Professional Documents
Culture Documents
Porter et al
Doc. 63
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M EM ORAN D UM AN D ORD ER
This m at t er is before t he Court on t he m ot ion of defendant s Tonya Levet t e
Port er, Jaim ie Pit t erle, and t he Cit y of St . Louis t o dism iss t he com plaint for failur e
t o st at e a claim pursuant t o Fed. R. Civ. P. 12( b) ( 6) .
Ba ck gr ou n d
Plaint iff Reverend Xiu Hui Joseph Jiang is a Chinese- born ordained Cat holic
priest in t he Archdiocese of St . Louis. Jiang assert s t hat defendant s A.M. and N.M.
falsely accused him of sexually abusing t heir m inor son for t he purpose of m onet ary
gain.
Jiang also assert s t hat defendant s Jaim ie D. Pit t erle and Tonya Levet t e
Port er, officers of t he St . Louis Met ropolit an Police Depart m ent , conduct ed an
inadequat e invest igat ion
of
for
prosecut ion because of his religion and et hnicit y. He alleges t hat defendant Cit y of
St . Louis failed t o properly t rain t he officers and t hat t he officers conduct was t he
result of t he cit ys unconst it ut ional policies and pract ices. Jiang furt her assert s t hat
defendant s Survivors Net work of Those Abused by Priest s, it s execut ive direct or
David Clohessy, and it s regist ered agent in Missouri Barbara Dorris ( t he SNAP
Dockets.Justia.com
defendant s ) led a public sm ear cam paign against him which included m aking false
accusat ions of child m olest at ion in t he m edia.
rem ained pending in st at e court from April 17, 2014 unt il June 17, 2015, when it
was volunt arily dism issed short ly before t rial.
The fift een- count com plaint consist s of t he following claim s:
religious
discrim inat ion, select ive enforcem ent and prosecut ion based on religion, race and
nat ional origin, and conduct shocking t he conscience, all in violat ion of 42 U.S.C.
1983, against defendant s Port er and Pit t erle ( Count s I VI ) ; conspiracy t o violat e
civil right s, in violat ion of 42 U.S.C. 1985, against defendant s except t he Cit y of
St . Louis ( Count VI I ) ; willful, m alicious and reckless official act s in violat ion of
Missouri law against defendant s Port er and Pit t erle ( VI I I ) ; vicarious liabilit y and
Monell claim s for unconst it ut ional policy and pract ice and failure t o t rain and
supervise against defendant Cit y of St . Louis ( Count s I XXI ) ; abuse of process
against defendant s Port er, Pit t erle, A.M. and N.M. ( Count XI I ) ; int ent ional inflict ion
of em ot ional dist ress against all defendant s except t he Cit y of St . Louis ( Count
XI I I ) ; and defam at ion against A.M., N.M., and t he SNAP defendant s ( Count s XI V
XV) .
Plaint iff seeks m onet ary and inj unct ive relief.
II.
Le ga l St a n da r d
The purpose of a m ot ion t o dism iss under Rule 12( b) ( 6) is t o t est t he legal
sufficiency of t he com plaint . Fed. R. Civ. P. 12( b) ( 6) . The fact ual allegat ions of a
com plaint are assum ed t rue and const rued in favor of t he plaint iff, even if it st rikes
a savvy j udge t hat act ual proof of t hose fact s is im probable. Bell At lant ic Corp. v.
Twom bly, 550 U.S. 544, 556 ( 2007) ( cit ing Swierkiewicz v. Sorem a N.A., 534 U.S.
506, 508 n.1 ( 2002) ) ; Neit zke v. William s, 490 U.S. 319, 327 ( 1989) ( Rule
12( b) ( 6) does not count enance . . . dism issals based on a j udges disbelief of a
com plaint s fact ual allegat ions. ) ; Scheuer v. Rhodes, 416 U.S. 232, 236 ( 1974)
( st at ing t hat a well- pleaded com plaint m ay proceed even if it appears t hat a
recovery is very rem ot e and unlikely ) .
ult im at ely prevail, but whet her t he plaint iff is ent it led t o present evidence in
support of his claim .
enough fact s t o st at e a claim t o relief t hat is plausible on it s face. Twom bly, 550
U.S. at 570; see id. at 563 ( st at ing t hat t he no set of fact s language in Conley v.
