Brittingham v. McConnell et al

Filing 28

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that "Defendants Gove-Ortmeyer and State of Missouri's Motion to Dismiss Plaintiff's Amended Complaint" [ECF No. 18 ] is GRANTED in part, and DENIED in part. &q uot;Defendants Gove-Ortmeyer and State of Missouri's Motion to Dismiss Plaintiff's Amended Complaint" is granted as to Defendant State of Missouri. Defendant State of Missouri is dismissed from this action. "Defendants Gove-Ortm eyer and State of Missouri's Motion to Dismiss Plaintiff's Amended Complaint" is denied as to Defendant Gove-Ortmeyer. Plaintiff shall file a Second Amended Complaint asserting claims against Gove-Ortmeyer solely, in accordance with th is Memorandum, no later than July 15, 2014. IT IS FURTHER ORDERED that "Defendant Macon County, Missouri's Motion to Dismiss [ECF No. 13 ] is GRANTED. IT IS FURTHER ORDERED that all claims against Defendants State of Missouri and Macon County contained in Plaintiff's First Amended Complaint [ECF No. 4] are DISMISSED with prejudice. Signed by District Judge E. Richard Webber on 06/24/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
JAMES BRITTINGHAM,
Plaintiff,
v.
JAMES MCCONNELL, et al.,
Defendants.

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No.

2:13CV00089 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on “Defendant Macon County, Missouri’s Motion to
Dismiss” [ECF No. 13], and “Defendants Gove-Ortmeyer and State of Missouri’s Motion to
Dismiss Plaintiff’s Amended Complaint” [ECF No. 18].
I.

BACKGROUND

On October 11, 2013, Plaintiff James Brittingham (“Plaintiff”) filed a “Complaint for
Damages Pursuant to 42 U.S.C. § 1983 & Malicious Prosecution, Abuse of Process, False
Arrest, Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional
Distress,” naming the following as defendants: James McConnell; R. Timothy Bickhaus; Stacie
Gove-Ortmeyer (“Gove-Ortmeyer”); County of Macon, Missouri (“County”); and State of
Missouri (“State”) [ECF No. 1]. Plaintiff filed a First Amended Complaint on February 11,
2014, naming only Gove-Ortmeyer, County, and State as defendants [ECF No. 4].
Plaintiff’s First Amended Complaint (“Amended Complaint”) asserts nine counts: 1)
Violation of 42 U.S.C. § 1983 (Wrongful Arrest); 2) Violations of 42 U.S.C. § 1983 (Wrongful
Detention); 3) Violations of 42 U.S.C. § 1983 (Conspiracy); 4) Violations of 42 U.S.C. § 1983
(Refusing or Neglecting to Prevent Violations)(against County and State only); 5) Malicious

Prosecution; 6) Abuse of Process; 7) False Arrest and Imprisonment; 8) Intentional Infliction
of Emotional Distress; and 9) Negligent Infliction of Emotional Distress.
On February 12, 2014, the United States Magistrate Judge issued a Show Cause Order,
noting 124 days had elapsed since Plaintiff had filed his original Complaint and the file did not
reflect Plaintiff had obtained service upon the defendants. The magistrate ordered Plaintiff to
either serve Defendants within thirty days, or show cause why his cause should not be dismissed
for failure to comply with Federal Rule of Civil Procedure 4(m) [ECF No. 5]. On February 26,
2014, Plaintiff filed executed summons showing service of the Amended Complaint on GoveOrtmeyer, County, and State [ECF Nos. 6-8].
Thereafter, County filed its Motion to Dismiss Plaintiff’s Amended Complaint on March
11, and Gove-Ortmeyer and State filed their Motion to Dismiss the Amended Complaint on
April 9, 2014. Plaintiff has filed Suggestions in Opposition to both Motions to Dismiss [ECF
Nos. 20, 26]. Gove-Ortmeyer and State filed a Reply on April 22, 2014 [ECF No. 22]. On May
27, 2014, the case was reassigned from the Magistrate to this Court.
II.

LEGAL STANDARD: MOTION TO DISMISS
A party may move under Rule 12(b)(6) to dismiss a complaint for Afail[ing] to state a

claim upon which relief may be granted.@ Fed. R. Civ. P. 12(b)(6). The purpose of a motion to
dismiss is to test Athe sufficiency of a complaint[.]@ M.M. Silta, Inc. v. Cleveland Cliffs, Inc., 616
F.3d 872, 876 (8th Cir. 2010).
ATo 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 (2009) (internal quotations and citation omitted). AA claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference

