Ladd

Filing 144

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that Plaintiff's motion to alter, amend, or vacate the judgment in this matter is GRANTED in part and DENIED in part as follows: (Doc. No. 136 .) a. Plaintiff has alleged a claim for conspiracy by t he SLMPD Defendants in their individual capacities to violate his First Amendment rights by denying him access to the courts. The prior judgment entered herein is hereby amended to reflect this determination and this action shall proceed on the Fi rst Amendment claim alone. b. All other grounds for reconsideration lack merit and, to the extent that it resolves all other pending claims, the remainder of the prior judgment shall stand. IT IS FURTHER ORDERED, in light of this Order, that Defendant's Motion for Bill of Costs (Doc. No. 134 ) is DENIED without prejudice. Signed by District Judge Audrey G. Fleissig on 9/2/2014. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ABU BAKR LADD,
Plaintiff,
v.
PAUL NOCCHIERO, et al.,
Defendants.

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Case No. 4:10CV02219 AGF

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Abu Bakr Ladd’s motion to alter,
amend, or vacate judgment pursuant to Federal Rule of Civil Procedure
59(e). Defendants, Lt. Col. David Heath, Lt. Jack Huelsmann, former Chief Daniel Isom,
Sgt. Joseph Lehman, former Chief Joseph Mokwa, and Lt. Col. Paul Nocchiero, all
former or current employees of the St. Louis Metropolitan Police Department
(“SLMPD”) (collectively, the “SLMPD Defendants”) oppose the motion. For the reasons
set forth below, Plaintiff’s motion will be granted in part and denied in part.
BACKGROUND
This action arises out of Plaintiff’s arrest and subsequent pretrial detention
following a search of his home. Plaintiff contends that Jeffrey Pickering, a former St.
Louis City police officer, illegally obtained a warrant for the search of his home on the
basis of false information provided by a fictitious confidential informant (CI). Plaintiff
asserts that the officer fabricated a basis for the warrant in order to arrest and charge
Plaintiff with a crime and to pressure him to act as an informant in an antiterrorism effort

coordinated by the FBI and involving the SLMPD and the Joint Terrorism Task Force
(“JTTF”). Plaintiff contends that he was targeted as a possible informant because he is a
Muslim.
A gun was recovered during the search of the home and Plaintiff was arrested and
charged as a felon in possession of a fireman. He was detained for seventy-seven days
until the charge against him was dropped just prior to the initial evidentiary hearing in his
case. He alleges that during his detention he was approached by police officers asking
him to act as an informant for them regarding activities within the Saint Louis Muslim
community, but that he refused to do so.
Thereafter, Plaintiff filed an internal complaint with the SLMPD against the
officer who applied for the warrant alleging that the CI did not exist and that the officer
had fabricated the information from the nonexistent CI to establish probable cause for the
issuance of the search warrant.1 At the subsequent Internal Affairs Division (IAD)
proceeding, five of the six SLMPD Defendants concluded that Plaintiff’s complaint
should not be sustained.
Plaintiff then filed suit in this District charging constitutional violations arising
from the events described here. During that proceeding, (hereinafter referred to as “Ladd
I”) Plaintiff sought from the City of Saint Louis and the SLMPD records related to the
IAD proceeding, the issuance of the search warrant and the identity of the CI, but was
unable to obtain the records. After confirming the unavailability of documentation

1

Initially, the SLMPD was unable to locate Plaintiff’s complaint and he then filed a
second complaint.
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related to the IAD investigation, the court granted Plaintiff leave to further amend his
complaint to allege claims related to possible spoliation. Ladd I, Doc. No. 193. Plaintiff
did not do so and instead moved for sanctions in that action and filed this suit.2 Ladd I
proceeded to trial and Plaintiff prevailed on the portion of his claim alleging
constitutional violations by the officer who obtained the search warrant.
Following the conclusion of that suit, Plaintiff filed this action on November 29,
2010, against the City of St. Louis, Missouri; the State of Missouri; the St. Louis Board
of Police Commissioners, and its individual members; Jeffrey Pickering, individually,
and in his capacity as a police officer; Scott McKelvey, individually and in his capacity
as a police officer; Detective Luke J. Adler, individually; and the SLMPD Defendants,
individually and in their official capacities. Plaintiff raised numerous claims related to an
alleged conspiracy to deprive him of his constitutional rights related to the alleged
unlawful search, discrimination against him on the basis of his Muslim faith and the
failure of the SLMPD to properly investigate his IAD complaint and preserve evidence
related to the issuance of the warrant and the identity of the CI. However, Plaintiff did
not initially allege a claim for denial of access to the courts.
All of the then-defendants moved to dismiss Plaintiff’s first amended
complaint. The Court granted that motion in part and denied it in part, dismissing all of
the defendants and claims with the exception of three claims arising under 42 U.S.C. §
2

