White et al v. Jackson et al

Filing 70

OPINION, MEMORANDUM, AND ORDER - IT IS HEREBY ORDERED that the St. Louis County Defendants Motions to Dismiss the Second Amended Complaint [Doc. Nos. 42 , 43 , 44 , 45 , 46 , 47 ] are GRANTED IN PART and DENIED IN PART. IT IS FURTHER ORDERED t hat the Ferguson Defendants Motion to Dismiss the Second Amended Complaint [Doc. No. 50 ] is DENIED. IT IS FURTHER ORDERED that the St. Louis County Defendants Motion to Sever [Doc. No. 35 ] is DENIED. IT IS FURTHER ORDERED that Plaintiffs claims f or intentional infliction of emotional distress are DISMISSED. IT IS FURTHER ORDERED that Plaintiffs claims for negligent supervision are DISMISSED. IT IS FURTHER ORDERED that Plaintiff William Daviss claim for assault and battery is DISMISSED. IT IS FURTHER ORDERED that the St. Louis County Defendants Motions to Dismiss the Complaint [Doc. Nos. 23 , 25 , 27 , 29 , 31 , 33 ] are DENIED AS MOOT. IT IS FURTHER ORDERED that the Ferguson Defendants Motion to Dismiss the Complaint [Doc. No. 13 ] is DENIED AS MOOT. Signed by District Judge Henry Edward Autrey on 3/16/15. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TRACEY WHITE, et al.,

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Plaintiffs,
v.
THOMAS JACKSON, et al.,

Defendants.

No. 4:14CV1490 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on the St. Louis County Defendants’ six separate Motions
to Dismiss, which were joined by the Ferguson Defendants [Doc. Nos. 42–47]; the Ferguson
Defendants’ Motion to Dismiss [Doc. No. 50]; and the St. Louis County Defendants’ Motion to
Sever, which was joined by the Ferguson Defendants [Doc. No. 35]. Plaintiffs oppose these
Motions. For the reasons set forth below, the St. Louis County Defendants’ Motions to Dismiss
will be granted in part and denied in part, the Ferguson Defendants’ Motions to Dismiss will be
denied, and the Motion to Sever will be denied.
Facts and Background1
Michael Brown, Jr. was shot and killed by a police officer on August 9, 2014, in the City
of Ferguson, Missouri. In the hours and days that followed, large crowds gathered in Ferguson to
protest Brown’s death. The pleadings assert the protests “subsequently led to civil unrest in the
streets of Ferguson, Missouri when [officers from the City of Ferguson and St. Louis County
Police Departments] took up arms and, in militaristic displays of force and weaponry, engaged
U.S. Citizens as if they were war combatants.” [Doc. No. 41 at ¶ 23].
1

The recitation of facts is taken from Plaintiffs’ Second Amended Complaint and are taken as true for the
purposes of this motion. Such recitation in no way relieves any party from the necessary proof thereof in later
proceedings.

Plaintiffs are individuals who claim to have suffered violations of various rights between
August 11 and August 13, 2014 in Ferguson. Named as Defendants are the City of Ferguson;
Thomas Jackson (the City of Ferguson Chief of Police); Justin Cosma (a City of Ferguson police
officer) (collectively the “Ferguson Defendants”); St. Louis County; Jon Belmar (the St. Louis
County Chief of Police) (collectively the “St. Louis County Defendants”); and John Does (police
officers from the City of Ferguson and St. Louis County police departments).
Plaintiffs initiated this action on August 28, 2014, and filed their Second Amended
Complaint on December 2, 2014. Plaintiffs bring federal claims under 42 U.S.C. § 1983 for
deprivation of their civil rights and for failure to train, supervise, and discipline. Plaintiffs bring
state law claims for false arrest, assault and battery, intentional infliction of emotional distress,
and negligent supervision.
Standard
A complaint must set out a “short and plain statement of [a plaintiff’s] claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To test the legal sufficiency of a
complaint, a defendant may file a motion to dismiss for failure to state a claim upon which relief
can be granted. Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, 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)). In other words, a plaintiff must plead facts from which the court can draw
a “reasonable inference” of liability. Iqbal, 556 U.S. at 678. The complaint need not contain
“detailed factual allegations” but must contain more than mere “labels and conclusions, and a
formulaic recitation of the elements” or “naked assertion[s]” devoid of “further factual
enhancement.” Twombly, 550 U.S. at 555, 557. An “unadorned, the-defendant-unlawfullyharmed-me accusation” will not suffice. Iqbal, 556 U.S. at 678. “While legal conclusions can

