Brittingham v. McConnell et al
Filing
99
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED, ADJUDGED and DECREED that Defendant Stacie Gove-Ortmeyers Motion for Summary Judgment [ECF No. 80] is GRANTED. IT IS FURTHER ORDERED that all claims against Defendant Stacie Gove-Ortmeyer are DISMISSED, with prejudice. So Ordered this 30th day of March, 2016. Signed by District Judge E. Richard Webber on March 30, 2016. (MCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
JAMES BRITTINGHAM
Plaintiff,
v.
STACIE GOVE-ORTMEYER,
Defendant.
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No. 2:13CV00089 ERW
MEMORANDUM AND ORDER
This matter comes before the Court on Defendant Stacie Gove-Ortmeyer’s Motion for
Summary Judgment [ECF No. 80].
I.
BACKGROUND
Plaintiff James Brittingham (“Plaintiff”) filed his Third Amended Complaint (“Complaint”)
against Defendant Stacie Gove-Ortmeyer (“Defendant”) on December 2, 2014. [ECF No. 42]. In
this Complaint, Plaintiff asserts eleven counts against Defendant Gove-Ortmeyer, in her
individual capacity. Id. Among the counts alleged are seven arising under 42 U.S.C. § 1983, as
well as an additional four counts asserted for violations of Missouri state law. Id. These eleven
counts are based on actions taken or omitted by Defendant in relation to her investigation and
submission of two probable cause statements to prosecute Plaintiff for 1) failure to pay sales tax,
with intent to defraud, in violation of Missouri Revised Statute § 144.080, and punishable under
Missouri Revised Statute § 144.480, and 2) failure to pay withholding tax in violation of
Missouri Revised Statute § 143.221, and punishable under Missouri Revised Statute § 144.480.
Defendant filed the instant summary judgment motion on December 11, 2015. [ECF No. 80].
Defendant seeks summary judgment on all eleven counts of Plaintiff’s Complaint on the basis
she acted properly in conducting her investigation and in certifying a probable cause statement to
1
prosecute Plaintiff, and no constitutional right was violated in so doing. Alternatively, Defendant
asserts qualified immunity prohibits the suit.
A. Uncontroverted Facts
Both Plaintiff and Defendant are Missouri residents. Defendant was employed as an
investigator in the Criminal Tax Investigation Bureau of the Missouri Department of Revenue
(“DOR”) at the time of the events alleged in Plaintiff’s Complaint. In this capacity, Defendant
conducted an investigation in regards to the non-payment of sales and withholding taxes by
Bentz Bickhaus Motors, d/b/a Bentz Motors (“Bentz Motors”). During the course of Defendant’s
investigation, Plaintiff was the majority owner of Bentz Motors, with an 85% ownership stake.
Roger Bickhaus, who was fired by Plaintiff in 2008, held a 15% ownership stake. Mr.
Bickhaus’s involvement with the payment of taxes is disputed, but otherwise not relevant to the
criminal prosecution of Plaintiff at issue in his Complaint.
While the details of the interview are disputed, the parties agree Plaintiff was interviewed on
behalf of DOR on April 17, 2009.1 At this interview, Plaintiff stated the corporate comptroller,
Sherry Frazier, was responsible for preparing, filing, and paying taxes, he was aware Bentz
Motors was behind on paying taxes, and he was aware Ms. Frazier had stopped sending tax
payments because there was no money in the account to do so. Defendant was unable to reach
witness Sherry Frazier prior to the filing of her prosecution report.2 As part of her investigation,
Defendant obtained documents regarding Bentz Motors including the monthly sales tax and
wage withholding returns. Likewise, she interviewed both Roger Bickhaus, the minority owner,
1
While Plaintiff disputes the details of his interview with DOR, including whether Defendant was the investigator
who interviewed him, Plaintiff does not deny he provided DOR’s investigation with the information described in
Defendant’s Statement of Uncontroverted Material Facts, Paragraph 7, items (a)-(g).
2
Plaintiff attempts to controvert this fact but the citations to the record he provides do not controvert it. Many of the
citations do not even address the issue of whether Defendant attempted to contact Ms. Frazier. The one citation
which does reference it is Plaintiff’s affidavit in which he states Ms. Frazier told him she was never contacted by
anyone from DOR. This is hearsay and cannot be considered by the Court on summary judgment.
