Ladd

Filing 132

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants motion for judgment on the pleadings with respect to Plaintiffs third amended complaint is GRANTED. (Doc. No. 108.) re: 108 MOTION for Judgment on the Pleadings filed by Defendant Jack Huelsmann, Defendant Joseph Lehman, Defendant Paul Nocchiero, Defendant David Heath, Defendant Joseph Mokwa, Defendant Daniel W. Isom Signed by District Judge Audrey G. Fleissig on 1/2/14. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ABU BAKR LADD,

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Plaintiff,
v.
DAVID HEATH, et al.,
Defendants.

Case No. 4:10CV02219 AGF

MEMORANDUM AND ORDER
Plaintiff Abu Bakr Ladd (“Plaintiff”) brings this action pursuant to 42 U.S.C. §
1983, asserting conspiracy claims1 against Defendants Joseph Mokwa, former Chief of
Police of the St. Louis Metropolitan Police Department (“SLMPD”); Lieutenant Colonel
David Heath; Deputy Commander Jack Huelsmann; Captain Daniel Isom; Sergeant
Joseph Lehman; and Paul Nocchiero, Secretary of the Saint Louis Board of Police
Commissioners, in their individual capacities (collectively, “Defendants”). Now before
the Court is Defendants’ motion for judgment on the pleadings. For the reasons set forth
below, the motion shall be granted.
I. BACKGROUND
Plaintiff has filed two lawsuits, Ladd v. Pickering, No. 4:05CV916 RHK (“Ladd

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Defendants do not ask the Court to evaluate the sufficiency of the allegations
regarding the alleged conspiracy between Defendants.

I”) and the instant suit (“Ladd II”), arising from the same series of events: use of a false
affidavit to support the issuance of a search warrant for, and the search of, his home; his
arrest by officers of the SLMPD; his subsequent detention in federal custody; the denial
of a complaint he filed with the Internal Affairs Division (“IAD”) of the SLMPD; and an
alleged cover-up that occurred during Ladd I, the first federal civil rights suit premised
upon these facts. Although some of Plaintiff’s claims were dismissed in Ladd I, he
ultimately prevailed. Following a five day trial on his Fourth Amendment claim against
Jeffrey Pickering, an officer of the SLMPD, the jury found in favor of Plaintiff and
awarded him $5,000 in compensatory damages and $25,000 in punitive damages. (Ladd
I, Doc. No. 222.)
A. Procedural Background
Previously in this action, Ladd II, Defendants moved to dismiss Plaintiff’s first
and second amended complaints. The Court ruled on the motions to dismiss as to each
complaint. In doing so, the Court dismissed the claims against Defendants Heath,
Huelsmann, Isom, Lehman, Mokwa, and Nocchiero in their official capacities. In
addition, except for two claims under § 1983 alleging conspiracies to violate Plaintiff’s
constitutional rights, the Court also dismissed the claims against these Defendants in their
individual capacities. Finally, the Court dismissed with prejudice Plaintiff’s claims
against then-defendants Jeffrey Pickering, Scott McKelvey, the St. Louis Board of Police
Commissioners, the State of Missouri, the City of St. Louis, and Luke J. Adler, a federal
agent. Only Plaintiff’s claims that Defendants conspired: (1) to discriminate against him
on the basis of his religion and (2) to generally deprive him of his constitutional rights
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remained. Thereafter, by leave of court, Plaintiff filed a third amended complaint
alleging only the two remaining claims.
B. Allegations Concerning the Conspiracy to Arrest Plaintiff
In his third amended complaint Plaintiff alleges that in May 2003 the Federal
Bureau of Investigation began investigating Plaintiff with the intention of maliciously
prosecuting him to obtain leverage to persuade him to act as a police informant within the
St. Louis Muslim community. Plaintiff alleges that in order to curry favor with their
supervisors and federal law enforcement officials, SLMPD detectives Jeffrey Pickering
and Scott McKelvey agreed to provide Agent Adler, the purported leader of the federal
effort, with false information about Plaintiff. Plaintiff further contends that to this end,
Pickering completed an affidavit in support of the search warrant for Plaintiff’s home
containing information that Pickering knew to be false. Specifically, Plaintiff alleges that
despite Pickering’s assertion that the affidavit was based in part upon information
provided by a confidential informant, no such informant existed. Plaintiff also asserts
that Pickering could not have observed him, as reported in the affidavit, because Plaintiff
was in another state at the time of the surveillance.
Plaintiff next alleges that in September of 2003, Pickering, officers from the
SLMPD, and certain federal agents conducted a search of Plaintiff’s home pursuant to the
search warrant issued based on Pickering’s affidavit. They found several firearms in the
home and arrested Plaintiff, a felon, for possession of the firearms. Plaintiff remained in
federal custody for 77 days, during which time he alleges he was asked to be a
confidential informant and provide law enforcement officials with information regarding
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the St. Louis Muslim community. Plaintiff refused to serve as an informant. In his
federal criminal case Plaintiff moved to suppress the seizure of the guns on the ground
that the search warrant had been improper. But shortly before an evidentiary hearing on
the motion to suppress, the federal criminal case against Plaintiff was dismissed.
C. Allegations Concerning the Cover-up of Plaintiff’s Unlawful Arrest
After the criminal case against him was dismissed, Plaintiff promptly filed a
complaint with the IAD of the SLMPD. Plaintiff alleges that Defendant Lehman oversaw
the investigation of IAD complaints. After receiving notice from Defendant Nocchiero
that his IAD complaint could not be found, Plaintiff filed a second IAD complaint.
Plaintiff asserts that Defendants and other unnamed persons improperly investigated his
IAD complaint and wrongfully concluded that it would be “not sustained,” because there
was insufficient evidence to either prove or disprove the allegations in the complaint.2
Plaintiff next alleges that Defendants Heath, Huelsmann, Isom, Mokwa, and
Nocchiero conspired to approve Defendant Lehman’s improper findings with respect to
the IAD complaint. Plaintiff also contends that these Defendants conspired to destroy
evidence collected during the IAD investigation, including evidence related to the
existence or non-existence of the confidential informant referenced in the affidavit for the