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that the defendant is liable for the misconduct alleged.@ Id. Ordinarily, only the facts alleged in
the complaint are considered for purposes of a motion to dismiss; however, materials attached to
the complaint may also be considered in construing its sufficiency. Reynolds v. Dormire, 636
F.3d 976, 979 (8th Cir. 2011).
When ruling on a motion to dismiss, a court Amust liberally construe a complaint in favor
of the plaintiff[.]@ Huggins v. FedEx Ground Package Sys., Inc., 592 F.3d 853, 862 (8th Cir.
2010). However, if a claim fails to allege one of the elements necessary to recovery on a legal
theory, that claim must be dismissed for failure to state a claim upon which relief can be granted.
Crest Constr. II, Inc. v. Doe, 660 F.3d 346, 355 (8th Cir. 2011). AThreadbare recitals of a cause
of action, supported by mere conclusory statements, do not suffice.@ Iqbal, 556 U.S. at 678; Bell
Atlantic v. Twombly, 550 U.S. 544, 555 (2007). Although courts must accept all factual
allegations as true, they are not bound to take as true Aa legal conclusion couched as a factual
allegation.@ Twombly, 550 U.S. at 555 (internal quotations and citation omitted); Iqbal, 556 U.S.
at 677-78.
II.

DISCUSSION

For purposes of this discussion, the Court accepts the following well-pleaded facts, as alleged
in the Amended Complaint [ECF No. 4], as true.
Plaintiff James Brittingham was the Defendant in a criminal case filed in the Circuit
Court of Macon County, Missouri, and styled State of Missouri v. James Brittingham. State, at
all relevant times, was the public employer of Gove-Ortmeyer, who was employed as an
Investigator by the Criminal Investigations Bureau of the Missouri Department of Revenue.
County, at all relevant times, was the public employer of individuals Timothy Bickhaus and

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James McConnell (“McConnell”). “The Plaintiff sues all public employers in both their official
and individual capacities.” [ECF No. 4 at 2].
On July 16, 2010, Gove-Ortmeyer conducted an investigation regarding alleged nonpayment of Employer Withholding and Sales Taxes by Bob Bickhaus Motors, Inc. (doing
business as, and hereinafter referred to as “Bentz Motors”), located in Macon County, Missouri.
Gove-Ortmeyer affirmatively represented to Timothy Bickhaus that Plaintiff had committed the
class D felony criminal offense of Failure to Pay Sales Tax with Intent to Defraud, in violation of
Section 144.080, RSMo. Gove-Ortmeyer also affirmatively represented to Timothy Bickhaus
that Plaintiff had committed the class D felony of Failure to Pay Withholding Taxes with Intent
to Defraud, in violation of Section 143.221, RSMo.
Although Gove-Ortmeyer knew the taxes in question were paid by Bentz Motors’ Office
Manager Sherry Frazier (“Frazier”), Gove-Ortmeyer did not interview Frazier, or investigate any
information she possessed until after Plaintiff was arrested, detained and incarcerated on criminal
charges. Notwithstanding her lack of proper investigation, Gove-Ortmeyer affirmatively
represented to Timothy Bickhaus, who was serving as County’s Prosecuting Attorney, that
Plaintiff had committed the two class D felonies. Gove-Ortmeyer’s representations caused
Timothy Bickhaus to file the criminal case against Plaintiff.
Timothy Bickhaus is the brother of Roger Bickhaus, who was a 15% shareholder in
Bentz Motors. Although Gove-Ortmeyer and Timothy Bickhaus knew of this interest, neither
alleged that Roger Bickhaus was criminally liable for Bentz Motors’ failure to pay any taxes to
State. Instead, criminal charges were filed against Plaintiff only, and he was arrested, detained,
and incarcerated.

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Timothy Bickhaus caused McConnell to be appointed as the Special Prosecutor in the
criminal case filed against Plaintiff, with instructions to “investigate and prosecute” Plaintiff for
the alleged failure by Bentz Motors to pay State’s withholding and sales tax with the intent to
defraud State. On August 13, 2010, McConnell, acting in his capacity as Special Prosecutor,
caused the criminal case to be filed against Plaintiff. McConnell knew, before filing the criminal
charges against Plaintiff, that Plaintiff did not possess the means to commit the charged offenses,
and that another person, Sherry Frazier, was primarily responsible for payment of the taxes at
issue.
As a result of the criminal case filed against him, Plaintiff was arrested, taken into
custody, and incarcerated on August 23, 2010. Plaintiff was required to post a criminal bond to
be released from custody, and had to retain an attorney to defend him. He was subjected to
negative news coverage of his arrest and the criminal charges filed against him.
On or about June 23, 2011, McConnell was replaced as Prosecutor in Plaintiff’s case by a
newly-elected Macon County Prosecuting Attorney, Josh Meisner. On October 14, 2011,
Plaintiff conducted a deposition of Sherry Frazier, the comptroller for Bentz Motors. Based
upon Ms. Frazier’s testimony and information, State dismissed all criminal charges against
Plaintiff.
A. Gove-Ortmeyer’s and State’s Motion to Dismiss [ECF No. 18]
In their Motion to Dismiss, Gove-Ortmeyer and State contend Plaintiff’s claims against
State are barred by the Eleventh Amendment and therefore should be dismissed [ECF Nos. 18,
19, 22]. They argue Congress has not waived states’ Eleventh Amendment immunity by
enacting 42 U.S.C. § 1983, and State’s narrow statutory waiver of its sovereign immunity does
not include constitutional claims such as those raised by Plaintiff.

