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Newbold v. City of Saint Louis

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

July 16, 2019

DILLAN NEWBOLD, Plaintiff,
v.
CITY OF SAINT LOUIS, MISSOURI, et al., Defendants,

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE.

         This 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 denied.

         Facts and Background[1]

         This 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:

         On 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 chemical agents.

         Plaintiff 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.

         Newbold 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.”

         Newbold, 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.

         A 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!”

         After a 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 another.

         After 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.

         Newbold 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.

         Immediately 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.

         The SAC 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!”

         In 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.

         Newbold 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).

         The 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.

         Next, 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 constitutional tort.

         The 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 Missouri law.

         The 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.

         Standard of Review

         The 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).

         When 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 suffice”).

         Discussion

         Rule 8(a) Motion to Dismiss and Alternative ...


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