Abney v. City of St. Charles, MO Police Department et al

Filing 28

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' motion to dismiss is GRANTED in part and DENIED in part. (Doc. No. 23 .) The motion is GRANTED with respect to Counts III, IV, and V. Counts III and IV are DISMISSED without prejudice; Count V is DISMISSED with prejudice. The motion is DENIED with respect to Counts I and II. Signed by District Judge Audrey G. Fleissig on January 13, 2015. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PAMELA ABNEY,
Plaintiff,
v.
CITY OF ST. CHARLES, MO., et al.,
Defendants.

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Case No. 4:14CV01330 AGF

MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ motion to dismiss Plaintiff’s
amended complaint, pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim.
(Doc. No. 23.) For the reasons set forth below, the motion shall be granted in part and
denied in part.
BACKGROUND
Plaintiff Pamela Abney brought this action against Defendants City of St. Charles,
Missouri (the “City”); police officer Timothy Hancock, in his individual and official
capacities; and Chief of Police Randall D. McKinley, in his individual and official
capacities, alleging federal and state law violations in connection with her arrest and
detainment by Defendants. The following facts are alleged in Plaintiff’s amended
complaint.
On or about November 21, 2012, Defendants arrested and detained Plaintiff, who
is deaf, upon charges of assault on a law enforcement officer, interfering with the duties
of a police officer, and resisting arrest. Defendants were informed of Plaintiff’s disability

before, during, and after the arrest by Plaintiff’s sister, and Plaintiff’s sister made
repeated demands for an interpreter for Plaintiff. Officer Hancock used force during
Plaintiff’s arrest, causing her physical injuries, including a concussion and/or brain
injury, a sprained tailbone, and a sprained wrist. Defendants did not provide Plaintiff an
interpreter, did not attempt to communicate with Plaintiff or offer her any means by
which she could communicate during detention, did not inform Plaintiff of the reason for
her arrest, and did not provide the plaintiff with the required “Miranda warnings.” (Doc.
No. 18 at 2, 4, 11.)
Plaintiff brought this action on July 29, 2014. In her amended complaint, Plaintiff
argues that Defendants violated Title II of the Americans with Disabilities Act (the
“ADA”), 42 U.S.C. § 12132 (Count I); Section 504 of the Rehabilitation Act (the “Rehab
Act”), 29 U.S.C. § 794 (Count II); 42 U.S.C. § 1983 for use of excessive force and failure
to train a police officer (Counts III and IV); and the Missouri Human Rights Act (the
“MHRA”), Mo. Rev. Stat. § 213.065 (Count V). (Doc. No. 18.)
Defendants filed this motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (Doc.
No. 23.) Defendants argue that in all five Counts, Plaintiff fails to plead sufficient facts
to state a plausible claim. Additionally, Defendants raise the following arguments:
Plaintiff’s ADA and Rehab Act claims against Defendants Hancock and McKinley in
Counts I and II should be dismissed because neither statutory scheme contemplates
individual liability; Plaintiff’s § 1983 excessive force claim against all Defendants in
Count III is barred by governmental and qualified immunity, and does not entitle Plaintiff
to punitive damages; Plaintiff’s failure to train claim against all Defendants in Count IV
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is barred by sovereign and official immunity; and Plaintiff’s MHRA claim in Count V is
barred for failure to exhaust administrative remedies.
In response to the motion to dismiss, Plaintiff argues that her claims are plausible
and supported by the facts. Plaintiff contends that the ADA and Rehab Act claims
against Hancock and McKinley in Counts I and II should not be dismissed because these
Defendants are sued solely in their official capacities. Likewise, Plaintiff argues that her
excessive force claim in Count III is not barred by governmental immunity because it is
asserted solely against Hancock in his individual capacity, and Hancock is not entitled to
qualified immunity because he violated the clearly established Fourth Amendment right
to be free from excessive force. Plaintiff also argues she is entitled to punitive damages
for her excessive force claim because Hancock exhibited a reckless and/or callous
indifference to her Fourth Amendment rights. Next, Plaintiff argues that her failure to
train claim in Count IV is a civil rights action against the City for violation of Plaintiff’s
constitutional rights under § 1983, and not a state law negligence action as interpreted by
Defendants, and therefore the state law doctrines of sovereign and official immunity do
not apply. Plaintiff states that while she “does not have sufficient information at this time
to plead Count IV with more specificity regarding Defendants’ policies,” she “believes
discovery in this case will reveal further information regarding the policies and
procedures of the Defendants.” (Doc. No. 26 at 10.) Finally, Plaintiff argues that failure
to exhaust administrative remedies does not bar her MHRA claim in Count V.

