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Morgan-Tyra v. City of St. Louis

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

October 30, 2019

JENNIFER MORGAN-TYRA, and MICHAEL MORGAN, Plaintiff,
v.
CITY OF ST. LOUIS, and OFFICER ANDREI NIKOLOV, Defendants.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE

         This case arises out of the May 8, 2015, shooting of Plaintiff Jennifer Morgan-Tyra (“Morgan-Tyra”), by City of St. Louis (“City”) police officer Andrei Nikolov (“Nikolov”). Morgan-Tyra was shot at least nine times and suffered severe injuries, including permanent paralysis. Morgan-Tyra filed suit, joined by her brother, Plaintiff Michael Morgan (“Morgan”), asserting claims under 42 U.S.C. § 1983, § 1985, and Missouri law against Nikolov, in his individual capacity, and against the City for money damages. This matter is before the Court on Defendants' motion (ECF No. 39) to dismiss Plaintiffs' second amended complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the Court will grant the motion in part and deny it in part.

         BACKGROUND

         Taken as true for the purpose of this motion, the facts alleged in the second amended complaint are as follows. On May 8, 2015, at approximately 7:00 p.m., Morgan-Tyra placed a call to 911 operators to report a break-in of the back door of her childhood home at 4241 Chippewa, by an intruder, Karla Nicholson (“Nicholson”). The home was owned at the time by Jason Tyra, another brother of Morgan-Tyra. Morgan-Tyra was using a lawfully-possessed handgun to protect herself from Nicholson, who was threatening Morgan-Tyra with a large screwdriver. At the time of the shooting, Morgan-Tyra was standing in the hallway pointing her handgun at Nicholson, who had by that time stopped threatening Morgan-Tyra with the screwdriver. Morgan-Tyra instructed Nicholson to remain seated on a bed in the bedroom adjoining the hallway where Morgan-Tyra was located.

         At the time of Morgan-Tyra's 911 call, Nikolov and Officer Gregory Buschart[1]were performing their routine duties by responding to calls for assistance made to the 911 operator. Responding to Morgan-Tyra's 911 call, Nikolov entered the residence, approached Morgan-Tyra from behind, and fired his service revolver into her back and other areas, hitting her body at least nine times. Morgan-Tyra suffered severe injuries, including permanent paralysis from the 12th thoracic vertebra down, a medically-induced coma for eight weeks, and other internal injuries requiring extensive surgeries. Morgan was present and in the direction of fire when his sister was shot.

         Morgan-Tyra claims that Nikolov opened fire without “probable cause or reasonable suspicion to believe that anyone posed a threat of serious physical harm either to Defendant Nikolov or to any other person.” ECF No. 37 ¶ 20. She further alleges that Nikolov failed to identify himself as a police officer and did not give her a reasonable opportunity to follow commands.

         Following the shooting, Nikolov and other unidentified members of the St. Louis Police Department obtained warrants for Morgan-Tyra's arrest and took her into custody. Morgan-Tyra claims that the City, through its employees and agents, including Nikolov, provided false and misleading evidence to secure her prosecution and charge her with a Class C Felony of Assault Second Degree on a Law Enforcement Office and Class B Felony of Armed Criminal Action. Morgan-Tyra further alleges that Nikolov and Officer Bushart falsely reported to prosecutors that both officers had identified themselves as police officers prior to the shooting even though a 911 recording demonstrates there was no such identification. On June 5, 2017, the City Circuit Attorney's Office dismissed the charges against Morgan-Tyra.

         ARGUMENTS OF THE PARTIES

         Morgan-Tyra asserts § 1983 claims, alleging excessive force against Nikolov (Count I), and municipal liability against the City for a failure to train, supervise or discipline (Count IV). Against both Defendants, Morgan-Tyra also asserts a claim for “unreasonable seizure, false arrest, and violation of substantive due process” under § 1983 (Count II), as well as for civil conspiracy pursuant to 42 U.S.C. § 1985 (Count III). Finally, Morgan-Tyra asserts supplemental state-law claims against both Defendants, alleging common law false imprisonment (Count V), malicious prosecution (Count VI), abuse of process (Count VII), and negligent infliction of emotional distress (Count VIII).

         Morgan asserts state-law claims against both Defendants, alleging intentional infliction of emotional distress (Count IX) and, in the alternative, negligent infliction of emotional distress (Count X).

         Plaintiffs allege that the City has waived sovereign immunity with respect to the state-law claims by obtaining insurance, pursuant to Mo. Rev. Stat. § 537.610, from the Public Facilities Protection Corporation (“PFPC”) to insure the City against all claims and that the coverage constitutes insurance or, in the alternative, a self-insurance plan.

         The City and Nikolov move to dismiss the second amended complaint for failure to state a claim upon which relief can be granted. With regard to the excessive force claim, Nikolov argues that he is entitled to qualified immunity because, based on the facts alleged, he reasonably believed Morgan-Tyra posed an imminent threat of serious harm to Nicholson, and as such, his conduct did not violate clearly established law. Regarding the claim of unreasonable seizure, false arrest, and violation of substantive due process, Nikolov argues that Morgan-Tyra's claim is foreclosed, as state prosecution without probable cause does not violate substantive due process, relying on Albright v. Oliver, 510 U.S. 266, 275 (1994). However, as Defendants' motion does not address Morgan-Tyra's claims of false arrest and unreasonable seizure against Nikolov, the Court will assume that Nikolov does not challenge these claims. Finally, Nikolov argues that all of Plaintiffs' state-law claims against him are barred by Missouri's official immunity doctrine, and that the negligent infliction of emotional distress claims should be dismissed as Missouri law does not permit negligence claims to be premised on an intentional act, such as the shooting here.

         The City moves to dismiss Morgan-Tyra's § 1983 claims for failure to train, supervise, or discipline, and also for unreasonable seizure, false arrest, and violation of substantive due process, arguing that the second amended complaint fails to adequately allege municipal liability under Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978). The City also moves to dismiss Morgan-Tyra's § 1985 conspiracy claim, arguing 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 that Morgan-Tyra has alleged no facts showing that the Defendants reached an agreement to violate her constitutional rights.

         Next, the City argues that Plaintiffs' state-law claims are barred by sovereign immunity, and that the insurance exception under Mo. Rev. Stat. § 537.610 does not apply here. Finally, the City, like Nikolov, argues that Plaintiffs' negligent infliction of emotional distress claims cannot proceed in light of the allegations of an intentional act.

         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.

         Excessive Force Claim Against Nikolov Under ...


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