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IAD complaints are classified into four categories: unfounded, exonerated, not
sustained, and sustained. “Unfounded” means that the complaint was not based on facts,
as shown by the investigation, or the incident complained of did not occur. “Exonerated”
means that the action complained of did occur, but the investigation disclosed that the
actions were reasonable, lawful, and proper. “Not sustained” means that there was
insufficient evidence either to prove or disprove the allegations of the complaint.
“Sustained” means that the investigation revealed sufficient evidence to support the
allegations of the complaint. (Doc. No. 100-14.)
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search warrant. In addition, Plaintiff alleges that the cover-up conspiracy evidenced by
the aforementioned actions was designed to deprive him of his due process rights with
respect to the IAD proceeding.
Plaintiff further alleges that all Defendants, acting in concert with one another,
conspired to cover up the deficiencies in the affidavit and hence, the search and arrest, by
representing that the confidential informant had been murdered and all records related to
him lost or destroyed. Specifically, Plaintiff alleges that over the course of more than
seven years, Pickering and other unnamed SLMPD officers, agreed to act in concert with
and did act in concert with each other to present false testimony and physical evidence
regarding the statements in the affidavit. (Doc. No. 100, ¶ 59.) Plaintiff contends that
Defendant Nocchiero knew that certain police officers and detectives testified falsely and
presented false physical evidence against Plaintiff in various proceedings but failed to
correct or discipline them for this misconduct. Finally, Plaintiff alleges, with respect to
Ladd I, that the aforementioned actions constitute a conspiracy to prevent him from
obtaining access to the courts and to fully exhaust his legal remedies.
II. DISCUSSION
A. Standard of Review: Judgment on the Pleadings
In deciding a motion for judgment on the pleadings, the Court
accepts all facts pled by the nonmoving party as true and draws all
reasonable inferences from the facts in favor of the nonmovant. This is a
strict standard, as judgment on the pleadings is not properly granted unless
the moving party has clearly established that no material issue of fact
remains to be resolved and the party is entitled to judgment as a matter of
law.
Nielsen v. Union Sec. Ins. Co., No. 4:12CV1698 JAR, 2013 WL 3849970, at *1 (E.D.
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Mo. July 24, 2013) (citations omitted).
B. Elements of a § 1983 Conspiracy to Violate Constitutional Rights
To succeed on his § 1983 conspiracy claims, Plaintiff must show that (1)
Defendants conspired to deprive him of a federal constitutional or statutory right, (2) “at
least one of the alleged coconspirators engaged in an overt act in furtherance of the
conspiracy,” and (3) Plaintiff was injured by that overt act. S.L. ex rel. Lenderman, v. St.
Louis Metro. Police Dep’t Bd. of Police Comm’rs, 725 F.3d 843, 850 (8th Cir. 2013)
(quoting Askew v. Millerd, 191 F.3d 953, 957 (8th Cir. 1999)). Although a “conspiracy is
not itself actionable in the absence of an underlying wrongful act . . . only one of the
alleged conspirators must have committed [such an act.]” Process Controls Int’l, Inc. v.
Emerson Process Mgmt., No. 4:10CV645 CDP, 2011 WL 6091722, at *2 (E.D. Mo. Dec.
7, 2011) (citations and internal quotation marks omitted). Even if the acts in furtherance
of the conspiracy are adequately alleged, a plaintiff must do more than “merely allude to
a meeting of the minds . . . [he or she] must support the assertion[s] with specific
allegations of collusion.” Id. at *3 (citing Moses.com Sec., Inc. v. Comprehensive
Software Sys., Inc., 406 F.3d 1052, 1063 (8th Cir. 2005)).
Plaintiff’s complaint alleges two conspiracies: one designed to deprive him of his
constitutional rights under the Fourth Amendment and another designed to cover up that
alleged deprivation. Plaintiff also contends that these conspiracies were motivated in part
by religious animus. Plaintiff’s allegations concerning religious discrimination do not
however, identify actions by these Defendants. The allegations of religious animus
concern federal agents, including former defendant Adler, but no facts in Plaintiff’s third
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amended complaint suggest that the remaining named Defendants discriminated against
Plaintiff on the basis of his religious beliefs. Therefore, the Court will address the
allegations concerning each of the described conspiracies but rejects any claim that either
of the conspiracies was motivated by religious animus.
C. Conspiracy to Deprive Plaintiff of his Fourth Amendment Rights
With respect to this first conspiracy, Plaintiff argues that Defendants conspired
with former defendant Pickering and others to falsify an affidavit and conduct an
unlawful search of his home, violating his rights under the Fourth Amendment. A review
of the allegations indicates, however, that Plaintiff does not allege that Defendants took
any action or reached a meeting of the minds until the time of the IAD proceeding, well
after the alleged unlawful search, arrest, and Plaintiff’s release from custody. Plaintiff
alleges no facts in his third amended complaint suggesting that Defendants had any
involvement in this first conspiracy at all. Nor does he allege that Pickering and/or the
police officers responsible for the unlawful search conspired or agreed with Defendants
to falsify an affidavit, conduct an unlawful search or arrest Plaintiff without just cause.
D. Conspiracy to Cover-up the Deprivation of Plaintiff’s Constitutional
Rights
Plaintiff also alleges that the “cover-up” conspiracy effectively denied him of two
constitutional rights: his right to due process in the IAD proceeding and his right to
access the courts by pursuing his claims in Ladd I. This conspiracy claim fails because
Plaintiff has not adequately pled either of these underlying constitutional violations.

