Barrientez et al v. Boyer et al

Filing 40

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendant Jefferson County Sheriffs Departments Reinstated Motion to Dismiss, [Doc. No. 25], is granted Defendants Missouri State Highway Patrol, Repolgle and Johnsons Motion to Dismiss, [Doc. No . 26], is granted.IT IS FURTHER ORDERED that Plaintiff will be given 14 days from the date of this Opinion, Memorandum and Order to file an Amended Complaint in accordance with the discussion herein. Failure to file an Amended Complaint will result in dismissal of this action with prejudice. 25 26 ( Response to Court due by 2/20/2013.) Signed by District Judge Henry E. Autrey on 2/6/13. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL BARRIENTEZ,
Plaintiff,
vs.
JEFFERSON COUNTY SHERIFF’S
DEPARTMENT, et al.,
Defendants.

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) Case No. 4:12CV179 HEA
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OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant Jefferson County Sheriff’s
Department’s Reinstated Motion to Dismiss, [Doc. No. 25] and Defendants
Missouri State Highway Patrol, Repolgle and Johnson’s Motion to Dismiss, [Doc.
No. 26]. Plaintiff opposes the Motions. For the reasons set forth below, the
Motions are granted.
Facts and Background1
Plaintiff’s Amended Complaint is brought pursuant to 42 U.S.C. § 1983 and
alleges the following facts:
On December 25, 2010, Plaintiff was at his residence with his minor children

1

The recitation of facts is taken from Plaintiff’s Amended Complaint and is set forth for
the purposes of these Motions, only. The recitation in no way relieves the parties of the
necessary proof thereof in later proceedings.

