United States District Court, W.D. Missouri, St. Joseph Division
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
JUDGMENT ON THE PLEADINGS
KAYS, JUDGE UNITED STATES DISTRICT COURT
case arises from Plaintiff Jane Gabriel's efforts to
recover damages allegedly sustained when Defendant Bryan
Atkins, sheriff of Defendant Andrew County, Missouri,
permitted family members of Plaintiff's deceased husband
to access and remain unsupervised at her home, where they
removed Plaintiff's possessions. Now before the Court is
Defendants' joint motion for judgment on the pleadings
(Doc. 8). As set forth below, the motion is GRANTED IN PART
and DENIED IN PART.
husband, Stephen Gabriel, died in his and Plaintiff's
home on July 17, 2014. The two were living apart from each
other at the time. Atkins, the sheriff of Andrew County and
the Gabriels' family friend, arrived and permitted Mr.
Gabriel's relatives to enter the home and remain there
unsupervised while he left to notify Plaintiff of her
husband's passing. Plaintiff alleges that Mr.
Gabriel's family strongly dislikes her, and that when the
sheriff approached her, she repeatedly asked if anyone was
securing her home. Atkins rebuffed her, saying that he had
known Mr. Gabriel's relatives since childhood. Plaintiff
asked Atkins to remove the family from her home and bar their
re-entry, but he refused.
Mr. Gabriel's family changed the locks on Plaintiff's
home and removed more than $38, 000 worth of personal
property. Plaintiff filed suit against the family in state
court. She eventually obtained a judgment of $38, 428.74, but
at a cost of more than $40, 000 in expenses and attorney
fees. She initiated the present suit to recover these costs,
along with punitive damages and interest, on October 29 of
last year. Her complaint asserts eight counts, four against
Atkins, individually, and the same four against Andrew County
and Atkins in his official capacity as the sheriff of Andrew
County: equitable indemnity (Counts I and V),
negligence (Counts II and VI), trespass and conversation
(Counts III and VII), and 42 U.S.C. § 1983 (Counts IV
grant motions for judgment on the pleadings “only where
the moving party has clearly established that no material
issue of fact remains and the moving party is entitled to
judgment as a matter of law.” Waldron v. Boeing
Co., 388 F.3d 591, 593 (8th Cir. 2004) (internal
citation and quotations omitted). To survive such a motion,
the complaint “‘must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.'” McIvor v. Credit
Control Servs., Inc., 773 F.3d 909, 913 (8th Cir. 2014)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). At this stage, courts “accept all facts pled by
the nonmoving party as true and draw all reasonable
inferences from the facts” in that party's favor.
Waldron, 388 F.3d at 593. Courts “generally
may not consider materials outside the pleadings” in
ruling on a motion for judgment on the same. Greenman v.
Jessen, 787 F.3d 882, 887 (8th Cir. 2015).
move jointly for judgment in their favor on all counts. They
first argue that Plaintiff's state-law claims (Counts I,
II, III, V, VI, and VII) are time-barred under Mo. Rev. Stat.
§ 516.130(1), which requires an aggrieved party to bring
suit against a sheriff within three years if the
sheriff's liability is based on “the doing of an
act in his official capacity and in virtue of his
office.” Missouri courts interpret this language to
mean acts done “‘within the scope of what [the
sheriff] is employed to do rather than being engaged in a
personal frolic.'” Dilley v. Valentine,
401 S.W.3d 544, 553 (Mo.Ct.App. 2013) (quoting Kinder v.
Mo. Dep't of Corrections, 43 S.W.3d 369, 373
(Mo.Ct.App. 2001)). In other words, § 516.130(1)
delineates “between an action performed for work
purposes rather than for personal ones.” Id.
arguments on this point are unavailing. For one, §
516.130.1 does not apply to Plaintiff's claims against
Atkins in his individual capacity. Nonn v. Curtis,
No. 1:16-cv-273-SNLJ, 2017 WL 5070530, at *2 (E.D. Mo. Nov.
3, 2017) (citing cases). In addition, Plaintiff contends that
Atkins, as a close friend of the Gabriels, may have assisted
them for solely personal reasons. Defendants disagree. They
assert that Atkins was on duty when he responded to an
emergency call from one of Mr. Gabriel's family members.
But such information is beyond the complaint, so the Court
will not consider it in ruling on the pending motion. And
even though Plaintiff alleges that Atkins was acting under
color of law when he permitted the Gabriels to enter and
remain at her home, this does not necessarily mean that he
was acting within the scope of his employment. See
Dossett v. First State Bank, 399 F.3d 940, 949 (8th Cir.