Gibson, 355 U.S. 41, 4546 ( 1957) , has earned it s ret irem ent ) ; see also Ashcroft
v. I qbal, 556 U.S. 662, 67884 ( 2009) ( holding t hat t he pleading st andard set fort h
in Twom bly applies t o all civil act ions) .
raise a right t o relief above t he speculat ive level. Twom bly, 550 U.S. at 555.
II.
D iscu ssion
A.
Qu a lifie d I m m u n it y
Defendant s Port er and Pit t erle first cont end t hat plaint iffs claim s against
t hem in Count s I t o VI should be dism issed, because t hey were shielded by
qualified im m unit y at all t im es relevant t o t his act ion.
[ Q] ualified im m unit y
prot ect s governm ent officials from liabilit y for civil dam ages insofar as t heir
conduct does not violat e clearly est ablished st at ut ory or const it ut ional right s of
which a reasonable person w ould have known. Pearson v. Callahan, 555 U.S. 223,
231 ( 2009) ( quot ing Harlow v. Fit zgerald, 457 U.S. 800, 818 ( 1982) ) . Dism issal on
t he basis of qualified im m unit y is inappropriat e unless it appears beyond doubt
[ t hat t he plaint iff] can prove no set of fact s in support of [ his] const it ut ional claim s
which would ent it le [ him ] t o relief. Cent ral Airlines, I nc. v. Unit ed St at es, 138 F.3d
333, 334 ( 8t h Cir. 1998) ( int ernal quot at ions om it t ed) ; see also Weaver v. Clarke,
45 F.3d 1253, 1255 ( 8t h Cir. 1995) ( st at ing t hat qualified im m unit y will be upheld
on a 12( b) ( 6) m ot ion only when t he im m unit y is est ablished on t he face of t he
com plaint ) .
To overcom e defendant s qualified im m unit y claim s, plaint iff m ust show t hat :
( 1) t he fact s, view ed in t he light m ost favorable t o t he [ him ] , dem onst rat e t he
deprivat ion of a const it ut ional right ; and ( 2) t he right was clearly est ablished at t he
t im e of t he deprivat ion.
det erm ining whet her a right is clearly est ablished is whet her it would be clear t o a
reasonable officer t hat his conduct was unlawful in t he sit uat ion he confront ed.
Colem an v. Parkm an, 349 F.3d 534, 538 ( 8t h Cir. 2003) ( quot ing Saucier v. Kat z,
533 U.S. 194, 202 ( 2001) ) . Court s are allowed t o exercise t heir sound discret ion
in deciding which of t he t wo prongs of t he qualified im m unit y analysis should be
addressed first in light of t he circum st ances in t he part icular case at hand.
Pearson, 555 U.S. at 236.
I n Count s I t hrough V, plaint iff assert s claim s of discrim inat ion in violat ion of
t he Equal Prot ect ion Clause of t he Fourt eent h Am endm ent and t he Free Exercise
Clause of t he First Am endm ent .
prot ect ion claim s is t hat t he police defendant s t reat ed him less favorably in t heir
invest igat ion and prosecut ion because of his religion, his st at us as an ordained
m inist er, and his race or nat ional origin. Plaint iffs subst ant ive due process claim is
based on t he allegat ion t hat t he police defendant s pursued t he crim inal prosecut ion
against him , even t hough t hey had evidence t hat t he accusat ion of sexual abuse
was false and t hey knew t hat plaint iff had passed a polygraph t est .
Defendant s cont end t hat t he com plaint describes t he conduct of obj ect ively
reasonable police officers responding t o and invest igat ing allegat ions of child sexual
abuse. Also, defendant s assert t hat plaint iff has not alleged t hat t he failure t o offer
or act upon a polygraph exam inat ion violat ed his clearly est ablished const it ut ional
right s.
Prosecut orial discret ion m ay not be deliberat ely based upon an unj ust ifiable
st andard such as race, religion, or ot her arbit rary classificat ion, including t he
exercise of prot ect ed st at ut ory and const it ut ional right s.
