Blount v. Major, et al

Filing 187

MEMORANDUM AND ORDER: For the reasons set forth above, IT IS HEREBY ORDERED that the motion to dismiss (Doc. 163 ) is granted. IT IS FURTHER ORDERED that defendant Terrence Howards motion for summary judgment (Doc. 172 ) is denied. The following claims remain against the following defendants in their individual capacities: (SEE ORDER FOR DETAILS) Signed by Magistrate Judge David D. Noce on 3/20/19. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JAMES P. BLOUNT

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Plaintiff,
v.
ZACHARY NICHOLAY,
MATTHEW MILLER,
ALBERT NAPIER,
BRENT FINCHER,
RYAN STRITTMATTER,
JOHN VOGT,
TERRENCE HOWARD, and
SCOTT AUBUCHON,
Defendants.

No. 4:15 CV 322 DDN

MEMORANDUM AND ORDER
This action is before the Court on the motions of defendants Scott Aubuchon,
Brent Fincher, Ryan Strittmatter, and John Vogt to dismiss Counts 4, 5, and 7 of the
second amended complaint of plaintiff James P. Blount them (Doc. 163) and of defendant
Terrence Howard for summary judgment (Doc. 172). The Court heard oral arguments
from the parties on February 27, 2019.

BACKGROUND
Plaintiff alleges the following relevant facts in his second amended complaint.
(Doc. 144). On January 19, 2013, plaintiff was assaulted by another patron of Casino
One at Lumiere Place Casino and Hotels in St. Louis, Missouri. (Id. at ¶¶ 8-9). Certain
security officers of the Casino were off-duty police officers of the St. Louis Police
Department, and these officers were wearing their official uniforms when they learned of

the assault. (Id. at ¶ 10). Assuming that plaintiff was the perpetrator and not the victim
of the assault, these officers further assaulted and battered plaintiff until he was rendered
unconscious at the scene. (Id.). An ambulance was called, and defendants Albert Napier,
Matthew Miller, and Zachary Nicholay responded to the scene. (Id.). Defendant Napier
reviewed security camera recordings that captured the incident and could determine that
plaintiff was the victim of an assault and battery, and that the off-duty officers had used
excessive force against plaintiff. (Id.). At some point, plaintiff was placed under arrest
and put in handcuffs. (Id. at ¶ 12).
While the ambulance transporting plaintiff to the hospital, he was handcuffed but
unable to lie flat due to his femur being dislocated from his hip. (Id. at ¶ 13). Plaintiff
was then punched in the stomach by defendant Miller, with the others failing to protect,
intercede, or intervene on plaintiff’s behalf. (Id. at ¶¶ 13, 63).
Once plaintiff was at the hospital, he was guarded by St. Louis City police
officers, including defendant John Vogt. (Id. at ¶ 15). One officer stated to plaintiff that
the videotape confirmed plaintiff was not the aggressor, and that if plaintiff did not sue
the police department, the department would not issue criminal charges against him. (Id.
at ¶ 16). Plaintiff continued to receive medical care and defendants failed to pay for his
medical care. (Id. at ¶ 18).
Plaintiff underwent surgery for his injuries. (Id. at ¶ 19). Shortly after surgery,
and without obtaining a “fit for confinement” form or approval from a healthcare
provider, defendants Brent Fincher and Ryan Strittmatter transported plaintiff from the
hospital to the St. Louis Justice Center for booking. (Id.). Plaintiff alleges this was done
as part of a conspiracy to threaten plaintiff and deter him from filing a lawsuit or seeking
redress for his injuries. (Id. at ¶ 20).
Officers Keith S. Major, Ezell T. Cody, Nicolas R. Shelton, and Erich J. Vonnida
prepared an incident report that contained false statements to cover up police misconduct
and to prevent plaintiff from seeking redress. (Id. at ¶¶ 21-22). This incident report was
approved by police officers Lucinda J. Miller and Scott A. Aubuchon. (Id. at ¶ 23). The
incident refers to video surveillance of the incident. (Doc. 1, Ex. 1). Plaintiff alleges that
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this video shows plaintiff was not the initial aggressor but was defending himself from
another patron of the Casino. (Id. at ¶¶ 25-26). Plaintiff further alleges that the video
shows plaintiff did not assault any officer, and they did not issue any command to
plaintiff prior to using force against him. (Id.). The video purportedly shows officers
forcing witnesses away from the scene without obtaining witnesses’ names or statements,
in order to cover up the circumstances of the incident. (Id. at ¶ 30). The video was not
shown to any prosecuting attorney and not produced by defendants. (Id. at ¶ 26).
After booking plaintiff for no prosecutable offense and in order to make their
threat credible, the officers took plaintiff on a drive and dropped him off at an unknown
location in the City of St. Louis, making final threats to him not to report the incident.
(Id. at ¶ 32). There is no record that plaintiff was ever at the Justice Center. (Id. at ¶ 33).