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In his Suggestions in Opposition, Plaintiff argues his Section 1983 action against State is
not barred by the Eleventh Amendment. He claims State has waived its Eleventh Amendment
“immunity by the passage of Sections 105.711 and 509.140 RSMo, [and] by the establishment of
a state legal expense fund from which such monetary settlements and judgments may be paid.”
[ECF No. 20 at 4].
Although the doctrine set forth in Ex Parte Young, 209 U.S. 123 (1908), allows suits to
be brought against state officials in their official capacities for prospective injunctive relief, the
same doctrine does not extend to states or state agencies. Monroe v. Ark. State Univ., 495 F.3d
591, 594 (8th Cir. 2007). Absent Congressional abrogation or unequivocally expressed state
consent, the Eleventh Amendment bars suit against State for any kind of relief, not merely
monetary damages. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99-100 1984).
Section 1983 does not override the states’ Eleventh immunity. Id.at 99. Furthermore, “a State’s
waiver of sovereign immunity in its own courts is not a waiver of the Eleventh Amendment
immunity in the federal courts.” Id. at 99, n. 9.
The Court rejects Plaintiff’s contention that Missouri has waived its immunity from suit
in federal court. Missouri’s immunity statute, Missouri Revised Statutes § 537.600, does not
waive immunity for the types of claims raised by Plaintiff, and Plaintiff has not cited to any
statutory provision expressly waiving Missouri’s Eleventh Amendment immunity. Mo. Rev.
Stat. § 537.600.1 (waiving sovereign immunity for injuries arising out of negligent operation of
motor vehicles or for dangerous conditions of public property); Williams v. State of Mo., 973
F.2d 599, 600 (8th Cir. 1992) (Section 537.600 does not waive immunity for 42 U.S.C. § 1983
action); see also Barnes v. State of Mo., 960 F.2d 63, 65 (8th Cir. 1992) (state may waive its
immunity to suit in federal court, but “only where stated by the most express language or by such

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overwhelming implications from the text as will leave no room for any other reasonable
construction” (citation omitted)).
“When a state is directly sued in federal court, it must be dismissed from litigation upon
its assertion of Eleventh Amendment immunity unless one of [the] two well-established
exceptions exists.” Barnes,960 F.2d at 64. Neither exception exists here. Accordingly, the
Court finds the Eleventh Amendment bars Plaintiff’s claims against the State of Missouri. The
Court shall dismiss, with prejudice, Plaintiff’s action against the State of Missouri.
As to Plaintiff’s claims against Gove-Ortmeyer, these defendants assert that, because
Plaintiff’s First Amended Complaint does not specify in what capacity he is suing GoveOrtmeyer, by his silence, Plaintiff has only sued her in her official capacity. They contend
Plaintiff’s claims against Gove-Ortmeyer are also barred, because the Eleventh Amendment
precludes an award of money damages against a state official acting in her official capacity.
Plaintiff contends it is clear he “was attempting to at least state that he was bringing this suit
against these defendants in their official and individual capacities and but for a typographical
error (i.e., “employer” instead of “employee”), Plaintiff would have accomplished the same.”
[ECF No. 20 at 1].
The Amended Complaint alleges Gove-Ortmeyer, at all times relevant, was employed as
an investigator by the Criminal Investigations Bureau of the Missouri Department of Revenue.
The Amended Complaint further alleges Gove-Ortmeyer failed to interview witnesses and to
investigate information properly; wrongfully provided false, incomplete, or misleading
information to McConnell and Bickhaus, resulting in Plaintiff’s illegal arrest; and signed the
probable cause statements against Plaintiff that wrongfully alleged he committed felony offenses.