awaiting the arrival of their mother, Amanda Hloben, for purposes of a routine
custody exchange. Hloben arrived at Plaintiff's residence to pick up the minor
children. Hloben brought with her Phillip Rogers, notwithstanding a prior
agreement not to bring Rogers to Plaintiff's residence.
Without incident, Hloben retrieved the minor children. When Plaintiff
observed Rogers, an argument ensued which resulted in a call to the police.
Hloben placed the call from her parents' residence which is located in Jefferson
County, Missouri.
Defendant Waters was dispatched to the parents’ residence where she met
and interviewed Hloben. Hloben informed Defendant Waters that she was the
victim of a domestic assault and that Plaintiff had a rifle which he used to threaten
Rogers and her.
Defendants Waters and Harster arrived at Plaintiff’s residence. In addition,
Defendants Griggs and Lehman elected to respond to Plaintiff's residence since
they were conducting routine patrol in the general area at that time.
Defendants Waters, Harster, Griggs and Lehman made contact with Plaintiff
at his residence where he was immediately placed in hand-cuffs for an alleged
weapons violation. Plaintiff was admittedly cooperative with Defendants.
Defendant Waters then informed Plaintiff that he also under arrest for Domestic
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Assault 3rd Degree, and Unlawful Use of a Weapon. At that time, Plaintiff was not
in possession of a weapon, acquiesced to the application of force to be secured in
hand-cuffs and informed Defendants Waters and Harster that he did have a rifle
and directed them to his bedroom closet.
Post- arrest and prior to confirming the existence of a weapon, and absent
confirmation of an actual assault, Defendant Lehman retrieved an unloaded .22
caliber rifle and seized same. No ammunition was located at Plaintiff's residence
and there was no attempt to confirm whether the rifle was functional. Plaintiff’s
Amended Complaint further alleges that the rifle was inoperable.
During the search, which was conducted by Griggs and Lehman, Defendant
Harster placed Plaintiff on the kitchen floor of the residence in prone position, and
handcuffed Plaintiff’s hands behind his back. Defendants Griggs and Lehman were
allegedly aware that Defendant Harster was with Plaintiff in the kitchen and
observed him in that location as the apartment is small. Defendants Griggs and
Lehman were further aware that Plaintiff was forced to remain in prone position on
the kitchen floor although he presented no physical threat to Defendants as he was
restrained and otherwise cooperative. Defendant Waters proceeded out of the
residence with one of Plaintiff's two children to meet with Ms. Hloben who was
waiting in the parking lot.
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The Amended Complaint further alleges that at the time, Plaintiff was
recovering from significant cancer treatment, to include multiple skin grafts, bone
removal and prosthetic replacement of portions of his skull and facial structure.
Plaintiff alleges that lying on his stomach on the floor of the kitchen caused
significant pain and discomfort due to the pressure of his own body-weight on his
head and other areas subject to prior surgery and cancer treatment. Plaintiff
requested the opportunity to sit-up because of the immense pressure and pain being
exerted on his face and skull. Despite repeated requests, Defendant Harster
referenced Plaintiff's Latino heritage, and denied the requests. Due to the pain,
Plaintiff attempted to shift his body, specifically and only his head, to the other side
in order to alleviate the pain caused by the pressure of being on the floor without
adequate bone support to address the pressure his body weight placed on the
cancer-stricken areas. At that time, Defendant Harster, while in the presence of
Defendants Griggs and Lehman, lifted Plaintiff off of the ground by his arms and
hand-cuffs and then slammed his face into the kitchen floor causing injury to
Plaintiff and the expiration of a notable amount of blood from his face and head
area. Plaintiff screamed out and attempted to move his body at which time
Defendant Harster slammed his face to the ground for a second time, and then
escalated the beating by ramming Plaintiff's head through a kitchen wall causing
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additional injury, to include laceration(s), bruising, contusion(s) and exacerbation
of existing cancer-related ailments, all requiring hospitalization and all evidenced
by medical records. Defendants Griggs, Lehman and Waters disregarded the
actions of Defendant Harster and failed to intervene at any time.
Plaintiff was transported in police custody by Defendant Waters to Jefferson
Regional Hospital for treatment for those injuries. Plaintiff was later transported by
Defendant Waters to the Jefferson County Jail where he was jailed for several
hours, searched thoroughly, interrogated by Defendants Waters and Harster, and
forced to issue a written statement. While in custody, Defendant Waters
communicated discriminatory bases for Defendant Harster's actions, including
additional references to Latino heritage and immigration status, and informed
Plaintiff that he would need to make a statement.
Plaintiff alleges that the written statement he made was demanded by
Defendants Waters and Harster. In the written statement Plaintiff admitted
pointing the rifle at Rogers so as to intimidate. Defendants Waters and Harster
informed Plaintiff that he would not be allowed to leave until he submitted the
written statement.
Defendants Waters and Harster then allegedly prepared materially false and
inconsistent Incident reports including false representations that Plaintiff (1) used a
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weapon in the commission of an assault; (2) failed to comply with officers'
directives; (3) struck his own face on the kitchen floor; and (4) issued a voluntary
statement.
No charges for use of a weapon, assaulting a law enforcement officer, or
failing to comply were ever filed.
The Amended Complaint further alleges that Defendants Griggs and Lehman
were present during the beating and false arrest of Plaintiff and yet failed to
intervene in a manner that would have protected Plaintiff from unnecessary civil
rights violations by Defendants Harster and Waters. Defendant Boyer was made
aware of the false arrest of Plaintiff yet failed to take appropriate disciplinary
action in a timely manner against Defendants Harster ,Waters and/or Lehman.
Plaintiff claims that Defendant Boyer's inaction “was congruent with a pattern of
complacency with respect to proper arrest protocol in the Jefferson County Sheriff's
Department; a failure that is consistent with the insulating barrier created by
Defendant Boyer as his department turns a ‘blind eye’ towards [sic] such matters of
civil rights. These failures proximately caused damages to Plaintiff.”
Defendants Repogle and Johnson were made aware of the false arrest of Plaintiff
yet failed to take appropriate disciplinary action in a timely manner against
Defendants Griggs or contact Defendant Boyer for purposes of alerting the sheriff
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as to the actions of Defendants Waters, Harster and/or Lehman. Plaintiff alleges
that “this disregard of an obvious civil rights violation was aligned with a general
law enforcement understanding that the Jefferson County Sheriff's Department
operates outside of acceptable law enforcement norms. These failures proximately
caused damages to Plaintiff.”
Discussion
A motion to dismiss under Rule 12(b)(1) may challenge either the facial
sufficiency or the factual truthfulness of the plaintiff's jurisdictional allegations.
Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). When passing on a facial
challenge, a court must presume that all of the plaintiff's jurisdictional allegations
are true. Id. The motion must be granted if the plaintiff has failed to allege a
necessary element supporting subject matter jurisdiction. Id. A court confronted
with a factual challenge must weigh the conflicting evidence concerning
jurisdiction, without presuming the truthfulness of the plaintiff's allegations. Land
v. Dollar, 330 U.S. 731, 735 n.4 (1946); Osborn v. United States, 918 F.2d 724,
730 (8th Cir. 1990).
When ruling on a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss
for failure to state a claim, the Court must take as true the alleged facts and
determine whether they are sufficient to raise more than a speculative right to
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relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). The Court does
not, however, accept as true any allegation that is a legal conclusion. Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949-50 (2009). The complaint must have “‘a short and
plain statement of the claim showing that the [plaintiff] is entitled to relief,’ in
order to ‘give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.’” Twombly, 550 U.S. at 555 (quoting Fed.R.Civ.P. 8(a)(2))
and then Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated by Twombly, supra);
see also Gregory v. Dillard’s Inc., 565 F.3d 464, 473 (8th Cir.) (en banc), cert.
denied, 130 S.Ct. 628 (2009). While detailed factual allegations are not necessary,
a complaint that contains “labels and conclusions,” and “a formulaic recitation of
the elements of a cause of action” is not sufficient. Twombly, 550 U.S. at 555;
accord Iqbal, 129 S.Ct. at 1949. The complaint must set forth “enough facts to
state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570;
accord Iqbal, 129 S.Ct. at 1949; Braden v. Wal-Mart Stores, Inc., 588 F.3d 585,
594 (8th Cir. 2009). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. If the
claims are only conceivable, not plausible, the complaint must be dismissed.
Twombly, 550 U.S. at 570; accord Iqbal, 129 S.Ct. at 1950. In considering a
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motion to dismiss under Fed. R. Civ. P. 12(b)(6), “the complaint should be read as
a whole, not parsed piece by piece to determine whether each allegation, in
isolation, is plausible.” Braden, 588 F.3d at 594. The issue in considering such a
motion is not whether the plaintiff will ultimately prevail, but whether the plaintiff
is entitled to present evidence in support of the claim. See Neitzke v. Williams, 490
U.S. 319, 327 (1989). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’ ” Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949,(2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Thus, “although a
complaint need not include 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.’ ” C.N. v. Willmar Pub. Sch., Indep. Sch. Dist. No. 347, 591 F.3d 624, 629-30
(8th Cir.2010) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
The Jefferson County Sheriff’s Department urges dismissal arguing that it is
not an entity amenable to suit. under Section 1983. Plaintiff recognizes that the
Sheriff’s Department is correct under current law, but argues that including the
Sheriff’s Department is an “essentially technical error.” The Court disagrees with
Plaintiff’s analysis that including the Sheriff’s Department is merely a technical
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error. As Plaintiff himself points out, the Eighth Circuit has clearly recognized that
sheriff departments are not suable entities. Ketchum v. City of Memphis, 974 F.2d
81, 82 (8th Cir. 1992); Wade v. Tompkins, 73 Fed.App. 890, 893 (8th Cir. 2003).
Plaintiff requests that the Court allow him to once again amend to add the Jefferson
County Government. The Court will allow an additional Amendment to comply
with the pleading requirements of an action against the County Government.
With respect to Defendant Missouri State Highway Patrol, the Court agrees
that this entity is entitled to Eleventh Amendment immunity.
Under the U.S. Constitution, states are immune from suits commenced or
prosecuted against them by their citizens. Alden v. Maine, 527 U.S. 706, 119 S.Ct.
2240 (1999). Defendants argue that they are immune from suit pursuant to the
Eleventh Amendment. The Eleventh Amendment provides:
The Judicial Power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.