2
and Plaintiff, both of whom provided substantially the same information about Ms. Frazier’s role
in handling taxes. Mr. Bickhaus denied he had any role in tax preparation.
Sherry Frazier was not an owner or director of Bentz Motors; she served in the capacity of
corporate comptroller and handled tax payment and filing of taxes. Sales tax was not paid by
Bentz Motors for the period March 2008, to November 2008. Likewise, withholding tax was not
paid by Bentz Motors for the period March 2008, to December 2008. However, Ms. Frazier
continued to submit returns for each monthly period on behalf of Bentz Motors, despite Bentz
Motors’ failure to remit payment. Before submitting a probable cause statement, along with her
investigator’s report to the prosecutor, Defendant consulted with her supervisor, James Mead, to
ensure she had sufficient information for a finding of probable cause.3 On June 23, 2010,
Defendant’s prosecution report, which included a statement of probable cause, a summary of
interviews, and other evidence collected during her investigation, was sent to the prosecutor of
Macon County, Timothy Bickhaus, recommending Plaintiff be prosecuted for failure to pay sales
and withholding taxes. A felony complaint and request for warrant was filed on August 13, 2010,
and Plaintiff paid $1,000 (10% of the $10,000 bond) on August 23, 2010, for his release. While
Plaintiff was taken into custody, he never spent any time in jail.
In late June 2011, Defendant took the written and oral statements of Sherry Frazier, and
forwarded these statements to the newest prosecuting attorney for the case, Josh Meisner. Mr.
Meisner took Ms. Frazier’s deposition on October 14, 2011. Ms. Frazier testified creditor GMAC
had frozen funds in Bentz Motor’s account, greatly inhibiting Bentz Motors’ ability to pay its
sales and withholding taxes. Ms. Frazier stated Plaintiff made personal injections of his own
money towards the payment of bills. Additionally, Plaintiff made the final decisions on who
received payment with Bentz Motors’ limited funds. Other creditors were paid before taxes were
3
While Plaintiff denies this fact, he does not controvert it.
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paid. Nevertheless, at all times, Ms. Frazier filed timely tax returns for the sales and withholding
taxes owed, regardless of the failure of Bentz Motors to remit the payments.
On January 24, 2012, Mr. Meisner filed a motion to nolle prosequi the criminal case against
Plaintiff.
II.
STANDARD
A court shall grant a motion for summary judgment only if the moving party shows “there is
no genuine dispute as to any material fact and that the movant is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
By definition, material facts “might affect the outcome of the suit under the governing law,” and
a genuine dispute of material fact is one “such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the nonmoving party has failed to “make a showing sufficient to establish the existence of an element
essential to that party’s case, . . . there can be ‘no genuine issue as to any material fact,’ since a
complete failure of proof concerning an essential element of the non-moving party’s case
necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322-23.
The moving party bears the initial burden of proof in establishing “the non-existence of any
genuine issue of fact that is material to a judgment in his favor.” City of Mt. Pleasant, Iowa v.
Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). The moving party must show
that “there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S.
at 325. If the moving party meets this initial burden, the non-moving party must then set forth
affirmative evidence and specific facts that demonstrate a genuine dispute on that issue.
Anderson, 477 U.S. at 250. When the burden shifts, the non-moving party may not rest on the
allegations in its pleadings, but, by affidavit and other evidence, must set forth specific facts
4
showing that a genuine dispute of material fact exists. Fed. R. Civ. P. 56(c)(1); Stone Motor Co.
v. Gen. Motors Corp., 293 F.3d 456, 465 (8th Cir. 2002). To meet its burden and survive
summary judgment, the non-moving party must “do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). Instead, the non-moving party must demonstrate sufficient favorable
evidence that could enable a jury to return a verdict for it. Anderson, 477 U.S. at 249. “If the
non-moving party fails to produce such evidence, summary judgment is proper.” Olson v.
Pennzoil Co., 943 F.2d 881, 883 (8th Cir. 1991).
