Jiang v. Porter et al

Filing 63

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the motion of defendants Porter, Pitterle, and the City of St. Louis to dismiss [Doc. # 27 ] is granted as to Counts IX, X, and XI of the complaint and is denied in all other respects. An order of partial dismissal will accompany this Memorandum and Order. Signed by District Judge Carol E. Jackson on 12/28/15. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
REV. XIU HUI “JOSEPH” JIANG,
Plaintiff,
vs.
TONYA LEVETTE PORTER, et al.,
Defendants.

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Case No. 4:15-CV-1008 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the motion of defendants Tonya Levette
Porter, Jaimie Pitterle, and the City of St. Louis to dismiss the complaint for failure
to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).

Plaintiff has responded in

opposition, and the issues are fully briefed.
I.

Background

Plaintiff Reverend Xiu Hui “Joseph” Jiang is a Chinese-born ordained Catholic
priest in the Archdiocese of St. Louis. Jiang asserts that defendants A.M. and N.M.
falsely accused him of sexually abusing their minor son for the purpose of monetary
gain.

Jiang also asserts that defendants Jaimie D. Pitterle and Tonya Levette

Porter, officers of the St. Louis Metropolitan Police Department, conducted an
inadequate investigation of the abuse allegations and targeted plaintiff for
prosecution because of his religion and ethnicity. He alleges that defendant City of
St. Louis failed to properly train the officers and that the officers’ conduct was the
result of the city’s unconstitutional policies and practices. Jiang further asserts that
defendants Survivors Network of Those Abused by Priests, its executive director
David Clohessy, and its registered agent in Missouri Barbara Dorris (the “SNAP

defendants”) led a public smear campaign against him which included making false
accusations of child molestation in the media.

The criminal case against Jiang

remained pending in state court from April 17, 2014 until June 17, 2015, when it
was voluntarily dismissed shortly before trial.
The fifteen-count complaint consists of the following claims:

religious

discrimination, selective enforcement and prosecution based on religion, race and
national origin, and conduct shocking the conscience, all in violation of 42 U.S.C. §
1983, against defendants Porter and Pitterle (Counts I–VI); conspiracy to violate
civil rights, in violation of 42 U.S.C. § 1985, against defendants except the City of
St. Louis (Count VII); willful, malicious and reckless official acts in violation of
Missouri law against defendants Porter and Pitterle (VIII); vicarious liability and
Monell claims for unconstitutional policy and practice and failure to train and
supervise against defendant City of St. Louis (Counts IX–XI); abuse of process
against defendants Porter, Pitterle, A.M. and N.M. (Count XII); intentional infliction
of emotional distress against all defendants except the City of St. Louis (Count
XIII); and defamation against A.M., N.M., and the SNAP defendants (Counts XIV–
XV).

Plaintiff seeks monetary and injunctive relief.
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

2

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.
II.

Discussion
A.

Qualified Immunity

Defendants Porter and Pitterle first contend that plaintiff’s claims against
them in Counts I to VI should be dismissed, because they were shielded by
qualified immunity at all times relevant to this action.

“[Q]ualified immunity

protects government officials ‘from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223,
231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Dismissal on
the basis of qualified immunity “is inappropriate unless it appears beyond doubt
[that the plaintiff] can prove no set of facts in support of [his] constitutional claims
which would entitle [him] to relief.” Central Airlines, Inc. v. United States, 138 F.3d

3

333, 334 (8th Cir. 1998) (internal quotations omitted); see also Weaver v. Clarke,
45 F.3d 1253, 1255 (8th Cir. 1995) (stating that qualified immunity “will be upheld
on a 12(b)(6) motion only when the immunity is established on the face of the
complaint”).
To overcome defendants’ qualified immunity claims, plaintiff must show that:
“(1) the facts, viewed in the light most favorable to the [him], demonstrate the
deprivation of a constitutional right; and (2) the right was clearly established at the
time of the deprivation.” Baribeau v. City of Minneapolis, 596 F.3d 465, 474 (8th
Cir. 2010) (internal quotations omitted).

“The relevant, dispositive inquiry in

determining whether a right is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted.”
Coleman v. Parkman, 349 F.3d 534, 538 (8th Cir. 2003) (quoting Saucier v. Katz,
533 U.S. 194, 202 (2001)). Courts are allowed “to exercise their sound discretion
in deciding which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case at hand.”
Pearson, 555 U.S. at 236.
In Counts I through V, plaintiff asserts claims of discrimination in violation of
the Equal Protection Clause of the Fourteenth Amendment and the Free Exercise
Clause of the First Amendment.

