Jones v. Slay et al

Filing 96

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that defendants Slay, Battle-Turner, Gray, Lee and Irwin's Motion to Dismiss Counts V, VI and VII of Plaintiff's Amended Complaint is GRANTED, and Counts V, VI and VII will be DISMISSED as to these defendants. [Doc. 69] IT IS FURTHER ORDERED that defendant Sharp's Motion to Dismiss is DENIED. [Doc. 64] IT IS FURTHER ORDERED that defendant Carr's Motion to Dismiss is DENIED. [Doc. 72] IT IS FURTHER ORDERED t hat defendant Sharp shall file his Answer to Counts I and VII of the Amended Complaint within the time permitted by the Federal Rules of Civil Procedure. See Rule 12(a)(4)(A), Fed. R. Civ. P. IT IS FURTHER ORDERED that defendant Carr shall file his Answer to the Amended Complaint within the time permitted by the Federal Rules of Civil Procedure. See Rule 12(a)(4)(A), Fed. R. Civ. P. Signed by District Judge Charles A. Shaw on 11/7/2013. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

STEPHEN JONES,

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Plaintiff,
v.
FRANCIS G. SLAY, et al.,
Defendants.

No. 4:12-CV-2109 CAS

MEMORANDUM AND ORDER
This matter is before the Court on separate motions to dismiss plaintiff’s Amended
Complaint filed by defendants Shell Sharp, Vincent Carr, and the members of the Board of Police
Commissioners of the St. Louis Metropolitan Police Department: defendants Mayor Francis G. Slay,
Bettye Battle-Turner, Richard Gray, Jerome D. Lee and Thomas Irwin (collectively referred to as
the “Board”). The motions are fully briefed and ripe for review. For the following reasons, the
Board’s motion to dismiss Counts V, VI and VII will be granted, and Sharp and Carr’s motions to
dismiss will be denied in all respects.
Background
This action was filed on November 9, 2012 by plaintiff Stephen Jones against the Board and
two of its former police officers, defendants Carr and Sharp. Plaintiff alleges that his federal civil
rights were violated when he was arrested, convicted and imprisoned for a period of over twelve
years based on false evidence manufactured by defendants Carr and Sharp. Specifically, plaintiff
alleges that Carr and Sharp conspired with each other and made a false affidavit to obtain a search
warrant for plaintiff’s parents’ residence, falsely claimed that while executing the search warrant
they observed plaintiff holding a plastic bag containing $15,000 worth of cocaine base, during the

search of the residence stole $5,200 belonging to plaintiff’s father, and arrested plaintiff and falsely
testified against him at trial in order to prevent any complaints concerning the theft, as part of a
pattern of illegal activity on their parts. Plaintiff also alleges that the Board had a policy, or
pervasive custom and practice, of reliance on manufactured evidence, and that it failed to train
supervise, control, instruct or discipline the officers under its control in various respects. Plaintiff
alleges that as a result of Carr and Sharp’s conduct, he was found guilty by a jury of one count of
possession with the intent to distribute cocaine base and sentenced to 240 months in prison.
During plaintiff’s incarceration, the Federal Bureau of Investigation and the United States