In ruling on a motion for summary judgment, the Court may not “weigh the evidence in the
summary judgment record, decide credibility questions, or determine the truth of any factual
issue.” Kampouris v. St. Louis Symphony Soc., 210 F.3d 845, 847 (8th Cir. 2000). The Court
instead “perform[s] only a gatekeeper function of determining whether there is evidence in the
summary judgment record generating a genuine issue of material fact for trial on each essential
element of a claim.” Id. The Court must view the facts and all reasonable inferences in the light
most favorable to the nonmoving party. Reed v. City of St. Charles, 561 F.3d 788, 790 (8th Cir.
2009).
III.
DISCUSSION
The first seven counts alleged by Plaintiff are based on perceived constitutional violations
committed by Defendant Gove-Ortmeyer against Plaintiff in violation of 42 U.S.C. § 1983. The
remaining four counts are alleged violations of Missouri state law. The Court will first address
the claims regarding 42 U.S.C. § 1983.
A. 42 U.S.C. § 1983
5
“Section 1983 provides a federal cause of action for plaintiffs to sue officials acting under
color of state law for alleged deprivations of ‘rights, privileges, or immunities secured by the
Constitution and laws’ of the United States.” Alsbrook v. City of Maumelle, 184 F.3d 999, 101011 (8th Cir. 1999). A § 1983 action requires (1) the defendant acted under color of state law, and
(2) the alleged wrongful conduct deprived the plaintiff of a constitutionally protected federal
right. Schmidt v. City of Bella Villa, 557 F.3d 564, 571 (8th Cir. 2009). There is no genuine
dispute of material fact Defendant was acting under color of state law when she carried out her
duties to investigate Plaintiff ’s nonpayment of taxes on behalf of Bentz Motors, nor when she
certified probable cause to prosecute Plaintiff. The determination of whether Defendant is
entitled to summary judgment rests on whether there is a genuine issue of material fact which
might give rise to a finding Defendant’s alleged wrongdoing deprived Plaintiff of his
constitutional rights.
Even in the event there is a genuine dispute of material fact Plaintiff’s asserted
constitutional rights were violated, a factually submissible § 1983 case remains subject to
qualified immunity. The inquiry this Court must make, in determining whether Defendant may
be entitled to such qualified immunity, is as follows:
First, did the official deprive the plaintiff of a constitutional or statutory right? If
not, he does not need qualified immunity, as he is not liable under § 1983. If so,
we ask the second question: Was that right so clearly established at the time that a
reasonable official would have understood that his conduct was unlawful under
the circumstances? . . . If the right was not clearly established, then the officer is
protected by qualified immunity.
Kahle v. Leonard, 477 F.3d 544, 550 (8th Cir. 2007). Moreover, “[o]fficials are not liable for bad
guesses in gray areas; they are liable for transgressing bright lines.” Davis v. Hall, 375 F.3d 703,
712 (8th Cir. 2004).
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In order for Plaintiff to survive this summary judgment motion, with respect to any of Counts
I-VII, Plaintiff’s claimed constitutional right must exist and he must establish he was deprived of
such right, or there is a genuine dispute of material fact as to whether Plaintiff was deprived of
such right. Even if Plaintiff establishes his § 1983 claim, Defendant may be entitled to qualified
immunity if the constitutional right was not clearly established at the time it was violated.
Plaintiff’s first seven counts of the eleven-count Complaint allege Defendant violated
differing constitutional rights grounded in select clauses of the Fourth, Fifth, Sixth, and
Fourteenth Amendments of the United States Constitution. For the purposes of this analysis, the
Court analyzes the § 1983 claims categorically, beginning with the Counts having their primary
basis in the Fourth Amendment’s probable cause requirement, followed, in the next section, by
those Counts based primarily on the procedural and substantive due process requirements of the
Fourteenth Amendment. Because Count IV, Wrongful Arrest, and Count V, Malicious
Prosecution, are each alleged on the basis of the Fourth, Sixth, and Fourteenth Amendments, the
discussion of Counts IV and V overlap.
1. Claims dependent on Probable Cause
Three of Plaintiff’s claims depend on whether there was probable cause to charge Plaintiff.
