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Laird v. City of Saint Louis

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

June 27, 2019

LINDSEY LAIRD and ANDRE ROBERTS, Plaintiffs,
v.
CITY OF SAINT LOUIS, MISSOURI, et al., Defendants.

          MEMORANDUM AND ORDER

          AUDREY G. FLESSIG, UNITED STATES DISTRICT JUDGE.

         Plaintiffs Lindsey Laird and Andre Roberts claim that during peaceful protest activity following the September 15, 2017, verdict in State of Missouri v. Stockley, St. Louis Metropolitan Police Department (SLMPD) officers unlawfully “kettled, ”[1] pepper sprayed, assaulted, and arrested them. Plaintiffs bring this civil rights action under 42 U.S.C. § 1983 against several SLMPD officers[2] alleged to be involved in the relevant events, as well as the City of St. Louis. This is one of several cases arising out of SLMPD officers' conduct with respect to the Stockley protests.

         As have the defendants in the other cases, the City and six of the supervising individual officers (“Supervisors”) named as Defendants here move to dismiss or, alternatively, to strike Plaintiffs' second amended complaint. For the reasons that follow, the Court will dismiss Plaintiffs' failure-to-train claim and their request for punitive damages on the state-law claims against the City and the Supervisors in their official capacities only; the Court will otherwise deny the motion.

         BACKGROUND

         Taken as true for the purpose of this motion, the facts alleged in the second amended complaint are as follows. On September 15, 2017, the Circuit Court of the City of St. Louis issued its findings and verdict in Stockley, prompting some members of the public to engage in protests around the City. The protests concerned not only the verdict but broader issues, including racism in the criminal justice system and the use of force by police against African-American citizens. Although most of the protests were nonviolent, SLMPD officers “amassed at several protests wearing military-like tactical dress, helmets, batons, and full-body riot shields and carrying chemicals.” ECF No. 32 ¶ 29.

         On September 17, 2017, Plaintiffs went to downtown St. Louis to check on friends who had been protesting peacefully throughout that weekend. Shortly after the couple's arrival, police began to block streets and began herding people toward the intersection of Washington Avenue and Tucker Boulevard. Plaintiffs were never told by police to disperse. But officers wielding bicycles blocked the route that Plaintiffs hoped to use to exit. Plaintiffs approached the officers to explain that they had only been present for a short time, had committed no crimes, and would leave voluntarily. The officers yelled, “Get the [expletive] back!, ” and Plaintiffs complied, raised their hands, and sat on the ground. Almost immediately, police sprayed Roberts with pepper spray in his face and torso. Plaintiffs were zip-cuffed and laid on the ground.[3]

         After being sprayed, Roberts was shaking, breathing erratically, and drooling. Laird attempted to assist Roberts, and officers violently moved her away, leaving a large bruise on her arm. Officers dragged Roberts to a wall and sat him against it. The zip cuffs holding Roberts's hands broke, so an officer held Roberts by the throat while re-cuffing him.[4] Roberts sat against the wall for 30-60 minutes before police transported both Plaintiffs to a jail cell. Plaintiffs remained detained for approximately 20 hours in crowded cells and were never provided with water or medical attention.

         Plaintiffs claim that they were not engaged in unlawful activity at any time during their encounter with police. Plaintiffs further allege that during and after the arrests, SLMPD officers were observed high fiving each other, smoking celebratory cigars, taking “selfies” on their cell phones with arrestees against the arrestees' will, and chanting “Whose Streets? Our Streets!” Id. ¶ 97. Officers also taunted the zip-cuffed individuals, saying, that if they wanted to be comfortable or wanted water, they “shouldn't have committed a crime.” Id. ¶ 145.

         As noted above, Plaintiffs' 13-count second amended complaint names the City and several SLMPD officers alleged to be involved in the relevant events. The Supervisors who have moved for dismissal are: Lieutenant Colonel Gerald Leyshock, the incident commander during the events of September 17, 2017, who allegedly approved the plan to restrict the movement of individuals who were attempting to leave the vicinity of Washington Avenue and Tucker Boulevard and to arrest everyone present; Lieutenant Timothy Sachs, who allegedly developed the plan described above, deployed the tactical units accordingly, and ordered the use of chemical agents; Lieutenant Scott Boyher, who allegedly directed the officers under his command in using their bicycles to block Plaintiffs' path, and directed the officers to use force and to arrest the protestors in Plaintiffs' group; Sergeant Matthew Karnowski, who allegedly declared the protests an “unlawful assembly, ” which SLMPD used as a predicate to the arrests and use of the chemical agents, and also directed the officers under his command to use force and to arrest the protestors in Plaintiffs' group; Sergeant Randy Jemerson, who allegedly directed people to the intersection of Washington and Tucker pursuant to the plan described above; and Sergeant Brian Rossomanno, who also allegedly directed people to the intersection, and was “within arms-length” of the officers who pepper sprayed and used force against the protestors in Plaintiffs' group. Plaintiffs also name the arresting officers, Koerper and Schaeffer, as well as John Does #1-5, who were further involved in arresting, pepper spraying, and assaulting Plaintiffs but who removed their name tags and wore masks concealing their faces, thereby preventing Plaintiffs from identifying them.