MOTION TO DISMISS
Defendants move to dismiss plaintiff’s claims of false imprisonment (Count 4) and
fraud or injurious falsehood (Counts 5 and 7) on the grounds that they fail to state a claim
upon which relief may be granted and they are outside the statute of limitations.

1. Failure to State a Claim upon Which Relief May be Granted
Under Rule 12(b)(6), a party may move to dismiss all or part of a complaint for its
failure to state a claim upon which relief can be granted. Fed. R. Civ. Pro. 12(b)(6). To
overcome a motion to dismiss under Rule 12(b)(6) a complaint “must include enough
facts to state a claim to relief that is plausible on its face,” providing more than just labels
and conclusions.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Such a

complaint will “allow[] the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and will
state a claim for relief that rises above mere speculation. Twombly, 550 U.S. at 555. In
reviewing the pleadings under this standard, the Court must accept all of the plaintiff’s
factual allegations as true and draw all inferences in the plaintiff’s favor, but the Court is
not required to accept the legal conclusions the plaintiff draws from the facts alleged.
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Retro Television Network, Inc. v. Luken Commc’ns, LLC, 696 F.3d 766, 768-69 (8th Cir.
2012). The court additionally “is not required to divine the litigant’s intent and create
claims that are not clearly raised, . . . and it need not conjure up unpled allegations to
save a complaint.” Gregory v. Dillard’s, Inc., 565 F.3d 464, 473 (8th Cir. 2009) (en
banc) (citations omitted).

A.

False Imprisonment

Plaintiff brings his claim for false imprisonment against defendants Napier,
Aubuchon, Nicholay, Miller, Fincher, Strittmatter, Vogt, and Howard in their individual
capacities, but the motion to dismiss is only brought by four defendants: Aubuchon,
Strittmatter, Fincher, and Vogt. In order to state a claim of false imprisonment under
Missouri law, plaintiff must allege that he was detained against his will and that this
detention was unlawful. See Highfill v. Hale, 186 S.W.3d 277, 280 (Mo. 2006); Rankin v.
Venator Grp. Retail, Inc., 93 S.W.3d 814, 822 (Mo. Ct. App. 2002). Defendants argue
that such a claim must allege “each” defendant confined plaintiff without legal
justification. (Doc. 164 at 2). Plaintiff responds that this is a complicated case, and the
defendants were all acting in concert with one another. (Doc. 167).
“A person can be liable for false imprisonment or false arrest if he encourages,
causes, promotes, or instigates the arrest.” Highfill, 186 S.W.3d at 280. However, there
is no liability for “a mere negation or failure to speak or act.” Gibbs v. Blockbuster, Inc.,
318 S.W.3d 157, 170 (Mo. App. 2010).
Defendants Aubuchon, Fincher, Strittmatter, and Vogt argue that the second
amended complaint alleges only that they failed to supervise other officers who
purportedly confined plaintiff, or that they failed to investigate plaintiff’s confinement in
order to intervene and prevent a false imprisonment. Movant-defendants argue that none
of them was present at the initial arrest or transporting of him to the hospital, and that
they are therefore not liable for false imprisonment.
The Court agrees. Plaintiff's allegations indicate these officers were involved only
after plaintiff’s arrest, and there is no factual allegation indicating that they caused,
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promoted, or instigated the arrest. Defendant Aubuchon simply signed the incident report
prepared by the arresting officers, defendant Vogt simply stood guard over plaintiff once
he had already been taken to the hospital by other officers, and defendants Fincher and
Strittmatter simply transported plaintiff from the hospital to the jail. While the complaint
suggests they perhaps failed to investigate or intervene, there is no liability for failure to
investigate. The Second Amended complaint contains insufficient facts, beyond labels
and conclusions, to state a claim for false imprisonment against the movant-defendants.

