Scott et al v. BJC Health

Filing 62

MEMORANDUM AND ORDER re: 53 , 28 55 48 , 26 ORDERED that Defendant Vinita Park Police Department's Motion to Dismiss (Doc. No. 26), Defendants City of Vinita Park, McGee, Jones, Farmer, and Altes' Motion to Dismiss (Doc. No. 28), Mot ion to Dismiss Plaintiffs' Claims Against Ellen Depker and BJC Behavioral Health (Doc. No. 48), and State Defendants' Motion to Dismiss Plaintiffs' Third Amended Complaint (Doc. No. 55) are GRANTED. An order of dismissal is filed herew ith. FURTHER ORDERED that "Plaintiffs' Motions the Court for its Order for Preliminary Injunctions Restraining Against the Defendants Daniel D. Spring, Ann McLaughlin, State of Missouri, Board of Probation and Parole, Ellen Depker, BJC Behavior Health and the Circuit of St. Louis County, Missouri (Doc. No. 53) is DENIED as moot.. Signed by Honorable Jean C. Hamilton on 7/20/11. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

WALTER SCOTT, et al.,
Plaintiffs,
vs.
BJC BEHAVIORAL HEALTH, et al.,
Defendants.

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Case No. 4:11CV00633 JCH

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Vinita Park Police Department’s Motion to
Dismiss (Doc. No. 26), Defendants City of Vinita Park, McGee, Jones, Farmer, and Altes’ Motion
to Dismiss (Doc. No. 28), Motion to Dismiss Plaintiffs’ Claims Against Ellen Depker and BJC
Behavioral Health (Doc. No. 48), and State Defendants’ Motion to Dismiss Plaintiffs’ Third
Amended Complaint (Doc. No. 55). These Motions are fully briefed and ready for disposition.
STANDARD
In ruling on a motion to dismiss, the Court must view the allegations in the Complaint liberally
in the light most favorable to Plaintiff. Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008)
(citing Luney v. SGS Auto Servs., 432 F.3d 866, 867 (8th Cir. 2005)). Additionally, the Court “must
accept the allegations contained in the complaint as true and draw all reasonable inferences in favor
of the nonmoving party.” Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005) (citation omitted).
To survive a motion to dismiss, a complaint must contain “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (abrogating the “no
set of facts” standard for Fed. R. Civ. P. 12(b)(6) found in Conley v. Gibson, 355 U.S. 41, 45–46
(1957)). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed

factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief “requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Twombly, 550 U.S. at 555; Huang v. Gateway Hotel Holdings, 520 F. Supp. 2d 1137, 1140
(E.D. Mo. 2007).
BACKGROUND
On January 29, 2008, Plaintiff Jarvis Simms pled guilty to arson, and was sentenced to five
years of supervision by the State Board of Probation and Parole and mental health evaluation and
treatment. (Third Amended Complaint (“TAC”), Exhibit 1, Doc. No. 23-1, Police Report, pp. 4-5).1
In March 2011, Simms was still under the supervision of the State Board of Probation and Parole
and was being treated by BJC Behavioral Health (“BJC”) for mental health problems. (TAC, Ex. 1,
pp. 3-5). Ellen Depker (“Depker”) was the social worker for BJC and was assigned as Simms’ case
manager (TAC, ¶6, Ex. 1, p. 3), and Daniel D. Spring was Simms’ probation officer (TAC, ¶¶6(f),
48).
According to the Police Report,2 Depker asked for police assistance when she went to check
on the welfare of Simms on March 29, 2011. (Ex. 1, p. 3). Scott invited Officer Jones and Depker
into the residence, and Depker spoke to both Scott and Simms. (Id.). Officer Jones indicated that
the conversation was cordial. (Id.). Plaintiffs, however, allege that Depker lied to Vinita Park police
officers by claiming, among other things, that Plaintiff Simms’ father, Plaintiff Scott, did not want

1

Although some parties refer to the document(s) attached to the Third Amended Complaint
as multiple exhibits, the Court refers to it/them as one exhibit per the ECF system numbering.
2

