Scott v. Moore et al

Filing 54

OPINION, MEMORANDUM AND ORDER- IT IS HEREBY ORDERED that Defendants Hardwick, Dawson, Moore, Shively, Clark and Miller's Motions to Dismiss Plaintiff's Second Amended Complaint, [Doc. No.s 44 , 46 , 49 , and 50 ], are granted.IT IS FUR THER ORDERED that Plaintiff will be given 14 days from thedate of this Opinion, Memorandum and Order to file an Amended Complaint inaccordance with the discussion herein. Failure to file an Amended Complaint will result in dismissal of this action with prejudice.( Response to Court due by 2/10/2014.). Signed by District Judge Henry E. Autrey on 01/27/2014. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHER DIVISION
ADAM SCOTT, by and through his legal
Guardian and Next Friend, DONNA TAYLOR
Plaintiff,
vs.
ROBERT DAWSON, et al.,
Defendants.

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Case No. 2:12CV31 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants Hardwick, Dawson, Moore,
Shively, Clark and Miller’s Motions to Dismiss Plaintiff’s Second Amended
Complaint, [Doc. No.’s 44, 46, 49, and 50]. Plaintiff opposes the Motions. For
the reasons set forth below, the Motions are granted.
Facts and Background
Plaintiff Adam Scott’s Second Amended Complaint alleges that while he
was a pre-trial detainee on a felony case out of Adair County, he was released into
the custody of Drug Task Officer Mikey Miller. Miller took Plaintiff, without the
authorization of Plaintiff’s guardian, to the home he shared with his then wife,
Vickie Scott and despite Plaintiff not having a driver’s license, Miller insisted
Plaintiff use the vehicle owned by Vickie Scott to go and obtain anhydrous