U.S. Const. amend. XI. The Supreme Court has interpreted this Amendment to
prohibit suits against a state by a state’s own residents in federal court. Hans v.
Louisiana, 134 U.S. 1, 15-16 (1890).
In certain circumstances, where Congress has “unequivocally expresse[d] its
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intent to abrogate the immunity” in the relevant statute, the Eleventh Amendment
will not operate as a bar to suit against a state. Seminole Tribe of Florida v.
Florida, 517 U.S. 44, 55 (1996) (quoting Green v. Mansour, 474 U.S. 64, 68
(1985)). However, Plaintiff fails to point to any authority demonstrating any
Congressional intent to abrogate immunity in any statute relevant to this case. The
Court agrees with Defendant that it is protected by Eleventh Amendment immunity.
The Missouri Highway Patrol is an instrumentality of the state, and is thus entitled
to Eleventh Amendment immunity. See Texas Community Bank, N.A. v. Missouri
Dep't of Social Services, Division of Medical Services, 232 F.3d 942, 943 (8th
Cir.2000) citing Edelman v. Jordan, 415 U.S. 651 (1974). Therefore, the Court
finds that Plaintiff’s action against the Missouri State Highway Patrol is barred.
With respect to Defendant Griggs, Defendant has been included in the
Motion to Dismiss the Amended Complaint, however, Griggs does not argue any
basis for his dismissal, and in fact, has filed an Answer to the Amended Complaint.
Accordingly, the Court believes that Defendant Griggs does not intend to seek
dismissal at this stage of the litigation. His motion to dismiss will therefore be
denied.
As to Defendants Replogle and Johnson, Plaintiff’s Amended Complaint is
brought against them in their individual capacity. Defendants Replogle and
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Johnson are named solely for their alleged failure to supervise and discipline a
subordinate, Defendant Griggs. Plaintiff fails to set out any facts which could
establish their failure to supervise Defendant Griggs, and merely alleges that
Griggs was not properly disciplined after the alleged deprivation of Plaintiff’s
rights. Supervisors cannot be held vicariously liable under 42 U.S.C. § 1983.
Rather, Plaintiff must plead that the official, through his own actions violated the
Constitutional rights of Plaintiff.
“Because vicarious liability is inapplicable to ... § 1983 suits, a
plaintiff must plead that each Government-official defendant, through
the official's own individual actions, has violated the Constitution.”
Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 1948, 173 L.Ed.2d
868 (2009). Thus, “each Government official, his or her title
notwithstanding, is only liable for his or her own misconduct.” Id. at
1949. As we have held, a supervising officer can be liable for an
inferior officer's constitutional violation only “ ‘if he directly
participated in the constitutional violation, or if his failure to train or
supervise the offending actor caused the deprivation.’ ” Otey v.
Marshall, 121 F.3d 1150, 1155 (8th Cir.1997) (quoting Tilson v.
Forrest City Police Dep't, 28 F.3d 802, 806 (8th Cir.1994)); see also
Wever v. Lincoln County, 388 F.3d 601, 606–07 (8th
Cir.2004).(footnote omitted).
Parrish v. Ball, 594 F.3d 993, 1002 (8th Cir 2010). The Motion to Dismiss
Replogle and Johnson is therefore well taken.
Although Plaintiff attempts to allege policies and customs, vague references
to such policies and customs are insufficient to state a claim.