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In their reply, Defendants again argue that Plaintiff has alleged insufficient facts to
support any claim; that Plaintiff’s ADA and Rehab Act claims against Hancock and
McKinley in Counts I and II fail because these statutes do not contemplate individual
liability, even if the claims are characterized as claims against individuals in their
“official capacities”; that Plaintiff’s § 1983 claim in Count III against Hancock in his
individual capacity is barred by qualified immunity; that a construction of Count IV’s
“failure to train” claim as a § 1983 action is untenable, and regardless, a single incident of
allegedly unconstitutional conduct cannot form the basis for imposing § 1983 liability
against the City; and that the exhaustion of administrative relief is a mandatory
prerequisite for Plaintiff’s MHRA claim in Count V.
DISCUSSION
To survive a motion to dismiss for failure to state a claim, a plaintiff’s allegations
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 Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements,” will not pass muster; this
standard “calls for enough fact to raise a reasonable expectation that discovery will reveal
evidence of [the claim].” Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 556. While the
court must accept the plaintiff’s factual allegations as true and construe them in the
plaintiff’s favor, it is not required to accept the legal conclusions the plaintiff draws from
the facts alleged. Iqbal, 556 U.S. at 678; Retro Television Network, Inc. v. Luken
Commc’ns, LLC, 696 F.3d 766, 768-69 (8th Cir. 2012). However, the federal pleading
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rules “do not countenance dismissal of a complaint for imperfect statement of the legal
theory supporting the claim asserted.” Johnson v. City of Shelby, 135 S. Ct. 346, 346
(2014).
ADA and Rehab Act Claims (Counts I and II)
Pursuant to Title II of the ADA, “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be subjected to discrimination
by any such entity.” 42 U.S.C. § 12132. To establish a violation of the ADA, a plaintiff
must show (1) that she has a disability; (2) that she is otherwise qualified for the benefit
or service in question; and (3) that she was excluded from the benefit due to
discrimination solely on the basis of the disability. Gorman v. Bartch, 152 F.3d 907, 912
(8th Cir. 1998). Similarly, to prevail on a claim under § 504 of the Rehab Act, a plaintiff
must demonstrate that (1) she is a qualified individual with a disability; (2) she was
denied the benefits of a program or activity of a public entity which receives federal
funds; (3) she was discriminated against based on her disability. 29 U.S.C. § 794(a);
Gorman, 152 F.3d at 911. The ADA and the Rehab Act are “similar in substance” and,
with the exception of the Rehab Act’s federal funding requirement, “cases interpreting
either are applicable and interchangeable.” Id. at 912.
The Eighth Circuit has “construed Title II of the ADA and its implementing
regulations as requiring that qualified persons with disabilities receive effective
communication that results in ‘meaningful access’ to a public entity's services,”
including, if circumstances require, “the use of auxiliary aids and services, such as
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interpreters for the hearing impaired” in connection with a deaf plaintiff’s arrest and
detention. Bahl v. County of Ramsey, 695 F.3d 778, 784 (8th Cir. 2012); see also
Gorman, 152 F.3d at 913 (“Gorman's allegations that the defendants denied him the
benefit of post-arrest transportation appropriate in light of his disability fall within the
framework of both Title II of the ADA and § 504 of the Rehabilitation Act.”). However,
whether the police denied a plaintiff effective communication, or “failed to make
reasonable modifications to their procedures to ensure effective communication, thereby
subjecting [a plaintiff] to discrimination,” is a “highly fact-specific” question that “varies
depending on the circumstances of each case, including the exigent circumstances
presented by criminal activity and safety concerns.” Bahl, 695 F.3d at 784.
Plaintiff alleges that Defendants “failed to furnish appropriate auxiliary aids, such
as a qualified interpreter,” and failed to effectively communicate with her during arrest,
charging, and interrogation. Plaintiff has therefore stated a plausible claim under the
ADA and Rehab Act. Whether Plaintiff can prove that she was denied effective
communication and discriminated against requires further development of the record.
Although Defendants argue that neither Title II of the ADA nor § 504 of the
Rehab Act contemplates claims against officers in their individual capacities, the Court
need not resolve this question because Counts I and II are asserted solely against the City
and against Defendants Hancock and McKinley in their official capacities.1 The ADA