In a prior ruling in the present action, this Court addressed the procedural history
of Ladd I and determined that Plaintiff’s assertion that he was precluded from amending
the complaint in that case due to warnings from the court lacked merit. See Doc. No. 84,
at 1-9 & 17.

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1983 against the SLMPD Defendants in their individual capacities. See Doc. Nos. 84 &
85. In its ruling on the motion to dismiss, the Court granted Plaintiff leave to file a
second amended complaint. (Doc. No. 86.) After Plaintiff filed his second amended
complaint, the SLMPD Defendants moved to dismiss certain claims in that complaint on
the ground that Plaintiff merely re-alleged claims that the Court had previously
dismissed. See Doc. Nos. 89 & 90. The Court granted the SLMPD’s motion and ordered
Plaintiff to file a third amended complaint. See Doc. No. 97.
In Counts I and II of his third amended complaint (“Third Amended Complaint”),
Plaintiff asserted claims under 42 U.S.C. § 1983 against the SLMPD Defendants in their
individual capacities. Doc. No. 100 (Third Amended Complaint). Plaintiff alleged that
all Defendants conspired to deprive him of his constitutional rights under the First, Fourth
and Fourteenth Amendments by failing properly to investigate and preserve evidence
related to his IAD complaint that the false statements attributed to the CI rendered the
search warrant invalid. See id. at ¶¶ 44, 46-51. Plaintiff further alleged that all
Defendants acted pursuant to a longstanding custom, policy and practice of the SLMPD
of providing false information in affidavits of probable cause to obtain search and seizure
warrants. Id. at ¶¶ 66, 74-77. In Counts III and IV of the Third Amended Complaint,
Plaintiff requested damages and a jury trial with respect to the substantive violations
alleged in Counts I and II. Id. at ¶¶ 86-93.
The parties engaged in discovery and Defendants then moved for judgment on the
pleadings with respect to Plaintiff’s Third Amended Complaint. See Doc. No.
108. Plaintiff responded to the motion but did not at any time seek leave to further
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amend the Third Amended Complaint. On January 2, 2014, the Court granted the
SLMPD Defendants’ motion for judgment on the pleadings with respect to all claims
adduced in the Third Amended Complaint. See Doc. No. 132.
Thereafter, Plaintiff filed this motion pursuant to Rule 59(e). In support of the
motion, Plaintiff argues that the Court erred in ruling that “no facts in Plaintiff’s Third
Amended Complaint suggest that the [SLMPD] Defendants discriminated against
Plaintiff on the basis of his religious beliefs.” Id. at 8. Plaintiff asserts that throughout
this suit, he consistently alleged in all pleadings that the actions of all Defendants were
motivated by religious animus. In support of this assertion, Plaintiff points to earlier
allegations that the SLMPD and the JTTF conspired to falsify an affidavit, conduct an
unlawful search and arrest, and place him in custody in order to persuade him to act as an
informant for the JTTF regarding activities within the St. Louis Muslim community.
Plaintiff also challenges, as legal error, the Court’s holding that Plaintiff failed to
state a claim for a conspiracy to deprive him of his due process rights with respect to the
IAD proceedings. Specifically, Plaintiff contends that language found on the SLMPD
website relating to IAD complaints gives rise to an interest protectable under the due
process clause. See id. Plaintiff further asserts that the Court failed to consider in its
previous ruling certain deposition testimony of Defendants Mokwa and Nocchiero, which
he characterizes as “new evidence,” in support of this conspiracy claim. See Doc. No.
137-2, at 1, 6, 13, 17-19, 42-43. Plaintiff also seeks leave to file a fourth amended
complaint to assert additional allegations based upon this new evidence. Finally, Plaintiff
asserts that he properly alleged a claim for denial of access to the courts.
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In response, the SLMPD Defendants assert that Plaintiff fails to present a basis for
relief under Rule 59(e) because he seeks to re-litigate issues previously decided by the
Court. They also assert that the Court did not err in concluding that the allegations of the
Third Amended Complaint do not establish claims based upon religious animus, and
conspiracy to violate his rights under the First and Fourteenth Amendments to access the
courts and to due process.
Finally, the SLMPD Defendants assert that Plaintiff fails to establish grounds for
leave to further amend his complaint. They contend that Plaintiff offers no explanation
for his failure to raise this evidence before the entry of the judgment in this matter and
that even if the Court were to excuse his lack of diligence, that the proposed amendments
would not cure the defects in Plaintiff’s pleadings.
DISCUSSION
Rule 59(e) authorizes a district court to alter or amend a judgment based upon
errors of law or newly discovered evidence. See Briscoe v. Cnty. of St. Louis, Mo., 690
F.3d 1004, 1015 (8th Cir. 2012). District courts have broad discretion in determining
whether to grant or deny motions to alter or amend judgment pursuant to Rule 59(e). See
id. (citing United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir.
2006)). Rule 59(e) does not permit a party to re-litigate matters previously resolved by
the court or to raise arguments or present evidence that could have been raised prior to
the entry of judgment, unless good cause is shown for such failure. Holder v. United
States, 721 F.3d 979, 986 (8th Cir. 2013).

