Folkerts v. Algona, City of et al
Filing
15
MEMORANDUM OPINION and ORDER: Denying as Moot 5 Motion to Dismiss for Failure to State a Claim: Granting in Part and Denying in Part 11 Motion to Dismiss: See text of Order for further information. Signed by Judge Mark W Bennett on 12/11/15. (kfs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
MELISSA JEAN FOLKERTS,
No. C 15-3142-MWB
Plaintiff,
vs.
CITY OF ALGONA, an Iowa Municipal
Corporation, and JUSTIN A. WOOD,
Defendants.
MEMORANDUM OPINION AND
ORDER REGARDING
DEFENDANTS’ MOTION TO
DISMISS COUNTS III-VII
___________________________
TABLE OF CONTENTS
I.
INTRODUCTION........................................................................... 2
A.
Procedural Background ........................................................... 2
B.
Factual Background ............................................................... 4
II.
LEGAL ANALYSIS ........................................................................ 9
A.
Standards For Dismissal For Failure To State A Claim .................... 9
B.
“Relation Back” Challenges.................................................... 13
1.
Arguments of the parties ................................................ 13
2.
“Relation back” standards.............................................. 14
3.
Application of the standards ........................................... 16
a.
The new “malicious prosecution” claim in
Count III .......................................................... 16
b.
The new “Monell liability” theory in ¶ 16 .................. 17
C.
Legal Insufficiency Challenges ................................................ 20
1.
The “negligence” claim in Count IV ................................. 21
2.
The Iowa constitutional claims in Count VII ....................... 23
D.
Factual Insufficiency Challenges .............................................. 24
1.
The “intentional infliction of emotional distress”
claim in Count VI ........................................................ 24
2.
The constitutional claims in Count VII .............................. 27
III.
CONCLUSION ............................................................................ 30
I.
A.
INTRODUCTION
Procedural Background
In this action, plaintiff Melissa Jean Folkerts asserts state and federal claims arising
from what she contends were her “illegal” traffic stop, detention, interrogation, arrest,
and prosecution by Algona City Police Officer Justin Wood, and possibly other officers,
on or about August 26, 2013. Folkerts filed her original Petition (State Petition) (docket
no. 3) in the Iowa District Court For Kossuth County on August 19, 2015. In her State
Petition, she asserted claims of “Count I - Negligence,” “Count II – Intentional” [sic],
“Count III – Intentional Infliction of Emotional Distress,” and “Count IV – Violation of
Civil Rights.” On September 9, 2015, the defendants, the City of Algona and Officer
Wood, removed this action to this federal court pursuant to 28 U.S.C. §§ 1331, 1367(a),
1441(a), and 1446. See Notice of Removal (docket no. 2). The next day, the defendants
filed a Motion To Dismiss (docket no. 5), seeking dismissal of Folkerts’s State Petition,
in its entirety, for failure to state a claim on which relief can be granted, pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure.
In response, on September 30, 2015, Folkerts filed her First Amended Complaint
(docket no. 7). See FED. R. CIV. P. 15(a)(1)(B) (permitting amendment “as a matter of
course” within 21 days after the filing of a Rule 12(b) motion). In her First Amended
Complaint, Folkerts added considerably more extensive allegations, as ¶¶ 3-10, and three
entirely new claims, denominated “Count I – False Imprisonment,” “Count II – False
Arrest,” and “Count III – Malicious Prosecution,” but retained verbatim her original
2
claims, renumbered as Counts IV through VII.1 Folkerts also amended the concluding
paragraphs of the State Petition in the First Amended Complaint. First, she added an
allegation concerning “Monell liability”2 of the City. See First Amended Complaint,
¶ 16. She also modified the jurisdictional, venue, and amount in controversy allegations
to conform to federal requirements, see id. at ¶¶ 20-21; and compare State Petition, postcount ¶¶ 3-4, and added an allegation of entitlement to recovery of attorney’s fees under
federal law, see id. at ¶ 22. In the “WHEREFORE” paragraph of her First Amended
Complaint, as in that paragraph of her State Petition, Folkerts prays for an award of
compensatory and punitive damages that will adequately compensate her for her injuries
and an award of damages as described therein, including attorney’s fees, and any other
damages allowable under law and as deemed just by the court. The First Amended
Complaint necessarily rendered moot the defendants’ original Motion To Dismiss.3
After the filing of Folkerts’s First Amended Complaint, the defendants filed their
October 8, 2015, Motion To Dismiss Counts III-VII Of Plaintiff’s First Amended
Complaint (docket no. 11), which is now before me. In that Motion, the defendants
renew and amend their challenges to Folkerts’s original claims, now renumbered, and
add challenges to her new “malicious prosecution” claim and her claim of “Monell
1
To be precise, Counts IV through VII did modify the identification of
“repleaded” paragraphs, but those counts were otherwise verbatim reiterations of
Counts I through IV of the State Petition.
2
See Monell v. Department of Soc. Servs., 436 U.S. 658, 690-91 (1978)
(recognizing § 1983 liability of a municipality, if a violation resulted from an official
municipal policy or an unofficial custom).
3
On October 1, 2015, Folkerts had filed a Resistance (docket no. 10) to the
defendants’ original Motion To Dismiss, in which she argued, in essence, that her First
Amended Complaint cured any of the purported deficiencies in the pleading of her
original claims in her State Petition.
3
liability” of the City. On October 28, 2015, Folkerts filed her Resistance To Motion To
Dismiss (docket no. 12). The defendants filed no reply.
B.
Factual Background
Because this case is before me on a Rule 12(b)(6) motion to dismiss, the pertinent
factual background is necessarily drawn from Folkerts’s First Amended Complaint. See,
e.g., Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 n.3 (8th Cir. 2012)
(citing 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 1357 (3d ed. 2004)). I find that a comparison of the general allegations
in Folkerts’s State Petition with those in her First Amended Complaint will be helpful to
the analysis of some of the issues raised in the defendants’ Motion To Dismiss.
The entirety of Folkerts’s general allegations in her State Petition are incorporated
verbatim into her First Amended Complaint. Those allegations are the following:
1.
The plaintiff, Melissa Folkerts, has at all times
material hereto resided in Kossuth County, Iowa.
2.
Defendant City of Algona, Iowa, is a
municipality and municipal corporation within the State of
Iowa. Defendant Justin A Wood at all times material hereto
was a resident of Kossuth County, Iowa, or otherwise subject
to personal jurisdiction of the Iowa District Court by contacts
within the State of Iowa.
3.
On or about the 26th day of August, 2013, the
plaintiff was arrested by officer Justin Wood and perhaps
other, as of yet unidentified, officers of the Algona Police
Department or other agencies.
4.
The officer illegally detained the plaintiff for
two or more hours, later arrested her and had her held in the
Kossuth County Jail in Algona, Iowa.