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In Monell v. Department of Social Services, 436 U.S. 658, 98
S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that a
municipality can be liable under § 1983 if an “action pursuant to
official municipal policy of some nature caused a constitutional tort.”
Id. at 691, 98 S.Ct. 2018. To establish municipal liability, a plaintiff
must first show that one of the municipality's officers violated her
federal right. See City of Los Angeles v. Heller, 475 U.S. 796, 799, 106
S.Ct. 1571, 89 L.Ed.2d 806 (1986) (per curiam); Sanders v. City of
Minneapolis, 474 F.3d 523, 527 (8th Cir.2007). If that element is
satisfied, then a plaintiff must establish the requisite degree of fault on
the part of the municipality and a causal link between municipal policy
and the alleged violation. See City of Canton v. Harris, 489 U.S. 378,
388-92, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Such a showing
requires either the existence of a municipal policy that violates federal
law on its face or evidence that the municipality has acted with
“deliberate indifference” to an individual's federal rights. See Bd. of
the Cnty. Comm'rs v. Brown, 520 U.S. 397, 404-07, 117 S.Ct. 1382,
137 L.Ed.2d 626 (1997); City of Canton, 489 U.S. at 388-89, 109 S.Ct.
1197
Vetch v. Bartels Lutheran, 627 F.3d 1254, 1258 (8th Cir. 2010).
Conclusion
Plaintiff’s Amended Complaint fails to satisfy the requirements of Rule
12(b)(6), as discussed herein. The motions therefore are well taken and will be
granted.
Accordingly,
IT IS HEREBY ORDERED that Defendant Jefferson County Sheriff’s
Department’s Reinstated Motion to Dismiss, [Doc. No. 25], is granted
Defendants Missouri State Highway Patrol, Repolgle and Johnson’s Motion to
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Dismiss, [Doc. No. 26], is granted.
IT IS FURTHER ORDERED that Plaintiff will be given 14 days from the
date of this Opinion, Memorandum and Order to file an Amended Complaint in
accordance with the discussion herein. Failure to file an Amended Complaint will
result in dismissal of this action with prejudice.
Dated this 6th day of February, 2013.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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