470 U.S. 598, 608 ( 1985) ( int ernal quot at ions and cit at ions om it t ed) .
Select ive
prosecut ion and select ive enforcem ent claim s are j udged according t o ordinary
equal prot ect ion st andards.
I d.
discrim inat ory effect and t hat t he st at e act ors were m ot ivat ed by a discrim inat ory
purpose.
I d. at 60809; see also Unit ed St at es v. Arm st rong, 517 U.S. 456, 465
( 1996) .
To est ablish a discrim inat ory effect , a plaint iff m ust show t hat sim ilarly
sit uat ed
individuals
were
not
prosecut ed.
Arm st rong,
517
U.S.
at
465.
Discrim inat ory purpose im plies t hat t he decisionm aker select ed or reaffirm ed a
part icular course of act ion at least in part because of, not m erely in spit e of, it s
adverse effect s upon an ident ifiable group.
t horough invest igat ion, t hey would have learned t hat t he m inor child had m ade
unfounded claim s of sexual abuse in t he past and t hat he was m ent ally and
em ot ionally t roubled; t hat defendant s A.M. and N.M. had a hist ory of m aking
unfounded allegat ions against t he Cat holic Church for financial gain; and t hat t here
were circum st ances t hat m ade it im possible for plaint iff t o have com m it t ed t he
abuse as alleged. I t is furt her alleged t hat none of t he childs accusat ions could be
subst ant iat ed and t hat t he child m ade t he accusat ions only aft er t hey were
suggest ed t o him by his fat her.
Addit ionally, t he com plaint assert s t hat t he police defendant s ordinarily
conduct m ore subst ant ial and t horough invest igat ions before arrest ing and charging
suspect s in cases involving allegat ions of sexual abuse against children.
com plaint
alleges t hat
The
select ive
prosecut ion because of discrim inat ory anim us t oward plaint iffs religion, race and
nat ional origin, as a Cat holic priest and Chinese nat ional. Moreover, t he com plaint
explains t hat t he police defendant s and t he Cit y of St . Louis had a general policy
and pract ice of perm it t ing crim inal defendant s who m aint ain t heir innocence t o t ake
polygraph exam inat ions and t hen dropping charges against t hat defendant if he or
she passes t he polygraph exam inat ion.
from t his policy when t hey refused t o perm it plaint iff t o t ake a polygraph
exam inat ion t o rebut t he allegat ions against him and when t hey refused t o dism iss
t he charges against plaint iff aft er he passed a polygraph exam inat ion. I d. at 63
68, 7072, 73( d) ( e) .
On t he basis of t hese allegat ions, accept ed as t rue for purposes of t he inst ant
m ot ion, t he com plaint alleges fact s t hat sufficient ly support plaint iffs claim t hat he
was t reat ed less favorably t han sim ilarly sit uat ed individuals and t hat he was
t arget ed for prosecut ion because of his religion, race and nat ional origin, in
violat ion of plaint iffs clearly est ablished right s under t he Equal Prot ect ion Clause.
Count s I t o V will not be dism issed on t he basis of qualified im m unit y at t his st age
in t he lit igat ion.
See Cent ral Airlines, I nc., 138 F.3d at 334; Weaver, 45 F.3d at
1255.
Wit h respect t o Count VI , [ t ] o est ablish a violat ion of subst ant ive due
process right s by an execut ive official, a plaint iff m ust show ( 1) t hat t he official
violat ed one or m ore fundam ent al const it ut ional right s, and ( 2) t hat t he conduct of
t he execut ive official was shocking t o t he cont em porary conscience.
Flowers v.
Cit y of Minneapolis, Minn., 478 F.3d 869, 873 ( 8t h Cir. 2007) ( int ernal quot at ions
om it t ed) .
behavior t hat is clearly out side t he scope of t heir discret ionary aut horit y, t hey are
not ent it led t o qualified im m unit y under sect ion 1983.