At all times material hereto, the Algona Police
Department officer(s) was (were) employee(s) of the City of
4
Algona, Iowa, and were acting on the entity’s behalf and
within the scope of their authorities and duties as employee(s)
of said entity.
5.
Plaintiff’s arrest and subsequent charge filed
against her were illegal and without reasonable suspicion.
6.
Defendants owed a duty to plaintiff to protect
plaintiff from illegally arresting her, detaining her and
charging her with a crime she did not commit.
7.
That at the time and place aforesaid, the
defendants were responsible for one or more of the following
wrongful acts or omissions which violated the duty owed to
plaintiff:
[The counts alleging certain claims follow.]
State Petition at ¶¶ 1-7; First Amended Complaint at ¶¶ 1-2, 11-15. It is fair to say that
these allegations provide almost no factual detail about the circumstances or conduct of
any persons on which Folkerts’s claims are based.
Paragraphs 3 through 10 of the First Amended Complaint attempt to provide the
factual detail missing from the State Petition, as follows:
3.
On or about the 26th day of August, 2013,
Algona dispatch received an anonymous call from a male
person who said that a blue car or maroon pickup would be
dropping off methamphetamine at the Karen McGee and
Richie Folkerts residence in Algona. The caller spoke with
Officer Wood and although the caller initially wished to
remain anonymous, he later identified himself as “David
Bolie” or a similar name. This caller was in fact Plaintiffs
abusive ex-boyfriend and he gave a fake name. Officer Wood
never [made (?)] any effort to confirm the identity of the
caller.
4.
Officer Wood drove to the McGee and Folkerts’
residence and saw a blue car parked in the driveway. Upon
the blue car driving away from the residence, Officer Wood
5
followed the vehicle and initiated a traffic stop. Officer
Wood’s claimed basis for the stop was the car twice crossing
a white bicycle/edge/fog line. Officer Wood was in fact
relying on the unreliable “anonymous tip” as a basis for the
stop. After initiating the stop, Officer Wood conducted a
search of [the] car. Officer Wood claims there was consent
to search, but in fact there was not.
5.
Officer Wood claims to have found a tin with
the smell of marijuana. There was in fact no tin with a smell
of marijuana. Officer Wood claims to have observed
evidence of methamphetamine usage by plaintiff, such as
uncontrollable body movements, and evidence of marijuana
usage, such as a green tint on plaintiff’s tongue. There was
no uncontrollable body movements or green tint or any other
indicator of drug usage. Officer Wood administered to
plaintiff field sobriety tests. Officer Wood claims that
plaintiff failed all the tests administered except the horizontal
gaze nystagmus test. Plaintiff in fact passed the field sobriety
tests or else the tests were administered incorrectly and were
therefore unreliable.
6. During the stop, at least two additional officers
were at the scene and participated in the stop, search,
interrogation, and arrest of plaintiff. Plaintiff was treated
disrespectfully by the officers. The entire ordeal, including
the interrogation and arrest, was contentious, and officers’
conduct and speech indicated that they believed Plaintiff was
not being cooperative with the officers’ demands. Officers
yelled at Plaintiff. Officer Wood called for a drug recognition
expert and K-9 drug dog unit. The K-9 unit dog did a pass
on the vehicle and did not indicate the presence of illegal
substances. No drug recognition expert came to the scene of
the stop. Officer Wood arrested Plaintiff for operating while
intoxicated after having detained plaintiff for approximately
two hours. Plaintiff was interrogated for an additional two
hours, approximately, at the law enforcement center.
6
Plaintiff was charged with operating while intoxicated and
incarcerated. There is a video of the traffic stop and detention
which demonstrates that Officer Wood did not report the truth
in his report.
7.
Plaintiff filed a motion suppress in the
subsequent criminal case on the basis that there was no
reasonable suspicion for the traffic stop nor probable cause to
make the arrest. Officer Wood testified falsely at the hearing,
as evidenced by the discrepancies in his report and testimony
and a video of the stop and detention. The court granted the
motion to suppress on the basis that there was no evidence of
plaintiff crossing any white bicycle/edge/fog line and there
being no other basis for the stop. The court did not reach the
issue of probable cause for arrest. After the motion to
suppress was granted, the charges were dismissed upon
motion by the prosecutor. Officer Wood in fact fabricated the
bases for the traffic stop, the bases for detention, arrest, and
charge of operating while intoxicated. A copy of the court’s
ruling on the motion to suppress and order of dismissal are
attached to this Complaint as exhibit “A” and incorporated
herein.
8.
Officer Wood’s actions, as described above
were observed and supported by at least two additional
officers. The Algona Police Department at the time employed
fewer than 12 officers. None of these officers questioned
Officer Wood’s actions or basis for arrest, or the length of the
detention and interrogation. They in fact participated in the
detention, arrest, and interrogation and assisted Officer
Wood, indicating that this was not simply the action of one
rogue officer, but the action of a substantial portion of the
Algona police department, and the result of improper training,
custom, policy, practice, or culture, which was a direct cause
of the actions of the officers.
9.
After Officer Wood’s report and any additional
reports were filed, or after review of the videotape of the stop,
7
or after the court ruling on the motion to suppress and court
order of dismissal were issued, [neither] the Algona Police
Department nor the City of Algona did anything to discipline
Officer Wood or the other officers, investigate or review the
procedures, training, custom, policy, or culture of the police
department to address the officers’ actions as described
above, or otherwise give indication that the officers’ actions
were illegal or improper. Such action and inaction indicates
willful, intentional, and negligent disregard for instituting
reasonable and necessary procedures, training, custom,
policy, and environment or culture for the police department
to ensure that the individual and collective rights of the public
are not violated by the police department. The officers had
inadequate training regarding bases for traffic stops, for
arrest, and for treatment of persons being stopped, detained,
interrogated, and arrested, such as not being aware of the
legal significance of a driver allegedly crossing the fog line
and when to rely on or how to confirm an “anonymous” tip
before using the tip as a basis for a stop. The police
department also, as demonstrated by lack of any substantive
action after it became or should have become apparent that
officer reports contained fabricated allegations used as the
basis for officer action, was permissive of untrue or fabricated
police reports and ex post facto false factual assertions used
to claim bases for officer actions. These actions or inactions
are indicative of improper training, custom, policy, practice,
or culture which was a direct cause of the actions of the
officers.
10. During the course of the traffic stop,
interrogation, arrest and incarceration, and subsequently
during the pendency of the criminal case and thereafter, and
as a direct result of those things, Plaintiff suffered mental and
emotional harm including but not limited to severe
embarrassment, severe anxiety, severe anger, severe paranoia
and distrust, severe depression, emotional numbness and
hopelessness. Plaintiff also suffered, among other things,
8
negative feelings about herself, recurrent and unwanted
distressful memories, upsetting dreams and sleeplessness,
avoidance of persons, places, and activities, and physical
symptoms related to the mental and emotional effects
described above.
