Allen et al v. Gray et al

Filing 52

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant City of St. Louis' motion to dismiss Plaintiffs' federal claim [# 15 ] is DENIED and its motion to dismiss Plaintiffs state law claims, Counts X through XVI, [# 15 ] is GRANTED. I T IS FURTHER ORDERED that Defendants Richard Gray, Bette Battle-Turner, Thomas Irwin, Erwin Switzer, and Francis Slay (the Board)'s motion to dismiss Plaintiffs' state law claims, Counts X through XVI, [# 23 ] is GRANTED. IT IS FURT HER ORDERED that Defendants Joseph Crow, Terry James, Mark Burford, William Wilson, and Thomas Rowane' motion to dismiss Plaintiffs' claims against them in their official capacities [# 23 ] is GRANTED. IT IS FURTHER ORDERED that Defenda nt Sam Dotson's motion to dismiss Plaintiffs' claims [# 23 ] are DENIED without prejudice. IT IS FURTHER ORDERED that Plaintiffs' motion for the appointment of defendants ad litem and to substitute parties [# 22 ] is DENIED. Signed by District Judge Rodney W. Sippel on 5/26/15. (JWD)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GEORGE ALLEN, JR. and
LONZETTA TAYLOR,
Plaintiffs,
v.
THE CITY OF ST. LOUIS,
MISSOURI, et al.,
Defendants.

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Case No. 4:14 CV 1398 RWS

MEMORANDUM AND ORDER
Plaintiff George Allen, Jr. was convicted of murder and sentenced to a lengthy
term of incarceration. Almost thirty years later his convictions were overturned
and he was released from prison. Allen filed this lawsuit alleging his conviction
was the result of police misconduct in the investigation and prosecution of his
criminal case. The City of St. Louis, the St. Louis City Board of Police
Commissioners, and present and former officers and employees of the St. Louis
Metropolitan Police Department are named as defendants in this lawsuit.
Defendants have filed several motions to dismiss. Plaintiffs have filed a motion to
appoint defendants ad litem for three individual Defendants who are deceased. I
will grant in part and deny in part Defendants’ motions to dismiss. I will also deny
Plaintiffs’ motion to appoint defendants ad litem.