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To succeed on a Rule 59(e) motion asserting new evidence, the movant must show
that (1) the evidence was material, non-cumulative and discovered after the submission of
the motion; (2) the movant exercised due diligence to discover the evidence before the
submission of the motion; and (3) that consideration of new evidence would probably
produce a different result. See Briscoe, 690 F.3d at 1015-16. Applying that standard
here, the Court concludes that most of the grounds Plaintiff asserts in his motion to alter
or amend judgment should be denied.
I. Asserted Errors of Law
First, to the extent that Plaintiff seeks to re-litigate previously decided legal issues,
the Court finds no basis to depart from its holdings with respect to due process. With
respect to the claim of religious discrimination, Plaintiff’s allegations of religious animus
remain inadequate. Plaintiff does not identify, and the Court’s review does not reveal,
any factual allegations in the paragraphs of the Third Amended Complaint alleging that
the SLMPD Defendants acted with religious animus. Briscoe, 690 F.3d at 1015; see also
Doc. No. 100 at ¶¶42-44; 46-49; 51 54-58; 60-78. The allegations of religious animus in
the Third Amended Complaint concern federal agents and police officers, including
former defendants Adler and Pickering, individuals who were no longer defendants in
this action at the time of the Court’s challenged ruling on the motion for judgment on the
pleadings. See Doc. No. 132 at p. 6-7. No facts alleged in Plaintiff’s Third Amended
Complaint suggest that the SLMPD Defendants, who are the only remaining defendants,
discriminated against Plaintiff on the basis of his religious beliefs. Although there are
allegations that the SLMPD Defendants acted with deliberate indifference to Plaintiff’s
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constitutional rights by failing to investigate, preserve evidence regarding, and sustain his
IAD complaint, there are no allegations that the SLMPD Defendants were motivated by
anything other than an alleged desire to protect the police officer who had obtained the
search warrant. See Doc. No. 100 at ¶¶ 42-55, 69-70, 74 & 77. Therefore, the Court
denies Plaintiff’s motion to amend the judgment with respect to its conclusion that the
SLMPD Defendants were not alleged to have acted with religious animus.
Similarly, with respect to the allegations of conspiracy to deprive Plaintiff of his
constitutional rights under the Fourth Amendment, the Court is satisfied that its previous
determination was not erroneous. The Court previously concluded that “Plaintiff does
not allege that Defendants took 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.” See Doc. No. 132 at 7. There are no allegations indicating that the
SLMPD Defendants had any knowledge of or involvement with the preparation of the
supporting affidavit or acts taken to obtain the search warrant. Nor does Plaintiff allege
that 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. Id. With respect to the timing of the events at issue, the alleged actions of the
SLMPD Defendants begin with the filing of Plaintiff’s IAD complaint, long after the
preparation of the affidavit, issuance of the warrant and search of Plaintiff’s home. See
Doc. No. 100 at ¶42. The deposition testimony Plaintiff references as new evidence does
not alter this conclusion. An awareness on the part of Mokwa and Nocchiero that the
SLMPD and the JTTF were cooperating to investigate terrorism does not indicate
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knowledge, much less active involvement by these Defendants in the decision to seek
informants, to pursue Plaintiff as a possible informant, or to search Plaintiff’s home
without probable cause.
With respect to the alleged conspiracy to deprive Plaintiff of due process under the
Fourteenth Amendment by failing to sustain Plaintiff’s IAD complaint, the Court also is
satisfied that its previous determination was not erroneous. The Court earlier ruled and
continues to hold that Plaintiff had no due process right associated with the IAD
proceeding. As the Court previously noted, there is no federal statutory or constitutional
right to an internal affairs investigation, cf. Sanders v. Hobbs, No. 5:10CV00281
JLH/JTR, 2010 WL 4259485, at *2 (E. D. Ark. Oct. 4, 2010). Even if there were, the
referenced language from the Saint Louis Board of Police Commissioners’ website would
create, at most, a protectable property interest on behalf of the police officer or other
subject of the investigation and not on behalf of the complainant. Nothing about the
allegedly new evidence Plaintiff cites alters this conclusion. Therefore, regardless of the
nature of Defendants’ alleged actions or inaction, Plaintiff cannot allege a claim for
conspiracy to deprive him of his due process rights with respect to that proceeding.
However, to the extent that Plaintiff attempted to allege a claim for conspiracy to
violate the First Amendment by denying him access to the courts, the Court will
reconsider its prior ruling. The Court previously concluded that Plaintiff had failed
adequately to allege such a conspiracy because he had “not identified a predicate claim
that he was unable to pursue or a remedy that he lost,” and that even if he had, he did not
“identify a causal link” between the SLMPD Defendants’ actions and the loss of a claim
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or remedy. Doc. No. 132 at 9. The Court correctly stated that Plaintiff not only pursued,
but successfully obtained relief against Pickering in Ladd I and that he failed to seek
leave to amend his complaint in Ladd I to include allegations regarding the alleged
destruction of evidence.
Upon further consideration, however, the Court concludes that in his Third
Amended Complaint Plaintiff adequately alleges a conspiracy by the SLMPD Defendants
for denial of access to the courts. The Court’s earlier determination relied on its
conclusion that Plaintiff failed to allege a cause of action for denial of access to the courts
– distinct from his asserted right to due process in the IAD proceeding. Regardless of the
truth of this fact, the Court upon reconsideration concludes that Plaintiff’s allegations in
¶¶ 66-69 and 78 of the Third Amended Complaint adequately allege a claim for denial of
access to the Courts. Although Plaintiff’s Third Amended Complaint remains far from
clear, these paragraphs may fairly be read to allege that Defendants willfully, and in
concert with one another and others, failed to comply with the federal procedural rules
and destroyed evidence to hinder Plaintiff’s ability to pursue his court claim (presumably,
Ladd I). See S.L. ex rel. Lenderman v. St. Louis Metro. Police Dept. Bd. of Police
Comm’rs, 725 F.3d 843, 850-51(8th Cir. 2013) (holding that to succeed on a § 1983
conspiracy claim for denial of access to the courts, a plaintiff must show that (1) the
defendants conspired to deprive him such access; (2) “at least one of the alleged
coconspirators engaged in an overt act in furtherance of the conspiracy,” and (3) he was
injured by that overt act).