ammonia. After obtaining the anhydrous ammonia, Plaintiff was subsequently
arrested and convicted for the felony of possession of anhydrous ammonia in an
unapproved container.
Plaintiff alleges that he was at all times a pre-trial detainee on a felony
stealing case and that he was confined in the Macon County Jail. During this
detention, Plaintiff alleges that Defendant Flennory sexually assaulted Plaintiff,
that an unknown Macon Deputy failed to secure the Macon County prisoners to
individual cells with reckless disregard for a known and obvious danger.
The Second Amended Complaint further alleges that while Plaintiff was
held on the Adair County case, which was subsequently dismissed with prejudice
in his favor , he was transferred to the Macon County Jail under the authorization
of the Adair County Sheriff and was medicated by Macon County Jail personnel,
that Defendant Michael Shivery failed to secure the medicated Plaintiff, in an
unsecured jail cell and left him unsupervised in an unmonitored jail pod
containing Defendant Flennory, a registered sex offender.
The Second Amended Complaint claims that Defendants, with the exception
of Defendant Flennory, were all acting under color of State law, and that
Defendants’ actions violated Plaintiff’s constitutional rights of equal protection,
equal privileges under the Fourteenth Amendment to the U.S. Constitution, and
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the Missouri Constitution; for refusing or neglecting to prevent such deprivations
and for wrongful, intentional, reckless and/or negligent conduct, for failing to
provide reasonable protection from violence while in custody, and for deliberate
indifference by refusing to take reasonable measures to safeguard pre-trial
detainees in their custody from a known substantial risk to his safety and/or for
recklessly disregarding a substantial and known risk to the safety and well-being
of those persons held in custody with Defendant Flennory.
Plaintiff further alleges that Defendants Robert Dawson, Sheriff of Macon
County, Missouri, Defendant Moore and/or Macon County Deputy Sheriff
Shively, either by affirmative acts or omissions, had in place policies, practices,
procedures and/or guidelines that violated or led to the violation of the rights of
Plaintiff. Plaintiff claims Defendants failed to train, instruct, supervise, control,
and discipline the individual law enforcement or corrections officers on a
continuing basis, as a result of official policy and/or customs, practices, usages of
Defendant Government entity. Such failures, according to the Second Amended
Complaint, included failure to routinely secure jail cells housing pre-trial detainees
and/or inmates during the overnight hours; failure to segregate pre-trial detainees
from post-sentenced prisoners to be delivered to the Missouri Department of
Corrections for incarceration upon their sentence; and such failures included using
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medically untrained jail personnel to administer prescription medication to
inmates in violation of Missouri law, including the code of state regulations, and
such failures were the result of deliberate indifference of the policy makers toward
the rights of the Plaintiff.
Defendants allegedly acted together in a joint venture, were joint tortfeasors
and engaged in a scheme and conspiracy to deny and to deprive Plaintiff of his
rights guaranteed by the U.S. Constitution and the laws of the United States and
the State of Missouri.
Defendants Hardwick, Dawson, Moore, Shively, Clark, and Miller move to
dismiss Plaintiff’s Second Amended Complaint pursuant to Rules 12(b)(1) and (6)
of the Federal Rules of Civil Procedure.
Discussion
A motion to dismiss under Rule 12(b)(1) may challenge either the facial
sufficiency or the factual truthfulness of the plaintiff's jurisdictional allegations.
Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). When passing on a facial
challenge, a court must presume that all of the plaintiff's jurisdictional allegations
are true. Id. The motion must be granted if the plaintiff has failed to allege a
necessary element supporting subject matter jurisdiction. Id. A court confronted
with a factual challenge must weigh the conflicting evidence concerning
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jurisdiction, without presuming the truthfulness of the plaintiff's allegations. Land
v. Dollar, 330 U.S. 731, 735 n.4 (1946); Osborn v. United States, 918 F.2d 724,
730 (8th Cir. 1990).
When ruling on a Federal Rule of Civil Procedure 12(b)(6) motion to
dismiss for failure to state a claim, the Court must take as true the alleged facts and
determine whether they are sufficient to raise more than a speculative right to
relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). The Court does
not, however, accept as true any allegation that is a legal conclusion. Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949-50 (2009). The complaint must have “‘a short and
plain statement of the claim showing that the [plaintiff] is entitled to relief,’ in
order to ‘give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.’” Twombly, 550 U.S. at 555 (quoting Fed.R.Civ.P. 8(a)(2))
and then Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated by Twombly, supra);
see also Gregory v. Dillard’s Inc., 565 F.3d 464, 473 (8th Cir.) (en banc), cert.
denied, 130 S.Ct. 628 (2009). While detailed factual allegations are not necessary,
a complaint that contains “labels and conclusions,” and “a formulaic recitation of
the elements of a cause of action” is not sufficient. Twombly, 550 U.S. at 555;
accord Iqbal, 129 S.Ct. at 1949. The complaint must set forth “enough facts to
state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570;
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accord Iqbal, 129 S.Ct. at 1949; Braden v. Wal-Mart Stores, Inc., 588 F.3d 585,
594 (8th Cir. 2009). “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.” Iqbal, 129 S.Ct. at 1949. If the
claims are only conceivable, not plausible, the complaint must be dismissed.
Twombly, 550 U.S. at 570; accord Iqbal, 129 S.Ct. at 1950. In considering a
motion to dismiss under Fed. R. Civ. P. 12(b)(6), “the complaint should be read as
a whole, not parsed piece by piece to determine whether each allegation, in
isolation, is plausible.” Braden, 588 F.3d at 594. The issue in considering such a
motion is not whether the plaintiff will ultimately prevail, but whether the plaintiff
is entitled to present evidence in support of the claim. See Neitzke v. Williams, 490
U.S. 319, 327 (1989). “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, --- U.S. ----, 129 S.Ct. 1937, 1949,(2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Thus, “although a
complaint need not include detailed factual allegations, ‘a plaintiff's obligation to
provide the grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do.’ ” C.N. v. Willmar Pub. Sch., Indep. Sch. Dist. No. 347, 591 F.3d 624, 629-6-

30 (8th Cir.2010) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
The Second Amended Complaint alleges that Plaintiff was not protected
from an attack which occurred while he was in custody in the Macon County jail.
Defendant Robert Hardwick
Hardwick argues that during 2008, Defendant Hardwick was not the Sheriff
of Adair County. No claim for actions which took place in 2008 can be stated
against him as Sheriff of Adair County.
With regard to the allegations of events that took place in 2010, Plaintiff
claims nothing with regard to Hardwick, other than that he was the Sheriff of
Adair County, that he was acting under color of state law that “defendants”
deprived Plaintiff of his constitutional rights, and that “defendants” failed to train,
instruct, supervise, control, and discipline the individual law enforcement or
correction officers on a continuing basis, and that “defendants” acted together in a
joint venture, were joint tortfeasors, and are jointly and severally liable to Plaintiff,
pursuant to a conspiracy to deny Plaintiff of his constitutional rights.
Defendants Dawson, Moore, Shively1
Defendants claim that the allegations against them are conclusory, and

