Tracy et al v. SSM Cardinal Glennon Children's Hospital et al

Filing 127

MEMORANDUM AND ORDER -....IT IS HEREBY ORDERED that defendants SSM Cardinal Glennon Children's Hospital, Dr. Ayoob Ali and Dr. Mohamad Al-Hosni's motion to dismiss Count II for failure to obtain the affidavit required by § 538. 225, Missouri Revised Statutes, and to dismiss Count III of Plaintiffs' Third Amended Complaint for failure to state a claim, is GRANTED. [Doc. 64]IT IS FURTHER ORDERED that defendant Samuel Dotson, III in his official capacity as Chief o f Police of the St. Louis Metropolitan Police Department's motion to dismiss Count III of Plaintiffs' Third Amended Complaint for failure to state a claim is GRANTED. [Doc. 71] IT IS FURTHER ORDERED that defendant Brian Kinkade in his official capacity as Director of the Missouri Division of Social Services, Childrens Division's motion to dismiss Count III of Plaintiffs' Third Amended Complaint for lack of subject matter jurisdiction is GRANTED. [Doc. 62] Defendan t Kinkade's motion to dismiss Count III for failure to state a claim is DENIED as moot. [Doc. 62] IT IS FURTHER ORDERED that the Court declines to exercise supplemental jurisdiction over plaintiffs' remaining state law claim for fals e imprisonment in Count and will dismiss that claim without prejudice. IT IS FURTHER ORDERED that plaintiffs' claims against defendants John Does 1 through 30 are DISMISSED without prejudice. IT IS FURTHER ORDERED that all other pending motions are DENIED as moot. [Docs. 101, 106, 108, 114, 117] An Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge Charles A. Shaw on 7/12/2015. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

RACHEL TRACY, individually and in her
capacity as next friend of D.T., an infant,

)
)
)
Plaintiffs,
)
)
v.
)
)
SSM CARDINAL GLENNON CHILDREN’S )
HOSPITAL, et al.,
)
)
Defendants.
)

No. 4:15-CV-1513 CAS

MEMORANDUM AND ORDER
This matter is before the Court on motions to dismiss plaintiffs’ Third Amended Complaint
(“complaint”) filed by defendants (1) SSM Cardinal Glennon Children’s Hospital, Dr. Ayoob Ali,
and Dr. Mohamad Al-Hosni (collectively the “Hospital defendants”); (2) Brian Kinkade, in his
official capacity as Director of the Missouri Department of Social Services, Children’s Division; and
(3) Samuel Dotson, III, in his official capacity as Chief of Police of the Metropolitan Police
Department of the City of St. Louis. Plaintiffs oppose the motions and they are fully briefed. For
the following reasons, the Court will grant the motions to dismiss. Because all federal claims will
be dismissed and there is no other basis for federal jurisdiction, the Court will decline to exercise
supplemental jurisdiction over plaintiffs’ remaining state law claim and will dismiss it without
prejudice.
I. Background
According to the complaint, this action “arises out of a false accusation of child abuse which
caused needless separation of a baby from his mother, by refusing to discharge the baby, refusing
to transfer the baby to a hospital closer to his home, removing the baby from the home without prior

notice and hearing and placing him in foster care. This was done without reasonable cause to
believe that child abuse had occurred.” Complaint ¶ 1 (Doc. 59).1
Plaintiffs’ complaint asserts state law claims for false imprisonment against defendants SSM
Cardinal Glennon Children’s Hospital, Dr. Ali, Dr. Al-Hosni, and Amy Meyer in Count I; for
medical malpractice against the Hospital, Dr. Ali and Dr. Al-Hosni in Count II; and federal claims
under 42 U.S.C. §§ 1983 and 1988 for violations of plaintiffs’ due process and equal protection
rights under the U.S. Constitution and conspiracy to violate plaintiffs’ constitutional rights, against
the Hospital, Dr. Ali and Dr. Al-Hosni, Samuel Dotson, III, and Brian Kinkade in Count III.
Plaintiffs seek both monetary damages and prospective injunctive relief.
II. Legal Standard
The purpose of a motion to dismiss for failure to state a claim is to test the legal sufficiency
of the complaint. To survive a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a
claim upon which relief can be granted, “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) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plaintiffs “must
include sufficient factual information to provide the ‘grounds’ on which the claim rests, and to raise
a right to relief above a speculative level.” Schaaf v. Residential Funding Corp., 517 F.3d 544, 549
(8th Cir. 2008) (citing Twombly, 550 U.S. at 555 & n.3). This obligation requires plaintiffs to plead