         Plaintiffs assert unlawful arrest (Count I), First Amendment (Count II), and excessive force (Count XII) claims against the individual officers pursuant to § 1983. They also assert § 1983 claims against the City (Count IV) alleging municipal liability for the officers' unlawful actions and against all Defendants (Count III) alleging that Defendants “acting in their individual capacities and under color of law, conspired together and with others, and reached a mutual understanding to undertake a course of conduct that violated Plaintiffs' civil rights.” Id. ¶ 175. Finally, Plaintiffs assert supplemental state-law claims against all Defendants alleging assault (Count V), false arrest (Count VI), false imprisonment (Count VII), abuse of process (Count VIII), malicious prosecution (Count IX), intentional infliction and negligent infliction of emotional distress (Counts X and XI), and battery (Count XIII).

         The City and Supervisors move to dismiss the second amended complaint for failure to comply with the “short and plain statement” requirement of Fed.R.Civ.P. 8(a). Alternatively, the City and the Supervisors move to strike certain paragraphs of the amended complaint under Fed.R.Civ.P. 12(f) as immaterial or impertinent.

         The Supervisors also move to dismiss Plaintiffs' § 1983 claims under Rule 12(b)(6), arguing that Plaintiffs fail to allege that the Supervisors personally participated in the use of force. As to the state-law claims, the Supervisors argue that they should be dismissed under Missouri's official immunity doctrine. The Supervisors and the City also argue that the infliction of emotional distress claims are not actionable because the same facts give rise to another cognizable tort, namely, assault, and that the claims alleging battery and assault are duplicative.

         The City moves to dismiss Plaintiffs' § 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 contends that, as the Eighth Circuit held in Kelly, a local government entity cannot conspire with itself through its agents acting within the scope of their employment. The City further argues the civil conspiracy claim fails because the underlying claims on which it is based fail.

         Next, the City moves to dismiss Plaintiffs' § 1983 claim, arguing that it fails to adequately allege municipal liability under Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978). Finally, the City argues that Plaintiffs' state-law claims against it are barred by sovereign immunity and that, in any event, Mo. Rev. Stat. §537.610.3 precludes the recovery of punitive damages against it on the state-law claims.

         DISCUSSION

         To survive a motion to dismiss, a plaintiff's claims must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The reviewing court accepts the plaintiff's factual allegations as true and draws all reasonable inferences in favor of the nonmoving party. Torti v. Hoag, 868 F.3d 666, 671 (8th Cir. 2017). But “[c]ourts are not bound to accept as true a legal conclusion couched as a factual allegation, and factual allegations must be enough to raise a right to relief above the speculative level.” Id.

         Motion to Dismiss Under Rule 8(a) and Alternative Motion to Strike

         The City and the Supervisors move to dismiss the amended complaint for failure to comply with the “short and plain” statement requirement of Rule 8(a), arguing that the complaint is “replete with tendentious, inflammatory, and immaterial allegations attacking the integrity of Missouri courts, injecting issues to which defendants cannot possibly frame a response . . . .” ECF No. 35 at 2. Specifically, the City and Supervisors object to Plaintiffs' allegations 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. Alternatively, the City and the Supervisors move to strike these paragraphs under Fed.R.Civ.P. 12(f) as immaterial or impertinent.

         As other judges in this District have held with respect to the same challenge in related cases, the complaint's factual allegations and the supporting exhibits to which the City and Supervisors object are relevant to Plaintiffs' municipal liability claim at a minimum. Laney v. City of St. Louis, Mo., No. 4:18 CV 1575 CDP, 2019 WL 2423308, at *3 (E.D. Mo. June 10, 2019); Aldridge v. City of St. Louis, Mo., No. 4:18-CV-1677 CAS, 2019 WL 1695982, at *4 (E.D. Mo. Apr. 17, 2019). Neither dismissal under Rule 8(a) nor striking under Rule 12(f) is warranted.

         Motion to Dismiss ...


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