Attorney’s Office for the Eastern District of Missouri began to investigate Carr and Sharp “for the
same illegal activities that resulted in [plaintiff’s] wrongful conviction and imprisonment.”
Amended Complaint at 8, ¶ 24. Plaintiff alleges that as a result of this investigation, defendant Carr
pleaded guilty in February 2009 to federal criminal charges of conspiracy to commit wire fraud, wire
fraud, making a false statement and obstruction of justice in United States v. Carr, Case No. 4:08CR-703 ERW (E.D. Mo.), based on facts very similar to those underlying the instant case, including
wrongfully accusing a third party of criminal activity in order to deflect investigation into his theft.
Plaintiff alleges that the investigation also led to defendant Sharp leaving the police department in
June 2009 “under charges” of fraudulently concocting affidavits in support of search warrants.
Based on Carr’s conviction, plaintiff sought permission from the Eighth Circuit Court of
Appeals to file a successive habeas corpus motion seeking relief under 28 U.S.C. § 2255. The
United States acquiesced in plaintiff’s request and the Eighth Circuit issued an order authorizing
plaintiff to proceed with his motion, which was filed in September 2010. After reviewing the
evidence presented at plaintiff’s trial along with new evidence concerning Carr’s corrupt practices,
the United States in November 2010 joined in plaintiff’s motion to vacate his sentence, stating there
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was no credible independent evidence to corroborate Carr’s testimony against plaintiff. The United
States also admitted that Sharp’s testimony was not reliable or credible. On November 10, 2010,
this Court, the Honorable Judge Carol E. Jackson presiding, issued an order vacating plaintiff’s
conviction and ordering the United States Bureau of Prisons to release him from custody
immediately.1 Plaintiff subsequently sought a Certificate of Innocence pursuant to 28 U.S.C. § 2513,
which was granted by Judge Jackson on May 12, 2011, who found that plaintiff was actually
innocent of the crime for which he was imprisoned for twelve years and eight months.
Plaintiff asserts federal civil rights claims against Carr, Sharp and the Board pursuant to 42
U.S.C. § 1983 and supplemental state law claims for malicious prosecution, wrongful imprisonment
and abuse of process.
Legal Standard
The purpose of a motion to dismiss for failure to state a claim is to test the legal sufficiency
of the complaint. To survive a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a
claim upon which relief can be granted, “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, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff need not
provide specific facts in support of his allegations, Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per
curiam), but “must include sufficient factual information to provide the ‘grounds’ on which the
claim rests, and to raise a right to relief above a speculative level.” Schaaf v. Residential Funding
Corp., 517 F.3d 544, 549 (8th Cir. 2008) (citing Twombly, 550 U.S. at 555 & n.3). This obligation
requires a plaintiff to plead “more than labels and conclusions, and a formulaic recitation of the