This issue arises in Count I for Submission of a False Affidavit in violation of the Fourth
Amendment, Count IV for Wrongful Arrest in violation of the Fourth, Sixth, and Fourteenth
Amendment, and Count V for Malicious Prosecution in violation of the Fourth, Sixth, and
Fourteenth Amendment.4 The basis of Plaintiff’s allegations is Defendant knew the information
4
The Court is unclear as to Plaintiff’s claim brought under the Sixth Amendment, as it has no application to
Plaintiff’s allegations. The Sixth Amendment of the United States Constitution states “the accused shall enjoy the
right to a speedy and public trial, by an impartial jury . . . to be informed of the nature and cause of the accusation; to
be confronted with witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to
have the assistance of counsel for his defense.” None of Plaintiff’s allegations assert Plaintiff was deprived of any of
these rights.
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contained in her affidavit for probable cause was false or she recklessly disregarded the truth.
Further, Plaintiff is alleging Defendant submitted charges to the prosecuting attorney’s office
without probable cause.
Plaintiff was charged with two violations, failure to pay sales tax and failure to pay employer
withholding tax. Missouri Revised Statute § 144.080 requires the payment of sales tax, whereas
Missouri Revised Statute § 143.221 requires payment of employer withholding tax.
Noncompliance with either or both of these sections creates a punishable violation under
Missouri Revised Statute § 144.480, which reads in pertinent part:
Any person required . . . to pay any tax . . . who with intent to defraud willfully
fails to pay such tax . . . at the time or times required by law, shall, in addition to
other penalties provided by law and, upon conviction thereof, be fined not more
than ten thousand dollars, or be imprisoned in the county jail for not more than
one year or by not less than two nor more than five years in the state penitentiary
or by both fine and imprisonment together with the cost of prosecution.
Mo. Rev. Stat. § 144.480.
Plaintiff’s principal argument with respect to whether there was sufficient probable cause
under these statutes for his arrest and prosecution is he did not possess the intent to defraud DOR
and Defendant knew this but did not include it in her statements to the prosecutor. Plaintiff
contends he was unable to pay tax obligations on behalf of Bentz Motors. Intent is a factual
question typically defined by circumstantial evidence, and is treated as such by Missouri law. See
State v. Sinner, 779 S.W.2d 690, 694 (Mo. Ct. App. 1989). As a matter of federal law, probable
cause is a requirement of the Fourth Amendment of the U.S. Constitution. The text of the Fourth
Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
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U.S. Const. amend. IV.
There is no dispute Plaintiff has a constitutional right under the Fourth Amendment to be
free from arrest and prosecution undertaken without a basis in probable cause. This Court must
determine whether the addition of Plaintiff’s inability to pay taxes defeats Defendant’s ability to
establish probable cause and whether Defendant intentionally submitted false information to the
prosecutor and Circuit Court in her affidavit establishing probable cause. In order to successfully
prove his claims, Plaintiff must show (1) Defendant deliberately or recklessly included a false
statement, or omitted a truthful statement from the affidavit; and (2) “the affidavit would not
establish probable cause if the allegedly false information is ignored or the omitted information
is supplemented.” Dowell v. Lincoln Cty., Mo., 762 F.3d 770, 777 (8th Cir. 2014). Nevertheless,
Defendant may be entitled to qualified immunity if there is “merely arguable probable cause,”
which is a mistaken but objectively reasonable belief the suspect committed a criminal offense.
Id. Probable cause exists at the time of arrest when “the totality of facts based on reasonably
trustworthy information would justify a prudent person in believing the individual arrested had
committed . . . an offense.” Hannah v. City of Overland, Mo., 795 F.2d 1385, 1389 (8th Cir.
1986). “[T]he probability, and not a prima facie showing, of criminal activity is the standard of
probable cause.” Brodnicki v. City of Omaha, 75 F.3d 1261, 1264 (8th Cir. 1996). However,
there is not liability for false arrest simply because the innocence of the suspect is later proven.
Id.
As stated supra, Plaintiff does not dispute he did not pay withholding taxes and sales taxes.
He asserts he informed DOR investigators he could not pay the taxes. He also asserts he
provided them with the contact information of Ms. Frazier who would also state he was unable to
pay the taxes owed. While criminal law presumes the accused to be innocent until proven guilty,
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it does not require a DOR investigator or a prosecutor to take the accused at their word they are
innocent. There is evidence in the record to support Defendant’s finding of probable cause and
to support her decision not to believe Plaintiff’s assertion he did not intend to defraud DOR.
