A. et al v. Florissant, Missouri, City of. et al

Filing 37

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that the motion of defendant City of Florissant to dismiss Counts IV and VI of the complaint [Doc. # 20 ] is granted. MOTION to Dismiss :Counts IV and VI filed by Defendant Florissant Missouri, City of. Signed by District Judge Carol E. Jackson on 9/21/15. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
A.A. and K.A., by and through
next friend Tamonique Grady,
Plaintiffs,
vs.
CITY OF FLORISSANT, et al.,
Defendants.

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No. 4:15-CV-523 (CEJ)

MEMORANDUM AND ORDER
This matter is before the court on the motion of defendant City of Florissant
to dismiss Counts IV and VI of plaintiffs’ complaint, pursuant to Fed.R.Civ.P.
12(b)(6). Plaintiffs have filed a response in opposition and the issues are fully
briefed.
I.

Background

Plaintiffs are the minor children of Afolabi Abayomi, who died on October 20,
2013, from gunshot wounds he suffered while sitting in his car in front of his
residence in St. Louis County. Plaintiffs allege that Florissant police officers Andrew
Gerwitz and Joshua Smith fired their weapons at Mr. Abayomi. They further allege
that Mr. Abayomi’s residence was unlawfully searched by St. Louis County
detectives Tom Lasater, Joe Percich, Patrick Hokamp and Chris Most. Plaintiffs bring
this action pursuant to 42 U.S.C. § 1983, asserting claims of excessive force,
unreasonable search and seizure, and conspiracy.

Plaintiffs also assert Missouri

state law claims of wrongful death, assault, and battery.

The plaintiffs’ § 1983 claims against the City of Florissant are set forth in
Counts IV and VI. The claims are based on the theories of municipal liability and
respondeat superior
II.

Legal Standard

The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal
sufficiency of the complaint. Fed.R.Civ.P. 12(b)(6). The factual allegations of a
complaint are assumed true and construed in favor of the plaintiff, “even if it strikes
a savvy judge that actual proof of those facts is improbable.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007) (citing Swierkiewicz v. Sorema N.A., 534 U.S.
506, 508 n.1 (2002)); Neitzke v. Williams, 490 U.S. 319, 327 (1989) (“Rule
12(b)(6) does not countenance . . . dismissals based on a judge’s disbelief of a
complaint’s factual allegations.”); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)
(stating that a well-pleaded complaint may proceed even if it appears “that a
recovery is very remote and unlikely”). The issue is not whether the plaintiff will
ultimately prevail, but whether the plaintiff is entitled to present evidence in
support of his claim. Scheuer, 416 U.S. at 236. A viable complaint must include
“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550
U.S. at 570; see id. at 563 (stating that the “no set of facts” language in Conley v.
Gibson, 355 U.S. 41, 45-46 (1957), “has earned its retirement”); see also Ashcroft
v. Iqbal, 556 U.S. 662, 678–84 (2009) (holding that the pleading standard set forth
in Twombly applies to all civil actions). “Factual allegations must be enough to raise
a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
III.

Discussion

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To survive a motion to dismiss, “a civil rights complaint must contain facts
which state a claim as a matter of law and must not be conclusory.” Frey v. City of
Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995). A plaintiff must assert facts that
affirmatively and plausibly suggest that the pleader has the right he claims, rather
than facts that are merely consistent with such a right. Gregory v. Dillard’s, Inc.,
565 F.3d 464, 473 (8th Cir. 2009) (internal quotation and citations omitted). While
a plaintiff need not set forth “detailed factual allegations,” or “specific facts” that
describe the evidence to be presented, the complaint must include sufficient factual
allegations to provide the grounds on which the claim rests. Id. (citations omitted).
A.

Count IV: Policy, Custom and Failure to Train

Section 1983 liability for a constitutional violation may attach to a
municipality if the violation resulted from (1) an “official municipal policy,” (2) an
unofficial “custom,” or (3) a deliberately indifferent failure to train or supervise.
Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1214 (8th Cir. 2013) (citing
Monell, 436 U.S. at 690-91 and City of Canton, Ohio v. Harris, 489 U.S. 378, 388
(1989)). Plaintiffs assert that Florissant is liable for the actions of defendants
Gerwitz and Smith because the city: (1) delegated policy-making authority to the
Gerwitz and Smith; (2) had a policy or custom of failing to act on a pattern of
transgressions; and (3) failed to properly hire, train, supervise, control and/or
discipline Gerwitz and Smith.
1.

Delegation of policy-making authority

Municipal liability attaches only where the decisionmaker possesses final
authority to establish municipal policy with respect to the action ordered. Pembaur
v. City of Cincinnati, 475 U.S. 469, 481 (1986). “[T]he authority to make municipal

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policy is necessarily the authority to make final policy.” City of St. Louis v.
Praprotnik, 485 U.S. 112, 127 (1988). Authority to make municipal policy may be
granted directly by a legislative enactment or may be delegated by an official who
possesses such authority. Pembaur, 475 U.S. at 483.
Plaintiffs allege that the policy makers for Florissant are “an aldermanic
board, the mayor, or someone else and that person delegated full authority and/or
empowered” Gerwitz and Smith to make policy. Complaint, ¶¶144, 146 [Doc. #1].
They further allege that Florissant’s delegation of authority placed Gerwitz and
Smith in “policy-making positions,” with the result that the city is liable for
unconstitutional acts of the individual defendants. Id. at ¶¶145, 147.
Defendant argues that plaintiffs’ conclusory allegations and formulaic
recitation of the elements of their claims are not sufficient to state a claim for relief.
Plaintiffs counter that the Supreme Court has rejected any heightened pleading
requirement for claims against a governmental entity. Leatherman v. Tarrant
County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993). More
recently, however, the Supreme Court has held that in order to survive a motion to
dismiss, a complaint must allege facts sufficient “to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at 570. Considering this pleading
standard, in order to state a viable § 1983 claim against Florissant, plaintiffs are
required to plead facts sufficient to support “at least an inference that their
constitutional rights were violated as a result of action taken as a result of a
delegation of authority.” A.J. ex rel. Dixon v. Tanksley, No. 4:13-CV-1514 CAS,
2014 WL 1648790, at *7 (E.D. Mo. Apr. 24, 2014) (citations omitted). Plaintiffs
plead no facts at all and thus have failed to meet this standard.