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provide the framework of a complaint, they must be supported by factual allegations,” id. at 679,
which “raise a right to relief above the speculative level,” Twombly, 550 U.S. at 555.
Under Twombly and Iqbal, “[a] plaintiff . . . must plead facts sufficient to show that her
claim has substantive plausibility.” Johnson v. City of Shelby, 135 S. Ct. 346, 347 (2014). If the
plaintiff “inform[s] the [defendant] of the factual basis for [her] complaint, [she] [is] required to
do no more to stave off threshold dismissal for want of an adequate statement of [her] claim.” Id.
In evaluating a motion to dismiss, the court can “choose to begin by identifying pleadings
that, because they are no more than conclusions, are not entitled to the assumption of truth.”
Iqbal, 556 U.S. at 679. Turning to any “well-pleaded factual allegations,” the court should
“assume their veracity and then determine whether they plausibly give rise to an entitlement to
relief.” Id. The court may only consider the initial pleadings. Brooks v. Midwest Heart Grp., 655
F.3d 796, 799 (8th Cir. 2011).
Discussion
Defendants contend that Plaintiffs failed to state claims for § 1983 violations against
Defendants Belmar, Jackson, St. Louis County and the City of Ferguson. As to Plaintiffs’ state
law claims, Defendants argue that all Plaintiffs failed to adequately allege an exception to
sovereign immunity, and failed to state claims for negligent supervision and intentional infliction
of emotional distress. Further, Defendants assert that certain Plaintiffs failed to state claims for
assault and battery and false arrest. As discussed below, the Court finds that Plaintiffs stated
substantively plausible § 1983 claims; that Plaintiffs adequately alleged an exception to
sovereign immunity; that Plaintiffs failed to state claims for intentional infliction of emotional
distress; that Plaintiffs failed to state claims for negligent supervision; and that Plaintiff Davis
failed to state a clam for assault and battery. Further, the Court will deny the Motion to Sever.
A.

Section 1983 Claims

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Defendants argue that Plaintiffs have failed to state § 1983 claims against Defendants
Belmar, Jackson, St. Louis County, and Ferguson. The Court disagrees.
1.

Belmar and Jackson

Plaintiffs set forth claims under 42 U.S.C. § 1983 against Defendants Belmar and Jackson
in their individual and official capacities for their failure to properly train, supervise, control,
direct, monitor and discipline officers in their respective departments.2
“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, 848–49 (8th Cir. 2009) (citation omitted). It is well established that for
municipalities, or supervisory defendants sued in their individual capacities, respondeat superior
or vicarious liability will not attach under § 1983. City of Canton v. Harris, 489 U.S. 378, 385
(1989); Livers v. Shenck, 700 F.3d 340, 355 (8th Cir. 2012). Rather, a supervisory defendant—
sued in his individual capacity—may be liable under § 1983 “if he directly participates in the
constitutional violation or if he fails to train or supervise the subordinate who caused the

2

The St. Louis County Defendants argue that Plaintiffs failed to sue Defendant Belmar in his individual
capacity because, although they identified him as being sued in his individual capacity in the caption of the Second
Amended Complaint, they did not do so in the actual text of the Second Amended Complaint. “[I]n order to sue a
public official in his or her individual capacity, a plaintiff must expressly and unambiguously state so in the
pleadings, otherwise, it will be assumed that the defendant is sued only in his or her official capacity.” Alexander v.
Hedback, 718 F.3d 762, 766 n.4 (8th Cir. 2013) (citing Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th
Cir. 1999)). Given that “section 1983 liability exposes public servants to civil liability and damages, . . . only an
express statement that they are being sued in their individual capacity will suffice to give proper notice to
defendants.” Johnson, 172 F.3d at 535 (citing Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989), and Egerdahl v.
Hibbing Comm. Coll., 72 F.3d 615, 619–20 (8th Cir. 1995)). Plaintiffs’ indication in the caption of the Second
Amended Complaint that Defendants Belmar, Jackson, and Cosma were being sued in their individual and official
capacities was clearly sufficient under Eighth Circuit law to give them proper notice. See Jackson v. Crews, 873
F.2d 1105, 1107 (8th Cir. 1989) (“We caution future § 1983 litigants . . . that it would be much better for them to
clearly indicate both the parties being sued and their capacity in the caption.”) (emphasis added). Accordingly, the
Court rejects the St. Louis County Defendants’ argument.

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violation.” Brockinton v. City of Sherwood, 503 F.3d 667, 673 (8th Cir. 2007) (citing Tilson v.
Forrest City Police Dep’t, 28 F.3d 802, 806 (8th Cir. 1994)).3
The Eighth Circuit recognizes the following elements for supervisory liability under §
1983 for failure to train or supervise: (1) notice of a pattern of unconstitutional acts committed
by subordinates; (2) deliberate indifference to or tacit authorization of those acts; (3) failure to
take sufficient remedial action; and (4) proximate cause of the plaintiff’s injury. Livers, 700 F.3d
at 355. “In order to show deliberate indifference or tacit authorization, [the plaintiff] must allege
and ultimately prove [the supervisory defendant] ‘had notice that the training procedures and
supervision were inadequate and likely to result in a constitutional violation.’” Id. at 355–56
(quoting Andrews v. Fowler, 98 F.3d 1069, 1078 (8th Cir. 1996)).
Plaintiffs’ factual allegations against Defendants Jackson and Belmar are sufficient to
state a substantively plausible claim through which the Court can draw a reasonable inference of
liability. Plaintiffs allege that the John Doe police officers were “acting under the direction and
control, and pursuant to the practices and customs of Defendants City of Ferguson and St. Louis
County implemented by Defendants Belmar and [Jackson],” when they “took up arms and, in
militaristic displays of force and weaponry, engaged U.S. Citizens as if they were war
combatants.” [Doc. No. 41 at ¶¶ 23, 43] [emphasis added]. In this regard, Plaintiffs allege
various instances of being subjected to “wanton and excessive force,” as well as being arrested
without probable cause in violation of their Fourth Amendment rights. Plaintiffs’ specific factual
allegations during this period range from being shot with rubber bullets, to being physically
assaulted, to being sprayed with mace. Given the temporal relation of these individual allegations
(August 11–13, 2013), as well as the alleged shared objective of the officers—namely,

3

Plaintiff’s claims against Defendants Belmar and Jackson in their official capacities constitute claims
against St. Louis County and the City of Ferguson, respectively. See Will v. Michigan Dep’t of State Police, 491
U.S. 58, 71 (1989); see also Alexander, 718 F.3d at 766 (citing Johnson, 172 F.3d at 535).