Because Plaintiff’s claims are premised on Defendant’s alleged failure to submit accurate
information to the prosecutor, a review of what Defendant did submit is necessary. On June 23,
2010, Managing Counsel of DOR submitted a prosecution report with exhibits prepared by
Defendant to Timothy Bickhaus. This included a probable cause statement which stated Plaintiff
committed the offenses of failure to pay sales tax with intent to defraud on a series of dates
beginning in April 2008, until December 2008. It further stated the information which led
Defendant to believe Plaintiff committed this offense was his failure to pay withholding tax for
certain monthly periods in 2008. A second probable cause statement contained the same
information but for failure to pay withholding tax. Also included in the prosecution report were
summaries of the interview of Mr. Brittingham, including his statements Ms. Frazier had stopped
paying taxes because there was no money in the account to do so and his statement he never
intended to defraud DOR. The remaining documents in the report include records submitted by
Bentz Motors to DOR relating to the taxes, a summary of an interview with Roger Bickhaus,
among others.
Defendant knew Ms. Frazier had filed all of the tax documents related to employee
withholding tax and sales tax because those documents had been obtained as part of Defendant’s
investigation. The inclusion of these returns in the report, which was submitted to the initial
prosecutor, Mr. Bickhaus, as an exhibit to Defendant’s probable cause statement, establishes
Bentz Motors knew the exact amounts it owed in withholding and sales taxes. As the reports
indicated, Bentz Motors was collecting sales and employee withholding tax. In Plaintiff’s
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interview, he not only acknowledged he was aware the taxes had not been paid, but he made no
attempt to confirm the whereabouts of these moneys, which he knew were withheld and
collected from employees and customers in trust and such funds should be used for their lawful
purposes. This information was all included in Defendant’s report to the prosecutor. The Court is
unsure what additional information Plaintiff expects Defendant to have included in her report as
she included his statements he never intended to defraud DOR. Defendant’s lack of belief in
Plaintiff’s protestations of innocence does not establish a reckless disregard for the truth as
Plaintiff claims. Law enforcement officers are often confronted with individuals who claim to be
innocent but are not.
To determine if Defendant failed to include material information in her affidavit for
probable cause, the Court must determine if probable cause still exists when the information is
included. Dowell, 762 F.3d at 777. In Plaintiff’s case, the Court finds probable cause would exist,
even with the addition to the report and statement of Plaintiff’s inability to pay the taxes. In so
determining, the Court finds the following discussion in a case from the Eastern District of
Missouri Court of Appeals regarding “intent to defraud,” with respect to income taxes, to be
relevant:
“[I]ntent” is a fact, which, more often than not, must be and is proved by
circumstantial evidence. Proof that a taxpayer's income triggered the statutory duty
to pay Missouri's income tax, § 143.481(1),3 supports the inference that the
taxpayer knew he had that affirmative duty. Given these facts, additional proof
showing the taxpayer failed to file a tax return, despite knowledge of his duty to do
so, supports the inference the taxpayer made a conscious choice not to file the
return. Those facts plus proof that the taxpayer realized he actually owed taxes,
support the further inference the taxpayer made the conscious choice not to file a
tax return for the purpose of depriving the state of its lawful right to the taxes due.
And, the basis of fraud is depriving someone of his lawful right, interest or
property by fraudulent means.
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Sinner, 779 S.W.2d at 694. Here, based on the totality of the circumstances, even the
addition of Plaintiff’s inability to pay taxes would not negate a reasonable belief Plaintiff knew
Bentz Motors owed the taxes; as majority owner, Plaintiff had a responsibility for the tax
liability; Plaintiff had withheld the tax money from his employees on their trust it would be paid
over to the state towards their income taxes, and Plaintiff had likewise collected sales tax from
customers which was owed to the State of Missouri; and knowing of the obligation and
nonpayment of taxes, Plaintiff continued to authorize returns to be filed without remittance and
without any attempt to contact DOR. There was sufficient basis for Defendant to entertain a
reasonable belief Plaintiff had consciously chosen to disregard his duty and had violated the law.
Probable cause is sufficiently established for failure to pay taxes with intent to defraud.
Accordingly, because there was probable cause to charge Plaintiff with violations for failure
to pay taxes with intent to defraud, Defendant is entitled to summary judgment on Counts I, IV,
and V of Plaintiff’s Complaint. Defendant did not include false information in her probable
cause statement nor did she recklessly disregard the truth or file a false, misleading, incorrect and
incomplete affidavit.
