Doe v. Rainey et al
MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that Defendant Rainey's motion to dismiss Count II of Plaintiffs First Amended Complaint is DENIED. Signed by District Judge Audrey G. Fleissig on 3/17/2016. (NEB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
MARTIN RAINEY, et al.,
Case No. 4:15CV01484 AGF
MEMORANDUM AND ORDER
This action was brought under 42 U.S.C. § 1983 by Plaintiff Jane Doe against
Martin Rainey, a deputy sheriff for Gasconade County, Missouri; Randy Esphorst,
Sheriff of the County; and Gasconade County. Plaintiff filed an eight-count amended
complaint, claiming violations of rights secured under the Fourth and Fourteenth
Amendments of the United States Constitution, as well tort claims under state law.
Counts I and II are directed at Rainey claiming violations of Plaintiff’s federal
constitutional rights (Count I) and intentional infliction of emotional distress (“intentional
infliction”) (Count II). Counts III, IV, and V are directed at Esphorst claiming willful
failure to supervise, intentional infliction, and negligent supervision, respectively.
Counts VI, VII, and VIII are directed at Gasconade County claiming willful failure to
supervise, intentional infliction, and negligent supervision, respectively.
Before the Court is Defendant Rainey’s motion to dismiss Count II—which asserts
a claim of intentional infliction against him. Rainey asserts the claim (1) is barred by the
statute of limitations, and (2) fails to state a claim upon which relief can be granted. For
the reasons set forth below, the motion shall be denied.
Plaintiff alleges as follows: On or about July 14, 2012, she called the Gasconade
County Sheriff’s Department to inquire as to whether an ex parte (protection) order had
been served on her estranged husband. Rainey, a deputy sheriff, “came in[to] contact”
with Plaintiff regarding the inquiry and obtained her address and cell phone information.
Between July 14, 2012, and August 6, 2012, Rainey called Plaintiff 87 times and sent her
1,288 text messages, many of which were sexually explicit. Sometime after July 14,
2012, Rainey approached Plaintiff at her residence and made sexual advances towards
her, including trying to kiss her while standing in the doorway to the residence. After
July 14, 2012, Rainey also threatened to arrest Plaintiff’s husband in connection with an
investigation Rainey was supposedly undertaking of him, although Rainey knew both the
investigation and the arrest warrant to be fictitious. With respect to the supposed
investigation of Plaintiff’s husband, Rainey informed Plaintiff that he would use his
authority as a deputy sheriff to “make this all go away” if Plaintiff would engage in
sexual intercourse with him.
Plaintiff further alleges that on August 4, 2012, Rainey picked her up at her
apartment. He was wearing his deputy sheriff’s uniform, carrying a service-issued police
firearm, and driving a Gasconade County patrol vehicle. They went to a motel in
Owensville, Missouri, where Rainey had directed Plaintiff to reserve a motel room in a
fictitious name. Once in the motel, Rainey provided Plaintiff with an opened can of soda,
which caused Plaintiff to feel “drugged.” He thereafter removed his service-issued police
firearm from its holster and placed it on the nightstand next to the bed, with the barrel of
the firearm pointing towards where Plaintiff was lying. He then had nonconsensual
sexual intercourse with Plaintiff, despite her resistance.
Count II incorporates by reference each of the facts as stated above, but
specifically relies on only the time period from July 14 to August 2, 2012, and those facts
leading up to, but not including, the alleged battery in the Owensville motel room.
Plaintiff claims that these actions were outrageous, intentional, and undertaken for the
sole purpose of causing extreme emotional and physical distress to Plaintiff. Plaintiff
further alleges that she has suffered severe emotional injury as a result of these
intentional and outrageous acts by Rainey and will continue to suffer such emotional
injury in the future.