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responding to protests and civil unrest following Michael Brown’s death—Plaintiffs have
plausibly alleged that Defendants Belmar and Jackson knew or should have known of the pattern
of unconstitutional acts committed by the John Doe officers and were deliberately indifferent to,
or tacitly authorized those acts, which resulted in Plaintiffs suffering various injuries. Livers, 700
F.3d at 355.
Accordingly, Defendants’ Motions to Dismiss the § 1983 claims against Defendants
Belmar and Jackson are denied.
2.

St. Louis County and the City of Ferguson

Plaintiffs allege that Defendants St. Louis County and the City of Ferguson had customs,
policies, and practices in place regarding the training, supervision, control, monitoring and
disciplining of their officers that exhibited deliberate indifference to the care and safety of
citizens, which led to Plaintiffs’ injuries.
“A local government may not be sued under § 1983 for an injury inflicted solely by its
employees or agents. Instead, it is when execution of a government’s policy . . . inflicts the injury
that the government as an entity is responsible under § 1983.” Monell v. Department of Social
Services of City of New York, 436 U.S. 658, 694 (1978). A local government may be liable for
failure to train its employees when that failure can be shown to be deliberate indifference to the
rights of others. Yellow Horse v. Pennington County, 225 F.3d 923, 928 (8th Cir. 2000).
Deliberate indifference in the context of claims for failure to train and supervise is a
stringent standard of fault, requiring proof that a governmental entity disregarded a known or
obvious consequence of its actions. Board of Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397,
410 (1997). When governmental policymakers are on actual or constructive notice that a
particular omission in their training program causes city employees to violate citizens’
constitutional rights, the governmental entity may be deemed deliberately indifferent if the

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policymakers choose to retain that program. Brown, 520 U.S. at 407. The governmental entity’s
“policy of inaction” in light of notice that its program will cause constitutional violations “is the
functional equivalent of a decision by the [governmental entity] itself to violate the
Constitution.” Canton, 489 U.S. at 395. “A pattern of similar constitutional violations by
untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes
of failure to train.” Connick v. Thompson, 131 S.Ct. 1350, 1360 (2011).
“Liability may be established through proof that the alleged misconduct was so pervasive
among the non-policy making employees of the [entity] as to constitute a ‘custom or usage’ with
the force of law.” McGautha v. Jackson Cnty., Mo., Collections Dep’t, 36 F.3d 53, 56 (8th Cir.
1994) (quoting Monell, 436 U.S. at 690–91). An allegation of an isolated incident of police
misconduct generally “cannot, as a matter of law, establish a municipal policy or custom creating
liability under § 1983.” Ulrich v. Pope County, 715 F.3d 1054, 1061 (8th Cir. 2013) (citing
Wedemeier v. City of Ballwin, 931 F.2d 24, 26 (8th Cir. 1991)). Rather, “[t]o establish a claim for
‘custom’ liability, [Plaintiffs] must demonstrate: (1) the existence of a continuing, widespread,
persistent pattern of unconstitutional misconduct by the governmental entity’s employees; (2)
deliberate indifference to or tacit authorization of such conduct by the governmental entity’s
policymaking officials after notice to the officials of that misconduct; and (3) that plaintiff was
injured by acts pursuant to the governmental entity’s custom, i.e., that the custom was a moving
force behind the constitutional violation.” Snider v. City of Cape Girardeau, 752 F.3d 1149,
1160 (8th Cir. 2014) (citing Johnson v. Douglas Cnty. Med. Dep’t, 725 F.3d 825, 828 (8th Cir.
2013)).
Based on the reasoning and factual allegations discussed above with regard to Plaintiffs’
§ 1983 claims against Defendants Belmar and Jackson, the Court finds that Plaintiffs—through
their allegations of a pervasive pattern of civil rights violations during the days in question—

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have stated a substantively plausible claim through which the Court can draw a reasonable
inference of liability as to St. Louis County and the City of Ferguson. Accordingly, Defendants’
Motions to Dismiss the § 1983 claims against these Defendants are denied.4
B.

State Law Claims
1.

Sovereign Immunity

Defendants argue that Plaintiffs failed to allege an exception to the sovereign
immunity afforded to Defendants St. Louis County and the City of Ferguson under
Missouri law. The Court disagrees.
Under section 537.600 of the Missouri Revised Statutes, public entities enjoy
sovereign immunity from actions sounding in tort. Gregg v. City of Kansas City, 272
S.W.3d 353, 358 (Mo. Ct. App. 2008).5 “Municipalities and other public entities,
however, can waive their sovereign immunity for governmental functions to the extent
that they are covered by liability insurance.” Southers v. City of Farmington, 263 S.W.3d
603, 609 (Mo. banc 2008). Liability insurance can be purchased pursuant to section