2005) (explaining that “under color of law”
includes behavior that oversteps a public officer's
next urge the Court to dismiss Plaintiff's claims of
equitable, or “non-contractual, ” indemnity
(Counts I and V). To prevail on such claims, a plaintiff must
show that it discharged an obligation identical to an
obligation owed by the defendant, and that the defendant
would be unjustly enriched if not required to reimburse the
plaintiff. Beeler v. Martin, 306 S.W.3d 108, 111
(Mo.Ct.App. 2010). Plaintiff's complaint, however,
alleges merely that Defendants' conduct led to her
incurring legal expenses, for which “equity
demands” she be recompensed. The complaint sets forth
no facts indicating that Defendants owed a coextensive duty
to pay Plaintiff's counsel. Nor does it suggest that
Plaintiff somehow conferred a benefit upon Defendants by
discharging her legal fees. See Id. at 112 (holding
that a claim for equitable indemnity failed because the
plaintiffs had not conferred a benefit upon the defendants);
State ex rel. Manchester Ins. & Indem. Co. v.
Moss, 522 S.W.2d 772, 774 (Mo.1975) (describing
indemnity as “based on the principle that a benefit has
been conferred on defendant at the expense of
plaintiff” (internal quotations and citation omitted)).
The complaint thus fails to plead the elements of a claim for
equitable restitution. Counts I and V are dismissed.
Court also dismisses Plaintiff's remaining state-law
claims against Andrew County and Atkins in his official
capacity (Counts VI and VII). Mo. Rev. Stat. § 437.600
affords public entities such as Andrew County sovereign
immunity from tort claims, except where immunity has been
waived, abrogated, or modified by statute. Plaintiff
correctly points out that Missouri has expressly waived
public entities' sovereign immunity to the extent that
they have purchased liability insurance. Mo. Rev. Stat.
§ 537.610.1; State ex rel. Cass Med. Ctr. v.
Mason, 796 S.W.2d 621, 624 (Mo. 1990). But Plaintiff
bears the burden of pleading “with specificity facts
giving rise to an exception to sovereign immunity when suing
a public entity.” Richardson v. City of St.
Louis, 293 S.W.3d 133, 137 (Mo.Ct.App. 2009); Maune
ex rel. Maune v. City of Rolla, 203 S.W.3d 802, 804
(Mo.Ct.App. 2006) (“It was Plaintiff's burden to
establish a sovereign immunity waiver as part and parcel of
any pleaded theory against the City.”). Since
Plaintiff's complaint is silent as to the existence of an
applicable liability policy or any other waiver, Counts VI
and VII do not state a claim for which relief can be granted.
Court likewise dismisses Plaintiff's claim for punitive
damages under § 1983 against Andrew County and Atkins in
his official capacity. In City of Newport v. Fact Concerts,
Inc., 453 U.S. 257, 271 (1981), the Supreme Court held
that a municipality is immune from punitive damages under
§ 1983. The Court reasoned that an unpredictable award
of punitive damages against a municipality “punishes
only the taxpayers.” Id. at 267. The Court
sees no reason why this ruling should not apply to counties
as well. Indeed, other courts have so held. See,
e.g., Kelly v. Clay Cty., No. 4:12-cv-0778-BP,
2012 WL 12904711, at *1 (W.D. Mo. Nov. 2, 2012);
Harrelson v. Elmore Cty., 859 F.Supp. 1465, 1467-68
(M.D. Ala. 1994) (collecting cases). Plaintiff may, however,
seek punitive damages from Atkins in his individual capacity.
See Wade v. Smith, 461 U.S. 30, 56 (1983).
the Court grants Plaintiff leave to amend her complaint with
respect to her § 1983 claims (Counts IV and VIII), as it
is presently unclear on what basis she seeks to recover. Both
counts allege that Defendants violated Plaintiff's
substantive due process rights under the Fourteenth
Amendment, but they also mention violations of the Fourth
Amendment and the Missouri Constitution. And
although Plaintiff appears to plead the elements of a
“state-created-danger” claim under the due
process clause, see Fields v. Abbott, 652 F.3d 886,
891 (8th Cir. 2011), this theory of liability does not apply
to deprivations of property interests. Id.
(requiring a “significant risk of serious, immediate,
and proximate harm”); see also Barber v.
Overton, 496 F.3d 449, 460 (6th Cir. 2007) (“[N]o
constitutionally cognizable injury exists in the absence of
physical harm to tie to the State's
action.” (emphasis added)); Johnson v. Dallas
Indep. Sch. Dist., 38 F.3d 198, 201 (5th Cir. 1994)
(“[T]he environment created by the state actors must be
dangerous.”). Moreover, Plaintiff's § 1983
claim against Andrew County identifies no policy or custom
that led to Plaintiff's injuries. See Ulrich v. Pope
Cty., 715 ...