1

Plaintiffs’ complaint fails to comply with Rule 8(a)(2) of the Federal Rules of Civil
Procedure because it does not contain a “short and plain statement of the claim showing that the
pleader is entitled to relief[.]” Although the relevant facts of the case are fairly simple, the
complaint devotes seventeen pages and 103 paragraphs to an unnecessarily detailed statement of the
facts. Plaintiffs’ allegations in general are unnecessarily prolix, confusing and conclusory.
2

“more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555.
On a motion to dismiss, the Court accepts as true all of the factual allegations contained in
the complaint, even if it appears that “actual proof of those facts is improbable,” id. at 556, and
reviews the complaint to determine whether its allegations show that the pleader is entitled to relief.
Id. at 555-56; Fed. R. Civ. P. 8(a)(2). The principle that a court must accept as true all of the
allegations contained in a complaint does not apply to legal conclusions, however. Iqbal, 556 U.S.
at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice”). Although legal conclusions can provide the framework for a complaint,
they must be supported by factual allegations. Id. 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.”
Gregory v. Dillard’s, Inc., 565 F.3d 464, 473 (8th Cir. 2009) (en banc) (quotation marks and citation
omitted).
III. Discussion
A. Hospital Defendants’ Motion to Dismiss
1. Count II - Medical Malpractice
The Hospital defendants move to dismiss Count II, which asserts a state law claim for
medical malpractice, on the basis that plaintiffs have failed to submit an affidavit based on the
opinion of a legally qualified health-care provider certifying the merits of their case within 90 days
of the filing of the complaint, as required by § 538.225, Mo. Rev. Stat. (2000). The Hospital
defendants assert that dismissal without prejudice is required as a result of this failure, citing
§ 538.225 and Howard v. SSM St. Charles Clinic Medical Group, Inc., 364 S.W.3d 242, 244 (Mo.
Ct. App. 2012) (“If a party filed a motion to dismiss for failure to file a health care affidavit, and a
3

statutorily adequate health care affidavit has not been timely filed, the trial court must dismiss the
complaint without prejudice.” (cited case omitted)).
Plaintiffs oppose the motion, arguing that the statute does not apply unless (1) the
relationship of the parties is that of health care provider and recipient, and (2) the “true claim”
relates only to the provision of health care services, citing St. John’s Regional Health Center, Inc.
v. Windler, 847 S.W.2d 168, 171 (Mo. Ct. App. 1993). Plaintiffs state without citation to any
supporting authority that because they allege D.T. was ready for discharge on December 27, 2013
but was held in the hospital thereafter for other reasons, the relationship of the parties was not that
of health care provider and patient, so the first part of the test is not met. Plaintiffs also assert that
their medical malpractice claim does not relate only to provision of medical services, as they allege
D.T. was ready for discharge but was restrained not to receive medically necessary care, but so he
could be removed from his parents’ home.2 Finally, plaintiffs assert in the alternative that the Court
has discretion to allow a medical malpractice action to proceed without the statutory affidavit upon
a showing of good cause. Plaintiffs do not make any attempt to articulate facts relevant to a showing
of good cause, however.
Section § 538.225, Mo. Rev. Stat., requires the timely submission of an affidavit based on
the opinion of a legally qualified health-care provider certifying the merits of the plaintiff’s case.
“The language of section 538.225 unambiguously requires: (1) plaintiffs to file an affidavit in
medical negligence cases; and (2) trial courts to dismiss without prejudice any such action if the

2

In both the complaint and motion briefing, plaintiffs refer to D.T. being removed from
plaintiff Rachel Tracy’s home, but the facts as pleaded indicate D.T. was in the hospital rather than
plaintiff Rachel Tracy’s home when he was taken into temporary foster care.
4

