Barrientez et al v. Boyer et al

Filing 86

MEMORANDUM AND ORDER re: 68 , 70 , 72 ORDERED that the Motions to Dismiss filed by Defendants Waters and Harster, [Doc. No. 68], Jefferson County and Boyer, [Doc. No. 70] and Jefferson County, Wegge, Robertson, and Hollingsworth, [Doc. No. 72], are granted in part and denied in part as provided herein. Signed by District Judge Henry Edward Autrey on 7/2/14. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL BARRIENTEZ,
Plaintiff,
vs.
JEFFERSON COUNTY, 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 the Motions to Dismiss filed by
Defendants Waters and Harster, [Doc. No. 68], Jefferson County and Boyer,
[Doc. No. 70] and Jefferson County, Wegge, Robertson, and Hollingsworth, [Doc.
No. 72]. Plaintiff opposes the Motions. For the reasons set forth below, the
Motions are granted in part and denied in part.
Facts and Background1
Plaintiff’s Third Amended Complaint is brought pursuant to 42 U.S.C. §
1983 and various state claims. The instant Complaint alleges the following facts:
On December 25, 2010, Plaintiff was at his residence with his minor children
awaiting the arrival of their mother, Amanda Hloben, for purposes of a routine
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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.

custody exchange. Hloben arrived at Plaintiff's residence to pick up the minor
children. Hloben brought Phillip Rogers with her, 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.
Defendants Waters and Harster arrived at the residence; Defendants Griggs
and Lehman responded to Plaintiff’s residence as they were conducting routine
patrol in the general area at the time.
Defendants Waters, Harster, Griggs and Lehman made contact with Plaintiff
at his residence where he was immediately placed in handcuffs for an alleged
weapons violation. Plaintiff was admittedly cooperative with Defendants.
Defendant Waters then informed Plaintiff that he also under arrest for Domestic
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 secure 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
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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
Third 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 residence 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.
The Third 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
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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
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
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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 Plaintiff. 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 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.
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The Third Amended Complaint further alleges that Defendants Griggs and
Lehman were present during the beating and false arrest of Plaintiff and yet failed
to take appropriate disciplinary action in a timely manner against 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 such matters of civil rights. These failures proximately caused damages to
Plaintiff.”
On January 12, 2011, the, Jefferson County Prosecuting Attorney’s Office
filed charge(s) against Michael Barrientez, consisting of the singular count of
Assault 3rd- Class C Misdemeanor §565.070 RSMo. which was assigned cause
number 11JE-CR00142, State of Missouri v. Michael Barrientez. Defendant
Hollingsworth was initially assigned to prosecute this case for the State of
Missouri as directed by Defendant Wegge. No other charges were filed by the
Jefferson County Prosecuting Attorney’s Office at this time, to include assault on
a law enforcement officer, resisting arrest or failure to comply. Following resultant
litigation and a request for trial, APA Hollingsworth dismissed the Assault 3rd
charges by way of Nolle Prosequi on January 30, 2012.
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On February 1, 2012, Plaintiff filed the present §1983 action alleging
multiple counts of civil rights violations in the Eastern District of Missouri. The
applicable parties were served on February 3, 2012. At the time of the filing, there
were no additional charges filed by the Jefferson County Prosecuting Attorney’s
Office. Moreover, there was no further investigation of the matter which would
have prevented the Jefferson County Prosecuting Attorney’s Office using its office
as a means to intimidate Plaintiff from pursuing his civil claims, to include the
present felony, in January, 2012- the date of the original misdemeanor filing.
In apparent reaction to the trial request and Plaintiff initiation of the present
civil action, on April 23, 2012, and post- filing of the aforementioned
§1983complaint, the Jefferson County Prosecuting Attorney’s Office, by and
through Defendant Robertson, and as directed by Defendant Wegge, filed a new
criminal complaint now citing the singular felony charge of Unlawful Use of a
Weapon pursuant to § 571.030 §RSMo- Class D Felony. The matter was assigned
Case no. 12JE-CR01368. The Jefferson County Prosecuting Attorney’s Office
filed its latest version of the aforementioned UUW charge on January 17, 2013still a singular charge of UUW. No additional charges were ever filed by the
Jefferson County Prosecuting Attorney’s Office.
Count I is brought against Defendants Waters and Harster for alleged
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violations of Section 1983 for unlawful arrest; Count II is brought against
Defendants Waters and Harster for false imprisonment; Count III is brought
against Defendants Waters and Harster for an alleged illegal search and seizure;
Count IV is for false imprisonment against Defendants Waters and Harster; Count
V is brought against Defendants Lehman and Griggs for failure to intervene;
Count VI is a claim for the failure to supervise and discipline-Supervisor Liability
against Defendant Boyer-Jefferson County Sheriff’s Department; Count VII is an
action for failure to instruct, supervise, control, and discipline directed against