In Count VI, plaintiff asserts a Fourteenth

Amendment substantive due process claim.

The gravamen of plaintiff’s equal

protection claims is that the police defendants treated him less favorably in their
investigation and prosecution because of his religion, his status as an ordained
minister, and his race or national origin. Plaintiff’s substantive due process claim is
based on the allegation that the police defendants’ pursued the criminal prosecution

4

against him, even though they had evidence that the accusation of sexual abuse
was false and they knew that plaintiff had passed a polygraph test.
Defendants contend that the complaint describes the conduct of objectively
reasonable police officers responding to and investigating allegations of child sexual
abuse. Also, defendants assert that plaintiff has not alleged that the failure to offer
or act upon a polygraph examination violated his clearly established constitutional
rights.
Prosecutorial discretion may not be “deliberately based upon an unjustifiable
standard such as race, religion, or other arbitrary classification, including the
exercise of protected statutory and constitutional rights.” Wayte v. United States,
470 U.S. 598, 608 (1985) (internal quotations and citations omitted).

Selective

prosecution and selective enforcement claims are judged according to ordinary
equal protection standards.

Id.

These claims require a plaintiff to show both a

discriminatory effect and that the state actors were motivated by a discriminatory
purpose. Id. at 608–09; see also United States v. Armstrong, 517 U.S. 456, 465
(1996).

To establish a discriminatory effect, a plaintiff must show that similarly

situated

individuals

were

not

prosecuted.

Armstrong,

517

U.S.

at

465.

Discriminatory purpose “implies that the decisionmaker selected or reaffirmed a
particular course of action at least in part because of, not merely in spite of, its
adverse effects upon an identifiable group.”

Wayte, 470 U.S. at 610 (internal

quotations omitted).
According to the complaint, defendants Porter and Pitterle conducted only a
minimal investigation of the abuse accusations.

Had they conducted a more

thorough investigation, they would have learned that the minor child had made

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unfounded claims of sexual abuse in the past and that he was mentally and
emotionally troubled; that defendants A.M. and N.M. had a history of making
unfounded allegations against the Catholic Church for financial gain; and that there
were circumstances that made it impossible for plaintiff to have committed the
abuse as alleged. It is further alleged that none of the child’s accusations could be
substantiated and that the child made the accusations only after they were
suggested to him by his father.
Additionally, the complaint asserts that the police defendants ordinarily
conduct more substantial and thorough investigations before arresting and charging
suspects in cases involving allegations of sexual abuse against children.

The

complaint alleges that the police defendants targeted plaintiff for selective
prosecution because of discriminatory animus toward plaintiff’s religion, race and
national origin, as a Catholic priest and Chinese national. Moreover, the complaint
explains that the police defendants and the City of St. Louis had a general policy
and practice of permitting criminal defendants who maintain their innocence to take
polygraph examinations and then dropping charges against that defendant if he or
she passes the polygraph examination.

However, the police defendants deviated

from this policy when they refused to permit plaintiff to take a polygraph
examination to rebut the allegations against him and when they refused to dismiss
the charges against plaintiff after he passed a polygraph examination. Id. at ¶ 63–
68, 70–72, 73(d)–(e).
On the basis of these allegations, accepted as true for purposes of the instant
motion, the complaint alleges facts that sufficiently support plaintiff’s claim that he
was treated less favorably than similarly situated individuals and that he was

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targeted for prosecution because of his religion, race and national origin, in
violation of plaintiff’s clearly established rights under the Equal Protection Clause.
Counts I to V will not be dismissed on the basis of qualified immunity at this stage
in the litigation. See Central Airlines, Inc., 138 F.3d at 334; Weaver, 45 F.3d at
1255.
With respect to Count VI, “[t]o establish a violation of substantive due
process rights by an executive official, a plaintiff must show (1) that the official
violated one or more fundamental constitutional rights, and (2) that the conduct of
the executive official was shocking to the contemporary conscience.”

Flowers v.

City of Minneapolis, Minn., 478 F.3d 869, 873 (8th Cir. 2007) (internal quotations
omitted).