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Plaintiff is correct that the Eleventh Amendment does not bar suits against state officials
in their individual capacity, situations where the recovery sought is against the personal assets of
the individual defendant, and the state is not the real party in interest. See Kentucky v. Graham,
473 U.S. 159, 165-68 (1985). However, the Eighth Circuit “has held that, in order to sue a
public official in his or her individual capacity, a plaintiff must expressly and unambiguously
state so in the pleadings, otherwise, it will be assumed that the defendant is sued only in his or
her official capacity.” Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999).
Here, the Amended Complaint’s only allegation concerning official capacity is contained in
paragraph 7, and reads as follows: “The Plaintiff sues all public employers in both their official
and individual capacities.” [ECF No. 4 at 2]. Defendants argue Plaintiff’s assertion of
typographical error conflicts with a reading of the Amended Complaint as whole, and they
contend Gove-Ortmeyer should not be forced to interpret Plaintiff’s language, or guess as to the
capacity in which he is attempting to sue her.
“Public servants may be sued under section 1983 in either their official capacity, their
individual capacity, or both.” Id. “Because section 1983 exposes public servants to civil liability
and damages, . . . only an express statement that they are being sued in their individual capacity
will suffice to give proper notice to the defendants.” Id. Otherwise, the action is construed as
being against the defendants in their official capacity. Id. The Amended Complaint does not
expressly state Gove-Ortmeyer is being sued in her individual capacity. Nevertheless, the Court
agrees that Gove-Ortmeyer was provided sufficient notice, as a contrary reading, i.e., that the
public employers, State and County, were being sued in their individual capacities, would be
nonsensical. The Court will deny the Motion to Dismiss as to Gove-Ortmeyer, and allow him to

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amend his pleading as to that defendant only, to more specifically plead facts demonstrating the
claim is within an exception to sovereign immunity.
County’s Motion to Dismiss [ECF No. 13]
In its Motion to Dismiss, County claims Plaintiff’s Amended Complaint, as to County,
fails to state a claim upon which relief can be granted, and fails to allege, in any manner, County
has waived sovereign immunity [ECF No. 13]. County contends the Amended Complaint
contains only vague and conclusory allegations regarding a policy or custom of County, and
County asserts the only allegations against it are based upon the doctrine of respondeat superior.
County further asserts the Amended Complaint fails to sufficiently allege a claim for civil
conspiracy under § 1983. County argues Plaintiff’s Complaint fails to allege facts establishing
any overt act on the part of any defendant, or showing a meeting of the minds among any of the
defendants. County further argues that, to the extent the conspiracy claim is premised upon §
1983, it cannot be based upon the actions of County employees, because local government
entities cannot be held liable under § 1983 on a respondeat superior theory. In his Suggestions
in Opposition, Plaintiff asserts his claim is subject to the same permissive pleading standard as
all other claims, and he is not required to plead any customs or policies with specificity to
survive a motion to dismiss [ECF No. 26].
“A political subdivision may not generally be held vicariously liable under section 1983
for the unconstitutional acts of its employees.” Johnson, 172 F.3d at 535. Political subdivisions
such as County incur liability for the unconstitutional acts of its officials or employees only
when such acts “implement or execute an unconstitutional policy or custom of the subdivision.”
Id. Although a plaintiff need not specifically plead the existence of an unconstitutional policy or
custom to survive a motion to dismiss, a complaint must include some language or facts from

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which an inference could be drawn that a political subdivision had a custom or policy that caused
the violation of the plaintiff’s constitutional rights. Crumpley-Patterson v. Trinity Lutheran
Hosp., 388 F.3d 588, 591 (8th Cir. 2004). The Amended Complaint fails to allege facts which
show, or from which an inference could be drawn, that Plaintiff’s rights were violated as the
result of a policy or custom of County. Thus, the Court finds the Amended Complaint fails to
allege sufficient facts indicating liability on the part of County. The Court shall dismiss with
prejudice the action against County for failure to state a claim upon which relief may be granted.
Accordingly,
IT IS HEREBY ORDERED that “Defendants Gove-Ortmeyer and State of Missouri’s
Motion to Dismiss Plaintiff’s Amended Complaint” [ECF No. 18] is GRANTED in part, and
DENIED in part. “Defendants Gove-Ortmeyer and State of Missouri’s Motion to Dismiss
Plaintiff’s Amended Complaint” is granted as to Defendant State of Missouri. Defendant State
of Missouri is dismissed from this action. “Defendants Gove-Ortmeyer and State of Missouri’s
Motion to Dismiss Plaintiff’s Amended Complaint” is denied as to Defendant Gove-Ortmeyer.
Plaintiff shall file a Second Amended Complaint asserting claims against Gove-Ortmeyer solely,
in accordance with this Memorandum, no later than July 15, 2014.
IT IS FURTHER ORDERED that “Defendant Macon County, Missouri’s Motion to
Dismiss” [ECF No. 13] is GRANTED.
IT IS FURTHER ORDERED that all claims against Defendants State of Missouri and
Macon County contained in Plaintiff’s First Amended Complaint [ECF No. 4] are DISMISSED
with prejudice.
So Ordered this 24th day of June, 2014.
E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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