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Thomas v. City of St. Louis

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

July 11, 2019

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



         Plaintiff 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, ”[1] 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.

         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 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.

         I. 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 [chemical agents].” (SAC at ¶ 28).

         On the 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.

         Upon 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 Thomas.

         Thomas 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).

         Thomas's 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[2], 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 identifying them.

         Thomas 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 XIII).

         The City and Supervisors[3] 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 at 2-4).

         The 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).

         The 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 8-10).

         Next, 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).

         As 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.

         II. Legal standard

         To 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.

         Rule 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).

         Rule 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 granted.” Id.

         III. Discussion

         A. Motion to Dismiss Under Rule 8(a) and ...

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