The Police Report (Exhibit 1 to the TAC) was written by Police Officer Jones, an officer with
the Vinita Park Police Department and a defendant in this case. Likewise, Plaintiffs allege causes of
action against Clay Farmer and Richard Altes, who are also officers with the Police Department.
Officer Farmer reviewed the Police Report (Ex. 1, p. 1) and Officer Altes provided final approval
(id.).
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Simms “to receive the treatment that is given and has made verbal threats in reference to shooting
anyone that comes to the house.” (TAC, ¶7; Ex. 1, p. 3). Depker apparently also told police that
Simms has been diagnosed as a manic depressant schizophrenic, but that he been off his medication
for approximately two weeks and missed an appointment. (TAC, ¶8(a), (b); Ex. 1, p. 3).
On March 31, Depker called Simms and informed him that she had spoken with his probation
officer, Spring. (TAC, ¶43(b)). Depker arranged for Simms to meet her and Springs at the probation
office on April 21, 2011. (Id.). Plaintiffs filed the Original Complaint on April 11, 2011. (Doc. No.
1).
On April 21, 2011, Simms met Spring in his office. (TAC, ¶44). Spring “[threatened] Simms
to be locked up because of the pending litigation and for Simms failing to take the drug shot from
BJC; even though Spring knows there is pending litigation between BJC, Depker et al. and Simms
cannot associate/deal with the Defendants.” (Id.). Plaintiffs allege that Spring continues to harass
Simms. (TAC, ¶¶45, 48).
On May 16, 2011, Plaintiffs filed the Third Amended Complaint. (Doc. No. 23).3 Therein,
Plaintiffs attempt to state claims for libel and slander (Count I), violations of 42 U.S.C. §1981 (Count
II), violations of 42 U.S.C. §1983 (Count II and IV), and negligence (Count III).
DISCUSSION
I.

Vinita Park Police Department
Under Missouri law, a defendant must be a must be a legal entity, i.e., corporation, quasi-

corporation, or natural person. See Parker v. Unemployment Compensation Com., 358 Mo. 365, 371
(1948)(“a party to an action in court must be a legal entity, that is either a natural person, an artificial
person or a quasi artificial person”); Reifschneider v. Des Peres Public Safety Com., No. 54370, 1988

3

All references to the Complaint refer to the Third Amended Complaint, Doc. No. 23.
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Mo. App. LEXIS 1589, at *5 (Mo. Ct. App. Nov. 15, 1988); see Gill v. Farm Bureau Life Ins. Co.,
856 S.W.2d 96, 100 (Mo. Ct. App. 1993) (holding the Missouri Farm Bureau Federation was a legal
entity and therefore not recognized as a party for purposes of the court’s review); Conrod v. Missouri
State Highway Patrol, 810 S.W.2d 614, 616 (Mo. Ct. App. 1991) (noting that “[i]t is far from clear
that the Missouri State Highway Patrol as a legal entity is a proper party defendant”).
Vinita Park Police Department (“Police Department”) asserts that it should be dismissed from
Counts I-III of this lawsuit because it is not a legal, suable entity.4 In response, Plaintiffs mistakenly
argue that the Police Department is either a “private individual” or a “legislatived [sic] governmental
body”. (Doc. No. 33, pp. 1-2). Similarly, Plaintiffs erroneously cite to case law related to lawsuits
against “municipal officials.” (Id., p. 3).
The Court holds that the Police Department is “merely an administrative arm of the City” and
is not a legal entity. Jordan v. Kansas City, 929 S.W.2d 882, 888 (Mo. Ct. App. 1996) (holding the
Neighborhood and Community Services Department is not a legislatively created entity but is an
administrative arm of the City which lacks a legal identity apart from the City and, therefore, is not
a suable entity); In re Scott County Master Docket, 672 F. Supp. 1152, 1163, n. 1 (D. Minn. 1987),
aff’d sub. nom. Myers v. Scott County, 868 F.2d 1017(8th Cir. 1989) (noting that the Scott County
Sheriff’s Department is not a legally suable entity). Accordingly, the Court dismisses Plaintiffs’
claims against the Police Department. See also Reifschneider, 1988 Mo. App. LEXIS 1589, at *4-5
(the St. Louis Board of Police Commissioners could only be sued by bringing an action against the
individual members of the board in their official capacities).

