Elliott v. City of Wildwood et al

Filing 26

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendant St. Louis County Motion to Dismiss, [Doc. No. 18], is granted, and Counts III and IV are dismissed. IT IS FURTHER ORDERED that Defendant City of Wildwood,Missouris Motion to Dismiss, [Doc. No. 9], which the Court has converted to a Motion for Summary Judgment, is granted. A judgment as to Wildwood will beentered upon resolution of the remaining claims herein. 18 9 Signed by District Judge Henry E. Autrey on 3/28/13. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
STEVEN WAYNE ELLIOT,
Plaintiff,
vs.
CITY OF WILDWOOD, MISSOURI, et al.,
Defendants.

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) Case No. 4:12CV551 HEA
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MEMORANDUM AND ORDER
This matter is before the Court on Defendant City of Wildwood, Missouri’s
Motion to Dismiss Counts II through IV of Plaintiff’s Complaint, [Doc. No. 9],
which the Court has converted to a Motion for Summary Judgment. Also before
the Court is Defendant St. Louis County’s Motion to Dismiss Counts III and IV of
the First Amended Complaint, [Doc. No. 18]. Plaintiff opposes both motions. For
the reasons set forth below, the Motion to Dismiss filed by Defendant St Louis
County is granted; Defendant City of Wildwood, Missouri’s Motion for Summary
Judgment is granted.
Facts and Background
Plaintiff has filed a four count Amended Complaint against Defendants,
City of Wildwood, Missouri, St. Louis County through its Police Department and
St Louis county police officer, James McDonald, individually. Plaintiff alleges
that his constitutional rights under 42 U.S.C. § 1983 have been violated and also

alleges claims for assault and battery under Missouri laws.
Count I of Plaintiff’s Complaint alleges that Defendant McDonald violated
his rights under the Fourteenth Amendment and 42 U.S.C. § 1983 by using
excessive force when handcuffing him. Although the style of Count II sets out that
it is against St. Louis County, the allegations in this count include Defendant
Wildwood and claim that Defendant St. Louis County violated Plaintiff’s rights
by: delegating authority to Defendant McDonald to make policy, failing to train,
supervise and control McDonald. Count II alleges the acts off Defendant
McDonald were part of a pattern of transgressions, of which these Defendants
knew or should have known and that Wildwood and the County failed to act
proactively to prevent such a pattern of transgressions. Further, Count II alleges
that citizens of the community have complained to the City of Wildwood on
numerous occasions regarding similar acts on the part of Defendant McDonald.
Defendant Wildwood and Defendant St. Louis County, while acting in concert,
cooperation and/or conspiracy thus had a “policy or custom” of failing to act upon
prior similar complaints of unconstitutional conduct of which they knew or should
have known. Plaintiff also claims in Count II that the County waived sovereign
immunity by purchasing a policy of insurance to insure itself against claims or
cause of action for damages caused by city [sic] employees engaged in
government functions, including the torts described in the Amended Complaint.
Count III claims that the County Police Department is vicariously liable for
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Defendant McDonald’s actions under Section 1983, pursuant to the doctrine of
respondeat superior. Count IV sets forth a common law claim of assault and
batter against Defendant McDonald in his individual capacity and against the
County under a theory of respondeat superior.
Discussion
Standards of Review
Summary Judgment Standard
The Eighth Circuit Court of Appeals recently restated the applicable
standards relating to summary judgment as follows:
Summary judgment is proper if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law. The movant bears the initial
responsibility of informing the district court of the basis for its
motion, and must identify those portions of the record which it
believes demonstrate the absence of a genuine issue of material fact.
If the movant does so, the nonmovant must respond by submitting
evidentiary materials that set out specific facts showing that there is a
genuine issue for trial. On a motion for summary judgment, facts must
be viewed in the light most favorable to the nonmoving party only if
there is a genuine dispute as to those facts. Credibility determinations,
the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge. The
nonmovant must do more than simply show that there is some
metaphysical doubt as to the material facts, and must come forward
with specific facts showing that there is a genuine issue for trial.
Where the record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no genuine issue for
trial.
Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc)
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(internal citations and quotation marks omitted).
The Eighth Circuit also recently explained what the nonmoving party must
do to meet its obligation to show that disputed facts are material:
In order to show that disputed facts are material, the party opposing
summary judgment must cite to the relevant substantive law in
identifying “facts that might affect the outcome of the suit.”
Anderson [v. Liberty Lobby, Inc.], 477 U.S. [242] at 248 [(1986)].
The nonmoving party must then categorize the factual disputes in
relation to the legal elements of her claim. Id.; Rodgers v. City of Des
Moines, 435 F.3d 904, 908 (8th Cir. 2006).
Quinn v. St. Louis County, 653 F.3d 745, 751 (8th Cir. 2011). Thus, to survive a
motion for summary judgment, the nonmoving party must “explain the legal
significance of her factual allegations beyond mere conclusory statements
importing the appropriate terms of art,” and provide a “meaningful legal analysis
explaining how, under the applicable law, the disputed facts might prove [her] . . .
claim at trial.” Id. at 752 (internal citations omitted).
Rule 12(b)(6) Standard
When ruling on a 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 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
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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; C.N. v. Willmar Pub.
Sch., Indep. Sch. Dist. No. 347, 591 F.3d 624, 629-30 (8th Cir.2010); Zutz v.
Nelson, 601 F.3d 842, 848 (8th Cir. 2010); 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
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
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U.S. 319, 327 (1989).
City of Wildwood’s Summary Judgment
The Court converted Defendant Wildwood’s Motion to Dismiss to a Motion
for Summary Judgment because Defendant Wildwood supported its motion with
the affidavit of Daniel E. Dubruiel, City Administrator for the City of Wildwood,
Missouri. While Plaintiff was given the opportunity to respond to the Motion as
one for summary judgment, Plaintiff has not controverted the motion with
evidence, rather, he argues that the motion is premature, and discovery should be
allowed. Notwithstanding this argument, Plaintiff has not moved the Court to
allow discovery in accordance with Rule 56(e).
Defendant Wildwood urges that Count II1 on the grounds that the Plaintiff
cannot, as a matter of law, state a claim against Wildwood based on the theory of
respondeat superior.
“To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the United States, and
must show that the alleged deprivation was committed by a person acting under
color of state law.” Cook v. City of Bella Villa, 582 F.3d 840, 84849 (8th Cir.2009)
(citation omitted). Plaintiff’s civil right at issue is his right to be free from
unreasonable seizures of his person, enshrined by the Fourth Amendment. Moore
1

