Hankins v. Hazelwood, City of Missouri, et al
MEMORANDUM AND ORDER re: 5 MOTION to Dismiss and Strike :defendants City of Hazelwood and carl R. Wolf and strike Paragraph 30 filed by Defendant Michael Golden, Defendant Richard Berry, Defendant Jerry Fitzgerald, Defendant Hazelwo od, Missouri, City of, Defendant Carl Wolf. IT IS HEREBY ORDERED defendants' Motion to Dismiss and Strike (#5) is GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that plaintiff's claims against defendants City of Hazelwood and Carl Wolf are DISMISSED. Signed by District Judge Stephen N. Limbaugh, Jr on 11/27/13. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CITY OF HAZELWOOD, et al.,
Case No. 4:13-CV-1691-SNLJ
MEMORANDUM AND ORDER
This matter is before the Court on defendants City of Hazelwood, Missouri, and Carl
Wolf’s Motion to Dismiss (#5). Plaintiff has not responded, and the time for doing so has
Plaintiff filed this 42 U.S.C. § 1983 action against the City, the City’s police chief Carl
Wolf, and police officers Richard Berry, Michael Golden, and Jerry Fitzgerald. Plaintiff alleges
that, among other things, police officers Berry, Golden, and Fitzgerald violently assaulted him in
the parking lot of the police station and falsely imprisoned him. Plaintiff alleges that the City
maliciously prosecuted him and revoked his probation. Plaintiff alleges that the City and Wolf
are liable for the actions of defendants Berry, Golden, and Fitzgerald under the theory of
respondeat superior. Plaintiff also states that Wolf is “liable in his individual capacity for his
(#6, Cmplt. ¶ 29.)
Defendants move to dismiss the claims against the City and
Wolf and move to strike paragraph 30 of the complaint, which states that all the defendants “also
violated the Due process of the Petitioner while acting under the color of law.” (Id. ¶ 30.) (#5.)
The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is to test the
legal sufficiency of a complaint so as to eliminate those actions “which are fatally flawed in their
legal premises and designed to fail, thereby sparing litigants the burden of unnecessary pretrial
and trial activity.” Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001) (quoting
Neitzke v. Williams, 490 U.S. 319, 326-27 (1989)). “To survive a motion to dismiss, a claim
must be facially plausible, meaning that the ‘factual content . . . allows the court to draw the
reasonable inference that the respondent is liable for the misconduct alleged.’” Cole v. Homier
Dist. Co., Inc., 599 F.3d 856, 861 (8th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). The Court must “accept the allegations contained in the complaint as true and draw all
reasonable inferences in favor of the nonmoving party.” Id. (quoting Coons v. Mineta, 410 F.3d
1036, 1039 (8th Cir. 2005)). However, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
Defendants contend that the claims against the City and defendant Wolf should be
dismissed. As to the City, a “‘local government may not be sued under § 1983 for an injury
inflicted solely by its employees or agents’ on a theory of respondeat superior.” Andrews v.
Fowler, 98 F.3d 1069, 1074-75 (8th Cir. 1996) (quoting Monell v. Dep’t of Social Servs. of the
City of New York, 436 U.S. 658, 694 (1978)). Although the city could be subject to § 1983
liability if it “had a ‘policy or custom’ of failing to act upon prior similar complaints of
unconstitutional conduct, which caused the constitutional injury at issue,” plaintiff has not made
any such allegations. See id. Rather, the City’s liability is alleged to be based upon the theory of
respondeat superior, which is not cognizable.
As to defendant Wolf, the chief of police, the complaint indicates that he is “liable in his
individual capacity for his own actions, and liable in his official capacity for the actions of [the
defendant police officers] under he theory of respondeat superior.” (Cmplt. ¶ 29.) Claims based
on a supervisor’s failure to supervise or otherwise control subordinates may only be maintained if
the defendant “demonstrated deliberate indifference or tacit authorization of the offensive acts.”
Bolin v. Black, 875 F.2d 1343, 1347 (quoting Wilson v. City of North Little Rock, 801 F.2d 316,
322 (8th Cir.1986)); see also Andrew, 98 F.3d at 1078. An official exhibits deliberate
indifference only if he or she actually knows of a substantial risk and fails to respond to it
reasonably. See Farmer v. Brennan, 511, U.S. 825, 844-45 (1994). No personal involvement by
defendant Wolf has been alleged, and thus the claims against him must be dismissed.
Finally, defendants move to strike paragraph 30, which states:
The Defendants City of Hazelwood and Defendant Carl Wolf and
Officer Richard Berry, Golden, Fitzgerald also violated the Due process of the
Petitioner while acting under the color of law.
Defendants argue that plaintiff here pleads only the “label” or “conclusion” that “Due process” of
an unspecified character was somehow violated. Defendants provide no other support or
argument in favor of striking that paragraph. Pursuant to Federal Rule of Civil Procedure 12(f),
“the court may strike from a pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Although the district courts are
permitted broad discretion with regard to these matters, motions to strike are disfavored and are
infrequently granted. Stanbury Law Firm v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000). The
Court has already determined that the claims against the City and defendant Wolf must be
dismissed. Defendants have not explained why this particular paragraph — although not artfully
stated — qualifies as “redundant, immaterial, impertinent, or scandalous.” The Court will deny
the motion to strike.
IT IS HEREBY ORDERED defendants’ Motion to Dismiss and Strike (#5) is
GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that plaintiff’s claims against defendants City of
Hazelwood and Carl Wolf are DISMISSED.
Dated this 27th day of November, 2013.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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