First Amended Complaint at ¶¶ 3-10.
As mentioned, above, after the pleading of Folkerts’s claims, the First Amended
Complaint contains an entirely new allegation of “Monell liability” of the City, as
follows:
16. Defendant City of Algona is liable in counts I
through VII because the City and Algona Police Department,
through training, custom, policy, practice, or culture has
deprived plaintiff of her constitutional rights and caused or
allowed the actions or inactions that form the bases for those
counts.
First Amended Complaint at ¶ 16.
Folkerts’s State Petition had no attachments. Her First Amended Complaint,
however, has attached, as Exhibit A, a Ruling On Motion To Suppress by the Iowa
District Court for Kossuth County in Folkerts’s state criminal case and an Order by that
state court dismissing the state criminal case.
II.
A.
LEGAL ANALYSIS
Standards For Dismissal For Failure
To State A Claim
The defendants seek dismissal of Counts III through VII pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure, which authorizes a pre-answer motion to dismiss
for “failure to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6).
As the Eighth Circuit Court of Appeals has explained,
9
We review de novo the district court’s grant of a
motion to dismiss, accepting as true all factual allegations in
the complaint and drawing all reasonable inferences in favor
of the nonmoving party. See Palmer v. Ill. Farmers Ins. Co.,
666 F.3d 1081, 1083 (8th Cir. 2012); see also Fed.R.Civ.P.
12(b)(6). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)
(internal quotation omitted). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id.
Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 850 (8th Cir. 2012); accord Freitas
v. Wells Fargo Home Mortg., Inc., 703 F.3d 436, 438 (8th Cir. 2013) (quoting Richter,
686 F.3d at 850); Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012) (stating
the same standards).
Courts consider “plausibility” under this Twom-bal standard4 by “‘draw[ing] on
[their own] judicial experience and common sense.’” Whitney, 700 F.3d at 1128 (quoting
Iqbal, 556 U.S. at 679). Also, courts must “‘review the plausibility of the plaintiff’s
claim as a whole, not the plausibility of each individual allegation.’” Id. (quoting Zoltek
Corp. v. Structural Polymer Grp., 592 F.3d 893, 896 n.4 (8th Cir. 2010)). The Eighth
Circuit Court of Appeals has refused, at the pleading stage, “to incorporate some general
4
The “Twom-bal” standard is my nickname for the “plausibility” pleading
standard established in the United States Supreme Court’s twin decisions on pleading
requirements, and standards for dismissal for failure to state a claim upon which relief
can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for
claims in federal court. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009).
10
and formal level of evidentiary proof into the ‘plausibility’ requirement of Iqbal and
Twombly.” Id. Nevertheless, the question “is not whether [the pleader] might at some
later stage be able to prove [facts alleged]; the question is whether [it] has adequately
asserted facts (as contrasted with naked legal conclusions) to support [its] claims.” Id.
at 1129. Thus,
[w]hile this court must “accept as true all facts pleaded by the
non-moving party and grant all reasonable inferences from the
pleadings in favor of the non-moving party,” United States v.
Any & All Radio Station Transmission Equip., 207 F.3d 458,
462 (8th Cir. 2000), “[a] pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a
cause of action will not do.’” Iqbal, 556 U.S. at 678, 129
S.Ct. 1937 (quoting [Bell Atl. Corp. v.] Twombly, 550 U.S.
[544,] 555, 127 S.Ct. 1955 [(2007)]).
Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012); Whitney, 700 F.3d
at 1128 (stating the same standards).5
5
In assessing “plausibility,” as required under the Twom-bal standard, the Eighth
Circuit Court of Appeals has explained that courts “consider[ ] only the materials that are
‘necessarily embraced by the pleadings and exhibits attached to the complaint,’” Whitney,
700 F.3d at 1128 (quoting Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir.
2003)), and “‘materials that are part of the public record or do not contradict the
complaint.’” Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 (8th Cir.
2012) (quoting Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999),
and citing Illig v. Union Elec. Co., 652 F.3d 971, 976 (8th Cir. 2011)). A more complete
list of the matters outside of the pleadings that the court may consider, without converting
a Rule 12(b)(6) motion to dismiss into a Rule 56 motion for summary judgment, pursuant
to Rule 12(d), includes “‘matters incorporated by reference or integral to the claim, items
subject to judicial notice, matters of public record, orders, items appearing in the record
of the case, and exhibits attached to the complaint whose authenticity is unquestioned.’”
Miller, 688 F.3d at 931 n.3 (quoting 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE § 1357 (3d ed. 2004)).
11
Various federal Circuit Courts of Appeals have expressly recognized that, in
addition to dismissal for factual implausibility, the Twom-bal standard still permits
dismissal pursuant to Rule 12(b)(6) of a claim that lacks a cognizable legal theory. See,
e.g., Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013); Ball v. Famiglio, 726
F.3d 448, 469 (3d Cir. 2013) (a claim may be dismissed if it is based on an “indisputably
meritless legal theory”); Commonwealth Property Advocates, L.L.C. v. Mortgage
Electronic Registration Sys., Inc., 680 F.3d 1194, 1202 (10th Cir. 2011) (“Dismissal is
appropriate if the law simply affords no relief.”); see also Philadelphia Indem. Ins. Co.
v. Youth Alive, Inc., 732 F.3d 645, 649 (6th Cir. 2013) (recognizing that a claim must
plead sufficient facts under a “viable legal theory”). The Eighth Circuit Court of Appeals
has suggested the same. See Brown v. Mortgage Electronic Registration Sys., Inc., 738
F.3d 926, 933 n.7, 934 (8th Cir. 2013) (noting the appellate court’s agreement “with the
district court’s sound reasoning that the facts pled do not state a cognizable claim under
Arkansas law” and holding that dismissal pursuant to Rule 12(b)(6) was appropriate,
because Arkansas law did not impose the purported duty on which an unjust enrichment
claim and a state statutory claim were based).
I will apply these standards to the defendants’ Motion To Dismiss. That Motion
To Dismiss presents three kinds of challenges to certain claims: The defendants contend
that some claims in the First Amended Complaint do not “relate back” to the State
Petition, so that they are untimely under the applicable statute of limitations; they contend
that certain claims are insufficient as a matter of law; and they contend that some claims
simply lack any allegations of a plausible factual basis to support them. I will consider
these three kinds of challenges in turn.
12
B.
1.
“Relation Back” Challenges
Arguments of the parties
Here, the defendants point out that Folkerts’s “malicious prosecution” claim and
her claim that the City is subject to “Monell liability” were not expressly injected into
this lawsuit until September 30, 2015, when Folkerts filed her First Amended Complaint,
which is more than two years after the incidents giving rise to those claims, on or about
August 26, 2013. The defendants argue that these claims are, consequently, time-barred
under the applicable two-year statute of limitations, unless they “relate back” to
Folkerts’s timely State Petition. The defendants contend that these claims do not “relate
back.”