2. Due Process Claims Under the Fourteenth Amendment
Plaintiff’s remaining § 1983 claims consist of Count II, Suppression of Exculpatory
Evidence in violation of the Fourteenth Amendment, Count III, Reckless or Intentional Failure to
Investigate in violation of the Fourteenth Amendment, Count VI, Wrongful Detention in
violation of the Fifth and Fourteenth Amendments, and Count VII, Conspiracy in violation of the
Fifth and Fourteenth Amendments. The claims brought pursuant to the Fifth Amendment can be
immediately dismissed. “The Fifth Amendment's Due Process Clause applies only to the federal
government and [Defendant] was not a federal employee.” Jones v. Slay, 61 F. Supp. 3d 806, 821
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(E.D. Mo. 2014) (citing Livers v. Schenck, 700 F.3d 340, 351 (8th Cir. 2012); Baribeau v. City of
Minneapolis, 596 F.3d 465, 484 (8th Cir.2010)). Accordingly, Plaintiff cannot prevail to the
extent his claims are based on the Fifth Amendment. This Court does not re-address Plaintiff’s
Count IV, Wrongful Arrest, based on the Sixth and Fourteenth Amendments, nor does this Court
re-address Plaintiff ’s Count V, Malicious Prosecution, based on the Sixth and Fourteenth
Amendments, because there is no due process violation for either of these causes of action,
because Plaintiff was arrested and prosecuted on the basis of adequate probable cause, and the
only alleged procedural defects under the Sixth and Fourteenth Amendments raised by Plaintiff
are the failure to adequately allege probable cause. See supra. No deprivation of constitutional
rights may be found for these claims.
The Court turns first to Plaintiff’s Count VI claim, Wrongful Detention, because of its
similarity to Count IV and because it is based on the same facts which were relevant to the
Court’s discussion of probable cause supra. Plaintiff alleges he was held in violation of the due
process and equal protection clauses of the Fourteenth Amendment. It is unclear on what basis
Plaintiff alleges an equal protection violation and the Court does not address it here, because
Plaintiff has not alleged he is part of a protected class which would make such an analysis
appropriate. Therefore, there can be no violation of equal protection. Plaintiff’s due process
claim is he was arrested and detained without due process of law. On the same analysis as
applied above to Counts IV and V, there is no wrongful detention where Plaintiff was arrested
and detained on the basis of probable cause. See Giordano v. Lee, 434 F.2d 1227, 1230 (8th Cir.
1970). Accordingly, Defendant is entitled to summary judgment, as a matter of law, on
Plaintiff’s Count VI, Wrongful Detention.
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Similarly, Plaintiff’s Count VII claim, Conspiracy, must fail. To prove a 42 U.S.C. § 1983
conspiracy claim, Plaintiff would need to be able to prove: (1) Defendant conspired with others
to deprive him of constitutional rights; (2) at least one of the alleged co-conspirators engaged in
an overt act in furtherance of the conspiracy; and (3) the overt act injured him (Plaintiff ). White
v. McKinley, 519 F.3d 806, 814 (8th Cir. 2008) “The plaintiff is additionally required to prove a
deprivation of a constitutional right or privilege in order to prevail on a § 1983 civil conspiracy
claim.” Id.
Plaintiff is unable to prove the deprivation of a constitutional right or a conspiracy.
Defendant’s role in Plaintiff’s prosecution was solely to investigate him as owner of Bentz
Motors and to make a probable cause statement, and Defendant made such statement on the basis
of probable cause. Her involvement in the case concluded before any of the three prosecutors
began work on the case, and there is no basis on the record that any of the alleged coconspirators, which Plaintiff does not name in his Complaint, or Defendant acted unlawfully
before, during, or after Defendant’s involvement in the case. Plaintiff makes no attempt to prove
the conduct of the other alleged co-conspirators, and Defendant’s own conduct in certifying
probable cause has already been addressed. Accordingly, Defendant is entitled to summary
judgment against Plaintiff on Count VII, Conspiracy.