1058, 1060 ( 8t h Cir. 2004) ( finding t hat defendant law enforcem ent officers were
not ent it led t o qualified im m unit y prot ect ion when t hey knew or should have know n
it was a violat ion of plaint iffs subst ant ive due process right s t o conspire t o
m anufact ure evidence and wrongfully prosecut e an innocent person) ; see also
Devereaux v. Abbey, 263 F.3d 1070, 107476 ( 9t h Cir. 2001) ( holding t hat one
way for t he plaint iff t o assert a clearly est ablished const it ut ional due process right
in a deliberat e- fabricat ion- of- evidence claim
would be t o point
t o evidence
support ing t he proposit ion t hat defendant s cont inued t heir invest igat ion of plaint iff
despit e t he fact t hat t hey knew or should have knew he was innocent ) .
Here, t he com plaint alleges t hat defendant s Port er and Pit t erle relent lessly
pursued a crim inal prosecut ion against plaint iff on t he basis of his religion, race,
and nat ional origin even t hough t hey knew or should have known he was innocent
aft er furt her invest igat ion and wit ness int erview s. I d. at 5962, 73( b) , 12026.
Accept ed as t rue for purposes of a m ot ion t o dism iss, t hese allegat ions set fort h a
clearly est ablished violat ion of plaint iffs const it ut ional subst ant ive due process
right s.
Officia l I m m u n it y
Defendant s Port er and Pit t erle next cont end t hat plaint iffs claim s in Count s
VI I I , XI I , and XI I I should be dism issed on t he basis of official im m unit y. I n t hese
count s, plaint iff assert s st at e law claim s of willful, m alicious and reckless official
act s, abuse of process, and int ent ional inflict ion of em ot ional dist ress.
Under Missouri law, t he doct rine of official im m unit y prot ect s public officials
from civil liabilit y for inj uries arising out of t heir discret ionary act s or om issions
perform ed in t he exercise of t heir official dut ies. McLean v. Gordon, 548 F.3d 613,
617 ( 8t h Cir. 2008) ( quot ing Jam es ex rel. Jam es v. Friend, 458 F.3d 726, 731 ( 8t h
Cir. 2006) ) . Official im m unit y does not , however, shield officials for liabilit y arising
from
t heir
negligent
perform ance
of
m inist erial
act s
or
funct ions.
I d.
one of a clerical nat ure which a public officer is required t o perform upon a given
st at e of fact s, in a prescribed m anner, in obedience t o t he m andat e of legal
aut horit y, wit hout regard t o his own j udgm ent or opinion concerning t he propriet y
of t he act t o be perform ed. I d. Plaint iff concedes t hat t he invest igat ion of a crim e
and t he decision t o arrest a suspect const it ut e discret ionary act s for purposes of
Missouris official- im m unit y doct rine. Reasonover v. St . Louis Cnt y., Mo., 447 F.3d
569, 585 ( 8t h Cir. 2006) .
However, official im m unit y is a qualified im m unit y and does not apply t o
t hose discret ionary act s done in bad fait h or wit h m alice.
963 S.W.2d 679, 688 ( Mo. Ct . App. 1998) ; see also St at e ex rel. Twiehaus v. Adolf,
706 S.W.2d 443, 446 ( Mo. banc 1986) .
ordinarily cont ains a requirem ent of act ual int ent t o cause inj ury.
S.W.2d at 447.
Tw iehaus, 706
person of reasonable int elligence would know t o be cont rary t o his or her dut y and
which t he defendant int ends t o be prej udicial or inj urious t o anot her. I d. ( quot ing
Grad v. Kaasa, 312 S.E.2d 888, 890 ( N.C. 1984) ) . Bad fait h im port s a dishonest
purpose, m oral obliquit y, conscious wrongdoing, breach of a known dut y t hrough
som e ult erior m ot ive or ill will part aking of t he nat ure of fraud.
I d. ( quot ing
Cat alina v. Crawford, 483 N.E.2d 486, 490 ( Ohio Ct . App. 1984) ) . Pursuant t o Rule
9( b) of t he Federal Rules of Civil Procedure, [ m ] alice, int ent , knowledge, and ot her
condit ions of a persons m ind m ay be alleged generally. Fed. R. Civ. P. 9( b) .