More specifically, the defendants argue that Folkerts’s new “malicious
prosecution” claim does not “relate back,” because Folkerts’s original allegations—that
the charges arising from her arrest on August 26, 2013, were “illegal and without
reasonable suspicion” and that she had been “charg[ed] with a crime she did not
commit”—simply are inadequate to put the defendants on notice that she was asserting a
“malicious prosecution” claim. Similarly, they argue that, at most, Folkerts originally
alleged only vicarious liability of the City for Wood’s actions within the scope of his
employment, which is not an adequate legal basis for municipal liability. They argue
that nothing in Folkerts’s State Petition hints that she was asserting “policy, custom, or
practice” as the bases for liability of the City.
Folkerts contends that the defendants are improperly asserting that she must have
previously pleaded a theory, not just facts, to put them on notice of her “malicious
prosecution” claim. She argues that her State Petition described the defendants’ actions,
the conduct, transaction, or occurrences at issue from the time of detention through the
filing of charges against her, thus encompassing the events that form the basis for the
First Amended Complaint’s counts for false imprisonment, false arrest, and malicious
13
prosecution. She contends that her original allegations that she was “illegally” charged
with a crime that she “did not commit” encompass the essence of the facts supporting a
“malicious prosecution” claim. She contends that the defendants had adequate notice of
claims arising from her “arrest,” “detention,” and “charging.”
As to “Monell liability,” Folkerts asserts that the defendants are, again, improperly
asserting that she must have previously pleaded a theory, not just facts, to support liability
of the City. She asserts that her State Petition described duties of the City to protect her
and the public and named as the basis for the City’s liability the commission or omission
of actions that breached the described duties. She argues these are allegations that go
beyond a simple respondeat superior theory of liability. She also contends that the claim
of liability of the City is the same, so that her allegation of an additional theory on which
to base that liability does not need to “relate back” to the State Petition.
2.
“Relation back” standards
As the Eighth Circuit Court of Appeals has explained,
In Wilson v. Garcia, the Supreme Court held that the
state statute of limitations for personal injury torts was the
appropriate period of limitations for all § 1983 cases. 471
U.S. 261, 276, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985),
superseded by statute on other grounds by 28 U.S.C.
§ 1658(a) as recognized in Jones v. R.R. Donnelley & Sons
Co., 541 U.S. 369, 377–81, 124 S.Ct. 1836, 158 L.Ed.2d
645 (2004). By establishing this uniform rule, the Supreme
Court ended the requirement that courts apply the most
analogous state statute of limitations based on the facts
underlying the specific § 1983 claim. See id. at 273, 105 S.Ct.
1938.
DeVries v. Driesen, 766 F.3d 922, 923 (8th Cir. 2014). Thus, the two-year statute of
limitations for personal injury in IOWA CODE § 614.1 applies to Folkerts’s § 1983 claims,
as well as to her state-law personal injury claims. Id. The Eighth Circuit Court of
14
Appeals has considered a motion to dismiss for untimeliness under the applicable statute
of limitations to be a matter properly raised in a Rule 12(b)(6) motion for failure to state
a claim upon which relief can be granted. See, e.g., Smithrud v. City of St. Paul, 746
F.3d 391, 396-97 and n.3 (8th Cir. 2014); Varner v. Peterson Farms, 371 F.3d 1011,
1016 (8th Cir. 2004) (“[W]hen it appears from the face of the complaint itself that the
limitation period has run, a limitations defense may properly be asserted through a Rule
12(b)(6) motion to dismiss.” (citation and internal quotation marks omitted)).
Here, the defendants point out that Folkerts’s “malicious prosecution” claim and
her claim that the City is subject to “Monell liability” were not expressly injected into
this lawsuit until September 30, 2015, when Folkerts filed her First Amended Complaint.
They are also correct that September 30, 2015, is more than two years after the incidents
giving rise to those claims, which occurred on or about August 26, 2013. The defendants
are correct that these claims are, consequently, time-barred, unless they “relate back” to
Folkerts’s timely State Petition. See Lee v. Airgas Mid-South, Inc., 793 F.3d 894, 897
(8th Cir. 2015).
“‘Such . . . amendment[s] ordinarily will not be treated as relating back to the
prior pleading, unless certain conditions set forth in Fed.R.Civ.P 15(c) are satisfied.’”
Id. (quoting Foulk v. Charrier, 262 F.3d 687, 696 (8th Cir. 2001)). Specifically,
[a]n amendment to a pleading relates back to the original
pleading when “the amendment asserts a claim or defense that
arose out of the conduct, transaction, or occurrence set out—
or attempted to be set out—in the original pleading.”
Fed.R.Civ.P. 15(c)(1)(B). “To arise out of the same conduct,
transaction, or occurrence, the claims must be ‘tied to a
common core of operative facts.’” Dodd [v. United States],
614 F.3d [512,] 515 [(8th Cir. 2010)] (quoting Mayle v. Felix,
545 U.S. 644, 664, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005)
(analyzing relation back in the context of a 28 U.S.C. § 2254
petition)). New claims must arise out of the “‘same set of
15
facts’” as the original claims, and “[t]he facts alleged must be
specific enough to put the opposing party on notice of the
factual basis for the claim.” Id. (quoting Mandacina v. United
States, 328 F.3d 995, 1000 (8th Cir.2003)).
Taylor v. United States, 792 F.3d 865, 869 (8th Cir. 2015).
3.
Application of the standards
a.
The new “malicious prosecution” claim in Count III
As the Iowa Supreme Court has explained,
To prevail on a claim for malicious prosecution, the plaintiff
must establish each of the following six elements: (1) a
previous prosecution, (2) instigation of that prosecution by the
defendant, (3) termination of that prosecution by acquittal or
discharge of the plaintiff, (4) want of probable cause,
(5) malice on the part of defendant for bringing the
prosecution, and (6) damage to plaintiff. Sarvold v. Dodson,
237 N.W.2d 447, 448 (Iowa 1976).
Royce v. Hoening, 423 N.W.2d 198, 200 (Iowa 1988); see also Hawkeye Land Co. v.
ITC Midwest L.L.C., ___ F. Supp. 3d ___, ___, 2015 WL 4741141, *7 (N.D. Iowa Aug.