“When government officials engage in conscious-shocking, egregious

behavior that is clearly outside the scope of their discretionary authority, they are
not entitled to qualified immunity under section 1983.” Moran v. Clark, 359 F.3d
1058, 1060 (8th Cir. 2004) (finding that defendant law enforcement officers were
not entitled to qualified immunity protection when they knew or should have known
it was a violation of plaintiff’s substantive due process rights to conspire to
manufacture evidence and wrongfully prosecute an innocent person); see also
Devereaux v. Abbey, 263 F.3d 1070, 1074–76 (9th Cir. 2001) (holding that one
way for the plaintiff to assert a clearly established constitutional due process right
in a deliberate-fabrication-of-evidence claim would be to point to evidence
supporting the proposition that defendants continued their investigation of plaintiff
despite the fact that they knew or should have knew he was innocent).
Here, the complaint alleges that defendants Porter and Pitterle relentlessly
pursued a criminal prosecution against plaintiff on the basis of his religion, race,

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and national origin even though they knew or should have known he was innocent
after further investigation and witness interviews. Id. at ¶¶ 59–62, 73(b), 120–26.
Accepted as true for purposes of a motion to dismiss, these allegations set forth a
clearly established violation of plaintiff’s constitutional substantive due process
rights. At this stage in the proceedings, dismissal of Count VI is inappropriate on
the basis of qualified immunity.

See Central Airlines, Inc., 138 F.3d at 334;

Weaver, 45 F.3d at 1255.
B.

Official Immunity

Defendants Porter and Pitterle next contend that plaintiff’s claims in Counts
VIII, XII, and XIII should be dismissed on the basis of official immunity. In these
counts, plaintiff asserts state law claims of willful, malicious and reckless official
acts, abuse of process, and intentional infliction of emotional distress.
“Under Missouri law, the doctrine of official immunity protects public officials
from civil liability for injuries arising out of their discretionary acts or omissions
performed in the exercise of their official duties.” McLean v. Gordon, 548 F.3d 613,
617 (8th Cir. 2008) (quoting James ex rel. James v. Friend, 458 F.3d 726, 731 (8th
Cir. 2006)). “Official immunity does not, however, shield officials for liability arising
from

their

negligent

performance

of

ministerial

acts

or

functions.”

Id.

Discretionary acts require “the exercise of reason in the adaption of means to an
end and discretion in determining how or whether an act should be done or
pursued.” Rustici v. Weidemeyer, 673 S.W.2d 762, 769 (Mo. banc 1984) (quoting
Jackson v. Wilson, 581 S.W.3d 39, 43 (Mo. Ct. App. 1979)). A ministerial act is
one “of a clerical nature which a public officer is required to perform upon a given
state of facts, in a prescribed manner, in obedience to the mandate of legal

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authority, without regard to his own judgment or opinion concerning the propriety
of the act to be performed.” Id. Plaintiff concedes that the investigation of a crime
and the decision to arrest a suspect constitute discretionary acts for purposes of
Missouri’s official-immunity doctrine. Reasonover v. St. Louis Cnty., Mo., 447 F.3d
569, 585 (8th Cir. 2006).
However, “official immunity is a qualified immunity and does not apply to
those discretionary acts done in bad faith or with malice.” Davis v. Bd. of Educ.,
963 S.W.2d 679, 688 (Mo. Ct. App. 1998); see also State ex rel. Twiehaus v. Adolf,
706 S.W.2d 443, 446 (Mo. banc 1986).

Bad faith or malice in this context

ordinarily contains a requirement of actual intent to cause injury. Twiehaus, 706
S.W.2d at 447.

A defendant acts with malice by wantonly doing that which a

person of reasonable intelligence would know to be contrary to his or her duty and
which the defendant intends to be prejudicial or injurious to another. Id. (quoting
Grad v. Kaasa, 312 S.E.2d 888, 890 (N.C. 1984)). Bad faith “imports a dishonest
purpose, moral obliquity, conscious wrongdoing, breach of a known duty through
some ulterior motive or ill will partaking of the nature of fraud.”

Id. (quoting

Catalina v. Crawford, 483 N.E.2d 486, 490 (Ohio Ct. App. 1984)). Pursuant to Rule
9(b) of the Federal Rules of Civil Procedure, “[m]alice, intent, knowledge, and other
conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b).
The complaint expressly alleges that defendants Porter and Pitterle acted
with malice, in bad faith, and with the intent to harm plaintiff. Also, the complaint
asserts numerous factual allegations which support the inference that the police
defendants acted with the requisite bad faith, malice, and actual intent to disqualify
them for official immunity.