The com plaint expressly alleges t hat defendant s Port er and Pit t erle act ed
wit h m alice, in bad fait h, and wit h t he int ent t o harm plaint iff. Also, t he com plaint
assert s num erous fact ual allegat ions which support t he inference t hat t he police
defendant s act ed w it h t he requisit e bad fait h, m alice, and act ual int ent t o disqualify
t hem for official im m unit y.
defendant s m aint ained a baseless prosecut ion of plaint iff on t he basis of religious
anim us long aft er furt her invest igat ion dem onst rat ed t hat he was innocent ) ; 58,
6973, 92, 97, 109 ( claim ing t hat t he police defendant s int ent ionally deviat ed from
invest igat ive and prosecut orial policies in t heir t reat m ent of plaint iff in com parison
t o sim ilar sit uat ed defendant s) ; 39 ( assert ing t hat defendant Pit t erle engaged in
leading int erview t echniques t o elicit an allegat ion from m inor of a part icular form
of sexual abuse) . Accept ing t hese allegat ions as t rue for purposes of t his m ot ion t o
dism iss, t he Court finds t hat defendant s Port er and Pit t erle are not ent it led t o
official im m unit y for t he claim s in Count s VI I I , XI I , and XI I I .
C.
Defendant Cit y of St . Louis argues t hat plaint iffs claim against it in Count I X
should be dism issed because t he police defendant s are not liable on t he underlying
subst ant ive claim s and because t he Cit y cannot be held liable under t he doct rine of
respondeat superior.
on t he presum pt ion t hat t he com plaint alleges t hat t he Cit y is vicariously liable for
t he police defendant s unconst it ut ional act s pursuant t o 1983.
However, in
response t o t he inst ant m ot ion, plaint iff assert s t hat Count I X alleges t radit ional
com m on law vicarious liabilit y for t he police defendant s violat ions of st at e law, not
federal law. Because t he defendant s have not challenged t he underlying m erit s of
t he st at e law claim s against Port er and Pit t erle, t he Cit ys argum ent s for dism issal
of plaint iffs vicarious liabilit y claim do not have m erit .
Rat her, t he only at t ack m ade on t he underlying st at e law claim s was t he
invocat ion of official im m unit y, which, as explained above, is inapplicable at t his
st age in t he proceedings. Nonet heless, even if t he police defendant s were ent it led
10
The Cit ys
argum ent s regarding t he underlying subst ant ive claim s and respondeat superior
t hus do not present a basis for t he dism issal of Count I X.
However, t he Cit y also argues t hat plaint iffs st at e law cause of act ion against
it in Count I X is barred by sovereign im m unit y, because plaint iff has failed t o plead
t he exist ence of any except ion t o t his doct rine of im m unit y.
Mo. Rev. St at .
St at e ex rel.
Div. of Mot or Carrier & R.R. Safet y v. Russell, 91 S.W.3d 612, 615 ( Mo. banc
2002) .
I d.
11
can be waived t hrough a governm ent ent it ys purchase of liabilit y insurance for t ort
claim s. Mo. Rev. St at . 537.610.1.
To penet rat e a claim of im m unit y under sect ion 537.610.1, t he plaint iff bears
t he burden of proving t he exist ence of an insurance policy and t hat t he t erm s of t he
policy cover t he plaint iffs claim s. Topps v. Cit y of Count ry Club Hills, 272 S.W.3d
409, 415 ( Mo. Ct . App. 2008) . Because t he liabilit y of a public ent it y for t ort s is t he
except ion t o t he general rule of sovereign im m unit y, a plaint iff m ust specifically
plead fact s dem onst rat ing t hat t he claim is w it hin an except ion t o sovereign
im m unit y. Epps v. Cit y of Pine Lawn, 353 F.3d 588, 594 ( 8t h Cir. 2003) . St at ut ory
provisions waiving sovereign im m unit y are t o be narrowly const rued.
Kelly, 948 S.W.2d 634, 637 ( Mo. Ct . App. 1997) .