4

The Court will also deny the Ferguson Defendants’ request that the Court strike or dismiss the last two
words of the sentence “The City of Ferguson is liable directly and vicariously,” from paragraph seventeen of the
general “Parties” section of the Second Amended Complaint. The Ferguson Defendants correctly note that a local
government may not be held vicariously liable under § 1983. See Canton, 489 U.S. at 385. Plaintiffs do not object to
this point of law, and assert in their Reply that “any alleged vicarious liability on the part of the City of Ferguson . . .
was only pled with respect to Plaintiffs’ common law claims[.]” [Doc. No. 52 at 8]. The counts in which Plaintiffs
allege § 1983 violations assert neither vicarious liability, nor respondeat superior. Accordingly, the Ferguson
Defendants’ request is moot.
5

However, public entities do not enjoy sovereign immunity against tort claims “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))” or “where the injury is caused by the dangerous condition of the [public entity’s] property (section
537.600.1(2)).” Bennartz v. City of Columbia, 300 S.W.3d 251, 259 (Mo. Ct. App. 2009) (citing State ex rel. Bd. of
Trustees of the City of North Kansas City Mem’l Hosp., 843 S.W.2d 353, 358 (Mo. banc 1993)). Further, “Missouri
municipalities are not provided immunity for propriety functions—those performed for the benefit or profit of the
municipality as a corporate entity—but are immune for governmental functions—those performed for the common
good.” Southers, 263 S.W.3d at 609 (citing Jungerman v. City of Raytown, 925 S.W.2d 202, 204 (Mo. banc 1996)).
The proprietary/governmental distinction does not apply to the sovereign immunity of the State or its political
subdivisions, which enjoy sovereign immunity even if acting in a proprietary function. Wyman v. Mo. Dep’t of
Mental Health, 376 S.W.3d 16, 20 n.4 (Mo. Ct. App. 2012) (citing Southers, 263 S.W.3d at 609); Gregg, 272
S.W.3d at 362.

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537.610,6 which pertains to political subdivisions of the state, or section 71.185,7 which
pertains to municipalities. Id. “The waiver of sovereign immunity is only to the extent of
the insurance coverage.” Southers, 263 S.W.3d at 609 n.6 (citing sections 71.185.2 and
537.610.1). However, “‘[a] public entity does not waive its sovereign immunity by
maintaining an insurance policy where that policy includes a provision stating that the
policy is not meant to constitute a waiver of sovereign immunity.’” Brooks v. City of
Sugar Creek, 340 S.W.3d 201, 208 (Mo. App. Ct. 2011) (quoting Langley v. Curators of
Univ. of Mo., 73 S.W.3d 808, 811 (Mo. App. W.D. 2002) (citing State ex rel. Bd. of
Trustees v. Russell, 843 S.W.2d 353, 360 (Mo. banc 1992))
In Plaintiffs’ Second Amended Complaint, it is alleged that “Defendants have
waived sovereign immunity by establishing some type of insurance coverage for the
claim[s] at issue pursuant to Mo. Rev. Stat. § 71.185,” and that “the City of Ferguson, as
a Charter Member of the St. Louis Area Insurance Trust, has purchased insurance
policies that would address, at least to some extent, the claims alleged herein.” [Doc. No.
41 at ¶ 19]. The St. Louis County Defendants contend these allegations are insufficient to
allege that St. Louis County has waived sovereign immunity because only a municipality
can waive its sovereign immunity pursuant to section 71.185.

6

Section 537.610 states, in pertinent part, that any political subdivision of Missouri “may purchase liability
insurance for tort claims, made against the state or the political subdivision . . . . Sovereign immunity for the state of
Missouri and its political subdivisions is waived only to the maximum amount of and only for the purposes covered
by such policy of insurance purchased pursuant to the provisions of this section and in such amount and for such
purposes provided in any self-insurance plan duly adopted by the governing body of any political subdivision of the
state.”
7

Section 71.185 states, in pertinent part: “Any municipality engaged in the exercise of governmental
functions may carry liability insurance and pay the premiums therefor to insure such municipality and their
employees against claims or causes of action for property damage or personal injuries, including death, caused while
in the exercise of the governmental functions, and shall be liable as in other cases of torts for property damage and
personal injuries including death suffered by third persons while the municipality is engaged in the exercise of the
governmental functions to the extent of the insurance so carried.”

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While there is authority that appears to suggest that a municipality can waive
sovereign immunity by purchasing liability insurance under either section 71.185 or
537.610,8 it is clear from the plain language of section 71.185, and Missouri case law,
that only a municipality—and not a political subdivision of the state, such as St. Louis
County—can waive sovereign immunity by purchasing liability insurance under section
71.185. Gregg, 272 S.W.3d at 359 (citing Brennan By and Through Brennan v. Curators
of the Univ. of Mo., 942 S.W.2d 432, 436 (Mo. Ct. App. 1997)); Spotts v. Kansas City,
728 S.W.2d 242, 246–47 (Mo. Ct. App. 1987); see also St. Louis County v. Watson, 311
S.W.3d 886, 888 (Mo. Ct. App. 2010). However, for present purposes, it is a distinction
without a difference. As one Missouri court noted, in explaining why it could rely on
cases analyzing an alleged section 71.185 waiver for its analysis of an alleged section
537.610 waiver:
Despite differences in language and the fact that § 71.185 applies to
municipalities and § 537.610 applies to political subdivisions of the State,
the purchase of liability insurance may function as a waiver of sovereign
immunity under either statute. Therefore, we find §§ 71.185 and 537.610
to be sufficiently analogous that we may rely on the above-cited cases
referring to § 71.185 in making our determination here.
Brennan, 942 S.W.2d at 436 (citing Russell, 843 S.W.2d at 360); see also Gregg, 272
S.W.3d at 359 (citing Brennan, 942 S.W.2d at 436).
Plaintiffs allege that Defendant St. Louis County waived its sovereign immunity
to their tort claims by purchasing liability insurance to cover those claims. Accepting this
allegation as true—as the Court must, Iqbal, 556 U.S. at 679—the Court finds that it is
inconsequential at this stage of proceedings whether Plaintiffs alleged that St. Louis

8

See, e.g., Kunzie v. City of Olivette, 184 S.W.3d 570, 573–74 (Mo. banc 2006); Topps v. City of Country
Club Hills, 272 S.W.3d 409, 414–15, 17–18 (Mo. App. 2008).