1

See Jones v. United States, 4:10-CV-1748 CEJ (E.D. Mo.).
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elements of a cause of action will not do.” Twombly, 550 U.S. at 555. A complaint “must contain
either direct or inferential allegations respecting all the material elements necessary to sustain
recovery under some viable legal theory.” Id. at 562 (quoted case omitted). This standard “simply
calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of [the
claim or element].” Id. at 556.
On a motion to dismiss, the Court accepts as true all of the factual allegations contained in
the complaint, even if it appears that “actual proof of those facts is improbable,” id. at 556, and
reviews the complaint to determine whether its allegations show that the pleader is entitled to relief.
Twombly, 550 U.S. at 555-56; Fed. R. Civ. P. 8(a)(2). The principle that a court must accept as true
all of the allegations contained in a complaint is inapplicable to legal conclusions, however. Iqbal,
556 U.S. at 678 (stating “[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice”). Although legal conclusions can provide the
framework for a complaint, they must be supported by factual allegations. Id. Plausibility is
assessed by considering only the materials that are “necessarily embraced by the pleadings and
exhibits attached to the complaint[.]” Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012)
(quoted case omitted).
Discussion
I. Defendant Board’s Motion to Dismiss
The Board moves to dismiss plaintiff’s state law claims of malicious prosecution, wrongful
imprisonment and abuse of process against it in Counts V, VI and VII of the Amended Complaint.
The Board states that plaintiff’s claims against it are based solely on allegations that defendants Carr
and Sharp were at all relevant times acting as the “employees, servants and agents” of the St. Louis
Metropolitan Police Department and the Board. The Board asserts that it is entitled to dismissal
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based on sovereign immunity for the state law claims in Counts V, VI and VII, and also asserts that
the applicable statute of limitations for Count VII has lapsed.
The Board states that under Missouri law, a claim against it based in tort is barred by the
doctrine of sovereign immunity unless the claim is based on either (1) negligent driving by public
employees, or (2) the dangerous condition of public property; pursuant to citing § 537.600.1,
Revised Statutes of Missouri (2000), and Gregg v. City of Kansas City, 272 S.W.3d 353 (Mo. Ct.
App. 2008). The Board asserts that plaintiff’s claims do not fit within either exception, and therefore
his malicious prosecution, wrongful imprisonment and abuse of process claims against it are barred
by sovereign immunity and the Court should dismiss them.
In response, plaintiff states that he was granted an extension of time and leave to perform
discovery to determine whether the Board has waived the sovereign immunity defense raised in its
motion by obtaining insurance coverage pursuant to § 537.610, Mo. Rev. Stat. Plaintiff states that
through discovery, the Board has represented that there are no potentially applicable insurance
policies or insurance coverage, either at present or from the time period of the underlying conduct
in 1977. Plaintiff concludes that he “does not believe that the Board has waived its sovereign
immunity defense as to Counts V, VI and VII.” Pl.’s Response at 2.
In Missouri, the doctrine of sovereign immunity generally protects public entities from
liability for negligent acts. Mo. Rev. Stat. § 537.600; State ex rel. Cass Medical Center v. Mason,
796 S.W.2d 621, 22 (Mo. 1990) (en banc). Numerous Missouri court decisions have held that
intentional torts are included in the protection of sovereign immunity. See, e.g., Credit Acceptance
Corp. v. Smith, 991 S.W.2d 720, 721 (Mo. Ct. App. 1999) (city entitled to sovereign immunity on
conversion claim); Mitchell v. Village of Edmundson, 891 S.W.2d 848, 850 (Mo. Ct. App. 1995)
(conversion claim; court stated, “Intentional torts have consistently been found to fall within the
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shield of sovereign immunity”). As the Board states, section 537.600.1 waives this immunity for
injuries resulting from negligent acts or omissions by public employees operating motor vehicles,
and for injuries resulting from the dangerous condition of a public entity’s property. Pursuant to
§ 537.610, “when a public entity purchases liability insurance for tort claims, sovereign immunity
is waived to the extent of and for the specific purposes of the insurance purchased.” Fantasma v.
Kansas City, Mo., Bd. of Police Comm’rs, 913 S.W.2d 388, 391 (Mo. Ct. App. 1996) (citing State
ex rel. Board of Trustees of City of N. Kansas City Mem’l Hosp. v. Russell, 843 S.W.2d 353, 360
(Mo. 1992) (en banc)).
As a result, absent the purchase of potentially applicable insurance, the Board is entitled to
sovereign immunity. Because plaintiff concedes that the Board has not purchased such insurance,
the Board’s motion to dismiss the state law claims in Counts V, VI and VII should be granted based
on sovereign immunity. As a result, it is not necessary for the Court to reach the Board’s argument
concerning the statute of limitations.
II. Defendants Sharp and Carr’s Motions to Dismiss
Defendants Sharp and Carr (collectively “defendants”) filed separate motions to dismiss.
Defendants’ motions assert similar arguments for dismissal of Counts I and VII of plaintiff’s
Amended Complaint, and the Court will address them together.2 Defendants move to dismiss
plaintiff’s claims under 42 U.S.C. § 1983 in Count I, to the extent they are based on Sharp and
Carr’s trial testimony, on the basis of absolute immunity. Defendants also move to dismiss
plaintiff’s state law abuse of process claims in Count VII as barred by applicable statute of
limitations