Background
Plaintiff George Allen, Jr. was convicted of capital murder, rape, sodomy, and
first degree burglary on July 23, 1983 in the Circuit Court of St. Louis City. Allen
was sentenced to ninety-five years of imprisonment. Allen pursued habeas relief
based on subsequent DNA testing and newly discovered evidence in the case.
Allen was granted habeas relief. He was released from custody and his conviction
was vacated on November 14, 2012 by the Cole County Circuit Court.
Allen and his mother, Plaintiff Lonzetta Taylor, filed the current lawsuit
against the City of St. Louis, Missouri (the City), the individual Board members of
the St. Louis City Board of Police Commissioners (the Board), Chief Sam Dotson of
the St. Louis Metropolitan Department, and other individual St. Louis Metropolitan
Police Department (SLMPD) employees. Plaintiffs allege that Defendants violated
Plaintiffs’ rights under the United States Constitution and committed state law torts
regarding the criminal investigation, subsequent conviction, and ongoing
incarceration of Allen.
Plaintiffs’ claims against the City, the Board, and Dotson are based on the
actions of the individual SLMPD employee defendants. Plaintiffs claim that the
City and the Board were responsible for supervising and training the employees of,
and overseeing the operations and establishing the policy of the SLMPD.
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Defendant City has moved to dismiss the claims against it on several grounds
including that it had no control over the SLMPD during the relevant timeframe in
this matter and that it has sovereign immunity from Plaintiffs’ state law tort claims.
The remaining Defendants filed a separate motion to dismiss. Defendants
Samuel Dotson, Joseph Crow, Terry James, Mark Burford, William Wilson, and
Thomas Rowane move to dismiss the claims against them in their official capacities.
Defendants Richard Gray, Bette Battle-Turner, Thomas Irwin, Erwin Switzer, and
Francis Slay (the Board) move to dismiss the claims in Counts I, II, V, VII, and VIII
for a failure to state a claim and Counts X through XVI base on sovereign immunity.
Three of the individual SLMPD Defendants are deceased. Plaintiffs have
moved to have defendants ad litem appointed in their place. Defendants oppose
this motion.
Legal Standard
When ruling on a motion to dismiss, I must accept as true all factual
allegations in the complaint and view them in light most favorable to the Plaintiff.
Fed. R. Civ. P. 12(b)(6); Erickson v. Pardus, 551 U.S. 89, 94 (2007). The purpose
of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is to test the
legal sufficiency of the complaint. An action fails to state a claim upon which relief
can be granted if it does not plead “enough facts to state a claim to relief that is
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plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). To
survive a motion to dismiss, a plaintiff’s factual allegations “must be enough to raise
a right to relief above the speculative level. Id. at 555.
Discussion
Claims against Defendant City of St. Louis
Plaintiffs allege that the City and the Board are liable for Plaintiffs’ claims.
The City had no authority or control over the operations of the SLMPD during the
relevant time period that gives rise to Plaintiffs’ claim, between 1982 and 2012.
During that period of time the St. Louis City Board of Police Commissioners
controlled the SLMPD. Section 84.010 R.S.Mo. barred the City of St. Louis from
interfering “with the powers or the exercise of the powers” of the Board. Plaintiffs
assert, without any supporting facts, that the City had authority and control over the
SLMPD between 1982 and 2012 and allowed police officers to commit the types of
civil rights violation asserted in this case. This allegation is conclusory and does
not support Plaintiffs’ claims against the City.
However, § 84.010 R.S.Mo. was repealed in 2012 and replaced by § 84.344
R.S.Mo. Section 84.344 directs the City of St. Louis to adopt an ordinance
“accepting responsibility, ownership, and liability as successor-in-interest for
contractual obligations, indebtedness, and other lawful obligations of the board of
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police commissioners…” The City adopted such an ordinance, which went into
effect on September 1, 2013. Despite the passage of that ordinance, the Board
continues to exist. Section 84.345 R.S.Mo. requires the Board to conclude its
affairs and to wind down its control of the SLMPD until the transfer of ownership
and obligations to the City has been completed. Based on the recent changes in the
control of the SLMPD, it is unclear at this point which entity is the proper defendant
is in this matter between the City and the Board. Section 84.344 requires the City to
assume the Board’s obligations. As a result, I will deny the City’s motion to
dismiss because at this stage of the case the City may be a proper defendant.
The City also asserts that it has sovereign immunity for Plaintiffs’ state law
tort claims. “Under the doctrine of sovereign immunity, public entities are immune
from suit for their negligent acts unless the General Assembly has expressly waived
such immunity.” Kraus v. Hy-Vee, Inc., 147 S.W.3d 907, 914 (Mo. Ct. App. 2004)
(citing § 537.600.1 R.S.Mo.). “A municipality has sovereign immunity from actions
at common law tort in all but four cases: (1) where a plaintiff's injury arises from a
public employee's negligent operation of a motor vehicle in the course of his
employment (section 537.600.1(1)); (2) where the injury is caused by the dangerous
condition of the municipality's property (section 537.600.1(2)); (3) where the injury
is caused by the municipality performing a proprietary function as opposed to a
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governmental function; and (4) to the extent the municipality has procured