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2.

Pattern of transgressions

Plaintiffs alternatively allege that Florissant is liable because there was a
pattern of transgressions of which it should have known.
“Governmental 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.” Id. (quoting
McGautha v. Jackson Cnty., Mo., Collections Dep’t, 36 F.3d 53, 56 (8th Cir. 1994)).
“[A] custom can be shown only by adducing evidence of a continuing, widespread,
persistent pattern of unconstitutional misconduct.” Id. (quoting Jenkins v. County of
Hennepin, Minn., 557 F.3d 628, 634 (8th Cir. 2009)). Here, plaintiffs allege that the
actions of the individual defendants “were part of a pattern of transgressions, of
which [the City] knew or should have known.” Complaint, ¶¶159-69. Florissant’s
failure “to act proactively to prevent such a pattern of transgressions, and
particularly to prevent the constitutional violations outlined herein,” establishes a
policy “to condone or otherwise tolerate such constitutional violations.” Id. at ¶161.
Plaintiffs allege that Florissant “thus had a ‘policy or custom’ of failing to act upon
prior similar complaints of unconstitutional conduct, of which they knew or should
have known, which caused the constitutional injuries at issue. There was a prior
pattern of unconstitutional conduct so ‘persistent and widespread’ as to have the
effect and force of law.” Id. at ¶162.
Plaintiffs have not alleged any facts to support this theory of liability. They
have not identified any other transgressions that have occurred, nor do they state
how Florissant addressed or failed to address any other transgressions. In the
absence of any factual allegations to support the existence of an unconstitutional

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policy or custom, there is no basis upon which to hold Florissant liable under §
1983. Id. at *9. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678.
“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.’” Id. “While
legal conclusions can provide the framework of a complaint, they must be
supported by factual allegations.” Id. at 679. Here, plaintiffs merely recite the
elements of a § 1983 claim against Florissant with no factual basis for holding it
liable. See also A.J, 2014 WL 1648790, at *9 (dismissing identically worded claims
against St. Louis Board of Police Commissioners).
3.

Failure to train

Plaintiffs also allege that Florissant is liable because it failed to properly hire,
train, supervise, control or discipline Gerwitz and Smith.
“In limited circumstances, a local government’s decision not to train certain
employees about their legal duty to avoid violating citizens’ rights may rise to the
level of an official government policy for purposes of § 1983. A municipality’s
culpability for a deprivation of rights is at its most tenuous where a claim turns on a
failure to train.” Connick v. Thompson, 131 S Ct. 1350, 1359 (2011) (citation
omitted). In order to state a claim under § 1983, a municipality’s “failure to train its
employees in a relevant respect must amount to ‘deliberate indifference to the
rights of persons with whom the [untrained employees] come into contact.’ Only
then ‘can such a shortcoming be properly thought of as a . . . policy or custom that
is actionable under § 1983.’” Id. at 1359-60 (quoting City of Canton, 489 U.S. at
388). Therefore, “when . . . policymakers are on actual or constructive notice that a

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particular omission in their training program causes . . . employees to violate
citizens’ constitutional rights, the [municipality] may be deemed deliberately
indifferent if the policymakers choose to retain that program.” Id. at 1360. The
municipality’s “policy of inaction” in light of notice that its program will cause
constitutional violations “is the functional equivalent of a decision by the
[municipality] itself to violate the Constitution.” Id.
Here, plaintiffs allege that Florissant was “deliberately indifferent to the
rights of others in adopting its hiring and training practices, and in failing to
supervise, control and/or discipline” the individual defendants, “such that those
failures reflected a deliberate or conscious choice” and “the need to correct
deficiencies is so obvious, and the inadequacy so likely to result in the violation of
constitutional rights, that the policymakers . . . can reasonably be said to have
been deliberately indifferent to the need.” Complaint, ¶¶150-51; 153-54. As with
their other theories of municipal liability, plaintiffs make only conclusory recitations
of the elements of a claim based on failure to train, supervise, control or discipline
the individual defendants. The complaint is devoid of any facts relating to this
theory of liability which, if proven, would support the claim against Florissant.
Count IV will therefore be dismissed.
B.

Count VI: Respondeat Superior

In Count VI, plaintiffs seek to hold defendant Florissant liable for the alleged
14th Amendment violations based on the theory of respondeat superior. Although
the Supreme Court has “held that a municipality is a ‘person’ that can be liable
under § 1983,” it is well established “that a municipality cannot be held liable on a
respondeat superior theory, that is, solely because it employs a tortfeasor.” Szabla

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v. City of Brooklyn Park, Minn., 486 F.3d 385, 389 (8th Cir. 2007) (citing Monell v.
Department of Social Services of New York, 436 U.S. 658, 690-91 (1978)).
Plaintiffs acknowledge that their respondeat superior claim against Florissant cannot
be sustained and, therefore, Count VI will be dismissed.
*****
For the reasons set forth above,
IT IS HEREBY ORDERED that the motion of defendant City of Florissant to
dismiss Counts IV and VI of the complaint [Doc. #20] is granted.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 21st day of September, 2015.

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