Woods v.
any of t he except ions t o sovereign im m unit y. As such, plaint iffs vicarious liabilit y
claim against t he Cit y of St . Louis in Count I X will be dism issed for t he failure t o
plead any except ion t o sovereign im m unit y.
D.
M on e ll Cla im s
I n Count s X and XI , plaint iff seeks t o hold t he Cit y liable for it s own unlawful
conduct under 1983. I n Count X, t he com plaint alleges t hat t he Cit y m aint ained
an unconst it ut ional policy and pract ice in violat ion of 42 U.S.C. 1983.
Sect ion
At kinson v. Cit y of
Mount ain View, Mo., 709 F.3d 1201, 1214 ( 8t h Cir. 2013) ( cit ing Monell v. Dept of
Soc. Servs. of New York, 436 U.S. 658, 69091 ( 1978) and Cit y of Cant on, Ohio v.
Harris, 489 U.S. 378, 388 ( 1989) ) .
12
The exist ence of a cont inuing, widespread, persist ent pat t ern of
unconst it ut ional m isconduct by t he governm ent al ent it ys
em ployees;
( 2)
( 3)
Ware v. Jackson Cnt y., Mo., 150 F.3d 873, 880 ( 8t h Cir. 1998) ( int ernal cit at ions
and quot at ions om it t ed) .
McGaut ha v.
Jackson Cnt y., Mo., Collect ions Dept , 36 F.3d 53, 5657 ( 8t h Cir. 1994) .
Here, t he com plaint does not sufficient ly allege t he exist ence of an official
unconst it ut ional policy or an unofficial cust om . The m ost - det ailed allegat ion in t he
com plaint regarding any policy or cust om sim ply st at es t hat in launching and
m aint ain t he baseless prosecut ion of plaint iff, t he police defendant s act ed in
collusion wit h, wit h t he approval of, and/ or pursuant t o decisions m ade by
13
supervisors wit hin t he St . Louis Met ropolit an Police Depart m ent and/ or ot hers in
posit ions of policy- m aking responsibilit y and aut horit y in t he Cit y of St . Louis.
Com pl. 61.
The rem aining allegat ions relevant t o Count X are m ere legal
conclusions. I d. at 14245.
While a plaint iff need not specifically plead or ident ify an unconst it ut ional
policy or cust om t o survive a m ot ion t o dism iss, at t he very least , a plaint iff m ust
allege fact s which w ould support t he exist ence of an unconst it ut ional policy or
cust om . See Crum pley- Pat t erson v. Trinit y Lut heran Hosp., 388 F.3d 588, 591 ( 8t h
Cir. 2004) . A plaint iffs failure t o include any allegat ions, reference, or language
by which one could begin t o draw an inference t hat t he conduct com plained of . . .
result ed from an unconst it ut ional policy or cust om renders t he com plaint deficient .
I d. ( quot ing Doe v. Sch. Dist . of Norfolk, 340 F.3d 605, 614 ( 8t h Cir. 2003) ) ; see
also I qbal, 556 U.S. at 678 ( A claim has facial plausibilit y when t he plaint iff pleads
fact ual cont ent t hat allow s t he court t o draw t he reasonable inference t hat t he
defendant is liable for t he m isconduct alleged. ) .
include any allegat ions or references by which t he Court can reasonably infer t hat
t he conduct com plained of result ed from an unconst it ut ional policy or cust om ,
Count X will be dism issed for failure t o st at e a claim .
I n Count XI , plaint iff alleges t hat t he Cit y failed t o adequat ely t rain and
supervise t he police defendant s in violat ion of 42 U.S.C. 1983.
The Suprem e
Court has held t hat [ i] n lim it ed circum st ances, a local governm ent s decision not t o
t rain cert ain em ployees about t heir legal dut y t o avoid violat ing cit izens right s m ay
rise t o t he level of an official governm ent policy for purposes of 1983. Connick ,
131 S. Ct . at 1359.
14
evidence t hat t he m unicipalit y [ r] eceived not ice of a pat t ern of unconst it ut ional
act s com m it t ed by [ it s em ployees] .