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County purchased the insurance pursuant to section 537.610 or 71.185.9 Plaintiffs’
allegation that St. Louis County waived its sovereign immunity to Plaintiffs’ claims by
virtue of the purchase of liability insurance is sufficient to allege waiver.
Both the St. Louis County and Ferguson Defendants further argue that Plaintiffs
failed to properly allege an exception to St. Louis County and the City of Ferguson’s
respective sovereign immunity because Plaintiffs did not allege that the liability
insurance each entity purchased did not include an endorsement exempting coverage for
liability barred by sovereign immunity. The Court finds that the pleading rules do not
require such an allegation to sufficiently claim an exception to sovereign immunity.
As noted above, “[a] public entity does not waive its sovereign immunity by
maintaining an insurance policy where that policy includes a provision stating that the
policy is not meant to constitute a waiver of sovereign immunity.” Brooks, 340 S.W.3d at
208 (internal citations and quotation marks omitted). Although Plaintiffs will “bear[] the
burden of demonstrating the existence of the insurance and that it covered [their]
particular claim[s],” and Plaintiffs “must plead with specificity facts demonstrating
[their] claims fall[] within an exception to sovereign immunity” because “finding a
[governmental entity] liable for torts is the exception to the general rule of sovereign
9

In a footnote in Kunzie, the Missouri Supreme Court noted a then-existing distinction between the
sovereign immunity waiver associated with liability insurance purchased under section 537.610 and the
corresponding waiver associated with section 71.185. Kunzie, 184 S.W.3d at 574 n.4. Namely, the discretionary
immunity doctrine (also known as the official immunity doctrine) and the public duty doctrine were not waived as to
municipalities that purchased liability insurance under section 71.185, whereas these doctrines of immunity were
waived as to political subdivisions that purchased liability insurance under 537.610. Id. (contrasting the “absolute
and complete waiver of all immunities” found in section 537.610 with section 71.185’s statement that a municipality
engaged in governmental functions that purchases liability insurance “shall be liable as in other cases of torts.”).
However, in subsequent cases, the Missouri Supreme Court held that the official/discretionary immunity doctrine
and the public duty doctrine are “personal immunities” that shield government employees, but not government
employers from liability. Davis v. Lambert-St. Louis Int’l Airport, 193 S.W.3d 760, 764–66 (Mo. Banc 2006)
(official/discretionary immunity doctrine); Southers, 263 S.W.3d at 611–14 (public duty doctrine). Thus, separate
and apart from the issue of whether St. Louis County could purchase liability insurance under section 71.185,
Kunzie’s observation in footnote four regarding the differences between the waives in sections 71.185 and 536.610
was obviated by the Missouri Supreme Court’s decisions in Davis and Southers, and at this stage of the proceedings
it is irrelevant under which of the two statutes Plaintiffs allege that either St. Louis County or the City of Ferguson
purchased liability insurance and thereby waived sovereign immunity.

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immunity,” Gregg, 272 S.W.3d at 359–60, the law does not require Plaintiffs to plead the
absence of a provision in the insurance policy stating that the policy does not waive
sovereign immunity.
Indeed, Defendants rely only upon inapposite cases to argue that such a pleading
requirements exists. See Hankins v. City of Hazelwood, 2014 WL 996789, at *1 (E.D.
Mo. Mar. 13, 2014) (dismissing Missouri tort claims against the defendant municipality
where the “plaintiff plead[ed] no facts showing that an exception to sovereign immunity
applie[d].”) (emphasis added); Cunningham v. Hinrichs, 2013 WL 6068881, at *10 (E.D.
Mo. Nov. 18, 2013) (granting summary judgment in favor of the defendant municipality
where the municipality submitted its insurance policy as an exhibit to its motion, which
contained a disclaimer specifying that the procurement of insurance did not constitute a
waiver of sovereign immunity); Hummel v. St. Charles City R-3 Sch. Dist., 114 S.W.3d
282, 284–85 (Mo. Ct. App. 2003) (affirming the dismissal of an action where the plaintiff
“attempted to meet her burden of proving an exception to sovereign immunity by relying
on an alleged waiver thereof in the workers’ compensation statutes, and not on [an]
insurance waiver,” and argued on appeal that she should be permitted to amend her
pleadings to allege waiver via insurance).
There is, however, case law suggesting that a plaintiff’s allegation that a
defendant waived its sovereign immunity by the purchase of insurance is sufficient to
state a claim for waiver, notwithstanding the absence of an allegation that the insurance
policy did not include an endorsement exempting coverage for liability barred by
sovereign immunity. For example, in Gregg, the plaintiffs alleged that the municipal
defendant carried liability insurance that insured against the tort claims the plaintiffs
brought. 272 S.W.3d at 356–57. The defendant municipality “filed a motion to dismiss