2

The Court will separately address defendant Carr’s arguments for dismissal of the complaint
based on collateral estoppel or res judicata.
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A. Testimonial Immunity - Count I
Count I asserts a claim for violation of plaintiff’s civil rights pursuant to 42 U.S.C. § 1983.
In their motions, defendants state there is absolute immunity from § 1983 claims for any person who
provides sworn testimony at trial, Briscoe v. LaHue, 460 U.S. 325, 335 (1983), and that this
immunity applies to all witnesses, including police officers testifying in criminal matters.
Defendants state that the factual allegations of the Amended Complaint incorporated into Count I
include several references to their testimony at plaintiff’s criminal trial, specifically paragraphs 18,
22, 35, 43, and 53(a), (b), (d) and (e). Defendants assert they are entitled to absolute immunity for
testimony at trial, and therefore are entitled to dismissal of plaintiff’s § 1983 claims in Count I to
the extent they are based on their trial testimony.
Plaintiff responds that the factual allegations defendants identify are not premised on their
testimony at trial, citing as an example the allegations in paragraphs 53(a), (b), (d) and (e). Plaintiff
states that paragraph 53(a) alleges that defendants prepared a false affidavit in support of a search
warrant when they lacked probable cause to search; paragraph 53(b) alleges defendants planted
evidence at the scene and suppressed “relevant evidence during the search of the premises and
thereafter during the time period leading up to Plaintiff’s trial, including the suppression and
destruction of photographs and the failure to obtain fingerprints on the bag of crack cocaine,”
paragraph 53(d) alleges defendants provided “false information to federal prosecutors in order to
wrongfully, illegally and unconstitutionally deprive Plaintiff of his freedom;” and paragraph 53(e)
alleges defendants framed “Plaintiff for a crime he did not commit and obtain[ed] his conviction in
order to cover up the theft of $5,200 belonging to Plaintiff’s father.” Amended Complaint at 16.
Plaintiff states that absolute testimonial immunity has no application to the pretrial phase of
a criminal case, including investigative conduct by an officer, or the officer’s conduct as a
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complaining witness, citing Malley v. Briggs, 475 U.S. 335, 340-41 (1986). Plaintiff asserts that
the essence of his claim is not that Sharp and Carr lied on the witness stand, but that they as part of
a corrupt conspiracy between police officers manufactured the case against him from the beginning,
instigated false charges against him based on manufactured evidence, suppressed exculpatory
evidence, and intentionally framed him for a crime he did not commit, in order to further their own
corrupt purpose which was the theft of $5,200. By doing these things, plaintiff alleges, Sharp and
Carr deprived him of his constitutional due process rights to a fair trial, and to not be framed for a
crime he did not commit, citing Winslow v. Smith, 696 F.3d 716, 732 (8th Cir. 2012) (“all courts
that have directly confronted the question before us agree that the deliberate manufacture of false
evidence contravenes the Due Process Clause.”) (quoted case omitted); and White v. McKinley, 519
F.3d 806, 813-14 (8th Cir. 2008) (due process violation arising from suppression of evidence
favorable to an accused as recognized in Brady v. Maryland, 373 U.S. 83 (1963), extends to badfaith actions of law enforcement officers such as investigating officers). Plaintiff contends that
Sharp and Carr are not entitled to testimonial privilege for the conduct alleged in the Amended
Complaint.
Sharp3 replies that plaintiff glosses over the allegations of the Amended Complaint and goes
beyond the scope of the motion to dismiss, which is “clearly limited to the portions of Count I of
Plaintiff’s Complaint regarding Defendant Sharp’s trial testimony.” Sharp Reply at 2. Sharp
contends that plaintiff has raised no viable arguments in response to the motion to dismiss his claims
that are based on trial testimony, which Sharp now identifies as being found only in paragraphs 22,
35 and 43 of the Amended Complaint. Paragraph 22 includes the allegation that Sharp “asserted to

3

Defendant Carr did not file a reply memorandum.
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prosecutors and at trial that . . . photographs were ‘somehow lost,’” (emphasis added); in paragraph
35 that the “Government also admitted that Detective Sharp’s testimony was not reliable or
credible;” and in paragraph 43 that plaintiff was taken into custody immediately after the verdict “as
a result of the perjured testimony of Detectives Carr and Sharp.”
Under Supreme Court precedent, witnesses are entitled to absolute immunity for damages
liability for perjured testimony, and this immunity extends to knowingly false testimony by police
officers. Briscoe, 460 U.S. at 335. Although the Amended Complaint’s factual allegations include
the three brief references to Sharp and Carr’s allegedly perjured trial testimony quoted immediately
above, and those allegations are incorporated into Count I’s § 1983 claim against these defendants,
Count I itself does not allege that Sharp and Carr violated plaintiff’s constitutional rights by offering
perjured trial testimony against him. Instead, plaintiff alleges in Count I that Sharp and Carr
violated his constitutional rights by (1) preparing a false affidavit, (2) planting evidence at the scene
and suppressing relevant evidence, (3) providing false information in the police report and other
documents, (4) providing false information to federal prosecutors, (5) framing plaintiff for a crime
he did not commit to cover up Sharp’s theft, and (6) allowing plaintiff to languish in prison despite
his knowledge that plaintiff did not commit the crime alleged. Amended Complaint at 16.
The Court considers the limited allegations in the factual portion of the Amended Complaint
concerning Sharp and Carr’s trial testimony to be largely background information that helps to
explain what happened to plaintiff and led to this lawsuit. While plaintiff cannot base a § 1983
claim on Sharp and Carr’s trial testimony, see Briscoe, 460 U.S. at 335, he does not appear to do so,
and instead asserts that other conduct by Sharp and Carr violated his constitutional rights.
Accordingly, this aspect of Sharp and Carr’s motions to dismiss should be denied. Prior to trial,

