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Mian v. City of Saint Louis

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

July 30, 2019

HEATHER DE MIAN, Plaintiff,
v.
CITY OF SAINT LOUIS, MISSOURI, et al., Defendants.

          MEMORANDUM AND ORDER

          AUDREY G FLEISSIG UNITED STATES DISTRICT JUDGE.

         Plaintiff 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[1] 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.

         As have 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.

         BACKGROUND

         Taken 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.

         On 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.

         At 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.

         Without 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 Olsten.

         Olsten 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.

         Plaintiff, 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.

         As 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).

         Defendants 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 doctrine.

         The 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.

         Next, 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.

         DISCUSSION

         To 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.

         Motion to Dismiss Under Rule 8(a) and Alternative Motion to Strike

         Defendants 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.

         The 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 ...


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