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1. Due Process and the IAD Proceeding
As an initial matter, there is no federal constitutional right to due process in an
IAD proceeding against a police officer. See Sanders v. Hobbs, No. 5:10CV00281
JLH/JTR, 2010 WL 4259485, at * (E.D. Ark. Oct. 4, 2010), report and recommendation
adopted by No. 5:10CV00281 JLH/JTR, 2010 WL 4259420 (E.D. Ark. Oct. 22, 2010)
(concluding that plaintiff did not have a federal statutory or constitutional right to
demand an internal affairs investigation); Porter v. Columbus, No. C2-06-1055, 2008 WL
5210873, at *6-7 (S.D. Ohio Dec. 12, 2008) (stating that it was “altogether unclear” how
inappropriate handling of a citizen’s complaint to the police department rises to the level
of a constitutional tort); cf. Morrow v. City of Oakland, No. C 11-02351 LB, 2012 WL
368682, at *14 (N.D. Cal. Feb. 3, 2012) (concluding that the plaintiff did not have a
constitutional right to “receive a policy [-] compliant investigation of his [EEOC]
complaints” or “to have his grievances about [the police department’s internal affairs
division] investigations heard before an impartial body” (first alteration in the original));
Bernstein v. New York, 591 F. Supp. 2d 448, 460 (S.D.N.Y. 2008) (concluding that there
is no constitutional right to an investigation by government officials, including
governmental refusal to investigate a crime, patent fraud, or an attorney ethics grievance).
The Court recognizes that in some instances a state or local statute may give rise
to an interest in an internal affairs investigation protectable under the due process clause.
But Plaintiff nowhere alleges a statutory provision that would create such an interest here.
See Garrison v. McQueeney, No. C 94-3595 TEH, 1995 WL 39435, at *3 (N.D. Cal. Jan.
27, 1995) (stating that “[i]t is clear that a specific constitutional right to an internal affairs
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investigation does not exist” and acknowledging that a state statute or regulation could
“create a liberty interest protected by the Constitution” but finding that no such liberty
interest had been created). Therefore, Plaintiff fails to state a claim for a conspiracy to
deprive him of his due process rights with respect to the IAD proceeding because he has
not alleged a legal basis for such a constitutional right.
2. Meaningful Access to the Courts
Similarly, Plaintiff fails to adequately allege a conspiracy to deprive him of the
constitutional right to access the courts. Plaintiff’s assertions here fail because he has not
identified a predicate claim that he was unable to pursue or a remedy that he lost. See
Christopher v. Harbury, 536 U.S. 403, 416 (2002) (holding that the predicate claim and
lost remedy must be alleged for purposes of a “denial of access” claim). Moreover, even
if Plaintiff had adequately alleged a predicate claim, this portion of his complaint would
fail because he does not identify a causal link between Defendants’ actions and the
asserted denial of “meaningful access” to the courts. See Scheeler v. City of St. Cloud,
402 F.3d 826 (8th Cir. 2005) (citing Alexander v. Macoubrie, 982 F.2d 307, 308 (8th Cir.
1992)).
Assuming that the Ladd I suit constitutes a predicate claim, the Court notes that
Plaintiff not only pursued, but also successfully obtained relief in Ladd I. After a hearing
with respect to the missing records pertaining to the internal affairs files and the
confidential informant, the court in Ladd I concluded that there was a possibility that