11, 2015). The question, here, is, does Folkerts’s State Petition allege facts that are
specific enough to put the defendant on notice of the factual basis for a “malicious
prosecution” claim asserted later in her First Amended Complaint? Taylor, 792 F.3d at
869. I conclude that the answer is no.
Indeed, Folkerts’s contention that her “malicious prosecution” claim “relates
back” to her State Petition teeters on the brink of frivolousness, if it doesn’t completely
fall over it. As I observed, above, it is fair to say that the allegations in Folkerts’s State
Petition provide almost no factual detail about the circumstances or conduct of any
persons on which Folkerts’s original claims are based. Allegations that Folkerts’s charge
“w[as] illegal and without reasonable suspicion” and that the defendants owed her a duty
to protect “plaintiff from illegally . . . charging her with a crime she did not commit,”
16
see State Petition at ¶¶ 5-6, assuming that they are factual allegations at all, plainly are
not sufficiently specific as to any circumstances or conduct to make it plausible that
probable cause for her arrest was lacking or that the arresting officer (or the City) acted
with malice in bringing charges. See Royce, 423 N.W.2d at 200 (elements 4 and 5 of a
“malicious prosecution” claim); see also Taylor, 792 F.3d at 869 (“New claims must
arise out of the ‘“same set of facts”‘ as the original claims, and ‘[t]he facts alleged must
be specific enough to put the opposing party on notice of the factual basis for the claim.’”
(quoting Dodd, 614 F.3d at 515, in turn quoting Mandacina, 328 F.3d at 1000)).
Furthermore, the general allegations in the State Petition do not even include an allegation
that Folkerts’s prosecution ended with an acquittal or discharge, nor have I found any
such allegation in the pleading of the individual counts of the State Petition. Id. (element
6 of a “malicious prosecution” claim). It plainly is not enough, as Folkerts contends,
that she identified her claims as arising generally from, inter alia, the filing of charges
against her, where there is simply no identification of any facts in the State Petition that
could be considered a “common core of operative facts” with the new “malicious
prosecution” claim in the First Amended Complaint. See Taylor, 792 F.3d at 869.
Count III of Folkerts’s First Amended Complaint is dismissed, because it does not
“relate back” to Folkerts’s State Petition and is, consequently, untimely. See Lee, 793
F.3d at 897.
b.
The new “Monell liability” theory in ¶ 16
As the Eighth Circuit Court of Appeals has explained,
In Monell v. Department of Social Services, 436 U.S. 658, 98
S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held
that a municipality is a “person” that can be liable under
§ 1983. Id. at 690, 98 S.Ct. 2018. At the same time, the Court
concluded that a municipality may not be found liable “unless
action pursuant to official municipal policy of some nature
caused a constitutional tort.” Id. at 691, 98 S.Ct. 2018. The
17
Court did not address the full contours of municipal liability
under § 1983, but established that a municipality cannot be
held liable on a respondeat superior theory, that is, solely
because it employs a tortfeasor. Id.
Szabla v. City of Brooklyn Park, Minn., 486 F.3d 385, 389 (8th Cir. 2007). Thus,
Folkerts’s allegations of respondeat superior liability of the City in the State Petition,
even if they were pleaded with sufficient factual specificity, which I doubt, are legally
inadequate. See, e.g., Somers, 729 F.3d at 959 (dismissal is still appropriate, after
Twom-bal, if the pleading does not assert a viable legal theory); Ball, 726 F.3d at 469;
Commonwealth Property Advocates, L.L.C., 680 F.3d at 1202; Philadelphia Indem. Ins.
Co., 732 F.3d at 649; see also Brown, 738 F.3d at 933 n.7, 934 (suggesting the same
principle). Thus, for Folkerts to pursue a claim of liability of the City on her § 1983
claims, she must establish that her “Monell liability” claim or theory “relates back” to
her State Petition. See Lee, 793 F.3d at 897.6 The Eighth Circuit Court of Appeals has
explained succinctly the grounds for “Monell liability,” as follows:
Section 1983 liability for a constitutional violation may attach
to a municipality if the violation resulted from (1) an “official
municipal policy,” Monell, 436 U.S. at 691, 98 S.Ct. 2018;
(2) an unofficial “custom,” id. at 690–91, 98 S.Ct. 2018; or
(3) a deliberately indifferent failure to train or supervise, see
City of Canton, Ohio v. Harris, 489 U.S. 378, 388, 109 S.Ct.
1197, 103 L.Ed.2d 412 (1989).
Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1214 (8th Cir. 2013).
Folkerts argues—without citation of any supporting authority—that, because the
claim of liability of the City is the same, her allegation of an additional theory, a “Monell
6
I do not read the defendants’ Motion To Dismiss as seeking dismissal of any state
law claims against the City for untimely pleading of a claim of “Monell liability” or for
any other reason.
18
liability” theory, on which to base that liability does not need to “relate back” to the State
Petition. The Eighth Circuit Court of Appeals has not made the distinction on which
Folkerts relies. Rather, the Eighth Circuit Court of Appeals has stated that “[a]n amended
motion may raise new legal theories only if the new claims relate back to the original
[pleading] by ‘aris[ing] out of the same set of facts as [the] original claims.’” Dodd, 614
F.3d at 515 (emphasis added) (quoting Mandacina, 328 F.3d at 1000). More specifically,
I have repeatedly observed that “‘an untimely amendment . . . which, by way of
additional facts, clarifies or amplifies a claim or theory in the original [pleading] may, in
the District Court’s discretion, relate back to the date of the original [pleading] if and
only if the original [pleading] was timely filed and the proposed amendment does not seek
to add a new claim or to insert a new theory into the case.’” Williams v. United States,
No. C13–4025–MWB, 2014 WL 3955230, *3 (N.D. Iowa Aug. 13, 2014) (first and third
emphasis added, second emphasis in the original) (§ 2255 case, quoting United States v.
Ruiz–Ahumada, No. CR02–4054–MWB, 2006 WL 3050807, *2 (N.D. Iowa Oct. 24,
2006)). Thus, in the context of § 2255 claims, I have explained that this principle means
that there is no common core of operative facts between “ineffective assistance of
counsel” claims, where the “new” allegations of ineffective assistance are not “of the
same ‘time and type’ as those in the original motion,” and the “new” allegations of
ineffective assistance do not “relate back.” Id. at *4 (quoting Dodd, 614 F.3d at 515).
That conclusion was based on the principles of “relation back” set out in Rule 15 of the
Federal Rules of Civil Procedure, see id., so that it is not limited to § 2255 cases.
Here, there is no persuasive argument that the allegations that—arguably—pleaded
a factual basis for respondeat superior liability pleaded, with sufficient (or any)
specificity, a common core of operative facts for “Monell liability,” as required for the
new basis for liability to “relate back” to the timely State Petition. Id.; accord Taylor,
792 F.3d at 869. Bare allegations that other officers may have assisted Officer Wood in
19
Folkerts’s detention and arrest do not, in light of the complete lack of factual specificity
concerning the circumstances and conduct of the persons involved, provide even a hint
that the basis for any unspecified “illegality” of the stop, detention, interrogation, arrest,
and charging of Folkerts were matters of municipal policy, custom, or deliberately
indifferent failure to train. See Atkinson, 709 F.3d at 1214 (identifying these grounds for
“Monell liability”); see also Taylor, 792 F.3d at 869 (establishing the requirements for
“relation back”).
