United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants City of St. Louis,
Gerald Leyshock, Timothy Sachs, Scott Boyher, Randy Jemerson,
Matthew Karnowski, and Brian Rossomanno's Motion to
Dismiss and Alternative Motion to Strike, [Doc. No. 35].
Plaintiffs oppose the Motion, which has been fully briefed.
For the reasons set forth below, the Motion to Dismiss is
denied in part and granted in part. The Motion to Strike is
and several other cases filed in this District share a
general set of facts regarding the actions of St. Louis
Metropolitan Police Department (“SLMPD”) officers
during peaceful protests following the September 15, 2017
verdict in State of Missouri v. Stockley, See
Aldridge v. City of St. Louis, Mo., No. 4:18-CV-1677
CAS, 2019 WL 1695982 (E.D. Mo. Apr. 17, 2019); Laney v.
City of St. Louis, Mo., No. 4:18-CV-1575 CDP, 2019 WL
2423308, (E.D. Mo. June 10, 2019); Laird v. City of St.
Louis, Mo., No. 4:18-CV-1567 AGF, 2019 WL 2647273 (E.D.
Mo. June 27, 2019); Alston v. City of St. Louis,
Mo., No. 4:18-CV-1569 AGF, 2019 WL 2869896 (E.D. Mo.
July 3, 2019); Thomas v. City of St. Louis, Mo., No.
4:18-CV-1566 JAR, 2019 WL 3037200 (E.D. Mo. July 11, 2019).
Those facts, as well as the allegations specific to Plaintiff
Dillan Newbold, are as follows:
September 15, 2017, the Circuit Court of the City of St.
Louis, Hon. Timothy Wilson, issued its findings and verdict
in State of Missouri v. Stockley acquitting former
SLMPD officer Jason Stockley of first-degree murder of
Anthony Lamar Smith. The verdict prompted some members of the
St. Louis community to engage in protests in St. Louis and
the surrounding communities. The protests concerned not only
the verdict but broader issues, including racism and the use
of force by police officers. 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
Dillan Newbold (“Newbold”) is a medical student
at Washington University. He has lived in St. Louis since
2014 and has participated in several socio-political
protests. On September 17, 2017, Newbold went to downtown St.
Louis with friends to protest the acquittal of Jason
Stockley. About 100 people were scattered around the area of
Washington Avenue and Tucked Boulevard, though no large
groups were formed. Newbold walked around the block, ending
up a block south of Washington and Tucker. There, he saw
police officers on bicycles herding pedestrians north toward
Washington and Tucker and heard screaming from an alley. He
ran to the alley and saw a line of police officers in riot
gear marching down the alley. At no point did Newbold hear
any police warnings or orders to disperse.
attempted to return to his car at Washington and Tucker,
where a crowd was beginning to form. Police were blocking all
points of egress from the intersection of Washington and
Tucker, with a line of bicycle officers to the east and full
lines of riot police beating batons on the other three sides.
The police marched inward, pushing people into the northeast
corner of the intersection. Newbold asked officers “How
can we leave?” The only response he received were
shouts of “Move back.”
fearing the SLMPD would use chemical agents on the
protestors, put on a bandana and goggles. As armored police
approached the crowd, protestors began putting their arms up
and sitting down. Newbold, responding to an officer's
order to “get down, ” sat down on the ground and
began recording video on his phone. A police officer told
Newbold to “Put your damn phone away and sprayed his
face with a small amount of pepper spray. Newbold stopped
filming and moved into a fetal position.
police officer then reached down and pulled off Newbold's
bandana and goggles. The police officer dragged Newbold by
the waistband about five feet into the street, scraping
Newbold's hip and knee. Another officer sprayed Newbold
in the face with pepper spray. Newbold's hands were
tightly zip tied behind his back, so he could not wipe his
face. Newbold shouted that he could not breathe. An officer
shouted that “That's what idiots say.”
Another officer allegedly stood over Newbold and mocked him,
saying “Are you proud now? Are you going to tell your
wife about this? You better not. I'm so glad I'm in
St. Louis and get to do s**t like this!”
few minutes, Newbold experienced intense pain in his wrists
and hands from the zip ties. He asked at least six police
officers to loosen the zip ties, telling them that he was
concerned about nerve damage. He was ignored. Officers placed
Newbold in the back of a transport van with about eight other
arrestees. On the ride to the Justice Center, the van driver
slammed on the brakes, causing the arrestees to slam into one
about 15 minutes in zip ties, Newbold lost all sensation in
his hands. When Newbold was put in a holding cell, his hands
were purple. He tried to get an officer's attention to
loosen the zip ties. Ten minutes later, an officer removed
the zip ties. This was about an hour and fifteen minutes
after Newbold's arrest.
was detained for over fifteen hours, during which he
continued to experience pain caused by the pepper spray. He
was concerned about pepper spray under his contact lenses but
could not remove them due to mace on his hands.
after his release, Newbold went to the student health office.
There, he was directed to the emergency room. He was
diagnosed with neuralgia (nerve pain) and neuropraxia (loss
of sensation due to nerve injury.) He experienced
hypersensitivity to heat and pain, as well as no sensation in
some parts of his right hand for two days after his arrest.