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defendants may ask the Court to revisit this issue through a motion in limine or proposed jury
instruction, if necessary.
B. Statute of Limitations - Count VII
Sharp and Carr also moves to dismiss Count VII, plaintiff’s state law claim for abuse of
process, on the basis that the applicable statute of limitations has expired. Defendants state that
under Missouri law, an action for abuse of process comes within the five-year general statute of
limitations applicable to personal injuries, Missouri Revised Statutes § 516.120(2) (2000), see
Corley v. Jacobs, 820 S.W.2d 668, 672 (Mo. Ct. App. 1991), and that the statute begins to run from
the termination of the acts that constitute the alleged abuse, not from the completion of the action
in which the process issued, citing Steinhilber v. Lake Winnebago Home Owner’s Ass’n, 965 F.2d
602, 604 (8th Cir. 1992). Defendants state that the last event plaintiff complains of as constituting
abuse of process is their false testimony at his criminal trial in February 1998. Defendants assert
that plaintiff’s cause of action for abuse of process would therefore have arisen in February 1998
and expired in February 2003, nine years prior to the commencement of this action, so Count VII
should be dismissed as barred by the statute of limitations.
Plaintiff responds that his abuse of process claim was tolled until the time his conviction was
vacated, because the claim would have impugned the conviction. Plaintiff states that Corley and
Steinhilber do not address the application of the abuse of process statute of limitations in the context
of a claim by an exonerated prisoner where the abuse of process resulted in a wrongful conviction,
and therefore provide little guidance. Plaintiff states that in the context of civil rights claims arising
from wrongful convictions, the Supreme Court has held that a claim for damages for an
unconstitutional conviction or imprisonment, or for other actions whose unlawfulness would render
a conviction or sentence invalid, does not accrue until the conviction or sentence has been reversed
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on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal court’s issuance of a writ of habeas
corpus, citing Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff also states that the Supreme Court
noted the statute of limitations would pose no problem because a cause of action that would imply
the invalidity of a conviction would not accrue until the conviction was reversed or expunged, and
the statute of limitations would not begin to run until then: “Just as a cause of action for malicious
prosecution does not accrue until the criminal proceedings have terminated in the plaintiff's favor,
. . . so also a § 1983 cause of action for damages attributable to an unconstitutional conviction or
sentence does not accrue until the conviction or sentence has been invalidated.” Heck, 512 U.S. at
489-90 (internal citations omitted).
Plaintiff states that although a claim for abuse of process does not require termination in a
plaintiff’s favor, the Supreme Court instructed that courts “must consider whether a judgment in
favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence[.]” Id. at
487. Plaintiff states that here, the Amended Complaint alleges the federal government admitted
there was no competent evidence of his guilt apart from the evidence provided by Sharp and Carr.
Plaintiff contends that because there was no other evidence with which to convict him, any claim
of abuse of process would have necessarily implied the invalidity of his conviction, and would
therefore have been barred by Heck.
In the alternative, plaintiff argues that his abuse of process claim would have been barred by
the Missouri doctrines of res judicata and collateral estoppel until such time as the conviction was
overturned, citing Adams v. VanWormer, 892 S.W.2d 655 (Mo. Ct. App. 1994) (in civil lawsuit
against police officer and witness involved in criminal trial, convicted murderer was collaterally
estopped from raising issues in civil action that had been decided against him in the earlier criminal
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trial). Plaintiff states that under these doctrines, he would have been barred from asserting his abuse
of process claim while his conviction was in effect, as he could not bring a claim alleging that Sharp
abused legal process and thereby caused his conviction without necessarily and impermissibly
challenging the validity of that conviction. Plaintiff argues that if defendant is correct and he cannot
bring an abuse of process claim now, after the conviction has been set aside, then there was no fiveyear period during which the claim could ever have been brought, and plaintiff loses his cause of
action without the benefit of any limitations period. Plaintiff concludes that because he could not
bring this claim until the bar of his conviction was removed, his claim was filed within five years
of the conviction being set aside, and therefore the claim is timely.
Plaintiff also argues that an abuse of process can constitute a “continuing tort” or “continuing
