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Jiang v.

Porter et al

Doc. 63

UNI TED STATES DI STRI CT COURT


EASTERN DI STRI CT OF MI SSOURI
EASTERN DI VI SI ON
REV. XI U HUI JOSEPH JI ANG,
Plaint iff,
vs.
TONYA LEVETTE PORTER, et al.,
Defendant s.

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Case No. 4: 15- CV- 1008 ( CEJ)

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) .

Plaint iff has responded in

opposit ion, and t he issues are fully briefed.


I.

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

t he abuse allegat ions and t arget ed plaint iff

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.

The crim inal case against Jiang

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 ) .

The issue is not whet her t he plaint iff will

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 .

Scheuer, 416 U.S. at 236.

A viable com plaint m ust include

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) .

Fact ual allegat ions m ust be enough t o

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.

Baribeau v. Cit y of Minneapolis, 596 F.3d 465, 474 ( 8t h

Cir. 2010) ( int ernal quot at ions om it t ed) .

The relevant , disposit ive inquiry in

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 .

I n Count VI , plaint iff assert s a Fourt eent h

Am endm ent subst ant ive due process claim .

The gravam en of plaint iffs equal

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.

Wayt e v. Unit ed St at es,

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.

These claim s require a plaint iff t o show bot h a

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.

Wayt e, 470 U.S. at 610 ( int ernal

quot at ions om it t ed) .


According t o t he com plaint , defendant s Port er and Pit t erle conduct ed only a
m inim al invest igat ion of t he abuse accusat ions.

Had t hey conduct ed a m ore

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

t he police defendant s t arget ed plaint iff for

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.

However, t he police defendant s deviat ed

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) .

When governm ent officials engage in conscious- shocking, egregious

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.

Moran v. Clark, 359 F.3d

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.

At t his st age in t he proceedings, dism issal of Count VI is inappropriat e on

t he basis of qualified im m unit y.

See Cent ral Airlines, I nc., 138 F.3d at 334;

Weaver, 45 F.3d at 1255.


B.

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.

Discret ionary act s require t he exercise of reason in t he adapt ion of m eans t o an


end and discret ion in det erm ining how or whet her an act should be done or
pursued. Rust ici v. Weidem eyer, 673 S.W.2d 762, 769 ( Mo. banc 1984) ( quot ing
Jackson v. Wilson, 581 S.W.3d 39, 43 ( Mo. Ct . App. 1979) ) .

A m inist erial act is

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.

Davis v. Bd. of Educ.,

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) .

Bad fait h or m alice in t his cont ext

ordinarily cont ains a requirem ent of act ual int ent t o cause inj ury.
S.W.2d at 447.

Tw iehaus, 706

A defendant act s wit h m alice by want only doing t hat which a

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.

See Com plaint at 60 ( assert ing t hat t he police

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.

Vica r iou s Lia bilit y

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.

Defendant prem ises it s argum ent s for dism issal of Count I X

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

t o official im m unit y on t he st at e law claim s brought against t hem , t he Cit y could


st ill be liable for t he act ions of t he police officers.

I n Sout hers v. Cit y of

Farm ingt on, t he Missouri Suprem e Court explained:


A finding t hat a public em ployee is ent it led t o official im m unit y does
not preclude a finding t hat he or she com m it t ed a negligent act
because official im m unit y does not deny t he exist ence of t he t ort of
negligence, but inst ead provides t hat an officer w ill not be liable for
dam ages caused by his negligence. Because t he defense of official
im m unit y is personal t o a public em ployee, it cannot ext end t o prot ect
his em ploying governm ent ent it y sued under t he doct rine of
respondeat superior. A governm ent em ployer m ay st ill be liable for
t he act ions of it s em ployee even if t he em ployee is ent it led t o official
im m unit y because t he doct rine prot ect s t he em ployee from liabilit y,
but it does not erase t he exist ence of t he underlying t ort ious conduct
for which t he governm ent em ployer can be derivat ively liable.
263 S.W.3d 603, 611 ( Mo. banc 2008) ( int ernal cit at ions om it t ed) .

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 .

537.600. The claim of vicarious liabilit y in Count I X is t he sole st at e law cause of


act ion brought against t he Cit y.

Sovereign im m unit y is a j udicial doct rine t hat

precludes bringing suit against t he governm ent wit hout it s consent .

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 t bars holding t he governm ent or it s polit ical subdivisions liable for t he

t ort s of it s officers or agent s unless such im m unit y is expressly w aived.

I d.

Sect ion 537.600.1 of t he Missouri Revised St at ut es waives sovereign im m unit y for


inj uries result ing from t he operat ion of m ot or vehicles and t he condit ion of an
ent it ys propert y. Addit ionally, sect ion 537.610.1 provides t hat sovereign im m unit y

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.

The com plaint does not allege

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

1983 liabilit y for a const it ut ional violat ion m ay at t ach t o a m unicipalit y if t he


violat ion result ed from ( 1) an official m unicipal policy, ( 2) an unofficial cust om ,
or ( 3) a deliberat ely indifferent failure t o t rain or supervise.