ARGUMENTS OF THE PARTIES
Rainey first asserts that the intentional infliction claim against him (Count II) is
governed and barred by the two-year statute of limitations of Missouri Revised Statute
§ 516.140 for sexual battery, because the claim is based on a sexual battery; the amended
complaint cannot be read to infer that Rainey’s conduct was intended solely to cause
extreme emotional harm to Plaintiff; and the sexual battery serving as the basis of this
count also serves as the basis for Count I. Rainey argues that Count II should be
dismissed for the additional reason that his alleged conduct leading up to, but not
including, the sexual battery on August 4, 2012, does not rise to the level of outrageous
or extreme conduct, as required for an intentional infliction claim, because sexually
explicit cell phone text communications are no longer considered rare or shocking.
Plaintiff responds that her intentional infliction claim is independent of the sexual
battery that occurred on August 4, 2012. Rather, Plaintiff asserts that her intentional
infliction claim against Rainey arises from Rainey’s conduct in the 24 days leading up to
the sexual battery, and that therefore, the five-year statute of limitations of Missouri
Revised Statute § 516.120(4) for intentional infliction applies. Further, Plaintiff argues
that Rainey’s conduct during those 24 days was intended solely to cause emotional
distress to Plaintiff, and was sufficiently extreme and outrageous in light of his authority
position as a police officer and his abuse of that authority in threatening Plaintiff with the
arrest of her husband.
To survive a motion to dismiss for failure to state a claim, a complaint must
contain sufficient factual matter, which accepted as true, states a claim for relief “that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements,” will not pass muster. Id. This standard “calls for enough fact [sic] to raise a
reasonable expectation that discovery will reveal evidence of [the claim].” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556 (2007). The court must accept the plaintiff’s
factual allegations as true and construe them in the plaintiff’s favor, but is not required to
accept the legal conclusions the plaintiff draws from the facts alleged. Id. at 555; Iqbal,
556 U.S. at 678; Retro Television Network, Inc. v. Lukien Commc’ns, LLC, 696 F.3d 766,
768-69 (8th Cir. 2012). A court must ‘“draw on its judicial experience and common
sense,’” in considering the plausibility of the plaintiff’s claim. Zoltek Corp. v. Structural
Polymer Grp., 592 F.3d 893, 896 n.4 (8th Cir. 2010) (quoting Iqbal, 556 U.S. at 679).
Missouri courts recognize the tort of intentional infliction. See, e.g., Pretsky v. Sw.
Bell Tel. Co., 396 S.W.2d 566, 568 (Mo. 1965). Under Missouri law, the elements of this
tort are: “(1) the defendant’s conduct must be outrageous or extreme; (2) the defendant
must act intentionally or recklessly; (3) there must be extreme emotional distress that
results in bodily harm; (4) caused by the defendant’s conduct; and (5) the conduct must
be intended solely to cause extreme emotional distress to the victim.” Crow v. Crawford
& Co., 259 S.W.3d 104, 119 (Mo. Ct. App. 2008). An intentional infliction claim can
only be brought when the wrongful conduct itself is not an independent cause of action.
Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 316 (Mo. 1993) (upholding dismissal of an
intentional infliction claim based solely on conduct giving rise to a slander claim). The
statute of limitations for an intentional infliction claim is five years. Mo. Rev. Stat. §
Rainey argues that the intentional infliction claim against him is barred by the
two-year statute of limitations of Missouri Revised Statute § 516.140 for sexual battery,
because the claim is based on a sexual battery. However, for this claim Plaintiff relies
only upon Rainey’s actions leading up to the sexual battery, actions which she alleges
were intended solely for the purpose of causing extreme emotional and physical distress.
(Doc. No. 27 at ¶ 41.) Therefore, the five-year statute of limitations for intentional
infliction based on conduct independent of a battery claim applies and does not bar
Plaintiff’s intentional infliction claim arising from conduct three and one-half years
before the filing of this action.
“[T]he test adopted by Missouri courts for actionable conduct is that the conduct
must be ‘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.’” Polk v. INROADS/St. Louis, Inc., 951 S.W.2d 646, 648 (Mo. Ct.