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alleging that it was protected by sovereign immunity and that no insurance coverage
existed that waived sovereign immunity,” attached copies of two insurance policies that it
purported to be the only policies it maintained that were potentially pertinent to the case,
and asserted that the policies “clearly did not provide coverage relevant to Plaintiffs’
claims.” Id. at 357. The trial court granted the motion to dismiss. The Missouri Court of
Appeals reversed and remanded, noting that it “fail[ed] to understand why the City
proceeded on a motion to dismiss, rather than a summary judgment,” and that, under the
motion to dismiss standard, “the allegations of [the plaintiffs’] petition [namely, that the
defendant municipality waived its sovereign immunity through the purchase of liability
insurance,] must be taken as true for present purposes.” Id. at 360.
Similarly in Kunzie v. City of Olivette, the Missouri Supreme Court reversed the
dismissal of a tort action against a municipality, and remanded, explaining:
Kunzie alleges that the city maintains liability insurance “to handle the
consequences of employment related actions brought against them.” By
doing so, Kunzie has sufficiently alleged facts that, if proved, would bring
his tort claims within the purview of the statute. Because the trial court
dismissed Kunzie’s petition prior to the commencement of discovery,
Kunzie was not able to prove the existence and content of the insurance
policy.
184 S.W.3d 570, 574 (Mo. banc 2006). The Court will follow Gregg and Kunzie and hold
that an allegation that a public entity waived its sovereign immunity through the purchase
of liability insurance is sufficient to state a claim for waiver, despite the absence of an
allegation that the insurance policy did not include an endorsement exempting coverage
for liability barred by sovereign immunity.
2.

Personal Immunities

Defendants argue that several personal immunities enjoyed by Defendants Belmar
and Jackson—namely, the public duty doctrine, the official immunity doctrine, and a

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prohibition on respondeat superior for police chiefs—should shield them from liability
for any state law claims brought against them. Plaintiffs rebut that they have not alleged
any state law claims against Defendant Belmar or Jackson. Accordingly, because
Plaintiffs have not alleged any state law claims against Defendants Belmar and Jackson,
Defendants’ Motions to Dismiss are denied as moot as to this point.10
3.

Intentional Infliction of Emotional Distress

Plaintiffs bring claims for intentional infliction of emotional distress (“IIED”)
against St. Louis County, the City of Ferguson, Defendant Cosma, and the John Doe
police officers. “To recover for intentional infliction of emotional distress, [a plaintiff]
must show (1) the defendant’s conduct was extreme and outrageous; (2) the defendant
acted intentionally or recklessly; and (3) the defendant’s conduct caused extreme
emotional distress resulting in bodily harm.” Cent. Mo. Elec. Co-op. v. Balke, 119
S.W.3d 627, 636 (Mo. Ct. App. 2003) (citing Thomas v. Special Olympics Missouri, Inc.,
31 S.W.3d 442, 446 (Mo. Ct. App. 2000)); see also St. Anthony’s Medical Center v.
H.S.H., 974 S.W.2d 606, 611 (Mo. Ct. App. 1998). “The conduct must have been so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.” Gibson v. Brewer, 952 S.W.2d 239, 249 (Mo. banc 1997) (internal
quotations omitted). The alleged emotional distress must be “medically diagnosable and
medically significant.” Hendrix v. Wainwright Indus., 755 S.W.2d 411, 412 (Mo. Ct.
App. 1998) (internal quotation omitted); see also Collins v. Burg, 169 F.3d 563, 565 (8th
Cir. 1999).
10

The City of Ferguson Defendants additionally request that the Court dismiss or strike—pursuant to the
public duty doctrine—any state law claims brought by unnamed “U.S. Citizens,” and dismiss any federal claims
brought by “U.S. Citizens” as well. Given that Plaintiffs have not alleged any claims brought by any unnamed “U.S.
Citizens,” but rather appear to use the term as a general description of the individuals in Ferguson during the events
in question, the Court will also deny this request.

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Further, “where one’s conduct amounts to the commission of a traditional tort and
was not intended only to cause extreme emotional distress to the victim, the tort of
intentional infliction of emotional distress will not lie and recovery must be had under the
appropriate traditional tort action.” Diehl v. Fred Weber, Inc., 309 S.W.3d 309, 322 (Mo.
Ct. App. 2010) (emphasis added) (citing K.G. v. R.T.R., 918 S.W.2d 795, 799 (Mo. 1996)
(en banc)). “The rationale behind this rule is that the tort of intentional infliction of
emotional distress . . . . was intended to supplement existing forms of recovery, not
swallow them.” K.G., 918 S.W.2d at 799 (citation omitted). Accordingly, [w]hile
recovery for emotional distress caused by battery may be allowable as an element of
damages in a battery action, there is no independent action for intentional infliction of
emotional distress where the existence of the claim is dependent upon a battery.” Id.
Here, all of Plaintiffs’ claims for IIED are predicated on their claims for assault
and battery, and/or false arrest. Thus, their claims for IIED must be dismissed, lest they
“swallow” Plaintiffs’ predicate tort claims. See id. at 799–800. Further, Plaintiffs have
not adequately claimed that any of their alleged emotional distress was “medically
diagnosable and medically significant.” Hendrix, 755 S.W.2d at 412.
Accordingly, the St. Louis County Defendants’ Motions to Dismiss are granted as
to Plaintiffs’ claims for IIED.
4.