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Fairly read, Plaintiff alleges that the SLMPD Defendants agreed to destroy
evidence related to the CI and the affidavit underlying the search warrant. He further
asserts that the missing or fabricated evidence prevented him from pursuing claims in his
prior civil proceedings against individuals other than Pickering. These allegations are
sufficient to supply the conspiracy, overt act, and injury in a manner sufficient to
withstand Defendants’ motion for judgment on the pleadings. Id. If Defendants believe,
based on the evidence, they are entitled to judgment as a matter of law, their recourse is
to file a motion for summary judgment.
The Court notes that despite this determination, to the extent that Plaintiff alleges
that the SLMPD Defendants acted pursuant to a policy, custom or practice of the Saint
Louis Board of Police Commissioners, the State of Missouri, or the City to cover up
officers’ use of false statements in obtaining search and seizure warrants, the Court’s
prior ruling stands. See Doc. No. 100 at ¶¶ 60, 74, 76-77. In this regard, the Court notes
that in his Third Amended Complaint (see, e.g. Doc. No. 100, introductory paragraph)
Plaintiff alleges claims against the SLMPD Defendants solely in their individual
capacities. See Johnson v. Douglas Cnty Med. Dept., 725 F.3d 825, 828 (8th Cir. 2013)
(quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91(1978)).
II. New Evidence
With respect to Plaintiff’s characterization of the 2010 deposition testimony as
new evidence, the Court finds no basis to alter its prior ruling. As noted, Plaintiff
referred to this evidence in his Third Amended Complaint, see Doc. No. 100 at ¶¶ 68-69,
and it was available to Plaintiff at the time of the Court’s ruling on the motion for
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judgment on the pleadings. Plaintiff offers no reason for his failure to present this
evidence prior to the entry of the Court’s judgment. Briscoe, 690 F.3d at 1015-1016
(denying a Rule 59(e) motion due to plaintiff’s failure to offer a persuasive reason for his
earlier failure to advance an argument based upon deposition testimony that was part of
the record at the time of the court’s ruling on a summary judgment motion).
Furthermore, even if the 2010 deposition testimony Plaintiff cites was deemed
“new evidence,” it establishes, at most, that Defendants Mokwa and Nocchiero were
generally aware of cooperation between the SLMPD and the JTTF to investigate threats
of terrorism and that the SLMPD Defendants had varying recollections with respect to
the conduct of the IAD proceeding. As the Court previously explained, this testimony
evidences no more than vague understanding of some cooperation among law
enforcement agencies and is not, without more, a basis for a claim of conspiracy. See
White v. McKinley, 519 F.3d 806, 814 (8th Cir. 2008) (identifying the elements of a
conspiracy claim under 42 U.S.C. § 1983, as allegations “(1) that the defendant conspired
with others to deprive [plaintiff] of constitutional rights; (2) that at least one of the
alleged co-conspirators engaged in an overt act in furtherance of the conspiracy; and (3)
that the overt act injured the plaintiff”); Reasonover v. St. Louis Cnty., 447 F.3d 569, 582
(8th Cir. 2006) (holding that to successfully allege conspiracy for the deprivation of
constitutional rights, a plaintiff must plead with particularity facts demonstrating an
agreement among the defendants).