Plaintiff’s remaining § 1983 claims are Count II, Suppression of Exculpatory Evidence, and
Count III, Reckless or Intentional Failure to Investigate. Plaintiff alleges a procedural due
process violation in support of Count II, and a substantive due process violation in support of
Count III. Essentially, both claims assert Defendant intentionally, and in bad faith, suppressed
the exculpatory evidence provided by Plaintiff regarding Bentz Motors inability to pay the taxes
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owed, or alternatively, Defendant failed to investigate these allegedly exculpatory facts further
through successful contact with witness Sherry Frazier.
With regard to Plaintiff’s procedural due process claim alleging Defendant suppressed
exculpatory evidence, the facts of this case are not sufficient to support a procedural due process
claim as a matter of law. The Court finds the following discussion of Brady v. Maryland, 373
U.S. 83 (1963) to be highly relevant:
“[T]he suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of prosecution.” (Citation
omitted). Brady's protections extend to actions of investigating officers, but “an
investigating officer's failure to preserve evidence potentially useful to the
accused or their failure to disclose such evidence does not constitute a denial of
due process in the absence of bad faith.” (Citation omitted). “[T]he recovery of §
1983 damages requires proof that a law enforcement officer other than the
prosecutor intended to deprive the defendant of a fair trial.” (Citation omitted).
“Consequently, to be viable, [a plaintiff's] claim must allege bad faith to implicate
a clearly established right under Brady.” (Citation omitted). Brady “does not
require the plaintiff to show that the jury in his criminal trial would have acquitted
him or that he was innocent.” (Citation omitted). “The question is not whether the
defendant would more likely than not have received a different verdict with the
evidence, but whether in its absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence.
Jones, 61 F. Supp. 3d at 822-23. The irrefutable facts in this case support Defendant did not
suppress exculpatory evidence. The fundamental insufficiency of Plaintiff’s claim is Defendant
could not have suppressed information already known by Plaintiff. United States v. Jones, 460
F.3d 473, 479 (8th Cir. 1998) (citing United States v. Gonzales, 90 F.3d 1363, 1368 (8th Cir.
1996)). Defendant’s inability to pay taxes and the circumstances which created his inability to
pay are known to him. Accordingly, Defendant is entitled to summary judgment against Plaintiff
on Count II, Suppression of Exculpatory Evidence.5
5
In determining that Plaintiff Brittingham is unable to bring a procedural due process claim, due to the underlying
tax prosecution never making it to a criminal trial, this Court does not comment on whether inability to pay taxes is
information sufficiently material to punishment to support a procedural due process claim in another context.
15
The restatement of the law in Jones v. Slay is also dispositive with regard to Plaintiff’s
substantive due process claim pursuant to Count III, Reckless or Intentional Failure to
Investigate:
“To establish a substantive due process violation, [plaintiff] must demonstrate that
a fundamental right was violated and that the conduct shocks the conscience.”
(Citation omitted). “[I]n a due process challenge to executive action, the threshold
question is whether the behavior of the governmental officer is so egregious, so
outrageous, that it may fairly be said to shock the contemporary conscience.”
(Citation omitted). Whether conduct shocks the conscience is a question of law.
(Citation omitted). “In order to ‘shock the conscience,’ it is not enough that the
government official's behavior meets the ‘lowest common denominator of
customary tort liability.’” (Citation omitted). “[C]onduct intended to injure in
some way unjustifiable by any government interest is the sort of official action
most likely to rise to the conscience-shocking level.” (Citation omitted). “Only
the most severe violations of individual rights that result from the ‘brutal and
inhumane abuse of official power’ rise to this level.” (Citation omitted).
Jones, 61 F. Supp. 3d at 828-29.
Plaintiff’s Count III claim accordingly fails, because he does not establish Defendant’s
conduct shocks the conscience. Importantly, Plaintiff does not dispute he informed Defendant he
was aware of the nonpayment of taxes. Likewise, Defendant was informed by Plaintiff of all
relevant information he expected witness Sherry Frazier would provide to Defendant’s
investigation. Nothing in Defendant’s report or probable cause statement was untrue or
purposefully and falsely calculated for the purposes of causing a prosecution against Plaintiff
where none was warranted. Additionally, even when the Court does an analysis of probable
cause with the information provided by Ms. Frazier in her interview, there is still probable cause
to charge Plaintiff. In fact, the information from Ms. Frazier further supports a finding of
probable cause because she stated Plaintiff chose to pay other bills rather than the taxes.