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

Official m unicipal policy includes t he decisions of a governm ent s lawm akers,


t he act s of it s policym aking officials, and pract ices so persist ent and widespread as
t o pract ically have t he force of law. Connick v. Thom pson, 131 S. Ct . 1350, 1359
( U.S. 2011) ; see Met t ler v. Whit ledge, 165 F.3d 1197, 1204 ( 8t h Cir. 1999) ( st at ing
t hat in t he cont ext of m unicipal liabilit y under 1983, a policy is an official policy,
a deliberat e choice of a guiding principle or procedure m ade by t he m unicipal
official who has final aut horit y regarding such m at t ers ) .
Alt ernat ively, an unofficial cust om is dem onst rat ed by:
( 1)

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)

Deliberat e indifference t o or t acit aut horizat ion of such conduct


by t he governm ent al ent it ys policym aking officials aft er not ice
t o t he officials of t hat m isconduct ; and

( 3)

The plaint iffs inj ury by act s pursuant t o t he governm ent al


ent it ys cust om , i.e., proof t hat t he cust om was t he m oving
force behind t he const it ut ional violat ion.

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) .

This st andard serves t o prevent m unicipal evasion of

liabilit y t hrough im proper delegat ion of policy responsibilit y or acquiescence in


pervasive const it ut ional violat ions by [ governm ent al] em ployees.

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. ) .

Because t he com plaint does not

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.

However, [ a] m unicipalit ys culpabilit y for a deprivat ion of

14

right s is at it s m ost t enuous where a claim t urns on a failure t o t rain. I d. [ T] he


inadequacy of police t raining m ay serve as t he basis for 1983 liabilit y only where
t he failure t o t rain am ount s t o deliberat e indifference t o t he right s of persons wit h
whom t he police com e int o cont act . Cit y of Cant on, 489 U.S. at 388.
[ D] eliberat e indifference is a st ringent st andard of fault , requiring proof
t hat a m unicipal act or disregarded a known or obvious consequence of his act ion.
Connick, 131 S. Ct . at 1360 ( quot ing Board of Cnt y. Com m rs of Bryan Cnt y., Okla.
v. Brown, 520 U.S. 397, 410 ( 1997) ) . Thus, when cit y policym akers are on act ual
or const ruct ive not ice t hat a part icular om ission in t heir t raining program causes
cit y em ployees t o violat e cit izens const it ut ional right s, t he cit y m ay be deem ed
deliberat ely indifferent if t he policym akers choose t o ret ain t hat program . I d. A
pat t ern of sim ilar const it ut ional violat ions by unt rained em ployees is ordinarily
necessary t o dem onst rat e deliberat e indifference for purposes of failure t o t rain.
I d. ( quot ing Brown, 520 U.S. at 409) ; see Cit y of Cant on, 489 U.S. at 39091
( That a part icular officer m ay be unsat isfact orily t rained w ill not alone suffice t o
fast en liabilit y on t he cit y, for t he officers short com ings m ay have result ed from
fact ors ot her t han a fault y t raining program . ) .
Under 1983, a claim for failure t o supervise requires t he sam e analysis as
a claim for failure t o t rain.

At kinson, 709 F.3d at 1216 ( quot ing Robinet t e v.

Jones, 476 F.3d 585, 591 ( 8t h Cir. 2007) ) .

Neit her claim can succeed wit hout

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) .

Parrish v. Ball, 594 F.3d 993, 1002 ( 8t h Cir.

As such, a failure t o supervise claim also m ay be m aint ained only if a

defendant

dem onst rat ed deliberat e indifference or

15

t acit

aut horizat ion of t he

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.

Com pl. 14748.

The com plaint

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 .

Louiss deliberat e indifference .

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.

I d. at 150; see At kinson,

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 t he absence of fact ual allegat ions t o support plaint iffs legal

conclusions, t here is no basis t o hold t he Cit y of St . Louis liable under 1983. As a


result , plaint iffs claim in Count XI will also be dism issed for failure t o st at e a claim .
E.

Con spir a cy t o Viola t e Civil Righ t s

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 .

Cit y of Om aha Em ployees

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.

( int ernal quot at ions om it t ed) .


The com plaint alleges t hat defendant s Port er and Pit t erle act ed in concert t o
bring charges against plaint iff wit hout conduct ing ordinary invest igat ion and t hat
t hey j oint ly persist ed in t he prosecut ion and invest igat ion of plaint iff aft er t hey
knew or should have known he was innocent .

The com plaint furt her alleges t hat

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

underst anding t o violat e plaint iffs civil right s.

of

t he

m inds

or

reached

an

Defendant s do not challenge t he

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 .
*

For t he reasons set fort h above,


I T I S H EREBY ORD ERED t hat t he m ot ion of defendant s Port er, Pit t erle, and
t he Cit y of St . Louis t o dism iss [ Doc. # 27] is gr a n t e d a s t o Cou n t s I X, X, a n d XI
of t h e com pla in t a n d is de n ie d in a ll ot h e r r e spe ct s.
An order of part ial dism issal will accom pany t his Mem orandum and Order.

____________________________
CAROL E. JACKSON
UNI TED STATES DI STRI CT JUDGE

Dat ed t his 28t h day of Decem ber, 2015.

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