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Defendants correctly note that Plaintiff broadly references all Defendants in her
requests for relief under each Count. However, elsewhere in her amended complaint,
Plaintiff specifies that certain Counts are asserted solely against certain Defendants. For
instance, Plaintiff states that Counts I and II are asserted solely against the City and
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and Rehab Act permit such claims. See Randolph v. Rodgers, 253 F.3d 342, 343 (8th Cir.
2001) (recognizing ADA and Rehab Act claims against prison officials in their official
capacities for failure to provide a deaf inmate with a sign-language interpreter during
disciplinary proceedings); Gorman, 152 F.3d at 913 (permitting ADA and Rehab Act
claims against police officers and board members in official capacities because these
defendants were “representatives of the Kansas City police establishment, a department
of local government and a public entity”). The Court will therefore deny Defendants’
motion to dismiss Counts I and II.
Section 1983 Excessive Force Claim (Count III)
In Count III, Plaintiff asserts a § 1983 claim based on a violation of the Fourth
Amendment right to be free from excessive force, seeking compensatory and punitive
damages. This claim requires proof that a seizure occurred, and that the force used in
effecting the seizure was objectively unreasonable. Graham v. Connor, 490 U.S. 386,
394-95(1989).
Plaintiff purports to assert Count III against both Defendants Hancock and
McKinley in their individual capacities. (Doc. No. 18 at 13.) However, in her amended
complaint and in response to the motion to dismiss, Plaintiff alleges liability solely with
respect to Hancock. See, e.g., Doc. 26 at 6-9.) Therefore, the Court will dismiss
Plaintiff’s claim against McKinley in Count III.

against Defendants Hancock and McKinley in their official capacities. (Doc. No. 18 at 34, 8-9.) Plaintiff confirms this in her response brief. (Doc. No. 26 at 5.)
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With regard to Plaintiff’s claim against Hancock in his individual capacity,
Defendants argue that this claim is barred by qualified immunity. “Under the doctrine of
qualified immunity, a court must dismiss a complaint against a government official in his
individual capacity that fails to state a claim for violation of clearly established statutory
or constitutional rights of which a reasonable person would have known.” Hager v.
Arkansas Dep’t of Health, 735 F.3d 1009, 1013 (8th Cir. 2013). In other words, to
survive Hancock’s motion to dismiss Count III on the basis of qualified immunity,
Plaintiff must plead “sufficient facts which, when construed in the light most favorable to
her, show (1) the officer violated a constitutional right and (2) the right was clearly
established at the time of the violation.” Montoya v. City of Flandreau, 669 F.3d 867,
872 (8th Cir. 2012). Although 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, in the context of qualified immunity, the right must be “clearly
established” in a more particularized sense: “[t]he contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Id.
In her response to the motion to dismiss, Plaintiff argues that her claim is
analogous to Montoya, in which the court found an officer not protected by qualified
immunity when he “perform[ed] a ‘leg sweep’ and thr[e]w to the ground a nonviolent,
suspected misdemeanant who was not threatening anyone, was not actively resisting
arrest, and was not attempting to flee.” Id. at 873. In line with this theory, Plaintiff
alleges for the first time several additional facts surrounding her encounter with Hancock,
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including that Hancock was attempting to arrest Plaintiff’s sister when Plaintiff tried to
retrieve her sister’s dropped bag; that Hancock turned to Plaintiff at this time and threw
her to the ground; that due to her disability, Plaintiff could not hear what was being said
and did not understand what was happening; and that when Plaintiff tried to stand up,
“Hancock then pressed his knee into Plaintiff’s lower back and tailbone with such force
that the Plaintiff suffered a concussion/brain injury, a sprained tailbone and a sprained
wrist.” (Doc. No. 26 at 7.) Unfortunately, Plaintiff has not pleaded these facts.
Therefore, as it stands, Plaintiff’s first amended complaint fails to state a plausible § 1983
claim against Hancock that is not barred by qualified immunity, and the Court will
dismiss Count III. However, the Court will do so without prejudice to Plaintiff’s right to
seek to amend her pleading. 2
Failure to Train (Count IV)
Plaintiff asserts Count IV solely against the City for “failure to train police
officer[s].” (Doc. No. 18 at 16.) Although Defendants treat this claim as a state law
negligence claim, subject to state law immunity doctrines, Plaintiff suggests that the
claim was intended to be a federal civil rights claim against the City, under § 1983, for
violation of her constitutional rights. Because Count IV specifically discusses violations
of Plaintiff’s federal rights and references § 1983 caselaw discussing municipal liability,
such as Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658 (1978), the Court will
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To the extent Plaintiff reasserts her request for punitive damages in an amended
complaint, the Court notes that punitive damages may be awarded in a § 1983 action, but
only “when the defendant’s conduct is shown to be motivated by evil motive or intent, or
when it involves reckless or callous indifference to the federally protected rights of
others.” Smith v. Wade, 461 U.S. 30, 56 (1983).
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deem Count IV as a § 1983 claim against the City. See Doc. No. 18 at 17; Johnson, 135
S. Ct. at 346 (holding that plaintiffs’ failure to specifically invoke § 1983 did not render
their complaint deficient). Therefore, the Court need not address Defendants’ state law
sovereign and official immunity arguments with respect to this count.
A municipality may be liable under § 1983 “if the governmental body itself
‘subjects’ a person to a deprivation of rights or ‘causes’ a person ‘to be subjected’ to such
deprivation.” Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011). But municipalities
are only liable for their own illegal acts; they may not be held vicariously liable for their
employees’ actions. Id; see also Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520
U.S. 397, 415 (1997) (“As we recognized in Monell and have repeatedly reaffirmed,
Congress did not intend municipalities to be held liable unless deliberate action
attributable to the municipality directly caused a deprivation of federal rights.”).
Thus, plaintiffs seeking to impose § 1983 liability on local governments must
prove that “action pursuant to official municipal policy” caused their injury. Connick,
131 S. Ct. at 1359. “In limited circumstances, a local government may be liable for its
decision not to train certain employees about their legal duty to avoid violating citizens’
rights.” Folkerts v. City of Waverly, 707 F.3d 975, 982 (8th Cir. 2013). However, “[t]he
failure to train must rise to ‘deliberate indifference’ to be actionable.” Id. “Deliberate
indifference is a stringent standard of fault, requiring proof that a municipal actor
disregarded a known or obvious consequence of his action.” Connick, 131 S. Ct. at 1360.
Moreover, the plaintiff must demonstrate that the lack of training actually caused the
constitutional violation in this case. Id. at 1359.
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“A pattern of similar constitutional violations by untrained employees is ordinarily
necessary to show deliberate indifference for purposes of failure to train.” Id. “It may
be, however, that ‘evidence of a single violation of federal rights, accompanied by a
showing that a municipality has failed to train its employees to handle recurring
situations presenting an obvious potential for such a violation, could trigger municipal
liability.’” Folkerts, 707 F.3d at 982 (citing Brown, 520 U.S. at 409). In this “narrow
range of circumstances,” the Supreme Court has held that “the unconstitutional
consequences of failing to train could be so patently obvious that a city could be liable
under § 1983 without proof of a pre-existing pattern of violations.” Connick, 131 S. Ct.
at 1361.
Here, Plaintiff has not alleged a pattern of similar constitutional violations, so she
must plausibly demonstrate that this case falls within the “narrow range of
circumstances” in which the municipality has failed to train its employees to handle
recurring situations presenting a patently obvious risk of civil rights violations. The
unconstitutional consequences of failing to train subordinate law enforcement officers to
properly interact with suspects with disabilities, and to refrain from excessive force, may
well be patently obvious. See Sampson v. Schenck, 973 F. Supp. 2d 1058, 1066 (D. Neb.
2013). However, Plaintiff has not pleaded any facts to demonstrate that the City has
failed to train its police officers in this regard. Indeed, Plaintiff concedes that she cannot
plead the City’s policies, or lack thereof, with any specificity at this time, though she
believes discovery will reveal evidence of this claim. Therefore, the Court will dismiss