Negligent Supervision

Plaintiffs bring claims for negligent supervision against Ferguson and St. Louis
County. Missouri law incorporates the Restatement’s definition for negligent supervision:
A master is under the duty to exercise reasonable care so to control his
servant while acting outside the scope of his employment as to prevent him
from intentionally harming others or from so conducting himself as to
create an unreasonable risk of bodily harm to them if
(a) the servant
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(i) is upon the premises in possession of the master or upon which the
servant is privileged to enter only as his servant, or
(ii) is using a chattel of the master, and
(b) the master
(i) knows or has reason to know that he has the ability to control his
servant, and
(ii) knows or should know of the necessity and opportunity for
exercising such control.
Dibrill v. Normandy Assocs., 383 S.W.3d 77, 87 (Mo. Ct. App. 2012) (emphasis added) (quoting
Gibson, 952 S.W.2d at 247 (quoting RESTATEMENT (SECOND) OF TORTS § 317)).
Missouri courts have emphasized that a cause of action for negligent supervision “‘require[s]
evidence that would cause the employer to foresee that the employee would create an
unreasonable risk of harm outside the scope of his employment.’” Id. (emphasis added) (quoting
Reed v. Kelly, 37 S.W.3d 274, 278 (Mo. Ct. App. 2000)); see also Truck Ins. Exch. v. Prairie
Framing, LLC, 162 S.W.3d 64, 82 (Mo. Ct. App. 2005).
There is no indication here that the Defendant police officers were acting outside the
scope of their employment. By contrast, in St. John Bank & Trust Co. v. St. John, the only
Missouri case Plaintiffs cite—and that the Court could locate through research—in which
negligent supervision was applied against a local government for the actions of its police force,
an officer set a movie theatre on fire. 679 S.W.2d 399 (Mo. Ct. App. 1981). Accordingly, St.
John Bank is distinguishable in that the police officer’s conduct was clearly outside the scope of
his employment.
The Court finds that Plaintiffs have failed to state claims for negligent supervision and
will grant the St. Louis County Defendants’ Motions to Dismiss as to this claim.
5.

Plaintiffs Kerry White, Kai Bowers, Sandy Bowers, William Davis, and
Tracey White’s Assault and Battery Claims
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The St. Louis County Defendants argue that Plaintiffs Kerry White, Kai Bowers, Sandy
Bowers, William Davis, and Tracey White failed to state claims for assault and battery because
they have only alleged that they were handcuffed without just cause. Under Missouri law, a
police officer effectuating an arrest may be found liable for assault and battery only when he uses
more force than is “reasonably necessary.” Neal v. Helbling, 726 S.W.2d 483, 487 (Mo. Ct. App.
1987).
Here, Plaintiffs Kai Bowers, Sandy Bowers, and Tracey White allege that they were
“thrown to the ground,” before being handcuffed, and Plaintiff Kerry White alleges that he was
“taken to the ground” before being handcuffed. [Doc. No. 41 at ¶¶ 29, 81, 151]. All four of these
Plaintiffs allege that they suffered bodily injuries during the arrest. [Id. at ¶¶ 39, 81, 158]. At this
stage of the proceedings, these allegations are enough to sufficiently claim that the Defendant
police officers used more force than was reasonably necessary in arresting Plaintiffs Kerry
White, Kai Bowers, Sandy Bowers, and Tracey White. Accordingly, the St. Louis County
Defendants’ Motion to Dismiss is denied as to this point.
However, Plaintiffs have not alleged any unreasonable force with regard to Plaintiff
Davis, but rather have only alleged that he was “accosted” by Defendant police officers
Accordingly, the Court will grant the St. Louis County Defendants’ Motion as to Plaintiff
Davis’s assault and battery claim.
6.

Plaintiffs Tracey White and William Davis’s False Arrest Claims

The St. Louis County Defendants argue that Plaintiffs Tracey White and William Davis
failed to state claims for false arrest because, based on the allegations in their complaint, they
violated section 574.060 of the Missouri Revised Statutes by refusing to disperse from the scene
of a riot. The court disagrees.

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“The essence of the cause of action of false arrest, or false imprisonment, ‘is the
confinement, without legal justification, by the wrongdoer of the person wronged.’” Rustici v.
Weidemeyer, 673 S.W.2d 762, 767 (Mo. banc 1984) (citing Warrem v. Parrish, 436 S.W.2d 670,
672 (Mo. 1969), and Patrich v. Menorah Med. Ctr., 636 S.W.2d 134, 138 (Mo. App. Ct. 1982)).
Under section 574.060, “[a] person commits the crime of refusal to disperse if, being present at
the scene of an unlawful assembly, or at the scene of a riot, he knowingly fails or refuses to obey
the lawful command of a law enforcement officer to depart from the scene of such unlawful
assembly or riot.”
Plaintiff White claims that she and her minor son, Plaintiff Davis, purchased food in
McDonalds on W. Florissant in Ferguson on August 13, 2014, following a church-sponsored
Peace and Love rally. The two waited for Plaintiff White’s husband to pick them up, and
Plaintiff White conversed with other patrons. While Plaintiff Davis was in the restroom and
Plaintiff White was approaching the counter to purchase a Sunday, several John Doe Defendant
police officers and Defendant Cosma entered “in what appeared to be army uniforms, carrying
rifles and sticks and wearing helmets, approached the door and ordered Plaintiff White to ‘get
out.’” Plaintiff White tried to tell them that she was waiting for her son in the restroom. When
Plaintiff Davis came out, they “accosted” him. When Plaintiff White expressed her concerns, she
was told to shut up, and then arrested for not shutting up. Plaintiff White was thrown to the
ground in handcuffs and, when Plaintiff Davis came over on her command to retrieve his iPad
from her hand, he was arrested as well.
The St. Louis County Defendants contend that, because Plaintiffs alleged that there was
civil unrest in the streets of Ferguson, they effectively alleged that Plaintiffs White and Davis
refused to disperse from the scene of a riot, and thus violated section 574.060. However,
Plaintiffs have not done so. Plaintiffs White and Davis’s allegations, viewed in the light most

