United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLESSIG, UNITED STATES DISTRICT JUDGE.
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, ” pepper sprayed, assaulted, and arrested
them. Plaintiffs bring this civil rights action under 42
U.S.C. § 1983 against several SLMPD
officers 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.
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.
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.
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.
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
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.
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.
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.
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
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.
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.
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.
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.
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.
to Dismiss Under Rule 8(a) and Alternative Motion to
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.
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.
to Dismiss ...