wrong” under Missouri law, citing Davis v. Laclede Gas Co., 603 S.W.2d 554, 556 (Mo. 1980) (en
banc) (“If . . . the wrong may be said to continue from day to day, and to create a fresh injury from
day to day, and the wrong is capable of being terminated, a right of action exists for the damages
suffered within the statutory period immediately preceding suit.”); and Guirl v. Guirl, 708 S.W.2d
239, 247 (Mo. Ct. App. 1986) (filing and maintaining a petition constituted abuses of process).
Plaintiff states that he alleges Sharp and Carr “allow[ed] Plaintiff to languish in prison for almost
13 years, despite Defendants’ knowledge that Plaintiff did not commit the crime alleged.” Amended
Complaint at 16, ¶ 53(f). Plaintiff contends that Sharp and Carr could have come forward and told
the truth at any time during his incarceration but did not, and as a result the term of his incarceration
constitutes a continuing wrong and the limitations period for his abuse of process claim was tolled
during his incarceration.
In reply, Sharp argues that Heck concerned a prisoner seeking damages in a § 1983 suit, and
plaintiff fails to explain how a Supreme Court decision regarding the accrual of a § 1983 action
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would have any bearing on the accrual of a claim for abuse of process under Missouri law. Sharp
contends that plaintiff’s alternative theory of a continuing tort fails because statutes of limitation are
favored under Missouri law and any exceptions must be strictly construed, Graham v. McGrath, 243
S.W.3d 459, 464 (Mo. Ct. App. 2007), and plaintiff bears the burden to show that he strictly comes
within a claimed exception. Id. Sharp concedes that plaintiff’s action for abuse of process might
have been subject to a collateral estoppel defense, but asserts this does not save the untimely cause
of action because plaintiff provides no authority that application of the doctrine results in the statute
of limitations being tolled. Sharp concludes that because claims for abuse of process are subject to
a five-year limitations period, the claim is time barred and must be dismissed.
The Eighth Circuit has explained, “Bar by a statute of limitation is typically an affirmative
defense, which the defendant must plead and prove.” Jessie v. Potter, 516 F.3d 709, 713 (8th Cir.
2008). “A defendant does not render a complaint defective by pleading an affirmative defense[.]”
Id. Thus, “As a general rule, the possible existence of a statute of limitations defense is not
ordinarily a ground for Rule 12(b)(6) dismissal unless the complaint itself establishes the defense.”
Joyce v. Armstrong Teasdale, LLP, 635 F.3d 364, 367 (8th Cir. 2011) (quotation marks and quoted
case omitted). As a result, the inquiry for purposes of the instant motion is whether plaintiff’s
Amended Complaint establishes that his abuse of process claim is barred by the statute of
limitations.
Because this is a state law claim, the Court applies Missouri law regarding the statute of
limitations and any rules that are an integral part of the statute of limitations, such as tolling and
equitable estoppel. See Walker v. Barrett, 650 F.3d 1198, 1203-04 (8th Cir. 2011). The parties
agree that the five-year statute of limitations of § 516.120(2) applies to a claim for abuse of process.
See Corley, 820 S.W.2d at 672. In Missouri, the statute of limitations on an abuse of process claim
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“begins to run[] from the termination of the acts which constitute the abuse complained of, and not
from the completion of the action in which the process issued.” Id.
The complaint alleges that the actions constituting abuse of process occurred in 1997 and
1998, but also alleges that plaintiff was imprisoned based solely on the false evidence manufactured
and provided by Sharp and Carr, and was not released until November 11, 2010. The complaint
further alleges that plaintiff was unable to bring his claims until he was released because each claim
would have impugned his then-existing conviction. These allegations from the complaint could
plausibly support plaintiff’s collateral estoppel argument raised in opposition to the motion to
dismiss, and therefore the complaint itself does not entirely foreclose the possibility that plaintiff
can successfully rebut defendants’ statute of limitations defense. In addition, as plaintiff asserts,
Missouri recognizes the continuing tort or continuing wrong doctrine, see Davis v. Laclede Gas Co.,
603 S.W.2d at 556, which could plausibly apply here.4
Defendants argue plaintiff has not cited any Missouri cases holding that even if he was
collaterally estopped from bringing suit, this would have any effect on the statute of limitations.
This argument fails to recognize that in the context of a motion to dismiss under Rule 12(b)(6),
dismissal on the basis of the statute of limitations is proper only where the complaint itself
establishes the defense. See Joyce, 635 F.3d at 367. The complaint does not so establish in this
case. The Court also notes that defendants, as the moving parties, have not cited any Missouri cases
to support their argument that collateral estoppel would not have an effect on the statute of
limitations.