Defendant Wildwood originally sought dismissal of Count III, as well as Count II.
Count III of the Amended Complaint no longer states a claim against Defendant Wildwood, and
therefore, the Court need not address Wildwood’s arguments regarding Count III.
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v. Indehar, 514 F.3d 756, 759 (8th Cir.2008). “The right to be free from excessive
force is a clearly established right under the Fourth Amendment’s prohibition
against unreasonable seizures of the person.” Guite v. Wright. 147 F.3d 747, 750
(8th Cir.1998). “A section 1983 action is supported when a police officer violates
this constitutional right.” Id. (citation omitted). This court must evaluate
plaintiff's claim of excessive force under the reasonableness standard of the Fourth
Amendment. Montoya v. City of Flandreau, 669 F.3d 867, 870 (8th Cir.2012).
The standard tests “whether the amount of force used was objectively reasonable
under the particular circumstances.” Brown v. City of Golden Valley, 574 F.3d
491, 496 (8th Cir.2009). This, in turn, is determined “by balancing the nature and
quality of the intrusion on the individual's Fourth Amendment interests against the
countervailing governmental interests at stake .” Montova. 669 F.3d at 871
(citation omitted). Such a balance requires considering “the totality of the
circumstances, including the severity of the crime, the danger the suspect poses to
the officer or others, and whether the suspect is actively resisting arrest or