Newbold did not recover full sensation in his right hand for
nearly two months.
also contains allegations that none of the individuals inside
the crowd of protestors (the “kettle”) on
September 17, 2017 were acting violently and aggressively,
yet they were kicked, beaten, dragged, and sprayed with
chemical agents. Further, during and after the arrests of
protestors, 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!”
addition to the Defendant City of St. Louis, Missouri (the
“City”), the SAC names several SLMPD officers as
defendants, including six supervisory officers (collectively,
“Supervisory Defendants”), the arresting officer,
and five “John Doe” SLMPD officers. Lieutenant
Colonel Gerald Leyshock was the incident commander during the
events of September 17, 2017. Leyshock allegedly approved the
plan to prevent civilians from leaving the vicinity of
Washington Avenue and Tucker Boulevard and to arrest everyone
present. Lieutenant Timothy Sachs allegedly developed the
plan described above, deployed the tactical units
accordingly, and ordered the use of chemical agents.
Lieutenant Scott Boyher allegedly directed officers under his
command to block protestors in and directed the officers to
use force against and to arrest protestors. Sergeant Matthew
Karnowski allegedly declared the protests an “unlawful
assembly, ” which SLMPD used as a predicate to the
arrests and use of the chemical agents. Karnowski also
directed the officers under his command to use force against
and to arrest protestors. Sergeant Randy Jemerson is a
supervisor with the SLMPD's Civil Disobedience Team and
directed people to the intersection of Washington and Tucker
pursuant to the plan described above. Sergeant Brian
Rossomanno also allegedly directed people to the
intersection, and was “within arms-length” of the
officers who pepper sprayed and used force against
protestors. The City and these Supervisory Defendants brought
the instant Motion to Dismiss. Also named as defendants, but
not party to this motion, are Officer Terrence Ruffin, who
arrested Newbold, and John Does #1-5, who are unidentified
SLMPD officers. The Doe defendants allegedly arrested, used
chemical munitions against, beat, and prevented the movement
of Newbold. Newbold cannot identify the Doe officers because
they removed their name tags and wore masks.
asserts 13 counts. Claims made against the individual
defendant officers and pursuant to § 1983 include:
Fourth Amendment unlawful seizure (Count I), violation of the
First Amendment rights to speech and assembly (Count II), and
Fourth Amendment excessive force (Count XII). Count IV
asserts § 1983 claims against the City alleging
municipal liability for the officers' unlawful actions.
Count III alleges a conspiracy between all Defendants to
deprive Newbold's civil rights. Finally, Plaintiff
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).
City and Supervisory Defendants first move to dismiss the SAC
pursuant to Federal Rule of Civil Procedure 8(a) which
requires a “short and plain statement of the
claim.” Alternatively, the City and Supervisory
Defendants move to strike parts of the SAC under Fed.R.Civ.P.
12(f) as immaterial and impertinent.
the City and Supervisory Defendants move to dismiss for
failure to state a claim under Fed.R.Civ.P. 12(b)(6). The
City moves to dismiss the § 1983 claim against it for
failing to adequately allege municipal liability under
Monell v. Department of Social Services of the City of
New York, 436 U.S. 658 (1978). The City moves to dismiss
the civil conspiracy claim against it as barred by the
intracorporate conspiracy doctrine; in addition, the City and
Supervisory Defendants argue that the claims underlying the
conspiracy claim fail, leaving no viable conspiracy action.
The Supervisory Defendants move to dismiss the § 1983
claims against them, arguing that the SAC does not show that
the Supervisory Defendants personally participated in any
City and Supervisory Defendants move to dismiss the state law
claims, invoking sovereign immunity as to the City and
official immunity as to the Supervisory Defendants. The City
also argues that Plaintiff's claim against it for
punitive damages arising from state law claims is barred by
legal arguments in support of and in opposition to
Defendants' instant motion mirror those made in the above
referenced Stockley protest cases. The judges in
this District that have addressed these arguments have
reached the same or similar conclusions. See
Aldridge, 2019 WL 1695982; Laney, 2019 WL
2423308; Laird, 2019 WL 2647273; Alston,
2019 WL 2869896; Thomas, 2019 WL 3037200. Upon
careful consideration of the parties' arguments and
review of the record in this case, and discussed in detail
below, this Court is in agreement with the reasoning and
conclusions of its fellow judges.
purpose of a motion to dismiss for failure to state a claim
is to test the legal sufficiency of the complaint. To survive
a motion to dismiss pursuant to Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A complaint
states a plausible claim for relief if its ‘factual
content ... allows the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.'” Braden v. Wal-Mart Stores,
Inc., 588 F.3d 585, 594 (8th Cir. 2009) (quoting
Iqbal, 556 U.S. at 678).
considering a 12(b)(6) motion, the district court accepts as
true all factual allegations in the complaint and grants all
reasonable inferences in favor of the nonmoving party.
Crooks v. Lynch, 557 F.3d 846, 848 (8th Cir. 2009).
A claim for relief “must include sufficient factual
information to provide the ‘grounds' on which the
claim rests, and to raise a right to relief above a
speculative level.” Schaaf v. Residential Funding
Corp., 517 F.3d 544, 549 (8th Cir. 2008) (quoting
Twombly, 550 U.S. at 555 & n.3). This obligation
requires a plaintiff to plead “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550
U.S. at 555. The principle that a court must accept as true
all of the allegations contained in a complaint does not
apply to legal conclusions. Iqbal, 556 U.S. at 678
(“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
8(a) Motion to Dismiss and Alternative ...