United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE
Demetrius Thomas, an independent journalist, claims 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 him. Thomas brings this civil rights action
under 42 U.S.C. § 1983 against several SLMPD officers
alleging violations of his First, Fourth, and Fourteenth
Amendment rights, and against the City of St. Louis alleging
municipal liability for their unlawful actions. Thomas also
brings supplemental state law claims against Defendants,
alleging assault, intentional and negligent infliction of
emotional distress, and battery. 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 Thomas's second amended complaint. For the
following reasons, the Court will dismiss Thomas's
failure-to-train claim and request for punitive damages on
the state-law claims against the City and the Supervisors
(collectively “Defendants”) 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 [chemical agents].” (SAC at ¶ 28).
evening of September 17, 2017, Thomas received a phone call
from a friend telling him about protests that were occurring
downtown. Thomas headed downtown to record the protests,
taking his professional camera and a drone with a camera
attached. By the time he arrived, however, the protests had
ended. While driving to the intersection of Olive Street and
Tucker Boulevard, a large group of officers surrounded and
then passed by his car. Thomas got out of his car to record
their actions. An officer, who Thomas believed to be a
supervisor, told him he was permitted to record as long as he
remained on the sidewalk. Thomas complied with the directions
SLMPD officers gave him and joined members of the media on a
sidewalk corner. Thomas observed a large black SLMPD police
truck making some inaudible announcement. Suddenly, Thomas
noticed a change in the demeanor of the officers. His attempt
to exit through an alley was blocked by an officer with a
baton who then directed Thomas back to the intersection of
Washington Avenue and Tucker Boulevard.
arriving at the intersection, Thomas observed between 100 to
200 officers pounding their batons against their shields and
the ground. Thomas attempted to get to his car parked on
Washington Avenue west of Tucker Boulevard but police
prevented him from leaving. A SLMPD officer pointed a large
can of pepper spray at Thomas and told him to “get out
of here, ” and directed him back to the intersection of
Washington Avenue and Tucker Boulevard. Upon returning to the
intersection, Thomas encountered a large group of terrified
people trying to leave the area. Thomas and the rest of the
group tried to leave by going east of Washington Avenue, but
were prevented from leaving by a phalanx of bike officers.
Thomas quickly attempted to secure his $6, 000 camera. Soon
after, he was knocked to the ground. He heard his friend yell
“They are pushing us.” Without warning, SLMPD
officers began to indiscriminately pepper spray the people
that had been kettled. Several officers grabbed Thomas by the
arms and legs while another officer beat him with a baton,
striking him repeatedly in the ribs. During this beating,
officers broke Thomas's drone and another officer
confiscated his camera. Officers then roughly zip-cuffed
claims he complied with all directions from SLMPD officers
and that he was not engaged in unlawful activity at any time
during his encounter with police. Thomas further alleges 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!” (SAC at ¶ 96).
14-count second amended complaint names the City and several
SLMPD officers alleged to be involved in the events of
September 17, 2017. The Supervisors who have moved for
dismissal are: Lieutenant Colonel Gerald Leyshock, the
incident commander directing all of the supervisors that
evening who allegedly approved the plan to restrict the
movement of individuals attempting to leave the vicinity of
Washington Avenue and Tucker Boulevard and to arrest everyone
present; Lieutenant Timothy Sachs, who was in direct command
and responsible for deploying tactical units and allegedly
developed the plan described above; Lieutenant Scott Boyher,
who was supervising SLMPD bicycle officers that evening and
allegedly directed the officers under his command to use
force and arrest the protestors; Sergeant Randy Jemerson, a
supervisor with the SLMPD's Civil Disobedience Team who
allegedly directed people to the intersection of Washington
Avenue and Tucker Boulevard pursuant to the plan described
above; Sergeant Matthew Karnowski, who allegedly declared the
protests an “unlawful assembly, ” and directed
the officers under his command to “push [the
protestors] north” toward Washington Avenue and Tucker
Boulevard; and Sergeant Brian Rossomanno, who also allegedly
directed people to the intersection, and was “within
arms-length” of the officers who pepper sprayed and
beat the protestors. Thomas also names the arresting officer
Trenton Lee, as well as John Does #1-5, who were
further involved in arresting, pepper spraying, and
assaulting him but who removed their name tags and wore masks
concealing their faces, thereby preventing Thomas from
asserts unlawful arrest (Count I), First Amendment (Count
II), and excessive force (Count XII) claims against the
individual officers pursuant to § 1983. He also asserts
§ 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.”