attempting to flee.” City of Bella Villa, 582 F.3d at 849. The degree of injury
suffered, to the extent it shows the amount and type of force used, is relevant to
ascertaining that balance as well. Chambers v. Pennycook, 641 F.3d 898, 904 (8th
Cir.2011). Reasonableness should not be analyzed with the 20/20 vision of
hindsight in the peace of the judge’s chambers, but rather by the perspective of a
reasonable officer on the scene. See Graham v. Connor, 490 U.S. 386, 396
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(1989).
“A claim against a [city] is sustainable only where a
constitutional violation has been committed pursuant to an official
custom, policy, or practice.” Johnson v. Blaukat, 453 F.3d 1108, 1114
(8th Cir. 2006) (citing Monell v. Dep't. of Soc. Servs. of N.Y.C., 436
U.S. 658, 690–91(1978)). And this custom, policy, or practice must
be “the ‘moving force’ behind the violation.” Patzner v. Burkett, 779
F.2d 1363, 1367 (8th Cir.1985) (quoting Monell, 436 U.S. at 694).
“Moreover, the plaintiff must show not only that a policy or custom
existed, and that it was causally related to the plaintiff's injury, but
that the policy itself was unconstitutional.” Id. at 1367 (citing Polk
Cnty. v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 70 L.Ed.2d 509
(1981)).
Luckert v. Dodge County 2012 WL 2360879, 8 (8th Cir 2012).
Mr. Dubruiel’s affidavit details the relationship between the City of
Wildwood and St. Louis County. According to the affidavit, St. Louis County,
pursuant to a Police Service Agreement, provides the City of Wildwood with police
services in exchange for monthly compensation to the County.
In accordance with the Police Service Agreement, St. Louis County trains
the police officers in accordance with State statute. The Agreement further
provides that the “policies, procedures and Code of Conduct and Discipline of the
St. Louis County Police Department will be followed in the establishment,
enforcement and conduct of the above-referred services. The City of Wildwood
does not employ, train, supervise, or control any police officers, and does not make
or maintain any policies regarding the conduct of police officers performing duties
in the City of Wildwood.
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Although Plaintiff argues that the City of Wildwood acted in concert with,
and knew or should have known, of the policies, the record is completely devoid of
any evidence to establish any unconstitutional actions on the part of the City of
Wildwood.
Although Defendant Wildwood was originally named in Count IV of
Plaintiff’s Complaint, Count IV of the Amended Complaint no longer seeks
recovery from Wildwood, and thus, Defendant’s Motion with regard to Count IV is
denied, as moot.
St. Louis County Motion to Dismiss
Defendant St. Louis County moves to dismiss Counts III and IV of the First
Amended Complaint for failure to state a claim upon which relief may be granted.
Plaintiff attempts to state a claim for vicarious liability against St. Louis County for
the alleged actions of Defendant McDonald.
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
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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). Plaintiff merely
states that the County failed to act on numerous occasions regarding similar acts on
the part of its police officers and failed to act proactively to prevent a pattern of
transgressions of Defendant McDonald. These allegations fail to satisfy the
standards set out in Twombly and Iqbal.
Regarding Count IV, Defendant urges dismissal based on sovereign
immunity. Plaintiff argues that the policy2 offered by Defendant is ambiguous.
Plaintiff seeks further discovery. Contrary to Plaintiff’s argument, the policy is

2

Although the matter is before the Court on Defendant’s Motion to Dismiss, because
Plaintiff has put the policy of insurance in issue through his Amended Complaint, the Court may
consider the policy of insurance even though it is outside the pleadings in that it is necessarily
embraced by the pleadings.
“Though matters outside the pleading may not be considered in deciding a Rule
12 motion to dismiss, documents necessarily embraced by the complaint are not
matters outside the pleading.” Enervations, Inc. v. Minn. Mining & Mfg. Co., 380
F.3d 1066, 1069 (8th Cir.2004) (quotations omitted). Documents necessarily
embraced by the pleadings include “documents whose contents are alleged in a
complaint and whose authenticity no party questions, but which are not physically
attached to the pleading.” Kushner v. Beverly Enters., Inc., 317 F.3d 820, 831 (8th
Cir.2003) (citing In re Syntex Sec. Litig., 95 F.3d 922, 926 (9th Cir.1996)).
Ashanti v. City of Golden Valley 666 F.3d 1148, 1151 (8th Cir. 2012).
1.
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clear.
To establish coverage of only those claims for which sovereign
immunity is not authorized under Section 537.600 et seq R.S.Mo.
(2007 as amended). County expressly does not hereby waive, and
County does hereby avail itself of and reserve, any and all rights,
immunities, protections and defenses available under Section 537.600
et seq., under any present and future state or federal provisions, or
under common law as it develops.
The non-waiver-of-sovereign immunity provision bars an action for assault and
battery against the County of St. Louis, and therefore, its Motion to Dismiss must
be granted.
Conclusion
Plaintiff’s Complaint fails to state a claim against Defendant St. Louis
County in Counts III and IV. Likewise, Defendant City of Wildwood is entitled to
summary judgment on Count II because it had no control over any of the actions of
Defendant McDonald under the Police Service Agreement.
Accordingly,
IT IS HEREBY ORDERED that Defendant St. Louis County Motion to
Dismiss, [Doc. No. 18], is granted, and Counts III and IV are dismissed.
IT IS FURTHER ORDERED that Defendant City of Wildwood,
Missouri’s Motion to Dismiss, [Doc. No. 9], which the Court has converted to a

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Motion for Summary Judgment, is granted. A judgment as to Wildwood will be
entered upon resolution of the remaining claims herein.
Dated this 28th day of March, 2013.

______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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