Meyers v. Red Roof Inns, Inc. et al
MEMORANDUM AND ORDER, IT IS HEREBY ORDERED that Defendants Jeffrey Swatek, David Devouton, and Nick Anthon's Motion to Dismiss [ECF No. 12 ] is GRANTED. IT IS FURTHER ORDERED that Plaintiff James Dwane Meyers' claims against Defendants Jeffrey Swatek, David Devouton, and Nick Anthon shall be DISMISSED, without prejudice. Signed by District Judge E. Richard Webber on 4/10/15. (EAB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JAMES DWANE MEYERS,
RED ROOF INNS, INC., et al.,
No. 4:15CV00393 ERW
MEMORANDUM AND ORDER
This matter comes before the Court on Defendants Jeffrey Swatek, David Devouton, and
Nick Anthon’s Motion to Dismiss [ECF No. 12].
Plaintiff James Dwane Meyers (“Plaintiff”) initiated this lawsuit by filing a Petition in the
Circuit Court of the County of St. Louis on November 11, 2014. Plaintiff filed an Amended
Petition on February 18, 2015. On March 2, 2015, Defendants Jeffrey Swatek, David Devouton,
and Nick Anthon (“Defendant Officers”) 1 removed the Petition to this Court pursuant to 28
U.S.C. §§ 1331, 1367, 1441, and 1446. On March 16, 2015, Defendant Officers filed their
pending Motion to Dismiss [ECF No. 12], for failure to state a claim upon which relief can be
granted pursuant to Federal Rule of Civil Procedure (“FRCP”) 12(b)(6) and failure to plead an
exception to the doctrine of sovereign immunity. For purposes of this Motion to Dismiss, the
Court accepts as true the following facts alleged in Plaintiff’s Petition. Great Rivers Habitat
Alliance v. Fed. Emergency Mgmt. Agency, 615 F.3d 958, 988 (8th Cir. 2010).
Defendants Swatek, Devouton, and Anthon are police officers employed by the City of
On November 16, 2012, Plaintiff occupied Room 112 of the Red Roof Inn located in
Maryland Heights, Missouri [ECF No. 6]. Plaintiff was not to receive maid or room service.
Officer Swatek learned Plaintiff was being held by the City of Creve Coeur on charges of
possession of drug paraphernalia. Officers Swatek, Devouton, and Anthon went to the Red Roof
Inn and requested to search Plaintiff’s room; the officers did not have a search warrant. Officer
Devouton contacted Defendant Hal Scharff, General Manager of the Red Roof Inn, who stated
he wanted Plaintiff evicted for non-payment. Officers Swatek, Devouton, and Anthon conducted
a search of Room 112 and assisted the front desk clerk in removing all of Plaintiff’s possessions
from the room. When Plaintiff returned to the Red Roof Inn, he was denied access to Room 112
and some, but not all, of his possessions were returned. Plaintiff has not had access to Room 112
since November 16, 2012.
Plaintiff asserts four counts against Defendants Red Roof Inns, Inc., FMW RRI NC,
LLC, Hal Scharff, Unna Thomas, Jeffrey Swatek, David Devouton, and Nick Anthon. 2 Count I
alleges Forcible Entry and Detainer pursuant to Missouri Revised Statute § 534.020. Count II
alleges Violation of Fifth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983. Count III
alleges Violation of Fourth Amendment pursuant to 42 U.S.C. § 1983 and Count IV alleges
Trespassing. Plaintiff seeks compensatory and punitive damages in the amount of $25,000.00,
costs, and attorney fees. Defendant Officers now seek to dismiss Plaintiff’s claims.
Under FRCP 12(b)(6), a party may move to dismiss a claim for “failure to state a claim
upon which relief can be granted.” The notice pleading standard of FRCP 8(a)(2) requires a
plaintiff to give “a short and plain statement showing that the pleader is entitled to relief.” To
The lawsuit originally included as a defendant the City of Maryland Heights who was termed
on March 2, 2015.
meet this standard and to survive a FRCP 12(b)(6) 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) (internal quotations and citation omitted). This
requirement of facial plausibility means the factual content of the plaintiff’s allegations must
“allow the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Cole v. Homier Distrib. Co., 599 F.3d 856, 861 (8th Cir. 2010) (quoting Iqbal, 556
U.S. at 678). Courts must assess the plausibility of a given claim with reference to the plaintiff’s
allegations as a whole, not in terms of the plausibility of each individual allegation. Zoltek Corp.
v. Structural Polymer Group, 592 F.3d 893, 896 n.4 (8th Cir. 2010) (internal citation omitted).
This inquiry is “a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679. The Court must grant all reasonable
inferences in favor of the nonmoving party. Lustgraaf v. Behrens, 619 F.3d 867, 872-73 (8th
Claims Brought Under State Law
Plaintiff brings two claims under state law, forcible entry and detainer and trespassing.
Defendant Officers assert sovereign immunity bars Plaintiff’s state law claims as Plaintiff has
not pled an exception to sovereign immunity.