See Complaint at ¶ 60 (asserting that the police

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defendants maintained a baseless prosecution of plaintiff on the basis of religious
animus long after further investigation demonstrated that he was innocent); ¶¶ 58,
69–73, 92, 97, 109 (claiming that the police defendants intentionally deviated from
investigative and prosecutorial policies in their treatment of plaintiff in comparison
to similar situated defendants); ¶ 39 (asserting that defendant Pitterle engaged in
leading interview techniques to elicit an allegation from minor of a particular form
of sexual abuse). Accepting these allegations as true for purposes of this motion to
dismiss, the Court finds that defendants Porter and Pitterle are not entitled to
official immunity for the claims in Counts VIII, XII, and XIII.
C.

Vicarious Liability

Defendant City of St. Louis argues that plaintiff’s claim against it in Count IX
should be dismissed because the police defendants are not liable on the underlying
substantive claims and because the City cannot be held liable under the doctrine of
respondeat superior. Defendant premises its arguments for dismissal of Count IX
on the presumption that the complaint alleges that the City is vicariously liable for
the police defendants’ unconstitutional acts pursuant to § 1983.

However, in

response to the instant motion, plaintiff asserts that Count IX alleges traditional
common law vicarious liability for the police defendants’ violations of state law, not
federal law. Because the defendants have not challenged the underlying merits of
the state law claims against Porter and Pitterle, the City’s arguments for dismissal
of plaintiff’s vicarious liability claim do not have merit.
Rather, the only attack made on the underlying state law claims was the
invocation of official immunity, which, as explained above, is inapplicable at this
stage in the proceedings. Nonetheless, even if the police defendants were entitled

10

to official immunity on the state law claims brought against them, the City could
still be liable for the actions of the police officers.

In Southers v. City of

Farmington, the Missouri Supreme Court explained:
A finding that a public employee is entitled to official immunity does
not preclude a finding that he or she committed a negligent act—
because official immunity does not deny the existence of the tort of
negligence, but instead provides that an officer will not be liable for
damages caused by his negligence. Because the defense of official
immunity is personal to a public employee, it cannot extend to protect
his employing government entity sued under the doctrine of
respondeat superior. A government employer may still be liable for
the actions of its employee even if the employee is entitled to official
immunity because the doctrine protects the employee from liability,
but it does not erase the existence of the underlying “tortious conduct”
for which the government employer can be derivatively liable.
263 S.W.3d 603, 611 (Mo. banc 2008) (internal citations omitted).

The City’s

arguments regarding the underlying substantive claims and respondeat superior
thus do not present a basis for the dismissal of Count IX.
However, the City also argues that plaintiff’s state law cause of action against
it in Count IX is barred by sovereign immunity, because plaintiff has failed to plead
the existence of any exception to this doctrine of immunity.

Mo. Rev. Stat. §

537.600. The claim of vicarious liability in Count IX is the sole state law cause of
action brought against the City.

“Sovereign immunity is a judicial doctrine that

precludes bringing suit against the government without its consent.” State ex rel.
Div. of Motor Carrier & R.R. Safety v. Russell, 91 S.W.3d 612, 615 (Mo. banc
2002).

“It bars holding the government or its political subdivisions liable for the

torts of its officers or agents unless such immunity is expressly waived.”

Id.

Section 537.600.1 of the Missouri Revised Statutes waives sovereign immunity for
injuries resulting from the operation of motor vehicles and the condition of an
entity’s property. Additionally, section 537.610.1 provides that sovereign immunity

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can be waived through a government entity’s purchase of liability insurance for tort
claims. Mo. Rev. Stat. § 537.610.1.
To penetrate a claim of immunity under section 537.610.1, the plaintiff bears
the burden of proving the existence of an insurance policy and that the terms of the
policy cover the plaintiff’s claims. Topps v. City of Country Club Hills, 272 S.W.3d
409, 415 (Mo. Ct. App. 2008). Because the liability of a public entity for torts is the
exception to the general rule of sovereign immunity, a plaintiff must specifically
plead facts demonstrating that the claim is within an exception to sovereign
immunity. Epps v. City of Pine Lawn, 353 F.3d 588, 594 (8th Cir. 2003). Statutory
provisions waiving sovereign immunity are to be narrowly construed.
Kelly, 948 S.W.2d 634, 637 (Mo. Ct. App. 1997).

Woods v.

The complaint does not allege

any of the exceptions to sovereign immunity. As such, plaintiff’s vicarious liability
claim against the City of St. Louis in Count IX will be dismissed for the failure to
plead any exception to sovereign immunity.
D.

Monell Claims

In Counts X and XI, plaintiff seeks to hold the City liable for its own unlawful
conduct under § 1983. In Count X, the complaint alleges that the City maintained
an unconstitutional policy and practice in violation of 42 U.S.C. § 1983.

