United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G FLEISSIG UNITED STATES DISTRICT JUDGE.
Heather De Mian, a journalist who relies on a wheelchair for
mobility, 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 pepper sprayed her.
Plaintiff brings this civil rights action under 42 U.S.C.
§ 1983 against SLMPD officers John Hayden and William
Olsten alleged to be involved in the relevant
events, as well as the City of St. Louis. This is one of
several cases arising out of SLMPD officers' conduct with
respect to the Stockley protests.
the defendants in the other cases, Defendants here move to
dismiss or, alternatively, to strike Plaintiff's amended
complaint. For the reasons that follow, the Court will
dismiss Plaintiff's failure to train and supervise claims
against the City, the excessive force claim against Defendant
Hayden, and the request for punitive damages on the state law
claims against the City. The Court will otherwise deny the
motion to dismiss.
as true for the purpose of this motion, the facts alleged in
the 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 chemicals.” ECF No. 16 ¶ 22.
September 29, 2017, a protest occurred on the streets of
downtown St. Louis, including near Busch Stadium, beginning
at approximately 7:00 p.m. Throughout the course of several
hours, the protestors marched up and down various streets of
downtown protesting police violence. SLMPD blocked street
intersections and regulated pedestrian and traffic flow
during the demonstrations.
approximately 9:00 p.m., protestors who had been marching
elsewhere in downtown St. Louis began making their way south
on Broadway towards Busch Stadium. When the protestors
reached the intersection of Broadway and Walnut, SLMPD
officers “began indiscriminately using pepper spray on
civilians without provocation of violence or criminal
behavior.” ECF No. 6 at ¶ 45. Video evidence shows
the protestors were acting peacefully and calmly.
warning, a SLMPD officer violently threw one protestor,
Reverend Gray, to the ground, and protestors began to loudly
voice their disapproval of the force used and loudly
questioning why the police had decided to use violence. After
the police shot another protestor with a taser, protestors
again began demanding why the police were deploying such a
weapon. In response, Olsten began antagonizing the
protestors, yelling “Come and f--- me up then.”
Two other SLMPD officers tried to grab Olsten, calm him down,
and move him away from the crowd. Hayden, at the time a SLMPD
major, was standing approximately five feet to the right of
was not in danger or trying to extricate himself from a
dangerous situation. He became increasingly agitated and was
observed to “very pronouncedly chomp on his gum and
begin to flex his muscles.” Id. at ¶ 57.
Then, Olsten pulled out and fired a “large fogger like
canister of pepper spray” without first giving any
dispersal order or warning, and the spray hit Plaintiff and
three other citizens. Id. at ¶¶ 59.
who was using her wheelchair and wearing a neck lanyard
identifying her as a member of the press, began to feel
excruciating pain from the pepper spray. Her eyes began to
burn, mucus ran from her nose, and her breathing became
labored. Olsten made no attempt to effectuate any arrests
after spraying Plaintiff and others with the pepper spray,
and instead walked away. During the incident, Hayden was in
the middle of the SLMPD officers wearing a white shirt,
indicating he was a supervisor, and took no steps to prevent
Olsten from inflicting punishment on peaceful protestors and
members of the media.
noted above, Plaintiff's nine-count amended complaint
names the City and two SLMPD officers alleged to be involved
in the relevant events. Plaintiff asserts violations of the
First and Fourteenth Amendments (Count I) against Hayden and
Olsten, as well as excessive force against Olsten (Count
VII). Plaintiff asserts § 1983 claims against the City
(Count III) alleging municipal liability for the
officers' unlawful actions and against all Defendants
(Count II) 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
Plaintiff's civil rights.” Id. at ¶
87. Finally, Plaintiff asserts supplemental state-law claims
against all Defendants alleging assault (Count IV),
intentional infliction and negligent infliction of emotional
distress (Counts V and VI), battery (Count VIII), and
malicious trespass of property (Count IX).
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, Defendants
move to strike certain paragraphs of the amended complaint
under Fed.R.Civ.P. 12(f) as immaterial or impertinent. Hayden
moves to dismiss Plaintiff's § 1983 claims against
him under Rule 12(b)(6), arguing that Plaintiff fails to
allege that he personally participated in the use of force.
As to the state-law claims, Hayden and Olsten argue that they
should be dismissed under Missouri's official immunity
City moves to dismiss Plaintiff's § 1983 conspiracy
claim on the basis that it is barred by the intracorporate
conspiracy doctrine, citing Kelly v. City of Omaha,
Neb., 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.
the City moves to dismiss Plaintiff's § 1983 claim,
arguing that it fails to adequately allege municipal
liability under Monell v. Department of Social Services
of City of New York, 436 U.S. 658 (1978). Finally, the
City argues that Plaintiff'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.
survive a 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.
to Dismiss Under Rule 8(a) and Alternative Motion to
move to dismiss the amended complaint for failure to comply
with the “short and plain” statement requirement
of Rule 8(a), arguing that the complaint is “replete
with tendentious and immaterial allegations attacking the
integrity of Missouri courts, injecting spurious issues to
which defendants cannot possibly frame a response . . .
.” ECF No. 23 at 2. Specifically, Defendants object to
Plaintiff's allegations concerning the Stockley
verdict, the nature of public protests in response thereto,
and prior orders of this Court concerning SLMPD actions in
response to public protests. Alternatively, Defendants move
to strike these paragraphs under Fed.R.Civ.P. 12(f) as
immaterial or impertinent.
undersigned, as well as other judges in this District, has
held with respect to the same challenge in related cases,
that the amended complaint's factual allegations and the
supporting exhibits to which the Defendants object are
relevant to Plaintiff's municipal liability claim at a
minimum. See Thomas v. City of St. Louis, Mo.,
4:18-cv-01566-JAR, 2019 WL 3037200 (E.D. Mo. July 11, 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 ...