Similarly, simply identifying “defendants” as causing Folkerts’s
injuries and the violations of her rights does nothing to suggest a specific, plausible factual
basis to put the City on notice that its liability was alleged to be a matter of municipal
policy, custom, or deliberately indifferent failure to train. Id.; see also Taylor, 792 F.3d
at 869.
Folkerts’s claim or theory in her First Amended Complaint, ¶ 16, that the City is
liable on any § 1983 claim on the basis of “Monell liability” is dismissed, because it does
not “relate back” to Folkerts’s State Petition and is, consequently, untimely. See Lee,
793 F.3d at 897.
C.
Legal Insufficiency Challenges
The defendants challenge two claims on the basis of “legal insufficiency”: the
“negligence” claim in Count IV and the Iowa constitutional claims in Count VII. As I
explained, above, dismissal is still appropriate under the Twom-bal standard, pursuant to
Rule 12(b)(6), if a pleading does not assert a viable legal theory. See, e.g., Somers, 729
F.3d at 959; Ball, 726 F.3d at 469; Commonwealth Property Advocates, L.L.C., 680
F.3d at 1202; Philadelphia Indem. Ins. Co., 732 F.3d at 649; see also Brown, 738 F.3d
at 933 n.7, 934 (suggesting the same principle).
20
1.
The “negligence” claim in Count IV
The defendants argue that Folkerts has alleged that the defendants “owed plaintiff
[a] duty of care to not by commission or omission of action allow to be inflicted, mental
and emotional injury and pain and suffering,” citing the First Amended Complaint at
¶ (r). The defendants contend that this assertion of a duty is contrary to Iowa law,
because Iowa courts have consistently held that law enforcement personnel do not owe a
particularized duty to protect individuals, but a general duty to the public, citing Morris
v. Leaf, 534 N.W.2d 388, 390 (Iowa 1995). Folkerts argues that, when she was taken
into custody and detained, the Constitution imposed a duty on the defendants to assume
some responsibility for her safety and general well-being, citing DeShaney v. Winnebago
County Dept. of Soc. Svcs., 489 US 189, 199-200 (1989).
As the Iowa Supreme Court has explained, “We have often noted that while
summary adjudication is rarely appropriate in negligence cases, the determination of
whether a duty is owed under particular circumstances is a matter of law for the court’s
determination.” Huck v. Wyeth, Inc., 850 N.W.2d 353, 387 (Iowa 2014) (citing Hoyt v.
Gutterz Bowl & Lounge L.L.C., 829 N.W.2d 772, 775 (Iowa 2013), and Thompson v.
Kaczinski, 774 N.W.2d 829, 834 (Iowa 2009)). The defendants are correct that, in
Morris v. Leaf, the Iowa Supreme Court stated, “Iowa courts have consistently held that
law enforcement personnel do not owe a particularized duty to protect individuals; rather,
they owe a general duty to the public.” 534 N.W.2d at 390 (citing cases); see also
Fitzpatrick v. State, 439 N.W.2d 663, 667 (Iowa 1989) (holding that, although the State
had a duty to keep felons in custody, which flowed to the public at large, the State had
no legal duty to an individual police officer injured by a parolee, given the lack of any
special relationship between the State and the victim).
21
The DeShaney decision, on which Folkerts relies, is not to the contrary. Rather,
the duty to an individual detainee described in DeShaney is a duty to meet basic human
needs of a person who is unable, because of the detention, to care for himself:
[W]hen the State takes a person into its custody and holds him
there against his will, the Constitution imposes upon it a
corresponding duty to assume some responsibility for his
safety and general well-being. See Youngberg v. Romeo,
supra, 457 U.S., at 317, 102 S.Ct., at 2458 (“When a person
is institutionalized—and wholly dependent on the State[,] ...
a duty to provide certain services and care does exist”). The
rationale for this principle is simple enough: when the State
by the affirmative exercise of its power so restrains an
individual’s liberty that it renders him unable to care for
himself, and at the same time fails to provide for his basic
human needs—e.g., food, clothing, shelter, medical care, and
reasonable safety—it transgresses the substantive limits on
state action set by the Eighth Amendment and the Due Process
Clause. See Estelle v. Gamble, supra, 429 U.S., at 103–104,
97 S.Ct., at 290–291; Youngberg v. Romeo, supra, 457 U.S.,
at 315–316, 102 S.Ct., at 2457–2458. The affirmative duty to
protect arises not from the State’s knowledge of the
individual’s predicament or from its expressions of intent to
help him, but from the limitation which it has imposed on his
freedom to act on his own behalf. See Estelle v. Gamble,
supra, 429 U.S., at 103, 97 S.Ct., at 290 (“An inmate must
rely on prison authorities to treat his medical needs; if the
authorities fail to do so, those needs will not be met”). In the
substantive due process analysis, it is the State’s affirmative
act of restraining the individual’s freedom to act on his own
behalf—through incarceration, institutionalization, or other
similar restraint of personal liberty—which is the “deprivation
of liberty” triggering the protections of the Due Process
Clause, not its failure to act to protect his liberty interests
against harms inflicted by other means.
22
DeShaney, 489 U.S. at 199-200. This duty plainly is not a duty to an individual suspected
of criminal activity not to cause, by negligence, mental and emotional injury and pain
and suffering simply by arresting or detaining the suspect, even if the arrest and detention
lack an adequate legal basis.
The proper way for Folkerts to challenge her arrest and detention is through the
“false arrest” and “false imprisonment” claims that she has added to her First Amended
Complaint and that the defendants have not contended fail to state claims upon which
relief can be granted. Folkerts’s “negligence” claim in Count IV is dismissed for lack
of a legally cognizable “duty” on which a “negligence” claim can be based. See, e.g.,
Somers, 729 F.3d at 959 (dismissal is still appropriate, after Twom-bal, if the pleading
does not assert a viable legal theory); Ball, 726 F.3d at 469; Commonwealth Property
Advocates, L.L.C., 680 F.3d at 1202; Philadelphia Indem. Ins. Co., 732 F.3d at 649;
see also Brown, 738 F.3d at 933 n.7, 934 (suggesting the same principle).
2.
The Iowa constitutional claims in Count VII
The defendants seek dismissal of the part of Count VII that appears to assert a
claim pursuant to 42 U.S.C. § 1983 for violations of Article I, §§ 6, 8, and 9 of the Iowa
Constitution. The defendants argue, correctly, that a § 1983 claim must be based on the
deprivation of a right protected by the federal constitution or a violation of federal law.
