Scott v. Moore et al

Filing 74

OPINION, MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants' Motions to Dismiss Plaintiff's Third Amended Complaint, [Doc. No.'s 58 and 61 ], are granted. Signed by District Judge Henry Edward Autrey on 06/04/2014. (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
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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 58 and 61]. Plaintiff opposes the Motions. For the
reasons set forth below, the Motions are granted.
Facts and Background
Plaintiff Adam Scott’s Third 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. Prior to his
custody, Plaintiff was diagnosed diabetic and needed treatment during the
incarceration. Plaintiff alleges that Defendants failed to perform the necessary
medical testing for Plaintiff’s diabetes, and failed to allow him to receive treatment
from his physician and failed to provide him with the proper diet for his condition.
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 Third Amended Complaint further alleges that while Plaintiff was held
on 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
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containing Defendant Flennory, a registered sex offender.
Plaintiff’s Third Amended Complaint further alleges that Defendants
Shively, Dawson and Moore were deliberately indifferent to Plaintiff’s obvious
safety regarding the passing of medication and thereafter monitoring Plaintiff.
The Third 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
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
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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 Third 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
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.
Plaintiff’s Third Amended Complaint contains two counts. Count I claims
that Plaintiff’s Constitutional rights have been violated. Count II is brought for the
alleged assault by Defendant Flennory.
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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
Fundamental to filing a Complaint in this Court is that the Complaint set out
a “short and plain statement of the claim showing that the pleader is entitled to
relief” Fed.R.Civ.P. Rule 8(a)(2). While Plaintiff has attempted to clarify the
claim for alleged violations of his Constitutional rights, Plaintiff fails to notify
defendants which rights he claims have been violated. Moreover, Plaintiff fails to
delineate the specific Constitutional rights which were violated by which
defendants. Plaintiff lumps claims of alleged misdeeds together which causes
great confusion in attempting to ascertain what Plaintiff claims is a violation of his
rights. For example, the Court believes Plaintiff claims that requiring Plaintiff to
purchase the anhydrous ammonia was a violation of some right, as was the passing
of medication and failing to allow Plaintiff to receive medical attention and dietary
items from individuals outside of the jails in which he was being held. This
approach to pleading only serves to confuse and complicate the record;
Defendants should not be required to sift through Plaintiff’s allegations to discern
which ones apply to which Defendants.
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Furthermore, 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; 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
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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, 629-30 (8th Cir.2010) (quoting Twombly, 550 U.S. at
555, 127 S.Ct. 1955).
The Third Amended Complaint alleges that Plaintiff was not protected from
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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, Shivery, Miller and Clark
Defendants claim that the allegations against them are conclusory, and
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. Plaintiff's Complaint contains two potential claims
against Pike County: failure to adequately train officers and a custom of
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inadequate investigation of complaints. It is well-established that for
municipalities, respondeat superior or vicarious liability will not attach under §
1983. City of Canton v. Harris, 489 U.S. 378, 385(1989). A municipality cannot
be sued for injuries inflicted solely by its employees unless a government “policy
or custom” caused the injuries. Monell v. New York City Dep't of Soc. Servs., 436
U.S. 658, 694 (1978). To prove that Pike County's failure to adequately train
officers or investigate complaints rose to the level of a “policy or custom,”
Plaintiff must show that the County was deliberately indifferent to the rights of
others. See Andrews v. Fowler, 98 F.3d 1069, 1075–76 (8th Cir.1996). Plaintiff
must show that the County had notice of a pattern of inmate attacks on other
inmates, that the emergency alarms were not properly responded to in a timely
manner or that its training procedures would likely result in inmate assaults, and
deliberately did nothing. See id. “Notice is the touchstone of deliberate
indifference in the context of § 1983 municipal liability.” Atkinson v. City of
Mountain View, 709 F.3d 1201, 1216 (8th Cir.2013). Also, these defendants claim
that portions of Plaintiff’s Third 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
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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 Third 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
Miller argues that the Third Amended Complaint against him does not
allege any causal connection between Miller and Plaintiff’s injuries and that he is
entitled to qualified immunity.
The Third 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.
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“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 Third 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.
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
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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 offenses, 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 they medicated
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
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standards required to survive a 12(b)(6) challenge
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, 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 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
Third 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
constitutional violation pf federal law.
In response to the Motions to Dismiss, Plaintiff does not address the
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arguments of Defendants regarding the insufficiency of his pleading, rather,
Plaintiff claims that Defendants did not address his claims under the Rehabilitation
Act nor his claims under the Americans with Disabilities Act. As Defendants
correctly argue, Plaintiff’s Third Amended Complaint presents neither a claim
under the Rehabilitation Act nor the Americans with Disabilities Act.
Conclusion
Plaintiff’s Third Amended Complaint fails to satisfy the requirements of
Rules 12(b)(6), as discussed herein.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motions to Dismiss
Plaintiff’s Third Amended Complaint, [Doc. No.’s 58 and 61], are granted.
Dated this 4th day of June, 2014.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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