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 v. Dep’t of
Soc. Servs. of New York, 436 U.S. 658, 690–91 (1978) and City of Canton, Ohio v.
Harris, 489 U.S. 378, 388 (1989)).

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“Official municipal policy includes the decisions of a government’s lawmakers,
the acts of its policymaking officials, and practices so persistent and widespread as
to practically have the force of law.” Connick v. Thompson, 131 S. Ct. 1350, 1359
(U.S. 2011); see Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999) (stating
that in the context of municipal liability under § 1983, “a ‘policy’ is an official policy,
a deliberate choice of a guiding principle or procedure made by the municipal
official who has final authority regarding such matters”).
Alternatively, an unofficial “custom” is demonstrated by:
(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)

The plaintiff’s injury by acts pursuant to the governmental
entity’s custom, i.e., proof that the custom was the moving
force behind the constitutional violation.

Ware v. Jackson Cnty., Mo., 150 F.3d 873, 880 (8th Cir. 1998) (internal citations
and quotations omitted).

“This standard serves to prevent municipal evasion of

liability through improper delegation of policy responsibility or acquiescence in
pervasive constitutional violations by [governmental] employees.”

McGautha v.

Jackson Cnty., Mo., Collections Dep’t, 36 F.3d 53, 56–57 (8th Cir. 1994).
Here, the complaint does not sufficiently allege the existence of an official
unconstitutional policy or an unofficial custom. The most-detailed allegation in the
complaint regarding any policy or custom simply states that “in launching and
maintain the baseless prosecution” of plaintiff, the police defendants “acted in
collusion with, with the approval of, and/or pursuant to decisions made by

13

supervisors within the St. Louis Metropolitan Police Department and/or others in
positions of policy-making responsibility and authority in the City of St. Louis.”
Compl. ¶ 61.

The remaining allegations relevant to Count X are mere legal

conclusions. Id. at ¶¶ 142–45.
While a plaintiff need not specifically plead or identify an unconstitutional
policy or custom to survive a motion to dismiss, at the very least, a plaintiff must
allege facts which would support the existence of an unconstitutional policy or
custom. See Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 591 (8th
Cir. 2004). A plaintiff’s failure to include “any ‘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’ renders the complaint deficient.”
Id. (quoting Doe v. Sch. Dist. of Norfolk, 340 F.3d 605, 614 (8th Cir. 2003)); see
also Iqbal, 556 U.S. at 678 (“A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”). Because the complaint does not
include any allegations or references by which the Court can reasonably infer that
the conduct complained of resulted from an unconstitutional policy or custom,
Count X will be dismissed for failure to state a claim.
In Count XI, plaintiff alleges that the City failed to adequately train and
supervise the police defendants in violation of 42 U.S.C. § 1983.

The Supreme

Court has held that “[i]n 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.” Connick ,
131 S. Ct. at 1359.

However, “[a] municipality’s culpability for a deprivation of

14

rights is at its most tenuous where a claim turns on a failure to train.” Id. “[T]he
inadequacy of police training may serve as the basis for § 1983 liability only where
the failure to train amounts to deliberate indifference to the rights of persons with
whom the police come into contact.” City of Canton, 489 U.S. at 388.
“‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious consequence of his action.”
Connick, 131 S. Ct. at 1360 (quoting Board of Cnty. Comm’rs of Bryan Cnty., Okla.
v. Brown, 520 U.S. 397, 410 (1997)). Thus, “when city policymakers are on actual
or constructive notice that a particular omission in their training program causes
city employees to violate citizens’ constitutional rights, the city may be deemed
deliberately indifferent if the policymakers choose to retain that program.” Id. “A
pattern of similar constitutional violations by untrained employees is ‘ordinarily
necessary’ to demonstrate deliberate indifference for purposes of failure to train.”
Id. (quoting Brown, 520 U.S. at 409); see City of Canton, 489 U.S. at 390–91
(“That a particular officer may be unsatisfactorily trained will not alone suffice to
fasten liability on the city, for the officer’s shortcomings may have resulted from
factors other than a faulty training program.”).
Under § 1983, “a claim for failure to supervise requires the same analysis as
a claim for failure to train.”

Atkinson, 709 F.3d at 1216 (quoting Robinette v.

Jones, 476 F.3d 585, 591 (8th Cir. 2007)).

Neither claim can succeed without

evidence that the municipality “[r]eceived notice of a pattern of unconstitutional
acts committed by [its employees].” Parrish v. Ball, 594 F.3d 993, 1002 (8th Cir.
2010).