2010) .
defendant
15
t acit
offensive act s. Liebe v. Nort on, 157 F.3d 574, 579 ( 8t h Cir. 1998) ( quot ing Whit e
v. Holm es, 21 F.3d 277, 280 ( 8t h Cir. 1994) ) .
Plaint iff has not alleged fact s sufficient t o support a showing of deliberat e
indifference for t he failure t o supervise or t rain. The com plaint m erely assert s t hat
t he Cit y of St . Louis failed t o adequat ely t rain and supervise t he police defendant s
regarding im perm issible discrim inat ion and ret aliat ion on t he basis of race or
religion and proper procedures relat ing t o invest igat ion and arrest , but does not
provide fact ual allegat ions t o support t hese assert ions apart from t he allegat ions of
t he police defendant s unconst it ut ional act s.
sim ply st at es t hat t he Cit ys failure t o t rain and supervise t he police defendant s
reflect ed
t he Cit y
of
St .
t oward
t he
const it ut ional right s of persons wit h whom t he police defendant s w ould com e int o
cont act , w it hout fact ual allegat ions t o dem onst rat e t he Cit y adopt ed deficient or
supervision or t raining pract ices or had act ual or const ruct ive not ice of a pat t ern of
unconst it ut ional act s com m it t ed by it s police officers.
709 F.3d at 1217 ( Absent som e form of not ice, t he cit y cannot be deliberat ely
indifferent t o t he risk t hat it s t raining or supervision of [ it s em ployees] w ould result
in a violat ion of a part icular const it ut ional or st at ut ory right . ) ( quot ing Brown, 520
U.S. at 411) .
I n Count VI I , plaint iff alleges t hat defendant s Port er and Pit t erle conspired
wit h t he ot her defendant s t o violat e plaint iffs civil right s pursuant t o 42 U.S.C.
16
1985.
To prove a civil right s conspiracy under 1985( 3) , plaint iff m ust prove:
( 1) t he defendant s conspired, ( 2) wit h t he int ent t o deprive [ him ] , eit her direct ly
or indirect ly, of equal prot ect ion of t he laws, or equal privileges and im m unit ies
under t he laws, ( 3) an act in furt herance of t he conspiracy, and ( 4) t hat [ he] or
[ his] propert y [ was] inj ured, or [ he was] deprived of exercising any right or
privilege of a cit izen of t he Unit ed St at es. Barst ad v. Murray Cnt y., 420 F.3d 880,
887 ( 8t h Cir. 2005) .
Defendant s Port er and Pit t erle cont end t hat t he com plaint is
devoid of any part icular or specifically dem onst rable m at erial fact t hat t hey did
anyt hing in agreem ent wit h t he ot her nam ed defendant s.
The first elem ent of a civil right s conspiracy claim requires evidence of
specific fact s t hat show a m eet ing of m inds am ong conspirat ors.
I d.
[ T] he
plaint iff m ust allege wit h part icularit y and specifically dem onst rat e wit h m at erial
fact s t hat t he defendant s reached an agreem ent .
Bet t erm ent Assn v. Cit y of Om aha, 883 F.2d 650, 652 ( 8t h Cir. 1989) . A plaint iff
can sat isfy t his burden by point ing t o at least som e fact s which would suggest t hat
[ t he alleged conspirat ors] reached an underst anding t o violat e [ his] right s.
I d.
defendant s N.M. and A.M. had direct cont act wit h t he police defendant s regarding
t he invest igat ion of plaint iff, and t he SNAP defendant s coordinat ed t heir conduct
17
wit h t he police defendant s t o influence t he invest igat ion and prosecut ion against
plaint iff.
Accept ing t he fact ual allegat ions in t he com plaint as t rue for purposes of t he
inst ant m ot ion, t he Court finds t hat plaint iff has point ed t o at least som e fact s
suggest ing
t hat
defendant s
had
m eet ing
of
t he
m inds
or
reached
an
sufficiency of t he com plaint wit h respect t o t he rem aining elem ent s of an alleged
civil right s conspiracy. Thus, t he Court will deny t he defendant s m ot ion t o dism iss
Count VI I for failure t o st at e a claim .
*
____________________________
CAROL E. JACKSON
UNI TED STATES DI STRI CT JUDGE
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