4

Count IV is not directed against the Police Department.
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II.

Count I (Libel and Slander)
In Missouri, the elements of defamation are: (1) publication, (2) of a defamatory statement,

(3) which identifies the plaintiff, (4) that is false, (5) that is published with a requisite degree of fault
and (6) damages the plaintiff’s reputation. Sterling v. Rust Communs., 113 S.W.3d 279, 281 (Mo.
Ct. App. 2003) (citing Nazeri v. Missouri Valley College, 860 S.W.2d 303 (Mo. banc 1993)); Doe
v. City of Creve Coeur, No. 4:07CV00946, 2008 U.S. Dist. LEXIS 95115, at *13 (E.D. Mo. Nov.
21, 2008)(citing State ex rel. BP Products N. Am. Inc. v. Ross, 163 S.W.3d 922, 929 (Mo. banc
2005)). Whether language is defamatory and actionable is a question of law. Pape v. Reither, 918
S.W.2d 376, 379 (Mo. App. E.D. 1996); Anton v. St. Louis Suburban Newspapers, 598 S.W.2d 493,
496 (Mo. App. E.D. 1980). “The common law provides the defamation defendant with three general
types of defenses. First, truth may always be asserted as an absolute defense. Mo. Const. art 1, § 8.
Second, certain statements are absolutely privileged: for example, statements made during judicial
proceedings. Third, other statements receive a conditional or qualified privilege.” Henry v.
Halliburton, 690 S.W.2d 775, 779 (Mo. 1985).
Plaintiffs base their defamation/libel claim against Depker, BJC, and Officers Jones, Farmer
and Altes on statements that Depker allegedly made to police in connection with the March 29, 2011
check on Simms’ welfare. (TAC, ¶¶7-9). According to the Police Report, Depker allegedly told the
Vinita police department:
1)

“Simms’... ‘father does not want Simms to receive the treatment that is given.’”

(TAC, ¶¶7, 19(d)).
2)

Plaintiff Scott “had [sic] made verbal threats in reference to shooting anyone that

comes to the house.” (TAC, ¶7).
3)

“Simms has been off his medication for approximately two weeks.’” (TAC, ¶8(a)).

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4)

“Simms has been diagnosed as a manic depressant schizophrenic”. (TAC, ¶8(b)).

Upon review of the Complaint, the Court finds Plaintiffs have not pled an adequate claim for
defamation. “Proof of actual reputational harm is an absolute prerequisite in a defamation action.”
Kenney v. Wal-Mart Stores, Inc., 100 S.W.3d 809, 817 (Mo.banc 2003); Weidner v. Anderson, 174
S.W.3d 672, 684 (Mo. Ct. App. 2005)(requiring concrete proof that a person’s reputation has been
injured). Plaintiffs allege, with any factual support, that their reputation and pecuniary interests were
damaged as a result of the Defendants’ (particularly Depker) alleged statements. Plaintiffs merely
provide formulaic claims that they were “stigmatized” (TAC, ¶14), have been “humiliated” (TAC,
¶16), and lost “political standing” and reputation (TAC, ¶¶16, 17). Plaintiffs’ allegations consist of
merely labels and conclusions. Doe v. City of Creve Coeur, 2008 U.S. Dist. LEXIS 95115, at *7-8.
Plaintiffs’ pleadings are insufficient to allege damage for defamation, and Count I is dismissed.5
III.

Counts II and IV (42 U.S.C. §§1981 and 1983)
A.

