Theisen et al v. Stoddard County et al
MEMORANDUM AND ORDER re: 82 MOTION for Judgment on the Pleadings filed by Defendant Missouri State Police motion is GRANTED. Signed by District Judge Catherine D. Perry on 8/26/14. (MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
MATTHEW THEISEN, et al.,
STODDARD COUNTY, et al.,
Case No. 1:13CV32 CDP
MEMORANDUM AND ORDER
Pending before me is defendant Missouri State Highway Patrol’s1 motion for
judgment on the pleadings. Plaintiffs Matthew and Michael Theisen have brought
14 claims against MSHP. All of the claims are barred by sovereign immunity.
Nine of the plaintiffs’ claims are brought under 42 U.S.C. § 1983. Even if MSHP
were not immune from these claims, they would fail because the Theisens do not
allege any facts establishing a causal link between MSHP and the alleged
deprivations of their constitutional rights. For these reasons, I will grant MSHP’s
In my order dated June 27, 2013, I recounted the facts as alleged by the
Theisens, and I will not repeat them in detail here. The Theisens allege generally
that in June 2011, they were arrested, charged with first-degree property damage,
Plaintiffs sued “Missouri State Police,” but the defendant’s correct name is “Missouri State
Highway Patrol.” (See Doc. 6, Waiver of Service.) The correct name will be substituted.
and questioned, then transported to Stoddard County Jail. There they endured
brutal physical and sexual assault for several hours. The Theisens were then
charged with additional crimes and held without a hearing for almost a year. They
were eventually adjudicated as mentally incompetent and confined to Fulton State
Hospital, where they remain.
As I stated in my earlier order, all of the claims against MSHP are based on
the presence of an “unidentified Missouri State Trooper in a blue-gray uniform
with a round drill sergeant type hat.” (Corrected Second Am. Compl., ¶ 34.) This
Trooper allegedly witnessed the June 2011 attacks, deliberately refused to take
action, and denied the plaintiffs medical treatment. There are no additional facts
concerning this Trooper or MSHP. (See generally id.)
The plaintiffs’ Section 1983 claims are barred by sovereign immunity
The Theisens have brought the following claims against MSHP pursuant to
Denial of Right to an Attorney
Infliction of Cruel and Unusual Punishment
Plaintiffs do not specifically mention Section 1983 in the recitation of Counts III, IV, V, VI,
XIV, and XV, but it is the vehicle for asserting these constitutional violations. See, e.g.,
Martinez v. California, 444 U.S. 277, 285 (1980) (duty to protect); Cnty. of Sacramento v. Lewis,
523 U.S. 833, 854 (1998) (substantive due process); McMillian v. Johnson, 88 F.3d 1554, 1566
(11th Cir. 1996) (pretrial punishment); Chambers v. Pennycook, 641 F.3d 898, 901 (8th Cir.
2011) (excessive force); Smith v. Mo. Dep’t of Corrs., 207 Fed. Appx. 736, 736 (8th Cir. 2006)
(adequate medical care); Dyer-El v. Torrence, No. 4:10CV2331 AGF, 2011 WL 743312, at *1
(E.D. Mo. Feb. 23, 2011) (speedy trial). Plaintiffs do not take issue with MSHP’s
characterization of these claims as Section 1983-based claims.
Breach of Duty to Protect
Violation of Substantive Due Process Rights
Plaintiffs’ Confinement and Assaults Against Them
Constituted a Pre-Trial Punishment That Violates
the Due Process Clause
Defendants’ Assaults Against Plaintiffs Violated Their
Right Not To Be Subjected to Excessive Force
Failure to Provide Adequate Medical Care
Violation of Plaintiffs’ Right to a Speedy Trial
Abuse of Process3
MSHP argues that it is immune to the Theisens’ Section 1983 claims under
the Eleventh Amendment. Generally, in the absence of consent, the Eleventh
Amendment prohibits suits in federal court against a state or one of its departments
or agencies, no matter whether the relief sought is legal or equitable. Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 (1984); Papasan v.
Allain, 478 U.S. 265, 276 (1986); see also Alden v. Maine, 527 U.S. 706, 713
(1999) (“Eleventh Amendment immunity” is a “convenient shorthand” for state
sovereign immunity, which existed before ratification of the Constitution). There
is no dispute that MSHP is an agency of the state of Missouri and is therefore
shielded by Missouri’s sovereign immunity. See Corrected Second Am. Compl. ¶
10; see also, e.g., Leith v. State of Mo. Highway Patrol, No. 05CV4399 FJG, 2007
WL 869508, at *2 (W.D. Mo. Mar. 20, 2007); Will v. Mich. Dep’t of State Police,
491 U.S. 58, 60 (1989).
Plaintiffs bring this claim “under Missouri state law or 42 U.S.C. § 1983.” (Corrected Second
Am. Compl. ¶ 74.)