B.

Fraud and Injurious Falsehood

To state a claim of fraud against defendants, plaintiff must allege facts supporting
each of the following elements:
(1) a false, material representation;
(2) the speaker's knowledge of its falsity or his ignorance of its truth;
(3) the speaker's intent that it should be acted upon by the hearer in the
manner reasonably contemplated;
(4) the hearer's ignorance of the falsity of the representation;
(5) the hearer's reliance on its truth;
(6) the hearer's right to rely thereon; and
(7) the hearer's consequent and proximately caused injury.
Bohac v. Walsh, 223 S.W.3d 858, 862–63 (Mo. Ct. App. 2007).
To state a claim of injurious falsehood, plaintiff must allege facts supporting these
elements:
(1) defendant’s publication of a false statement;
(2) defendant’s knowledge that the statement was false or made in reckless
disregard for its truth or falsity;
(3) defendant’s intent or constructive knowledge that publication of the false
statement would cause pecuniary harm to another; and
(4) resulting pecuniary loss to plaintiff.
Wandersee v. BP Prods. N. Am., Inc., 263 S.W.3d 623, 628 (Mo. 2008).

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The Second Amended complaint fails to plead each of these required elements for
defendants Fincher, Strittmatter, and Vogt. It is not alleged that any of these defendants
made or published false statements. While defendant Aubuchon signed and thereby
made or published the allegedly false statement of other officers, there is no indication he
did so knowingly. The incident report does refer to a video of the event, which would
allegedly show that the report was false, but there is no allegation that Aubuchon viewed
this video before signing. His failure to view the video might be negligent, but it is not
reckless disregard. Taking all of the facts alleged as true, plaintiff has failed to state a
claim of fraud or of injurious falsehood against each of these defendants. Defendants’
arguments about the statutes of limitations are moot.