§1981

Section 1981 provides that all persons within the jurisdiction of the United States shall have
“the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” 42 U.S.C.
§ 1981(a). Because the focus of section 1981 is on contractual obligations, “‘[a]ny claim brought
under § 1981 . . . must initially identify an impaired “contractual relationship” under which the
plaintiff has rights.’” Gregory v. Dillard’s, Inc., 565 F.3d 464, 468-69 (8th Cir.) (en banc) (quoting

5

Although not briefed by the parties, the Court also believes that the actions of Vinita Park,
McGee, Jones, Farmer, or Altes is subject to the fair report privilege. See Kenney v. Scripps Howard
Broad. Co., 259 F.3d 922, 923-24 (8th Cir. 2001)(citing Restatement (Second) of Torts § 611
(1976))(“The publication of defamatory matter concerning another in a report of an official action
or proceeding or of a meeting open to the public that deals with a matter of public concern is
privileged if the report is accurate and complete or a fair abridgment of the occurrences reported.”).
Plaintiffs do not allege in the Third Amended Complaint that the Police Report inaccurately described
the events that occurred on March 29, 2011.
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42 U.S.C. § 1981(b)), cert. denied, 130 S. Ct. 628, 175 L. Ed. 2d 480 (2009) (quoting Domino’s
Pizza, Inc. v. McDonald, 546 U.S. 470, 476, 126 S. Ct. 1246, 163 L. Ed. 2d 1069 (2006)). Here,
Plaintiffs have not identified any “contract” or “agreement” that forms the basis of their § 1981 claim.
See TAC, passim; Doc. No. 50, pp. 10-11 (not identifying any contract). Plaintiffs’ §1981 claim is
dismissed.
B.

§1983
1.

Vinita Park, McGee, Jones, Farmer, or Altes

Plaintiffs allege that “Defendants, City of Vinita Park/Vinita Park Police Department’s
employee(s) failed to investigate the Statements of the Defendant, Depker ‘a White female’ before
acting against the Plaintiffs, ‘Blacks’ Scott/Simms[.]” (TAC, ¶19). Vinita Park, McGee, Jones,
Farmer, and Altes argue that law enforcement’s alleged failure to investigate a claim does not rise to
the level of a violation of a person’s constitutional rights. (Doc. No. 29, pp. 8-9). The courts have
not recognized inadequate investigation as sufficient to state a civil rights claim unless there was
another recognized constitutional right involved. Gomez v. Whitney, 757 F.2d 1005, 1006 (9th Cir.
1985); see also Scher v. Chief Postal Inspector, 973 F.2d 682, 683 (8th Cir. 1992)(plaintiffs had no
independent constitutional right to have postal employees investigate their complaints).6 Therefore,
Vinita Park, McGee, Jones, Farmer, and Altes’ Motion to Dismiss is granted with respect to
Plaintiffs’ § 1983 claim.

6

There exists a cause of action for criminal defendants who claim that law enforcement did
not adequately investigate charges brought against them. Cooper v. Martin, 634 F.3d 477, 481 (8th
Cir. 2011)(quoting Brockinton v. City of Sherwood, Ark., 503 F.3d 667, 672 (8th Cir. 2007)
(Plaintiffs must show that the law enforcement defendants’ “‘failure to investigate was intentional or
reckless, thereby shocking the conscience.’”); Amrine v. Brooks, 522 F.3d 823, 833 (8th Cir.
2008)(recognizing “a substantive due process cause of action for reckless investigation”); Akins v.
Epperly, 588 F.3d 1178, 1183, n.2 (8th Cir. 2009)(the liberty interest at stake is “the interest in
obtaining fair criminal proceedings before being denied one’s liberty in the most traditional sense”).
Plaintiffs, however, are not in the same position as the plaintiffs in those cases.
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2.
In

Count

Depker and BJC
II,

Plaintiffs

allege

that

“Depker

violated

the

Plaintiff,

Simms

contractual/performance of the agreement by not keeping such medical information
confidentially/lying and in doing so without the Plaintiffs consent; violating §1981 & §1983.” (TAC,
¶21(a)). In Count IV, Plaintiffs allege that Depker spoke with Spring and made false statements
about Simms and discriminated against Simms. (TAC, ¶43(a)). Specifically, on March 31, 2011,
Depker allegedly called Simms and told him that she had communicated with his probation officer,
Spring. (TAC, ¶43(b)). Thereafter, Spring threatened to have Simms locked up because of this
litigation and for failing to take a “drug shot” from BJC. (TAC, ¶44).
Plaintiffs’ § 1983 claim against Depker and BJC fails because they are not state actors.
Andrews v. City of W. Branch, Iowa, 454 F.3d 914, 918 (8th Cir. 2006) (noting that to state claim
under 42 U.S.C. § 1983, plaintiff must allege violation of constitutional right committed by person
acting under color of state law). Although Plaintiffs allege that BJC and Depker acted under color
of state law (TAC, ¶25), Plaintiffs do not allege any facts to support this contention. Rather, BJC
and Depker are private actors. See also Doc. No. 50, p. 11 (admitting that Depker is a private person
and claiming that BJC is liable for the actions of its employee, Depker). Plaintiffs’ § 1983 claim is
dismissed because Plaintiffs cannot state a claim.