(SAC at ¶ 186). Finally, Thomas asserts 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. (Doc. No. 37
Supervisors also move to dismiss Thomas's § 1983
claims under Rule 12(b)(6), arguing that Thomas fails to
allege they personally participated in the use of force.
(Id. at 10). As to the state-law claims, the
Supervisors argue they should be dismissed under
Missouri's official immunity doctrine. (Id. at
13-15). 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. (Id. at 10-11).
City moves to dismiss Thomas's § 1983 conspiracy
claim on the grounds that it is barred by the intracorporate
conspiracy doctrine, citing Kelly v. City of Omaha,
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. (Doc. No. 37 at
the City moves to dismiss Thomas's § 1983 claim,
arguing that it fails to adequately allege municipal
liability under Monell v. Dep't of Social
Servs., 436 U.S. 658 (1978). (Id. at 4-8).
Finally, the City argues that Thomas's 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.
(Id. at 10).
discussed below, other judges in this District have addressed
these legal arguments in Stockley protest cases and
reached the same or similar conclusions. See Laird v.
City of St. Louis, Mo., No. 4:18-CV-01567-AGF, 2019 WL
2647273 (E.D. Mo. June 27, 2019); Laney v. City of St.
Louis, Mo., No. 4:18 CV 1575 CDP, 2019 WL 2423308 (E.D.
Mo. June 10, 2019); Aldridge v. City of St. Louis,
Mo., No. 4:18-CV-1677 CAS, 2019 WL 1695982 (E.D. Mo.
Apr. 17, 2019); see also Alston v. City of St. Louis,
Missouri, 4:18-CV-01569-AGF, 2019 WL 2869896 (E.D. Mo.
July 3, 2019). Upon careful consideration of the briefs and
the record in this case, the Court finds the reasoning in
these cases applies equally to the arguments asserted by the
parties here and therefore comes to the same conclusions.
survive a Rule 12(b)(6) 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.
8(a)(2) provides that a complaint must contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” In Twombly, the Supreme
Court clarified that Rule 8(a)(2) requires complaints to
contain “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” 550 U.S. at 555; accord Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009). Specifically, to
survive a motion to dismiss, a complaint must contain enough
factual allegations, accepted as true, to state a claim for
relief “that is plausible on its face.”
Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. Drawing on its
“judicial experience and common sense, ” the
Court must consider the plausibility of plaintiff's claim
as a whole, not the plausibility of each individual
allegation. Zoltek Corp. v. Structural Polymer Grp.,
592 F.3d 893, 896 n.4 (8th Cir. 2010). The factual
allegations must be sufficient to “ ‘raise a
right to relief above the speculative level.' ”
Parkhurst v. Tabor, 569 F.3d 861, 865 (8th Cir.
2009) (quoting Twombly, 550 U.S. at 555).
10(b) provides that “[a] party must state its claims or
defenses in numbered paragraphs, each limited as far as
practicable to a single set of circumstances.”
“[A]ny redundant, immaterial, impertinent, or
scandalous matter” may be stricken from the complaint.
Fed.R.Civ.P. 12(f). Although courts enjoy “broad
discretion” in determining whether to strike a
party's pleadings, such an action is “an extreme
measure.” Stanbury Law Firm, P.A. v. IRS, 221
F.3d 1059, 1063 (8th Cir. 2000). Accordingly, motions to
strike are “viewed with disfavor and are infrequently
Motion to Dismiss Under Rule 8(a) and ...