Defendant Jefferson County; Count VIII is a state law claim for battery/excessive
force against Defendants Waters and Harster; Count IX is a state law claim against
Defendants Waters and Harster for battery/excessive force; Count X is a claim for
malicious prosecution and false arrest brought against Defendants Wegge,
Robertson and Hollingsworth; Count XI is a claim for violation of Section 1983
against Defendant Wegge for failure to supervise and discipline; Count XII is a
claim for failure to instruct, supervise, control, and discipline directed against
Jefferson County.
Defendants Waters, Harster, Boyer, Wegge, Hollingsworth, Robertson and
Jefferson County have filed motions to dismiss for failure to state a claim.
Discussion
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To withstand a Rule 12(b)(6) motion, a complaint must contain sufficient
factual allegations to “state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 547 (2007). “[T]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at
555).
Rule 12(b)(6) permits a pre-answer motion to dismiss for “failure to state a
claim upon which relief can be granted[.]” Although a complaint need not contain
detailed factual allegations to survive a motion to dismiss under Rule 12(b)(6), it
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). “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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[A] well-pleaded complaint may
proceed even if it strikes a savvy judge that actual proof of those facts is
improbable, and ‘that a recovery is very remote and unlikely.’ “ Twombly, 550
U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). On a motion
to dismiss under Rule 12(b)(6), courts must accept the plaintiffs factual allegations
as true and construe all inferences in the plaintiff's favor, but need not accept a
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plaintiff's legal conclusions. Retro Television Network, Inc. v. Luken Commc'ns,
LLC, 696 F.3d 766, 768–69 (8th Cir.2012). As the moving parties under Rule
12(b)(6), Defendants bear the burden of proving that no claim exists. See 5B
Charles Alan Wright et al., Federal Practice and Procedure § 1357 (3d ed. 2004)
(“All federal courts are in agreement that the burden is on the moving party to
prove that no legally cognizable claim for relief exists.”).
In his Third Amended Complaint, Plaintiff makes vague references to 42
U.S.C. § 1983. Plaintiff's allegations, however, make no reference to Monell
Monell v. N.Y. Dep't of Social Servs., 436 U.S. 658, 690–92 (1978)) and fail to
allege any of the required elements to support such a claim. Under a Monell
claim, Section 1983 liability may attach to a municipality “if the violation resulted
from (1) an ‘official municipal policy,’ (2) an unofficial ‘custom,’ or (3) a
deliberately indifferent failure to train or supervise.” Atkinson v. City of Mountain
View, Mo., 709 F.3d 1201, 1214 (8th Cir.2013) (citations omitted) (quoting
Monell, 436 U.S. at 690–91, 98 S.Ct. 2018).
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
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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).
Although Plaintiff attempts to allege policies and customs, vague references
to such policies and customs are insufficient to state a claim.
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
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S.Ct. 1382, 137 L.Ed.2d 626 (1997); City of Canton, 489 U.S. at 38889, 109 S.Ct. 1197.
Vetch v. Bartels Lutheran, 627 F.3d 1254, 1258 (8th Cir. 2010).
As county prosecutors, Defendants Wegge, Robertson and Hollingsworth
are entitled to absolute immunity from liability for the exercise of their
prosecutorial functions. Imbler v. Pachtman, 424 U.S. 427-28 (1976); Anderson v.
Larson, 327 F.3d 762, 768 (8th Cir. 2003).
With respect to Counts I, II, IV, X, XI and XII are barred pursuant to Heck
v. Humphrey, 512 U.S. 477 (1994). Under Heck, in order to recover damages for
alleged constitutional violations, a plaintiff must establish that the conviction or
sentence has been reversed, expunged by executive order, declared invalid by the
state, or called into question by a federal court’s writ of habeas corpus. Id., at 48687. Plaintiff’s claims are collateral attacks on his conviction. Plaintiff has not
alleged that his conviction has been reversed, expunged, invalidated, or called into
question. As such, these counts fail to state causes of action.
Defendants argue that there was sufficient probable cause for Plaintiff’s
arrest, search and detention. However, in light of the motion to dismiss standard,
the Court cannot at this stage dismiss these counts on the basis of the existence of
probable cause for Plaintiff’s arrest, search and detention. Likewise, Plaintiff’s

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excessive force claim cannot be dismissed based on this determination. Since
Counts I, II and III remain, Count VIII likewise remains at this point in the
litigation. Furthermore, Defendants’ claims of qualified immunity are premature
in this motion to dismiss as they relate to the finding of probable cause.
Plaintiff’s claim against Defendant Waters in Count IX must, however, be
dismissed for failure to state a claim in that Plaintiff has failed to allege that
Defendant Waters took any action rising to the level of battery or excessive force
in relation to Plaintiff.
Conclusion
Portions of Plaintiff’s Third Amended Complaint fail to satisfy the
requirements of Rule 12(b)(6). Those portions of the Third Amended Complaint
will be dismissed.
Accordingly,
IT IS HEREBY ORDERED that the Motions to Dismiss filed by
Defendants Waters and Harster, [Doc. No. 68], Jefferson County and Boyer,
[Doc. No. 70] and Jefferson County, Wegge, Robertson, and Hollingsworth, [Doc.
No. 72], are granted in part and denied in part as provided herein
Dated this 2nd day of July, 2014.

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_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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