As such, a failure to supervise claim also may be maintained only if a

defendant demonstrated deliberate indifference or tacit authorization of the

15

offensive acts. Liebe v. Norton, 157 F.3d 574, 579 (8th Cir. 1998) (quoting White
v. Holmes, 21 F.3d 277, 280 (8th Cir. 1994)).
Plaintiff has not alleged facts sufficient to support a showing of deliberate
indifference for the failure to supervise or train. The complaint merely asserts that
the City of St. Louis failed to adequately train and supervise the police defendants
regarding impermissible discrimination and retaliation on the basis of race or
religion and proper procedures relating to investigation and arrest, but does not
provide factual allegations to support these assertions apart from the allegations of
the police defendants’ unconstitutional acts.

Compl. ¶¶ 147–48.

The complaint

simply states that the City’s failure to train and supervise the police defendants
“reflected the City of St. Louis’s deliberate indifference . . . toward the
constitutional rights of persons” with whom the police defendants would come into
contact, without factual allegations to demonstrate the City adopted deficient or
supervision or training practices or had actual or constructive notice of a pattern of
unconstitutional acts committed by its police officers. Id. at ¶ 150; see Atkinson,
709 F.3d at 1217 (“Absent some form of notice, the city cannot be deliberately
indifferent to the risk that its training or supervision of [its employees] would result
in ‘a violation of a particular constitutional or statutory right.’”) (quoting Brown, 520
U.S. at 411).

In the absence of factual allegations to support plaintiff’s legal

conclusions, there is no basis to hold the City of St. Louis liable under § 1983. As a
result, plaintiff’s claim in Count XI will also be dismissed for failure to state a claim.
E.

Conspiracy to Violate Civil Rights

In Count VII, plaintiff alleges that defendants Porter and Pitterle conspired
with the other defendants to violate plaintiff’s civil rights pursuant to 42 U.S.C. §

16

1985.

To prove a civil rights conspiracy under § 1985(3), plaintiff must prove:

“(1) the defendants conspired, (2) with the intent to deprive [him], either directly
or indirectly, of equal protection of the laws, or equal privileges and immunities
under the laws, (3) an act in furtherance of the conspiracy, and (4) that [he] or
[his] property [was] injured, or [he was] deprived of exercising any right or
privilege of a citizen of the United States.” Barstad v. Murray Cnty., 420 F.3d 880,
887 (8th Cir. 2005). Defendants Porter and Pitterle contend that the complaint is
devoid of any particular or specifically demonstrable material fact that they did
anything in agreement with the other named defendants.
The first element of a civil rights conspiracy claim “requires evidence of
specific facts that show a ‘meeting of minds’ among conspirators.”

Id.

“[T]he

plaintiff must allege with particularity and specifically demonstrate with material
facts that the defendants reached an agreement.”

City of Omaha Employees

Betterment Ass’n v. City of Omaha, 883 F.2d 650, 652 (8th Cir. 1989). A plaintiff
can satisfy this burden “by pointing to at least some facts which would suggest that
[the alleged conspirators] reached an understanding to violate [his] rights.”

Id.

(internal quotations omitted).
The complaint alleges that defendants Porter and Pitterle acted in concert to
bring charges against plaintiff without conducting ordinary investigation and that
they jointly persisted in the prosecution and investigation of plaintiff after they
knew or should have known he was innocent. The complaint further alleges that
defendants N.M. and A.M. had direct contact with the police defendants regarding
the investigation of plaintiff, and the SNAP defendants coordinated their conduct

17

with the police defendants to influence the investigation and prosecution against
plaintiff.
Accepting the factual allegations in the complaint as true for purposes of the
instant motion, the Court finds that plaintiff has pointed to at least some facts
suggesting

that

defendants

had

a

meeting

understanding to violate plaintiff’s civil rights.

of

the

minds

or

reached

an

Defendants do not challenge the

sufficiency of the complaint with respect to the remaining elements of an alleged
civil rights conspiracy. Thus, the Court will deny the defendants’ motion to dismiss
Count VII for failure to state a claim.
*

*

*

*

*

For the reasons set forth above,
IT IS HEREBY ORDERED that the motion of defendants Porter, Pitterle, and
the City of St. Louis to dismiss [Doc. #27] is granted as to Counts IX, X, and XI
of the complaint and is denied in all other respects.
An order of partial dismissal will accompany this Memorandum and Order.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 28th day of December, 2015.

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