Defendant acted appropriately in her investigation. Even if Defendant should have interviewed
Ms. Frazier prior to submitting her prosecution report, this is not so egregious that it shocks the
conscience or constitutes bad faith. Defendant is entitled to summary judgment against Plaintiff
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on Count III, Reckless or Intentional Failure to Investigate, and as to all of Plaintiff’s § 1983
claims.
Because Plaintiff has failed to allege a deprivation of his constitutional rights as to any of
Counts I-VII, the Court need not reach the question of qualified immunity where no violation of
§ 1983 has occurred. Only Plaintiff’s Missouri state law claims remain for disposition.
B. Missouri State Law Claims
Plaintiff’s remaining four claims, brought under Missouri state law are as follows: Count
VIII, False Arrest, Count IX, Malicious Prosecution, Count X, Abuse of Process; and Count XI,
Intentional Infliction of Emotional Distress. The Court need not examine the facts as they apply
to the elements of each of these four claims, however, because the Court finds Defendant has
official immunity from these state law claims pursuant to Missouri law.
Official immunity protects public officials from liability for alleged acts of
ordinary negligence committed during the course of their official duties for the
performance of discretionary acts. (Citation omitted). Whether an act is
discretionary or ministerial depends on the “degree of reason and judgment
required” to perform the act. (Citation omitted). An act is discretionary when it
requires “the exercise of reason in the adaption of means to an end, and discretion
in determining how or whether an act should be done or a course pursued.”
Davis v. Lambert-St. Louis Int'l Airport, 193 S.W.3d 760, 763 (Mo. Banc 2006).6 Defendant
exercised the discretion required of her position when she conducted her investigation and made
a determination there was sufficient basis for probable cause against Plaintiff. Thus, she is
entitled to official immunity from the state law claims, even in the event she was liable for the
alleged behavior.7 The only way for Defendant’s claim of official immunity to be overcome is
6
Official immunity applies to common law torts such as negligence, but it is not limited to actions claiming
negligence. See Jiang v. Porter, No. 4:15-CV-1008 (CEJ), 2015 WL 9461490 at *4 (E.D. Mo. Dec. 28, 2015) (The
Court analyzed official immunity as applied to claims of abuse of process and intentional infliction of emotional
distress and ultimately denied the application of official immunity because the plaintiffs had alleged the defendants
acted with malice.).
7
This Court does not remark on whether Defendant would in fact be liable without official immunity for Plaintiff
Brittingham’s claims. That issue need not be reached here.
17
through a successful rebuttal, by Plaintiff, Defendant acted with malice or bad faith, defined by
Missouri law as follows:
A defendant acts with malice when he wantonly does that which a man of
reasonable intelligence would know to be contrary to his duty and which he
intends to be prejudicial or injurious to another. An act is wanton when it is done
of wicked purpose, or when done needlessly, manifesting a reckless indifference
to the rights of others.... Bad faith, although not susceptible of concrete definition,
embraces more than bad judgment or negligence. It imports a dishonest purpose,
moral obliquity, conscious wrongdoing, breach of a known duty through some
ulterior motive or ill will partaking of the nature of fraud. It also embraces actual
intent to mislead or deceive another. (Citation omitted). The official immunity
defense can also be overcome by showing conscious wrongdoing.
Blue v. Harrah's N. Kansas City, LLC, 170 S.W.3d 466, 479 (Mo. Ct. App. 2005).
Plaintiff has failed to raise a genuine issue of material fact Defendant acted in any way but
with good intention to fulfill her role as investigator. There is nothing on the record to suggest
Defendant had singled out Plaintiff to ensure he was prosecuted with a vengeance, nor anything
which would indicate conscious wrongdoing. The prospect of malice or bad faith is further
negated by this Court’s finding Defendant’s finding of probable cause was reasonable. Defendant
is entitled to summary judgment against Plaintiff on all four Missouri state law claims.
Accordingly,
IT IS HEREBY ORDERED, ADJUDGED and DECREED that Defendant Stacie GoveOrtmeyer’s Motion for Summary Judgment [ECF No. 80] is GRANTED.
IT IS FURTHER ORDERED that all claims against Defendant Stacie Gove-Ortmeyer are
DISMISSED, with prejudice.
So Ordered this 30th day of March, 2016.
E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE
18
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