Section 1983 itself does not abrogate state sovereign immunity. See Murphy
v. Arkansas, 127 F.3d 750, 754 (8th Cir. 1997). But the plaintiffs argue that, in this
case, the state (and therefore MSHP) has waived its immunity via statute. See Mo.
Rev. Stat. § 537.600. A state may waive its immunity by voluntarily invoking
federal jurisdiction or by making a “clear declaration that it intends to submit itself
to the jurisdiction of the federal courts.” McKlintic v. 36th Judicial Circuit Court,
508 F.3d 875, 877 (8th Cir. 2007) (internal quotations omitted); see also Quinnett
v. Iowa, 644 F.3d 630, 632 (8th Cir. 2011).
Mo. Rev. Stat. § 537.600.1(2), the provision at issue here, provides an
express waiver of sovereign immunity from liability for compensatory damages for
negligent acts or omissions where a plaintiff is injured because of the dangerous
condition of a public property. The Theisens argue that the assaults they endured
at the Stoddard County Jail – and the Trooper’s tacit endorsement of those assaults
– constitute a dangerous condition that invokes this abrogation of MSHP’s
I disagree. The Trooper’s inaction might have been dangerous, but it was
not a feature of public property. The statute does not provide for a waiver when a
plaintiff’s injuries are caused by a dangerous condition on public property, as the
plaintiffs assert, but when injuries are caused by the condition of public property.
Classifying the Trooper’s inaction as such would stretch the meaning of “property”
well beyond its plain meaning. See United States v. I.L., 614 F.3d 817, 820 (8th
Cir. 2010) (courts analyzing statutory language assume “the ordinary meaning of
that language accurately expresses the legislative purpose”); see also Delmain v.
Meramec Valley R-III Sch. Dist., 671 S.W.2d 415, 417 (Mo. Ct. App. 1984)
(defining “property” as used in Section 537.600 as including “real and personal
property”); Rodgers v. City of N. Kansas City, 340 S.W.3d 154, 158 (Mo. Ct. App.
2011) (nurse’s sexual assault of patient was not “dangerous condition” within
meaning of Section 537.600; language includes only “physical defects in, upon
and/or attending to property of the public entity”) (internal quotation marks
Indeed, the Eighth Circuit has repeatedly held that Missouri’s “narrow
waiver of its immunity” in Section 537.600 does not include claims brought under
42 U.S.C. § 1983. Barnes v. State of Mo., 960 F.2d 63, 65 (8th Cir. 1992); see also
Williams v. State of Mo., 973 F.2d 599, 600 (8th Cir. 1992). The Theisens have not
identified any other “clear declaration” by MSHP “that it intends to submit itself to
the jurisdiction of the federal courts.” McKlintic, 508 F.3d at 877. As such, its
Section 1983 claims are barred.
Even if they were not, the claims would still fail. As I noted in my June
2013 order, the Theisens:
have alleged that MSHP is liable for the acts of the Trooper through
the doctrine of respondeat superior. . . . [T]he Theisens are advised
that the doctrine of respondeat superior is inapplicable to causes of
action brought under Section 1983. Cotton v. Hutto, 577 F.2d 453,
455 (8th Cir. 1978); see also Madewell v. Roberts, 909 F.2d 1203,
1208 (8th Cir. 1990) (“Liability under § 1983 requires a causal link to,
and direct responsibility for, the alleged deprivation of rights.”).
(Doc. 42, p. 13.) Though the Theisens have removed the words “respondeat
superior” from their amended complaint (as to MSHP), they have not asserted any
additional facts that would demonstrate MSHP’s direct responsibility for the
Trooper’s alleged inaction. The Theisens argue that they are entitled to discovery
on these claims so that they can prove, among other things, that “there existed a
conspiracy of silence or inaction on the part of law enforcement, specifically with
respect to MSHP.” But in order to get to the discovery stage, a plaintiff must
provide “enough facts to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Theisens have not done that here
with respect to MSHP.