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This motion is styled as being brought by Defendants Wyatt, Belt and Dwiggins, as well
as Dawson, Moore and Shively. The Second Amended Complaint is not brought against Wyatt,
Belt or Dwiggins. Accordingly, these Defendants have already been dismissed from the action.
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merely restatements of the elements of the cause of action. These defendants also
argue that the complaint is based on vicarious liability which is inapplicable in an
action under Section 1983, and that the claims against Moore and Shively should
be dismissed as they are entitled to qualified immunity. Also, these defendants
claim that portions of Plaintiff’s Second Amended Complaint alleges violations of
Missouri law and Missouri law cannot serve as the basis of a claim under 42
U.S.C. § 1983.
Defendant Clark
Clark argues that the Second Amended Complaint against him is based on
the theory of respondeat superior, which is not an applicable theory of recovery
under 42 U.S.C. § 1983. Additionally, Clark claims that the Second Amended
Complaint fails to allege any personal involvement on his part, which is a
necessary element of a Section 1983 claim.
Moreover, Clark asserts that Plaintiff has failed to allege sufficient facts to
provide him with standing to sue him; that the Second Amended Complaint does
not allege any causal connection between Clark and Plaintiff’s injuries; that he is
entitled to qualified immunity; and that the Missouri law based alleged violations
cannot serve to support a Section 1983 claim.
Defendant Miller
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Miller argues that the Second Amended Complaint against him does not
allege any causal connection between Miller and Plaintiff’s injuries and that he is
entitled to qualified immunity.
In response to the Motions to Dismiss, Plaintiff argues that Missouri Law
provides him the necessary basis upon which to bring his actions based on
respondeat superior. Plaintiff’s argument fails. Plaintiff has not alleged
anywhere that the supervisory Defendants, i.e. Hardwick, Clark and Dawson, had
knowledge of any violating conduct.
Without demonstrating notice, Plaintiff cannot establish supervisor or
pattern and practice liability in the present case. Mo.Rev.Stat. § 221.020 cannot
cure this fatal flaw.
In Tatum v. Houser, 642 F.2d 253, 254 (8th Cir.1981), it appears at first
blush that strict liability of sheriffs for the conduct of their jailers contemplated by
Mo.Rev.Stat. § 221.020 applies to civil rights cases brought under 42 U .S.C. §
1983. This interpretation, however runs contrary to the United States Supreme
Court's holding in Monell v. Dep't of Soc. Servs. 436 U.S. 658, 691 (1978). The
Eighth Circuit has not relied on Tatum for over 30 years. Moreover, not only
would the imposition of statutorily created respondeat superior liability in a §
1983 case run afoul of Monell, but violations of state law rights cannot be
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vindicated in a § 1983 action anyway. Ebmeier v. Stump, 70 F.3d 1012, 1013 (8th
Cir.1995).
The Second Amended Complaint makes no allegations against Hardwick,
Dawson, Moore and Clark other than that they were the Sheriffs and Jail
Administrator, respectively, at the time of the incident. Supervisors cannot be
held vicariously liable under 42 U.S.C. § 1983. Rather, Plaintiff must plead that
the official, through his own actions violated the Constitutional rights of Plaintiff.
“Because vicarious liability is inapplicable to ... § 1983 suits, a
plaintiff must plead that each Government-official defendant, through
the official's own individual actions, has violated the Constitution.”
Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 1948, 173 L.Ed.2d
868 (2009). Thus, “each Government official, his or her title
notwithstanding, is only liable for his or her own misconduct.” Id. at
1949. As we have held, a supervising officer can be liable for an
inferior officer's constitutional violation only “ ‘if he directly
participated in the constitutional violation, or if his failure to train or
supervise the offending actor caused the deprivation.’ ” Otey v.
Marshall, 121 F.3d 1150, 1155 (8th Cir.1997) (quoting Tilson v.
Forrest City Police Dep't, 28 F.3d 802, 806 (8th Cir.1994)); see also
Wever v. Lincoln County, 388 F.3d 601, 606–07 (8th
Cir.2004).(footnote omitted).
Parrish v. Ball, 594 F.3d 993, 1002 (8th Cir 2010). Plaintiff’s Second Amended
Complaint fails to set forth any facts, to show that Dawson and Moore had any
notice of any pattern of unconstitutional acts or prior injuries to any inmates. The
Motions to Dismiss Hardwick, Clark, Dawson and Moore is therefore well taken.