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Count IV, without prejudice to Plaintiff’s right to seek to amend her complaint after
discovery.
MHRA Claim (Count V)
In Count V, Plaintiff alleges a violation of § 213.065 of the MHRA, which makes
it an unlawful practice for any person to refuse, withhold from, or deny any other person
“any of the accommodations, advantages, facilities, services, or privileges made available
in any place of public accommodation . . . or to segregate or discriminate against any
such person in the use thereof on the grounds of race, color, religion, national origin, sex,
ancestry, or disability,” or to attempt to do so. Mo. Rev. Stat. § 213.065.
Prior to initiating any civil lawsuit under Mo. Rev. Stat. §213.065, a complainant
must file a complaint with the Missouri Commission on Human Rights (MCHR) and
obtain a right to sue. Mo. Rev. Stat. §213.111. The discrimination charge must be filed
with the MCHR within 180 days of the date of the alleged act of discrimination. Mo.
Rev. Stat. §213.075. This requirement is a “prerequisite to seeking judicial relief.” Igoe
v. Dep’t of Labor & Indus. Relations, 152 S.W.3d 284, 287 (Mo. 2005); see also Reed v.
McDonald's Corp., 363 S.W.3d 134, 143 (Mo. Ct. App. 2012) (“The MHRA requires that
all administrative remedies be exhausted before petitioning the courts for relief.”).
Plaintiff does not dispute that she has never filed a complaint with the MCHR, and
as more than two years have passed since the alleged act of discrimination, it is too late to
do so now. Therefore, the Court will dismiss Count V with prejudice.

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CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendants’ motion to dismiss is GRANTED
in part and DENIED in part. (Doc. No. 23.) The motion is GRANTED with respect
to Counts III, IV, and V. Counts III and IV are DISMISSED without prejudice; Count
V is DISMISSED with prejudice. The motion is DENIED with respect to Counts I and
II.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 13th day of January, 2015.

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