3.

Daniel D. Spring, State of Missouri and State of Missouri Board of Probation
and Parole7
a.

Eleventh Amendment Immunity

7

Plaintiffs only allege Count IV against these Defendants. (Doc. No. 56, p. 2).
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Under the Eleventh Amendment, the States may not be sued in federal court without their
consent, unless Congress has validly abrogated the immunity. Va. Office for Prot. & Advocacy v.
Stewart, 131 S. Ct. 1632, 1637-38 (2011); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 100 (1984)(“in the absence of consent a suit in which the State or one of its agencies or
departments is named as the defendant is proscribed by the Eleventh Amendment”); Will v. Mich.
Dep't of State Police, 491 U.S. 58, 67 (1989)(holding that Eleventh Amendment immunity applies
to § 1983 claims). Accordingly, Plaintiffs’ claims against the State of Missouri and the State Board
of Probation and Parole are barred by Eleventh Amendment Immunity. See Pennhurst State Sch. &
Hosp., 465 U.S. at 100; see also Alabama v. Pugh, 438 U.S. 781, 782 (1978)(suit against the State
and its Board of Corrections is barred by the Eleventh Amendment, unless Alabama consented to
suit).
Likewise, Plaintiffs’ claims against Spring in his official capacity are barred. Lawsuits against
government officials in their official capacities are barred by the Eleventh Amendment. See Will, 491
U.S. at 71 (lawsuits against state employees in their “official” capacity are barred under the Eleventh
Amendment because officials acting in their official capacities are not “persons” under § 1983). 8
Plaintiffs’ claim against Spring in his official capacity is dismissed.
b.

§ 1983 Fails to State a Claim (Spring individually)

Plaintiffs allege that “[o]n the 21st of April 2011, while Simms was in Spring’s Office, Spring
called BJC and then threaded [sic] Simms to be locked up because of the pending litigation and for

8

Although there are exceptions to this rule, the Court does not find that this case fits within
one of those exceptions. See, e.g., 281 Care Comm. v. Arneson, 638 F.3d 621, 632 (8th Cir.
2011)(“Under the Ex Parte Young doctrine, a private party can sue a state officer in his official
capacity to enjoin a prospective action that would violate federal law”; finding defendant amenable
to suit under the Ex Parte Young exception).

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Simms failing to take the drug shot from BJC.” (TAC, ¶44). Thereafter, Plaintiffs allege that Spring
continued to “harass” Simms by requiring him to “have mental health care” and “making Simms come
to the Spring’s office every two week [sic] instead of every two months[.]” (TAC, ¶48).
The Court finds none of Plaintiffs’ allegations state a § 1983 claim. Plaintiffs’ allegations
merely demonstrate that Spring was performing his duty to supervising Simms while he was on
probation. See § 217.705, R.S.Mo. and § 217.760, R.S.Mo. (outlining duties of probation officers).
Plaintiffs do not allege anything that approaches a constitutional deprivation. Plaintiffs’ claims against
Spring are dismissed.
c.

