits its discussion accordingly.[6]

         The complaint does not allege a claim of excessive force against Hayden. The title of Count VII, “42 U.S.C. § 1093 - Fourth and Fourteenth Amendment; Excessive Force (Against Defendant Olsten)” is directed only to Olsten. While the body of Count VII refers to “defendants, ” the alleged conduct upon which the claim is based is assaulting and spraying plaintiff with pepper spray. Nowhere does the complaint allege, in the Facts section or otherwise, that Hayden assaulted or sprayed plaintiff with pepper spray. Courts “are not concerned . . . with the labels a party attaches to a claim. Instead, we focus on the substance of the underlying factual allegations.” In re Baycol Prods. Litig., 732 F.3d 869, 875 n.4 (8th Cir. 2013). That said, “A district court . . . 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) (quotation marks and citation omitted).

         There is no vicarious liability under 42 U.S.C. § 1983, Monell v. Department of Social Servs. of City of New York, 436 U.S. 658, 691 (1978), and Section 1983 does not “sanction tort by association.” Smith v. City of Minneapolis, 754 F.3d 541, 547 (8th Cir. 2014) (internal quotation marks omitted). A supervisor may not be held liable under § 1983 merely because his subordinate committed a constitutional tort. See Clay v. Conlee, 815 F.2d 1164, 1169 (8th Cir. 1987). Plaintiff has not alleged a claim of excess force against Hayden and the Court will not conjure one based on plaintiff's alleged facts.[7]

         Defendant Hayden's motion to dismiss, which is directed solely to a claim for failure to intervene in the use of excessive force, will be denied as moot.

         C. Defendant City's Motion to Dismiss

         1. Count II - Civil Conspiracy Claim

         In Count II, plaintiff asserts a § 1983 claim that all of the defendants “acting in their individual capacities and under color of law” conspired together and reached a mutual undertake a course of conduct that violated plaintiff's rights through the use of excessive force by deploying chemical agents.

         The City moves to dismiss plaintiff's § 1983 conspiracy claim on the basis that it is barred by the intracorporate conspiracy doctrine, citing Kelly v. City of Omaha, Neb., 813 F.3d 1070, 1078 (8th Cir. 2016). The City states the complaint alleges it conspired with its police officers Hayden and Olsten to violate plaintiff's rights, and that Hayden and Olsten were not acting outside the scope of their employment duties but rather were engaged in improprieties in the execution of their duties. The City argues this is a similar situation to Kelly, in which the plaintiff's claims were barred by the intracorporate conspiracy doctrine. The City also argues the civil conspiracy claim fails because the underlying claims on which the conspiracy is premised fail, citing Cook v. Tadros, 312 F.3d 386, 388-89 (8th Cir. 2002).

         Plaintiff responds that Kelly involved a conspiracy claim under 42 U.S.C. § 1985, and is not controlling here as the Eighth Circuit has not determined whether the intracorporate conspiracy doctrine applies to § 1983 conspiracy claims. Plaintiff asserts that courts in this district have repeatedly denied motions to dismiss § 1983 conspiracy claims based on the doctrine, citing Powers v. City of Ferguson, 229 F.Supp.3d 894, 906 (E.D. Mo. 2017), Golden v. Moutray, 2018 WL 1784395, at *4 (E.D. Mo. Apr. 13, 2018), and Anzaldua v. Northeast Ambulance & Fire Prot. Dist., 2014 WL 466234, at *8 (E.D. Mo. Feb. 5, 2014), aff'd in part, rev'd in part on other grounds, 793 F.3d 822 (8th Cir. ...

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