App. 1997) (quoting Restatement (Second) of Torts § 46 cmt. d (1965)). “[L]iability
does not extend to mere insults, indignities, threats, annoyances, or petty oppressions.”
Plaintiff directs the Court to LaBrier v. Anheuser Ford, Inc. 612 S.W.2d 790 (Mo.
Ct. App. 1981). In LaBrier, the plaintiff’s husband, a car salesman, took a vehicle from
his dealership employer without permission. Two men from the dealership, with
knowledge that the plaintiff was a “highly emotional and easily distraught individual who
had suffered severe emotional problems before,” accosted her at her home for 20 to 25
minutes in an attempt to track down her husband and the vehicle. See Id. at 792-93. In
loud voices, the men threatened to issue an “all-points bulletin” to the police in order to
arrest the plaintiff’s husband unless she complied with their demand to tell them her
husband’s location. Id. at 792. The court found this conduct could be characterized as
extreme and outrageous. Id. at 793.
Plaintiff also cites to a comment in the Restatement (Second) of Torts:
The extreme and outrageous character of the conduct may arise from
an abuse by the actor of a position, or a relation with the other,
which gives him actual or apparent authority over the other, or
power to affect his interests. Thus an attempt to extort money by a
threat of arrest may make the actor liable even where the arrest, or
the threat alone, would not do so. In particular police officers, school
authorities, landlords, and collecting creditors have been held liable
for extreme abuse of their position. Even in such cases, however, the
actor has not been held liable for mere insults, indignities, or
annoyances that are not extreme or outrageous.
Restatement (Second) of Torts § 46 cmt. e (1965) (Doc. No. 41 at 4.) Plaintiff argues
that the Restatement comment renders outrageous the act of “[d]emanding a woman act a
certain way by threatening her with the arrest of her husband . . . especially if the actor
threatening arrest is an authority figure such as a police officer.” (Doc. No. 41 at 4.)
Missouri courts have found that complaints of unwanted sexual encounters state a
claim for tort relief. In Young v. Stensrude, for example, the court reversed the dismissal
of the plaintiff’s claim for intentional infliction where she alleged that the defendant
showed her a pornographic movie in a room with five men and proceeded to make
obscene remarks to her. 664 S.W.2d 263, 265 (Mo. Ct. App. 1984). The court held that
to uphold the dismissal of the complaint would be “to subject this plaintiff, as a matter of
law, to unwilling exposure to acts which may be totally intolerable in today’s civilized
society.” Id. “Whether the acts complained of are ‘extreme or outrageous’ . . . is a
question of proof,” not to be decided on a motion to dismiss. Id.
Conversely, Missouri courts have found a lack of outrageous conduct in numerous
scenarios. In Luster v. Columbia Mutual Insurance Company, for example, the court
found an insurance adjustor’s actions in continuing to contact the plaintiffs in an effort to
adjust a wrongful death claim, immediately after the death of the plaintiffs’ daughter, did
not rise to the level of extreme and outrageous. 624 S.W.2d 890, 892 (Mo. Ct. App.
1981). In Luster, the defendant repeatedly advised the plaintiffs, during their time of
grieving immediately following the death of their daughter, that he was working for the
insurance company and that in order to pay the hospital and funeral bills, certain forms
would have to be signed immediately. Id. The plaintiff claimed outrage at the fact that
the complained of contact came during their period of mourning. Id. The court reasoned
the conduct “falls more under the category of occasional acts that are definitely
inconsiderate and unkind rather than acts that are utterly intolerable in a civilized
Here, even if one assumes changing mores since the Young decision, the Court
concludes that Plaintiff has stated a claim for intentional infliction against Rainey.
Rainey’s position of authority as a deputy sheriff, combined with the extreme number of
sexually explicit phone calls and text messages, unwanted sexual advances towards
Plaintiff, and threats to arrest her husband can easily rise to the level of “extreme or
IT IS HEREBY ORDERED that Defendant Rainey’s motion to dismiss Count II
of Plaintiff’s First Amended Complaint is DENIED.
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 17th day of March, 2016.
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