See, e.g., Stevenson v. Blythevill Sch. Dist. # 5, 800 F.3d 955, 965 (8th Cir. 2015) (“But
‘violations of state laws . . . do not by themselves state a claim under 42 U.S.C. § 1983.
Section 1983 guards and vindicates federal rights alone.’” (quoting Ebmeier v. Stump,
70 F.3d 1012, 1013 (8th Cir. 1995), and also citing Williams v. Hopkins, 130 F.3d 333,
337 (8th Cir. 1997), as stating, “Ordinarily, an alleged violation of state law does not by
itself state a claim redressable by a § 1983 action.”)). Folkerts does not appear to argue
otherwise. Rather, she argues that this court can exercise supplemental jurisdiction over
her state law claims, including her claims of violations of the Iowa Constitution, pursuant
23
to 42 U.S.C. § 1367. I will assume, for the sake of argument, that I have subject matter
jurisdiction over Folkerts’s claims of violations of the Iowa Constitution. The dispositive
question, I find, is whether she has adequately pleaded facts that make such claims
plausible, where the parties appear to assume that analysis of the claims based on the
Iowa Constitution would be identical to the analysis of the claims based on the United
States Constitution. I will address the adequacy of the pleadings of the constitutional
claims in the next section.
D.
Factual Insufficiency Challenges
The defendants’ remaining challenges, that is, to Counts V through VII, are based
on failure of those counts to state claims upon which relief can be granted, because there
is no pleading of a plausible factual basis for those claims. Folkerts contends that she
has adequately pleaded these claims in her First Amended Complaint.
1.
The “intentional infliction of emotional distress” claim in Count VI
The defendants assert that Folkerts’s “intentional infliction of emotional distress”
claim in Count VII7 requires proof of “outrageous conduct” by the defendants and that it
is for the court to determine, in the first instance, whether the relevant conduct may
reasonably be regarded as “outrageous.”
They assert, with no elaboration or
identification of specifics, that the conduct alleged in the First Amended Complaint “falls
well short” of stating a claim for intentional infliction of emotional distress. Folkerts
counters that she has alleged facts sufficient to show “outrageous” behavior. She points
7
In their Motion To Dismiss, the defendants opine that the claim in Count V,
denominated “Intentional,” is “nearly indistinguishable” from the claim in Count VI,
denominated “Intentional Infliction Of Emotional Distress,” and Folkerts has not
attempted to distinguish the two claims in her Resistance nor offered any separate
arguments concerning these claims. Thus, like the parties, I have treated the claims as
identical, making Count V subject to dismissal as redundant and superfluous.
24
to her allegations of an “illegal” traffic stop by Officer Wood, as found by the state court
in her criminal case, officers yelling at and insulting her, Officer Wood’s fabrication of
details of her demeanor and actions and the results of field sobriety tests, her two-hour
detention by the officer or officers by the side of the road, followed by an approximately
two-hour detention at the law enforcement center during which she was interrogated, then
Officer Wood charging her with a crime without probable cause and locking her up for
a night and a day in jail. Folkerts contends that a reasonable factfinder could find the
conduct of the officers was without basis and, consequently, outrageous and exceeding
the bounds of human decency.
As the Iowa Supreme Court has explained,
In order for a plaintiff to successfully bring a claim of
intentional infliction of emotional distress, he or she must
demonstrate four elements:
“(1) outrageous conduct by the defendant; (2) the
defendant intentionally caused, or recklessly
disregarded the probability of causing, the emotional
distress; (3) plaintiff suffered severe or extreme
emotional distress; and (4) the defendant’s outrageous
conduct was the actual and proximate cause of the
emotional distress.”
Barreca v. Nickolas, 683 N.W.2d 111, 123–24 (Iowa 2004)
(quoting Fuller v. Local Union No. 106, 567 N.W.2d 419,
423 (Iowa 1997)).
The plaintiff must establish a prima facie case for
outrageous conduct, and “it is for the court to determine in
the first instance, as a matter of law, whether the conduct
complained of may reasonably be regarded as outrageous.”
Cutler v. Klass, Whicher & Mishne, 473 N.W.2d 178, 183
(Iowa 1991) (internal quotation marks omitted). “Where
reasonable men may differ, it is for the jury, subject to the
control of the court, to determine whether, in the particular
25
case, the conduct has been sufficiently extreme and
outrageous to result in liability.” Restatement (Second) of
Torts § 46, cmt. h, at 77 (1965).
Smith v. Iowa State Univ. of Science and Tech., 851 N.W.2d 1, 26 (Iowa 2014). As I
have previously observed, “[i]t is a simpler matter to discover what kinds of behavior the
Iowa Supreme Court has held insufficiently outrageous to sustain the tort than it is to find
out what kind of behavior is sufficiently egregious.” Chester v. Northwest Iowa Youth
Emergency Serv. Ctr., 869 F. Supp. 700, 710–11 (N.D. Iowa 1994); accord McFarland
v. McFarland, 684 F. Supp. 2d 1073, 1090 (N.D. Iowa 2014) (reiterating this observation
from Chester two decades later).
A fully-developed record may ultimately lead me to a different conclusion on
whether, as a matter of law, the conduct of Officer Wood (and perhaps other officers)
towards Folkerts may reasonably be regarded as outrageous. See Smith, 851 N.W.2d at
26. The question on a Rule 12(b)(6) motion to dismiss, however, is whether Folkerts’s
complaint contains sufficient factual matter, accepted as true, to state a claim of
intentional infliction of emotional distress that is plausible on its face. Richter, 686 F.3d
at 850. One comparator that the Iowa Supreme Court has given me is the conduct of
conservation peace officers in Dickerson v. Mertz, 547 N.W.2d 208 (Iowa 1996), where
the court reviewed the trial court’s “outrageousness” ruling on summary judgment. As
the court explained,
Plaintiff claims the record shows defendants acted
outrageously and extremely in the following fashion:
defendants issued plaintiff two citations of which he was
acquitted, defendant Mertz confiscated and refused to return
to plaintiff an invalid hunting license, defendant Batterson
checked plaintiff’s game licenses on eight to ten occasions in
a rude manner, and defendant Batterson refused to let plaintiff
keep a road-killed deer to which plaintiff had no legal title.
Plaintiff cites no authority which would prohibit any of the
26
above actions taken by the defendants within the scope of their
employment as conservation peace officers.
In viewing the record in a light most favorable to
plaintiff as we would in a motion for directed verdict, we
conclude as a matter of law that defendants’ actions did not
constitute outrageous conduct. The district court properly
dismissed plaintiff’s intentional infliction of emotional
distress claim on defendants’ motion for summary judgment.