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favorable to them, are sufficient to state a claim for false arrest. Accordingly, the Court will deny
the St. Louis County Defendants’’ Motions to Dismiss as to this point.
C.

Motion to Sever
Rule 20 of the Federal Rules of Civil Procedure governs permissive joinder of

parties. Rule 20(a)(1) “allows multiple plaintiffs to join in a single action if (i) they assert
claims ‘with respect to or arising out of the same transaction, occurrence, or series of
transactions or occurrences;’ and (ii) ‘any question of law or fact common to all plaintiffs
will arise in the action.’” In re Prempro Products Liab. Litig., 591 F.3d 613, 622 (8th Cir.
2010). The Eighth Circuit recognizes “a very broad definition for the term ‘transaction.’”
Id.
“Transaction” is a word of flexible meaning. It may comprehend a series
of many occurrences, depending not so much upon the immediateness of
their connection as upon their logical relationship.
Accordingly, all “logically related” events entitling a person to institute a
legal action against another generally are regarded as comprising a
transaction or occurrence. The analogous interpretation of the terms as
used in Rule 20 would permit all reasonably related claims for relief by or
against different parties to be tried in a single proceeding. Absolute
identity of all events is unnecessary.
Mosley v. General Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974) (citations omitted).
This assessment is made on a “case by case” basis. Id. Here, the Court finds that
the allegations—all of which are related both temporally and in regard to the same
general events—are close enough in logical relation to comprise the same transaction.
Rule 20 is in place “to promote trial convenience and expedite the final
determination of disputes, thereby preventing multiple lawsuits.” Id. at 1332. Further,
“[s]ingle trials generally tend to lessen the delay, expense and inconvenience to all
concerned.” Id.

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Any inclination the Court may have had to grant Defendants’ Motion to Sever at
this time was extinguished by the St. Louis County Defendants’ filing of six different
Motions to Dismiss. The Motions in question are nearly identical, save for minor
variances. Most of the Motions repeat the same arguments, word for word, with the
minor variances randomly interspersed throughout. This method of filing required the
Court to study the Motions in search for slight changes and differing arguments. Further,
the six separate Motions necessitated six separate Responses, and six separate replies, all
of which were, again, substantially identical to one another. The result was a total of
approximately 240 pages of briefing for arguments that, when distilled so as to not be
repetitive, would total approximately 45 pages of briefing.
While Defendants are free to file future motions in whatever form and manner
they deem appropriate (so long as they comply with the local and federal rules), the Court
will not encourage duplicative, inefficient, and resource-consuming filings of this
magnitude by granting Defendants’ Motion to Sever. The Court will deny the Motion to
Sever, without prejudice, at this time, but will contemplate considering the matter anew
later in the proceedings. Id. (“Rule 20(b) and Rule 42(b) vest in the district court the
discretion to order separate trials or make such other orders as will prevent delay or
prejudice.”).
Conclusion
Based on the foregoing, the St. Louis County Defendants’ Motions to Dismiss are
granted in part and denied in part. The Court will dismiss Plaintiffs’ claims for intentional
infliction of emotional distress and negligent supervision, and will dismiss Plaintiff William
Davis’s claim for assault and battery. The Ferguson Defendants’ Motion to Dismiss is denied.
Further, the St. Louis County Defendants’ Motion to Sever is denied.

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Accordingly,
IT IS HEREBY ORDERED that the St. Louis County Defendants’ Motions to Dismiss
the Second Amended Complaint [Doc. Nos. 42, 43, 44, 45, 46, 47] are GRANTED IN PART
and DENIED IN PART.
IT IS FURTHER ORDERED that the Ferguson Defendants’ Motion to Dismiss the
Second Amended Complaint [Doc. No. 50] is DENIED.
IT IS FURTHER ORDERED that the St. Louis County Defendants’ Motion to Sever
[Doc. No. 35] is DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ claims for intentional infliction of
emotional distress are DISMISSED.
IT IS FURTHER ORDERED that Plaintiffs’ claims for negligent supervision are
DISMISSED.
IT IS FURTHER ORDERED that Plaintiff William Davis’s claim for assault and
battery is DISMISSED.
IT IS FURTHER ORDERED that the St. Louis County Defendants’ Motions to
Dismiss the Complaint [Doc. Nos. 23, 25, 27, 29, 31, 33] are DENIED AS MOOT.
IT IS FURTHER ORDERED that the Ferguson Defendants’ Motion to Dismiss the
Complaint [Doc. No. 13] is DENIED AS MOOT.
Dated this 16th day of March, 2015.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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