The plaintiffs’ state law claims are barred by sovereign immunity
In addition to their Section 1983 claims, the Theisens have brought the
following state tort claims against MSHP:
Intentional Infliction of Emotional Distress
Negligent Infliction of Emotional Distress
Abuse of Process4
As a complement to its Eleventh Amendment immunity from suit in federal
court, the state of Missouri has adopted a statute immunizing it from common law
tort claims. See Mo. Rev. Stat. § 537.600; see also Winston v. Reorg. Sch. Dist. R2, Lawrence Cnty., 636 S.W.2d 324, 328 (Mo. banc 1982) (“within constitutional
limits, a sovereign may prescribe the terms and conditions under which it may be
sued”). The statute protects MSHP from suit for both negligent and intentional
torts, including those brought here. See Mitchell v. Village of Edmundson, 891
S.W.3d 848, 850 (Mo. Ct. App. 1995) (“Intentional torts have consistently been
found to fall within the shield of sovereign immunity.”); Noah v. Saint Louis Cnty.,
Mo., 4:06CV591 CDP, 2007 WL 1018671, at *2 (E.D. Mo. Mar. 29, 2007)
(Section 537.600 immunity barred suit for assault and battery); Duncan v. Creve
Coeur Fire Protection Dist., 802 S.W.2d 205, 207 (Mo. Ct. App. 1991) (same for
intentional infliction of emotional distress); O.S. v. Kansas City Public Schools,
No. 13CV261, 2013 WL 5636664, at *3 (W.D. Mo. Oct. 16, 2013) (same for
negligence claims, including negligent infliction of emotional distress); Gifford v.
Poplar Bluff R-1 School Dist., No. 1:12CV183 SNLJ, 2013 WL 6241986, at *2
See infra, n.3.
(E.D. Mo. Dec. 3, 2013) (same for defamation); Jones v. Slay, No. 4:12CV2109,
2013 WL 5954411, at *3 (E.D. Mo. Nov. 7, 2013) (same for abuse of process).
The Theisens argue that the dangerous condition exception, codified at Mo.
Rev. Stat. § 537.600.1(2), applies to its tort claims. But again, they have alleged
that people, not physical defects or deficiencies, caused their injuries. Therefore,
that waiver of immunity is not applicable. See Winston, 636 S.W.2d at 328 (“the
decision to waive immunity, and to what extent it is waived, lies within the
legislature’s purview”); see also Halderman, 465 U.S. at 99 n.9 (a state’s “waiver
of sovereign immunity in its own courts is not a waiver of the Eleventh
Amendment immunity in the federal courts”).
To the extent that the Theisens contend they need discovery to determine
whether the immunity waiver codified in Section 537.600 applies, they are
mistaken. They cite several Missouri state court cases for the proposition that the
application of Section 537.600 is a question of fact. In those cases, however, the
plaintiffs had all pled that there was a dangerous condition of public property. See
Williams v. Mo. Hwy. & Transp. Com’n, 16 S.W. 3d 605, 608, 610 (Mo. Ct. App.
2000) (broken traffic signals); Hensley v. Jackson Cnty., 227 S.W.3d 491, 494
(Mo. banc 2007) (stop sign knocked down); Mo. United Sch. Ins. Council v. Hunt,
4:13CV653 SWH (W.D. Mo. filed July 1, 2013) (blind intersection) (see Doc. 11). That assertion is lacking here.5
The Theisens also argue that MSHP already moved for dismissal once
without asserting sovereign immunity, and therefore waived its right to seek a
judgment on the pleadings on this basis. This assertion is unfounded. Only certain
defenses are barred if not raised at the first opportunity, and sovereign immunity is
not one of them. See Rules 12(b) and 12(c), Fed. R. Civ. P; see also Hagen v.
Sisseton-Wahpeton Cmty. Coll., 205 F.3d 1040, 1044 (8th Cir. 2000) (sovereign
immunity “is a jurisdictional prerequisite which may be asserted at any stage of the
Accordingly, for the reasons stated above,
IT IS HEREBY ORDERED that defendant Missouri State Highway
Patrol’s motion for judgment on the pleadings [#82] is granted.
This matter will be set for a Rule 16 Conference by separate order.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 26th day of August, 2014.
Other typical questions of fact in tort immunity cases – such as whether a defendant
maintained a tort liability insurance policy – do not apply. Defendant MSHP is an arm of the
state, not a municipality, and as such is entitled to “[f]ull common law sovereign immunity.”
Southers v. City of Farmington, 263 S.W.2d 603, 609 (Mo. banc 2008) (citing State ex rel.
Trimble v. Ryan, 745 S.W.2d 672, 673–74 (Mo. banc 1988)); see also Mo. Rev. Stat. § 537.610.
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