Absolute and/or Qualified Immunity (Spring individually)

In the alternative, the Court also finds that Plaintiffs’ § 1983 claim against Spring in his
individual capacity is barred by qualified immunity. “Qualified immunity shields government officials
from liability in a § 1983 action unless the official’s conduct violates a clearly established
constitutional or statutory right of which a reasonable person would have known.” Brown, 574 F.3d
at 495 (citing Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002));
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982); Henderson v.
Munn, 439 F.3d 497, 501 (8th Cir. 2006)). To overcome a defendant’s qualified immunity claims,
the plaintiff must show that: “‘(1) the facts, viewed in the light most favorable to the plaintiff,
demonstrate the deprivation of a constitutional . . . right; and (2) the right was clearly established at
the time of the deprivation.’” Baribeau v. City of Minneapolis, 596 F.3d 465, 474 (8th Cir.
2010)(quoting Howard v. Kansas City Police Dep’t, 570 F.3d 984, 988 (8th Cir. 2009)). “The law
is clearly established if it gives the defendant officials ‘fair warning’ that their conduct violated an
individual’s rights when the officials acted.” Forrester v. Bass, 397 F.3d 1047, 1054 (8th Cir. 2005)
(citing Hope, 536 U.S. at 739-40, 153 L. Ed. 2d 666, 122 S. Ct. 2508 (2002)); see also Anderson

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v. Creighton, 483 U.S. 635, 640 (1987) (A right is “clearly established” if “a reasonable official would
understand that what he is doing violates that right.”). If a state official violates a clearly established
constitutional right, he is not entitled to qualified immunity. Harlow, 457 U.S. at 818-19.
The Eighth Circuit has “found parole officers to be entitled to either absolute immunity or
qualified immunity depending on the function at issue.” Figg v. Russell, 433 F.3d 593, 599 (8th Cir.
2006).9 As previously indicated, the allegations of the Complaint indicate that Spring merely was
performing his official duties of supervising his parolee, Simms.10 See § 217.705, R.S.Mo. and §
217.760, R.S.Mo. Based upon the allegations of the Complaint, Spring is entitled to qualified
immunity from the §1983 claim because he was acting pursuant to his statutory, official duties.
IV.

Count III (Actionable Negligence)
Plaintiffs purport to allege a claim for “Actionable Negligence” in Count III. Plaintiffs state

conclusory allegations that the defendants failed “to exercise due care of what should have been
done.” (TAC, ¶39). This allegation does not state any facts, nor does it even state the bare-bones
elements of a cause of action for negligence. See also Doc. No. 49, pp. 11-12 (again providing no
legal or factual support for a negligence claim). Rather, it merely refers to the breach of some
nebulous “duty” that has not been alleged. Therefore, the Court dismisses Count III with respect to
all Defendants.
Accordingly,

9

Id. (citing Nelson v. Balazic, 802 F.2d 1077, 1078-79 (8th Cir. 1986)(finding parole officer
entitled only to qualified immunity because the officer’s decision not to take a parolee into custody
was not a quasi-judicial function or prosecutorial decision; the decision was akin to function of police
officer); Anton v. Getty, 78 F.3d 393 (8th Cir. 1996) (finding parole officers entitled to absolute
immunity where they made recommendations to parole board that parole be delayed, similar to
quasi-judicial function performed by parole officers preparing presentence reports).
10

See TAC, Ex. 1, p. 5 (sentencing Simms to the supervision of the State Board of Probation
and Parole).
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IT IS HEREBY ORDERED that Defendant Vinita Park Police Department’s Motion to
Dismiss (Doc. No. 26), Defendants City of Vinita Park, McGee, Jones, Farmer, and Altes’ Motion
to Dismiss (Doc. No. 28), Motion to Dismiss Plaintiffs’ Claims Against Ellen Depker and BJC
Behavioral Health (Doc. No. 48), and State Defendants’ Motion to Dismiss Plaintiffs’ Third
Amended Complaint (Doc. No. 55) are GRANTED.

An order of dismissal is filed herewith.

IT IS FURTHER ORDERED that “Plaintiffs’ Motions the Court for its Order for
Preliminary Injunctions Restraining Against the Defendants Daniel D. Spring, Ann McLaughlin, State
of Missouri, Board of Probation and Parole, Ellen Depker, BJC Behavior Health and the Circuit of
St. Louis County, Missouri (Doc. No. 53) is DENIED as moot.
Dated this 20th day of July, 2011.

/s/ Jean C. Hamiton
UNITED STATES DISTRICT JUDGE

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