4

There is no indication that Missouri courts have adopted the analytical framework of Heck
v. Humphrey, 512 U.S. at 486-87, for analyzing the accrual of state law claims. Cf. Parish v. City
of Elkhart, 614 F.3d 677, 681 (7th Cir. 2010) (stating that the Indiana Court of Appeals had adopted
the Heck framework with respect to the accrual of state law claims for false imprisonment).
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Based on the foregoing, defendants Sharp and Carr’s motions to dismiss plaintiff’s abuse of
process claim in Count VII as untimely should be denied.
III. Defendant Carr’s Motion to Dismiss
Defendant Carr moves to dismiss plaintiff’s malicious prosecution, false imprisonment and
abuse of process claims in Counts IV, V and VI of the Amended Complaint on the basis that each
count fails to state a claim upon which relief can be granted. Defendant Carr’s Memorandum in
Support of his motion to dismiss does not make any mention of this, and does not cite any case law
or provide any argument in support of dismissal these counts on Rule 12(b)(6) grounds. As a result,
this aspect of Carr’s motion to dismiss should be denied.
Defendant Carr also moves to dismiss plaintiff’s Amended Complaint on the basis of
collateral estoppel or res judicata, because plaintiff did not contend in his criminal prosecution that
he had been framed. Carr argues that as a result of this failure, plaintiff is collaterally estopped from
revisiting the issue in this civil action. Carr does not articulate the elements of collateral estoppel
or res judicata, or explain how they are met here. Instead, Carr merely cites three cases without
explaining how they support his motion to dismiss. The Court has reviewed the cases cited by Carr
and finds they do not support his argument.5 This aspect of Carr’s motion to dismiss should
therefore be denied.

5

See United States v. Oppenheimer, 242 U.S. 85 (1916) (holding that a judgment dismissing
an indictment because it was barred by the statute of limitations is a bar to a second prosecution for
the same offense under a new indictment); United States v. Haley, 452 F.2d 398 (8th Cir. 1971)
(rejecting defendant’s argument that his conviction on conspiracy charge in one jurisdiction
collaterally estopped his prosecution on substantive charges in another jurisdiction); Wintermute v.
Kansas Bankers Surety Co., 630 F.3d 1063 (8th Cir. 2011) (res judicata and the law of the case
doctrine barred plaintiff from attempting to amend a civil claim after it had been dismissed and the
dismissal affirmed on appeal, as the proposed amendment could have been included in the original
claim but was not).
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Conclusion
For the foregoing reasons, the Board’s motion to dismiss Counts V, VI and VII based on
sovereign immunity should be granted. The motions to dismiss filed by defendant Sharp and
defendant Carr should be denied in all respects.
Accordingly,
IT IS HEREBY ORDERED that defendants Slay, Battle-Turner, Gray, Lee and Irwin’s
Motion to Dismiss Counts V, VI and VII of Plaintiff’s Amended Complaint is GRANTED, and
Counts V, VI and VII will be DISMISSED as to these defendants. [Doc. 69]
IT IS FURTHER ORDERED that defendant Sharp’s Motion to Dismiss is DENIED.
[Doc. 64]
IT IS FURTHER ORDERED that defendant Carr’s Motion to Dismiss is DENIED. [Doc.
72]
IT IS FURTHER ORDERED that defendant Sharp shall file his Answer to Counts I and
VII of the Amended Complaint within the time permitted by the Federal Rules of Civil Procedure.
See Rule 12(a)(4)(A), Fed. R. Civ. P.
IT IS FURTHER ORDERED that defendant Carr shall file his Answer to the Amended
Complaint within the time permitted by the Federal Rules of Civil Procedure. See Rule 12(a)(4)(A),
Fed. R. Civ. P.

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An appropriate order of partial dismissal will accompany this Memorandum and Order.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 7th day of November, 2013.

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