spoliation of evidence had occurred and ordered Defendants to make the SLMPD
document retention policy available to Plaintiff. The court further suggested that the
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parties submit briefs and supplement the record on the issue of spoliation. (Ladd I, Doc.
No. 146.) Despite this suggestion, Plaintiff did not seek leave to amend his complaint to
include allegations related to spoliation of evidence. Instead, four days before the start of
the trial on the Fourth Amendment claim in Ladd I, Plaintiff filed a motion for sanctions
with respect to spoliation of evidence and commenced this action, Ladd II. (Ladd I, Doc.
No. 147.) Although the court denied Plaintiff’s request for sanctions, it allowed Plaintiff
to argue that the jury could draw its own conclusions, including negative implications,
from the disappearance of the internal affairs file and the lack of documentation
regarding the confidential informant. (Ladd I, Doc. Nos. 193 and 200 n.1.) As noted
above, Plaintiff prevailed on his claim and the jury awarded both compensatory and
punitive damages. (Ladd I, Doc. No. 222.)
Similarly, Plaintiff has not alleged that the missing or fabricated evidence and/or
an official “cover-up” deprived him of an adequate remedy in Ladd I. See, e.g., Foster v.
City of Lake Jackson, 28 F.3d 425, 427 (5th Cir. 1994); Bell v. City of Milwaukee, 746
F.2d 1205, 1223 (7th Cir. 1984). Indeed, in Ladd I Plaintiff recovered monetary damages
and was offered the opportunity to further pursue his “cover-up” or spoliation claims, but
declined to do so.
It is true that even where a plaintiff’s underlying claim has not been impeded,
courts may still recognize a constitutional claim for denial of access if the plaintiff alleges
some other harm arising from that denial. See, e.g., S.L. ex rel. Lenderman, 725 F.3d. at
852-53 (holding that physical and economic injuries linked to a conspiracy to deny the
plaintiff access to the courts were sufficient to state a claim under § 1983 against the
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conspirators even though the plaintiff also had a claim against her alleged assailant);
Gunter v. Morrison, 497 F.3d 868, 874 (8th Cir. 2007) (holding that the plaintiff, who
had succeeded on his underlying claim, had made out a valid § 1983 denial-of-access
claim by alleging that the plaintiff was not promoted in retaliation for filing suit against
the city). In this case Plaintiff cannot rely on this formulation of the asserted
constitutional claim because he does not allege that the conspiracy to cover up the
deprivation of his rights caused him some “other injury.” Plaintiff pleads that he
“suffered greatly” as a result of the cover-up, but he does not allege any specific facts to
explain the nature of his injury. Plaintiff does state that the arrest impaired his ability to
find work. To the extent that Plaintiff may be said to have alleged economic harm in this
context, he has not pled a causal link between the conspiracy and that alleged harm. For
these reasons Plaintiff cannot satisfy the requirement that he plead an injury caused by
the “cover-up.” See S.L. ex rel. Lenderman, 725 F.3d at 850.
III. CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendants’ motion for judgment on the
pleadings with respect to Plaintiff’s third amended complaint is GRANTED. (Doc. No.
108.)

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 2nd day of January, 2014.
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