MOTION FOR SUMMARY JUDGMENT
Second, defendant Terrence Howard argues that he is entitled to summary
judgment due to a settlement release document plaintiff executed for certain defendants
earlier in this case. (Doc. 172). Plaintiff’s initial complaint brought claims against HBS
and certain named police officers employed by HBS as private security guards, as well as
one John Doe employee of HBS. (Doc. 1). On September 12, 2016, plaintiff dismissed
those claims with prejudice as the result of a settlement agreement and release. (Doc.
112). Defendant Howard claims that the language of the release covered not only HBS
and the four police officers, but also covered a John Doe defendant later identified as
him.
Uncontroverted Facts
Unless otherwise indicated, the following facts are uncontroverted. HBS Co.
provides security services for commercial property, including, at all times relevant to the
complaint, the Lumiere Place Casino. (Docs. 174, 176 at ¶ 2). On or around January 19
or 20, 2013, plaintiff was involved in an altercation with a third party outside Lumiere
Casino. (Id. at ¶ 3). Casino security personnel arrested plaintiff and took him by
ambulance to St. Louis University Hospital. (Id. at ¶ 4). Defendant Howard, originally
identified as a John Doe defendant, was St. Louis City police officer. (Id. at ¶ 5).
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In plaintiff’s first complaint, HBS was named as a defendant and was alleged to
employ defendants Major, Cody, Shelton, VonNida, Harmon, and John Doe as security
agents. (Id. at ¶ 6). On September 12, 2016, this Court granted plaintiff’s motion to
voluntary dismiss certain defendants with prejudice, including defendants HBS, Major,
Shelton, VonNida, Cody, Harmon, and the Casino One Corporation. (Id. at ¶ 7). This
dismissal was sought as the result of a release executed by plaintiff and identified as
defendant’s Exhibit H. The release includes the following language:
James P. Blount . . . does hereby and for his heirs, executor, administrators,
successor and assigns, release, acquit and forever discharge HBS, Co.,
Keith S. Major, Nicholas R. Shelton, Erich J. VonNida, Ezell T. Cody, jr.,
Matthew Harmon, Pinnacle Entertainment Inc., Casino One Corporation,
Tropicana St. Louis LLC, Tropicana Entertainment, Inc., TEI (ES), LLC,
and any parent, subsidiary, or related entity, Philadelphia Insurance
Companies, and any John Doe Defendants for whom any of the
Released Parties would be responsible to indemnify and defend, and
their agents (actual or apparent), servants, successors, administrators,
attorney, insurers and all other persons, firms, corporations, associations or
partnerships, of and from any and all claims, actions, cause of actions,
rights, damages, costs, loss of service, expenses and compensation
whatsoever which James P. Blount . . . allegedly suffered on or about
January 20, 2013, as is more fully set out in a suit pending in the United
States District Court for the Eastern District of Missouri bearing Cause no.
4:15-cv-00322[.]
***
This Release shall not affect Plaintiff’s pending lawsuit against any nonsettling Defendants named in the aforementioned federal lawsuit, namely
Zachary Nicholay, Matthew Miller, and Albert Napier and John Doe(s),
however, Plaintiff does not release any claims against any John Doe
employed by or under the control of the St. Louis Metropolitan Police
Department, but Plaintiff releases any claims against released Defendants
concerning said John Doe(s).
(Doc. 174, Ex. 8 at 1, 2) (emphasis added).
Following this dismissal, in September 2018, plaintiff filed his Second Amended
Complaint against defendant Terrence Howard in his individual capacity, alleging that
defendant Howard was “a police officer with [the St. Louis City Police Department] who
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responded to the hospital after the incident on the premises of Casino,” and who was “at
the time working secondary employment at Lumiere Casino.” (Doc. 144 at ¶ 85).

Legal Standard
Summary judgment is appropriate “if there is no dispute of material fact and
reasonable fact finders could not find in favor of the nonmoving party.” Shrable v. Eaton
Corp., 695 F.3d 768, 770 (8th Cir. 2012); see also Fed. R. Civ. P. 56(a). The party
moving for summary judgment must demonstrate the absence of a genuine issue of
material fact and that it is entitled to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 327 (1986). A dispute is genuine if the evidence may prompt a
reasonable jury to return a verdict for either the plaintiff or the defendant, and it is
material if it would affect the resolution of a case. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248, 252 (1986); Rademacher v. HBE Corp., 645 F.3d 1005, 1010 (8th Cir.
2011). If reasonable minds could differ as to the import of the evidence, then summary
judgment is not appropriate. Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986).