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III. Leave to Amend
Finally, the Court finds no basis to alter its denial of Plaintiff’s request for leave to
file a fourth amended complaint as untimely and futile. Plaintiff’s request is clearly
untimely and he has not established “good cause” to amend his complaint at this late
date. Wingert & Assocs., Inc. v. Paramount Apparel Int’l, Inc., 458 F.3d 740, 744-45
(8th Cir. 2006) (holding that court properly denied leave to amend given party’s delay in
seeking such leave). Further, the Court notes that Plaintiff had the ability to amend his
complaint in Ladd I to assert the claims he has raised in this lawsuit, but chose not to do
so. Instead, he chose to file this lawsuit, and since its filing he has been given numerous
opportunities to amend his complaint. Further amendment at this late date is
unwarranted, and unduly prejudicial to Defendants.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion to alter, amend, or vacate the
judgment in this matter is GRANTED in part and DENIED in part as follows: (Doc.
No. 136.)
a. Plaintiff has alleged a claim for conspiracy by the SLMPD Defendants
in their individual capacities to violate his First Amendment rights by
denying him access to the courts. The prior judgment entered herein is
hereby amended to reflect this determination and this action shall proceed
on the First Amendment claim alone.

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b. All other grounds for reconsideration lack merit and, to the extent that it
resolves all other pending claims, the remainder of the prior judgment shall
stand.
IT IS FURTHER ORDERED, in light of this Order, that Defendant’s
Motion for Bill of Costs (Doc. No. 134) is DENIED without prejudice.

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

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