insurance, thereby waiving sovereign immunity up to but not beyond the policy limit
and only for acts covered by the policy (section 537.610).” Bennartz v. City of
Columbia, 300 S.W.3d 251, 259 (Mo. Ct. App. 2009).
In their complaint, Plaintiffs do not expressly allege that the City has procured
insurance which would waive its sovereign immunity for state law claims.
However, the complaint does request the appointment of defendants ad litem for
three of the individual SLMPD Defendants who are deceased. A requirement for
such an appointment is that insurance exists which would cover the claims against
these Defendants. I address Plaintiffs’ motion to appoint defendants ad litem
below. Because I conclude at present that there is not any insurance coverage for
the claims against these deceased Defendants, I will grant the City’s motion to
dismiss the state law claims against it based on the City’s sovereign immunity.
Claims against the Board and individual SLMPD Defendants
The Board and individual SLMPD Defendants have also filed a motion to
dismiss.
Defendants Richard Gray, Bette Battle-Turner, Thomas Irwin, Erwin Switzer,
and Francis Slay (the Board) move to dismiss the claims in Counts I, II, V, VII, and
VIII for a failure to state a claim on the grounds that 42 U.S.C. § 1983 does not
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impose respondeat superior liability. A governmental body is not vicariously liable
under § 1983 for their employees’ actions. See Connick v. Thompson, 131 S.Ct.
1350, 1359 (2011) (“Plaintiffs who seek to impose liability on local governments
under § 1983 must prove that action pursuant to official municipal policy caused
their injury.”) Plaintiffs respond that Counts I, II, V, VII, and VII are not directed at
the Board, they are directed solely at the individual SLMPD employee defendants.
The Board also seeks to dismiss Plaintiffs’ state law claims in Counts X
through XVI based on sovereign immunity. As a public entity, the Board, like the
City, is immune from Plaintiffs’ state law claims and state law official capacity
claims subject to the exception noted above. See § 537.600 R.S.Mo. and Hafer v.
Melo, 502 U.S. 21, 25 (1991)(a suit against a government official in his official
capacity is deemed to be a suit against the employing governmental agency).
Plaintiffs assert that the Board may be liable for state law claims under the insurance
exception to sovereign immunity. As with Plaintiffs’ claims against the City, the
complaint does not identify the insurance which would support an exception to the
Board’s sovereign immunity. Instead, Plaintiffs’ assert that their motion to
substitute three individual SLMPD Defendants with defendants ad litem supports
the insurance exception. I find that the Board, like the City, is entitled to sovereign
immunity for Plaintiffs’ state law claims because I will deny the motion to appoint
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defendants ad litem as discussed below.
Defendants Joseph Crow, Terry James, Mark Burford, William Wilson, and
Thomas Rowane move to dismiss Plaintiffs’ § 1983 claims against them in their
official capacities. Plaintiffs respond that their § 1983 claims against these
Defendants were only intended to be personal capacity claims and Plaintiffs do not
oppose the dismissal of the claims against these Defendants in their official capacity.
Likewise, Plaintiffs agree to the dismissal of their state law claims against these
Defendants in their official capacities.
Defendant Sam Dotson, sued only in his official capacity, moves to dismiss
any claims against him. Plaintiffs oppose a dismissal of the claims against Dotson.
Rather than litigate the merits at this stage of the proceedings, Defendants have
withdrawn their motion regarding the claims against Dotson at this time.
Motion to substitute parties and appoint defendants ad litem
Three of the individual SLMPD Defendants, Herbert Riley, Gerald Hart, and
Aloy Lagates, are deceased. Plaintiffs seek to have defendants ad litem appointed
in their place under § 537.021.1(2) R.S.Mo. That section allows the appointment of
a defendant ad litem if the deceased wrongdoer was insured against liability. In
support of the motion, Plaintiffs argue that Missouri’s State Legal Expense Fund
qualifies as applicable insurance for the purposes of § 537.021.1(2) R.S.Mo.
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United States Magistrate Judge Thomas C. Mummert, III of this Court has addressed
this issue and found that the Fund does not qualify as insurance to satisfy the
requirements of § 537.021.1(2) R.S.Mo. See Burton v. St. Louis Board of Police
Commissioners, 2011 WL 620832 at 3 (E.D. Mo. Feb. 11, 2011). I agree with
Judge Mummert’s conclusion that The Fund is not insurance. As a result, I will
deny Plaintiffs’ motion to appoint defendants ad litem.
Accordingly,
IT IS HEREBY ORDERED that Defendant City of St. Louis’ motion to
dismiss Plaintiffs’ federal claim [#15] is DENIED and its motion to dismiss
Plaintiffs’ state law claims, Counts X through XVI, [#15] is GRANTED.
IT IS FURTHER ORDERED that Defendants Richard Gray, Bette
Battle-Turner, Thomas Irwin, Erwin Switzer, and Francis Slay (the Board)’s motion
to dismiss Plaintiffs’ state law claims, Counts X through XVI, [#23 ] is GRANTED.
IT IS FURTHER ORDERED that Defendants Joseph Crow, Terry James,
Mark Burford, William Wilson, and Thomas Rowane’ motion to dismiss Plaintiffs’
claims against them in their official capacities [#23] is GRANTED.
IT IS FURTHER ORDERED that Defendant Sam Dotson’s motion to
dismiss Plaintiffs’ claims [#23] are DENIED without prejudice.

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IT IS FURTHER ORDERED that Plaintiffs’ motion for the appointment of
defendants ad litem and to substitute parties [#22] is DENIED.

_________________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 26th day of May, 2015.

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