Discussion
Missouri law provides that “[release] language that is plain and unambiguous on
its face will be given full effect within the context of the agreement as a whole unless the
release is based on fraud, accident, misrepresentation, mistake, or unfair dealings.”
Andes v. Albano, 853 S.W.2d 936, 941 (Mo. banc 1993). Only when a contract is
ambiguous does the court look to extrinsic evidence to aid the court’s interpretation.
Finova Cap. Corp. v. Ream, 230 S.W.3d 35, 42 (Mo. Ct. App. 2007). “A contract is
ambiguous only if its terms are susceptible to fair and honest differences.” Dunn Indus.
Group, Inc. v. City of Sugar Creek, 112 S.W.3d 421, 428 (Mo. banc 2003). “The terms
of a contract are read as a whole to determine the intention of the parties and are given
their plain, ordinary, and usual meaning,” and “[a] construction that attributes a
reasonable meaning to all the provisions of the agreement is preferred to one that leaves
some of the provisions without function or sense.” Id. at 428-29.
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After reading the terms of the release as a whole, and giving them their plain and
usual meaning, the Court concludes that plaintiff released only his claims against John
Doe defendants “whom any of the Released Parties would be responsible to indemnify
and defend.” An employer is only liable for the conduct of its employees “within the
course and scope of employment,” that is, “by virtue of the employment and in
furtherance of the business or interest of the employer.” Cluck v. Union Pac. R. Co., 367
S.W.3d 25, 29 (Mo. 2012). Similarly, an insurance company has a duty to defend only
when “there is a potential or possible liability to pay based on the facts at the outset of the
case.” Allen v. Cont'l W. Ins. Co., 436 S.W.3d 548, 552 (Mo. 2014). The duty to
indemnify is more narrow than the duty to defend. Id. Based on the allegations here, the
released defendants owed no such responsibility to defendant Howard. Under the plain
language of the release, he is not a John Doe exempt from suit.
Defendant Howard emphasizes the following language: “Plaintiff does not release
any claims against any John Doe employed by or under the control of the St. Louis
Metropolitan Police Department, but Plaintiff releases any claims against released
Defendants concerning said John Doe(s).” (Doc. 174, Ex. 8 at 2). This language is
consistent with the Court's interpretation. Plaintiff released all claims against those John
Does “whom any of the Released Parties would be responsible to indemnify and defend,”
but he did not release John Does working for the St. Louis Metropolitan Police
Department whom the Released Parties would not be responsible to indemnify and
defend.
In his complaint, plaintiff does not make any allegations against defendant
Howard in his capacity as a casino security guard. He only makes allegations against
defendant Howard as a St. Louis City police officer: defendant Howard responded for
duty to the hospital as a police officer, kept plaintiff confined while he was at the
hospital, and participated in transporting plaintiff from the hospital to the jail without a fit
for confinement form. (Doc. 144, ¶¶ 85-87, 106, 109, 151). As a matter of law, this does
not implicate the released defendants—namely, the casino or its insurance company—in
any way that would give rise to a duty to defend or indemnify. Accordingly, defendant
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Howard is not one of the John Does released by the agreement. Instead, he is one of the
John Does against whom the parties specifically agreed plaintiff could continue his
claims. The motion for summary judgment is denied.

CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that the motion to dismiss (Doc. 163) is granted.
IT IS FURTHER ORDERED that defendant Terrence Howard’s motion for
summary judgment (Doc. 172) is denied.
The following claims remain against the following defendants in their individual
capacities:
Count 1 for deliberate indifference to and deprivation of plaintiff’s
medical needs against defendants Aubuchon, Fincher,
Howard, Miller, Napier, Nicholay, Strittmatter, and Vogt;
Count 2 for excessive use of force against defendant Miller;
Count 3 for failure to intercede against defendants Aubuchon, Fincher,
Howard, Miller, Napier, Nicholay, Strittmatter, and Vogt;
Count 4 for false imprisonment against defendants Howard, Miller,
Napier, and Nicholay;
Count 5 for false imprisonment and injurious falsehood against
defendants Howard, Miller, Napier, and Nicholay;
Count 6 for violation of plaintiff’s first amendment rights to access the
courts against defendants Aubuchon, Fincher, Howard, Miller,
Napier, Nicholay, Strittmatter, and Vogt; and
Count 7 for fraud against defendants Howard, Miller, Napier, and
Nicholay.
/s/ David D. Noce
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UNITED STATES MAGISTRATE JUDGE

Signed on March 20, 2019.

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