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Although Plaintiff attempts to allege policies and customs, vague references
to such policies and customs are insufficient to state a claim.
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 can be liable under § 1983 if an “action pursuant to
official municipal policy of some nature caused a constitutional tort.”
Id. at 691, 98 S.Ct. 2018. To establish municipal liability, a plaintiff
must first show that one of the municipality's officers violated her
federal right. See City of Los Angeles v. Heller, 475 U.S. 796, 799,
106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (per curiam); Sanders v. City
of Minneapolis, 474 F.3d 523, 527 (8th Cir.2007). If that element is
satisfied, then a plaintiff must establish the requisite degree of fault
on the part of the municipality and a causal link between municipal
policy and the alleged violation. See City of Canton v. Harris, 489
U.S. 378, 388-92, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Such a
showing requires either the existence of a municipal policy that
violates federal law on its face or evidence that the municipality has
acted with “deliberate indifference” to an individual's federal rights.
See Bd. of the Cnty. Comm'rs v. Brown, 520 U.S. 397, 404-07, 117
S.Ct. 1382, 137 L.Ed.2d 626 (1997); City of Canton, 489 U.S. at 38889, 109 S.Ct. 1197
Vetch v. Bartels Lutheran, 627 F.3d 1254, 1258 (8th Cir. 2010).
As to Defendant Shivery, Plaintiff alleges that he failed to secure the jail
cells, which, in light of Defendant Flennory’s previous history of assaulting law
enforcement officers, numerous forcible sex crimes, being a registered sex
offender and numerous other violent offences, it was deliberately indifferent to the
known and apparent risk that Nathaniel Flennory posed to other jail inmates for
him not to be secured in his jail cell. Also, Plaintiff alleges that the medicated
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Plaintiff in an unsecured [sic] jail cell and left him unsupervised in secured but
unmonitored Jail pod containing Defendant Flennory.” Plaintiff does not assert
which Constitutional right was violated by this action and fails to detail how this
alleged action rises to the level of a constitutional violation. Plaintiff does not set
out that Shivery knew of Flennory’s history or whether he was aware that
Flennory attempted the actions before with other inmates. The “known and
obvious danger” of Flennory is insufficient to satisfy the Twombly and Iqbal
standards required to
survive a 12(b)(6) challenge. Shively,’s motion is therefore granted.
Defendant Miller moves to dismiss because Plaintiff’s allegations fail to set
out a sufficient connection between Plaintiff’s injuries and any actions Miller
took. Miller is an Adair County officer, thus, any claims Plaintiff makes regarding
what took place in Macon County do not state a claim against Miller.
With regard to any malicious prosecution claims Plaintiff is attempting to
make regarding Defendant Miller, Miller is correct that the Eighth Circuit Court of
Appeals has clearly held that a malicious prosecution claim is not cognizable
under Section 1983. McNees v. Mountain Home, Ark., 993 F.2d 1259, 1361 (8th
Cir. 1993). Section 1983 only provides a remedy for violations expressly secured
by a federal right. Maine v. Thiboutot, 448 U.S. 1, 4 (1980). A malicious
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prosecution claim that does not allege a constitutional or federal statutory injury
cannot proceed under Section 1983. Kurz v. City of Shrewsbury, 245 F.3d 753,
758 (8th Cir. 2001). Plaintiff’s Second Amended Complaint does not indicate in
any manner how Miller’s conduct violates a constitutional right or a federal law
such that a malicious prosecution claim under Section 1983 could be made. Thus,
Plaintiff has not shown or alleged any facts that show that Miller was personally
involved in any violation of the Constitution or federal law.
Conclusion
Plaintiff’s Second Amended Complaint fails to satisfy the requirements of
Rules 12(b)(6), as discussed herein. While the Court has previously allowed
Plaintiff to amend on two separate occasions, the Court is wary to do so again,
however, in light of the Court’s duty to allow claims to proceed on the merits, the
Court will again allow an amendment. The Court admonishes Plaintiff to heed the
discussion above regarding the requirements of stating a claim under 42 U.S.C. §
1983, and advises Plaintiff that failure to do so may result in further denials of
amendments based on futility.
Accordingly,
IT IS HEREBY ORDERED that Defendants Hardwick, Dawson, Moore,
Shively, Clark and Miller’s Motions to Dismiss Plaintiff’s Second Amended
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Complaint, [Doc. No.’s 44, 46, 49, and 50], are granted.
IT IS FURTHER ORDERED that Plaintiff will be given 14 days from the
date of this Opinion, Memorandum and Order to file an Amended Complaint in
accordance with the discussion herein. Failure to file an Amended Complaint will
result in dismissal of this action with prejudice.
Dated this 27th day of January, 2014.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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