Sovereign immunity bars a state, or state entities, from being sued without consent.
Missouri Revised Statute § 537.600 provides a public entity is immune from liability and suit
with two exceptions: 1) injuries resulting from negligent driving of motor vehicles by public
employees in the course of their employment; and 2) injuries caused by a dangerous condition of
a public entity’s property. Other exceptions, such as the purchase of liability insurance, may be
found in common law. A public entity is defined as “any multistate compact agency created by a
compact formed between this state and any other state which has been approved by the Congress
of the United States.” Mo. Rev. Stat. § 537.600.3. Sovereign immunity also bars suits against
employees in their official capacities, “as such suits are essentially direct claims against the
state.” Betts-Lucas v. Hartmann, 87 S.W.3d 310, 327 (Mo. Ct. App. 2002). The Petition does
not state in what capacity the officers are being sued; thus, the Court presumes the suit is brought
against the officers in their official capacity. Artis v. Francis Howell North Band Booster Ass’n,
Inc., 161 F.3d 1178, 1182 (8th Cir. 1998) (holding “[a] suit against a public official in his
individual capacity requires that the public official be named in his personal capacity as an
individual” and the Court will presume he is sued in his official capacity if he is not named
A municipality, such as the City of Maryland Heights and its employees, are not entitled
to complete immunity. Gregg v. City of Kanas City, 272 S.W.3d 353, 359 (Mo. Ct. App. 2008).
A municipality is only immune from all liability which arises from performance of governmental
functions. Id. Governmental functions include acts performed by the municipality as an agent of
the state such as enforcing laws and ordinances. Id. at 361. The allegations in the Petition
concern the officers’ policing actions and qualify as governmental functions entitled to sovereign
immunity. Because sovereign immunity bars Plaintiff’s claims against the officers, the state law
claims against Defendant Officers will be dismissed unless Plaintiff has sufficiently pled an
Liability of a public entity is the exception to the general rule; therefore, Plaintiff must
plead specific facts showing his claims are within an exception. Hummel v. St. Charles City R-3
Plaintiff confirms the suit is brought against the officers in their official capacity in Plaintiff’s
Response to Defendant Officers’ Motion to Dismiss [ECF No. 18].
School Dist., 114 S.W.3d 282, 284 (Mo. Ct. App. 2003). Plaintiff has not alleged a single fact
suggesting his claims fall within an exception to sovereign immunity. In his response, Plaintiff
states he will need to complete discovery to determine if an exception exists [ECF No. 18].
However, Plaintiff’s suit cannot proceed to discovery without pleading an exception to sovereign
immunity. Plaintiff’s claims of Forcible Entry and Detainer and Trespassing against Defendant
Officers are barred by sovereign immunity and will be dismissed.
Claims Brought Under Federal Law
Plaintiff also asserts two claims against Defendant Officers pursuant to 42 U.S.C. § 1983
for violations of the Fourth, Fifth, and Fourteenth Amendments. Defendant Officers contend
Plaintiff does not identify the specific constitutional right allegedly infringed and Plaintiff is
required to allege the existence of a policy or custom as the moving force behind the violations
but did not do so.
A claim brought pursuant to 42 U.S.C. § 1983 has two elements: 1) the act at issue was
committed by a person acting under color of state law, and 2) the act at issue deprived the
Plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United
States. DuBose v. Kelly, 187 F.3d 999, 1002 (8th Cir. 1999). A suit brought under § 1983
against an officer in his official capacity is an action directly against the municipality. Clay v.
Conlee, 815 F.3d 1164, 1170 (8th Cir. 1987). In a lawsuit brought against an individual in his
official capacity, the government entity is the real party in interest and must be the “moving
force” behind the alleged violation which means the entity’s official policy or custom must have
caused the violation. Id. Plaintiff’s complaint need not plead the existence of an
unconstitutional policy or custom, but there must be some “allegations, reference, or language by
which one could begin to draw an inference that the conduct complained of . . . resulted from an
unconstitutional policy or custom.” Doe ex rel. Doe v. School Dist. of the City of Norfolk, 340
F.3d 605, 614 (8th Cir. 2003). Plaintiff did not plead any allegations from which the Court could
begin to draw an inference the conduct resulted from an unconstitutional policy or custom of the
City of Maplewood. Plaintiff’s claims against Defendant Officers under 42 U.S.C. § 1983 will
In Plaintiff’s response to Defendant Officers’ Motion to Dismiss, Plaintiff includes a
motion to file a second amended petition and an attached proposed second amended petition. As
the proposed second amended petition does not correct the fatal flaws discussed supra, the Court
will deny Plaintiff’s request as futile.
IT IS HEREBY ORDERED that Defendants Jeffrey Swatek, David Devouton, and
Nick Anthon’s Motion to Dismiss [ECF No. 12] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff James Dwane Meyers’ claims against
Defendants Jeffrey Swatek, David Devouton, and Nick Anthon shall be DISMISSED, without
Dated this 14th Day of April, 2015.
E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE
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