Dickerson, 547 N.W.2d at 214. Here, in contrast to Dickerson, in which the Iowa
Supreme Court held that the conduct at issue was not sufficiently “outrageous” to sustain
the claim, there is authority—including state “false arrest” and “false imprisonment”
claims and state and federal constitutional claims—that would prohibit fabrication of
evidence to stop, detain, arrest, and charge a person with a crime. Furthermore, as
Folkerts contends, she has alleged that Officer Wood (and perhaps other officers) engaged
in such conduct intentionally, knowing that the stop, detention, arrest, and charge were
based on fabrications. For purposes of a Rule 12(b)(6) motion to dismiss, I conclude that
these factual allegations in the First Amended Complaint are sufficient, accepted as true,
to state a claim of intentional infliction of emotional distress that is plausible on its face.
Richter, 686 F.3d at 850.
The defendants’ Motion To Dismiss is denied as to Folkerts’s claim of “intentional
infliction of emotional distress” in Count VI of the First Amended Complaint.
2.
The constitutional claims in Count VII
As the parties recognize, in Count VII of her First Amended Complaint, Folkerts
asserts both denial of due process, in violation of the Fifth and Fourteenth Amendments
to the United States Constitution, and invasion of personal security, in violation of the
Fourth and Fourteenth Amendments to the United States Constitution, causing her
emotional pain, loss of income, and healthcare expenses. It appears that the parties
recognize similar due process protections are found in Article I, § 9, of the Iowa
27
Constitution and similar personal security protections are found in Article I, § 8, of the
Iowa Constitution.8
Like the parties, I will assume that dismissal of the federal
constitutional claims for failure to state a claim would, likewise, result in dismissal of the
parallel Iowa constitutional claims.
The defendants assert that Folkerts has alleged only legal conclusions in support
of her constitutional claims, which a court is not required to accept as true when ruling
on a motion to dismiss. Somewhat more specifically, the defendants contend that it is
difficult to determine whether Folkerts has alleged a legitimate expectation of privacy in
unidentified personal security or even a plausible, unreasonable intrusion upon that
expectation. Folkerts asserts that this portion of the defendants’ Motion To Dismiss is
“cut and pasted” from their original Motion To Dismiss, but fails to recognize that the
First Amended Complaint is based upon much more than the bare-bones description of
the conduct at issue in her State Petition. She contends that she has alleged facts plausibly
showing that there was no basis for the traffic stop and search, involving both her car
and “sobriety” tests, her detention, her arrest, or her criminal charge.
It is true that Count VII, itself, is no more than a formulaic or bare-bones pleading
of the elements of a constitutional violation of due process or personal security, which
would not satisfy the “plausibility” standard. See Gallagher, 699 F.3d at 1016 (“‘[A]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of
a cause of action will not do.’” (quoting Iqbal, 556 U.S. at 678)). It is also true that
Folkerts could have done a far better job of linking her “new” factual allegations,
8
Article I, § 6, of the Iowa Constitution, also identified as a basis for claims in
Count VII of Folkerts’s First Amended Complaint, requires equal protection of citizens,
but the parties have not identified where, if at all, Folkerts’s First Amended Complaint
alleges or attempts to allege any violation of equal protection.
28
specifically, those in ¶¶ 3-10 of her First Amended Complaint, to the constitutional
violations that she alleges they support.9 On the other hand, it is somewhat strange that
the defendants appear to have completely ignored Folkerts’s “new” factual allegations
when challenging the sufficiency of her pleading of her constitutional claims.
Nevertheless, a ruling on a motion to dismiss should be more than a critique of
the skillfulness or artfulness of the pleading. Rather, as I have observed more than once,
above, such a ruling must address whether Folkerts’s First Amended Complaint contains
sufficient factual matter, accepted as true, to state a claim of a constitutional violation
that is plausible on its face. Richter, 686 F.3d at 850. I believe that Folkerts’s First
Amended Complaint contains sufficient factual matter to establish such plausibility,
although perhaps just barely, notwithstanding that the reader is left largely to his or her
own devices to connect the pertinent facts with the constitutional claims. As to invasion
of personal security, that is, a violation of the Fourth Amendment to the United States
Constitution, Folkerts alleges, in more than simply conclusory fashion, that the traffic
stop was based on a fabrication of a traffic violation involving crossing the “fog line”
and an unreliable, unverified, and wholly untruthful anonymous tip. As to a due process
violation, Folkerts alleges that her arrest and detention—and later charge—were based on
false claims of discovery of drug residues in her car, plausibly demonstrated by the lack
of any “alert” by the drug dog brought to the scene of the traffic stop, and the falsification
of results of “sobriety” tests at the scene, demonstrated by video of the stop. Thus,
9
By “linking” I mean much more that incorporating them by reference as
“repleaded,” which is all that Folkerts did in her First Amended Complaint. I mean
linking specific factual allegations to specific alleged constitutional violations, such as
linking facts going to a violation of personal security with the allegation of such a
violation and linking of facts going to a due process violation with the allegation of such
a violation.
29
Folkerts’s constitutional claims are neither so farfetched nor so unsupported by factual
allegations in the record as to be implausible.
The part of the defendants’ Motion To Dismiss seeking dismissal of Folkerts’s
constitutional claims in Count VII is denied.
III.
CONCLUSION
Upon the foregoing,
1.
The defendants’ September 10, 2015, Motion To Dismiss (docket no. 5) is
denied as moot;
2.
The defendants’ October 8, 2015, Motion To Dismiss Counts III-VII Of
Plaintiff’s First Amended Complaint (docket no. 11) is granted in part, and denied in
part, as follows:
a.
The part of the defendants’ Motion To Dismiss seeking dismissal of
Count III, the “malicious prosecution” claim, is granted, because that claim does
not “relate back” to the timely State Petition, so that it is time-barred;
b.
The part of the defendants’ Motion To Dismiss seeking dismissal of
Count IV, the “negligence” claim, is granted, for failure to allege a cognizable
“duty,” as a matter of law;
c.
The part of the defendants’ Motion To Dismiss seeking dismissal of
Count V, the “Intentional” claim, is granted, because that claim is redundant of
Count VI and, thus, superfluous;
d.
The part of the defendants’ Motion To Dismiss seeking dismissal of
Count VI, the “intentional infliction of emotional distress” claim, is denied;
e.
The part of the defendants’ Motion To Dismiss seeking dismissal of
Count VII, the “constitutional” claims, is denied; and
30
f.
The part of the defendants’ Motion To Dismiss asserting that
Folkerts’s claim or theory in her First Amended Complaint, ¶ 16, that the City is
liable on any § 1983 claim on the basis of “Monell liability” is granted, because
that claim or theory does not “relate back” to Folkerts’s State Petition and is,
consequently, time-barred.
THEREFORE, this case will proceed only on Folkerts’s claims in Counts I, II,
VI, and VII of her First Amended Complaint.
IT IS SO ORDERED.
DATED this 11th day of December, 2015.
______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
31
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