affidavit is not filed.” Lang v. Goldsworthy, 470 S.W.3d 748, 751 (Mo. 2015) (en banc) (cited case
omitted).
The Windler case, cited by plaintiffs, demonstrates that plaintiffs’ medical malpractice claim
must be dismissed for failure to file the § 538.225 affidavit. In Windler, the hospital sued for the
cost of medical and hospital care rendered. 847 S.W.3d at 170. Windler counterclaimed for false
imprisonment, alleging that the hospital detained her against her will and kept her imprisoned in its
psychiatric hospital through threats and force. Id. The hospital moved to dismiss Windler’s
counterclaim for failure to file the § 538.225 affidavit and the trial court granted the motion. On
appeal, Windler argued the affidavit was not required because her intentional tort claim did not
require that she show a duty and breach of the standard of care that a reasonably prudent and careful
health care provider would have provided under similar circumstances, but rather she only needed
to prove that the hospital intentionally restrained her against her will. Id. The Missouri Court of
Appeals affirmed, stating it was implicit in the counterclaim that the hospital was acting in its
capacity as a health care provider when the alleged unlawful imprisonment occurred, and concluding
that despite the plaintiff’s characterization of her claim as false imprisonment, her “true claim”
required the affidavit “because the basis for the alleged false imprisonment was the incorrect—or
totally absent—medical determination that she needed to be confined.” Id. at 171.
In the present case, the complaint includes detailed allegations of the medical treatment
services the Hospital defendants rendered to D.T., and expressly asserts a claim for medical
malpractice in Count II. This count alleges that the Hospital defendants “failed to meet the
applicable standard of care” by (1) hindering plaintiff Rachel Tracy from providing nurture,
nourishment and physical care to D.T.; (2) refusing to send D.T. home with monitoring equipment
and imposing a restriction on D.T.’s discharge that was beyond the applicable standard of care; and
5

(3) making false accusations against Rachel Tracy to child welfare authorities knowing that the
conduct alleged did not constitute child abuse or neglect under any Illinois or Missouri statute or
regulation. Complaint ¶¶ 112, 113, 115.
Count II clearly alleges the existence of a relationship between the Hospital defendants and
D.T. of healthcare providers and recipient. Plaintiffs’ argument that the healthcare providerrecipient relationship ended on the date they allege D.T. was ready to be discharged is both
unsupported by any authority and unpersuasive. Because Count II raises issues as to whether
healthcare providers failed to meet the applicable standard of care, § 538.225 applies and a
healthcare affidavit is required.
Plaintiffs attempt to distinguish Windler on the basis of a footnote that states:
We need not decide whether, in the absence of a health care relationship, or
if a health care relationship exists but other activities are involved, a claimant must
file the affidavit. To illustrate, if Windler had alleged that while visiting in the
hospital she had been unlawfully restrained or detained by employees of St. John's
upon an unfounded accusation of theft, the result might be different. Likewise, if
Windler had alleged that as a patient in the hospital she was ready for discharge but
was unlawfully restrained or detained because of unfounded theft accusations, the
affidavit may or may not be required. Not having those facts before us, we do not
reach such questions.
Id. at 171 n.7 (emphasis added). Here, unlike the hypothetical situation the Missouri Court of
Appeals declined to reach in Windler – allegations of theft delaying a patient’s discharge –
plaintiffs’ allegations in their medical malpractice count that D.T. was restrained from leaving the
hospital are closely intertwined with and related to his medical care, as they allege the Hospital
defendants failed to exercise the appropriate standard of care by interfering with Rachel Tracy’s
ability to care for D.T., imposing conditions for D.T.’s release, and making false reports about child
abuse or neglect to state authorities.

6

Plaintiffs argue they are not required to file the affidavit under Pierce v. Pemiscot Memorial
Health Systems, 25 F.Supp.3d 1198 (E.D. Mo. 2014), which held that a § 538.225 affidavit is not
required in a case alleging constitutional deprivations under § 1983. Pierce is distinguishable and
does not support plaintiffs’ position. In Pierce, the plaintiff was held in a psychiatric hospital under
a court order for detention, evaluation and treatment not to exceed a period of 96 hours, unless a
petition for a further period of detention and treatment was filed with the court. After 96 hours
passed, the plaintiff was not discharged and no petition for further detention was filed, and she
remained detained for a lengthy period of time against her will. Id. at 1201-03. Plaintiff sued,
asserting claims under § 1983 for violation of her substantive and procedural due process rights, as
well as state law claims.3 Id. at 1204-05, 1210. The defendants moved for summary judgment on
the basis that the plaintiff did not file a § 538.225 affidavit. This Court held the defendants were not
entitled to summary judgment, because “it is well established that § 538.225 does not apply to a
plaintiff’s constitutional claim under § 1983.” Id. at 1207 (citing cases). Unlike Pierce, however,
plaintiffs’ Count II is a state law medical malpractice claim, not a § 1983 claim, and therefore Pierce
is not controlling.
Where a plaintiff asserted both state law medical malpractice claims and § 1983 civil rights
claims based on the same allegations, the Eighth Circuit Court of Appeals approved the district
court’s dismissal of the medical malpractice claims for failure to file the § 538.225 affidavit, while
it permitted the § 1983 claims to proceed. See Moore v. Ernest-Jackson, 16 F. App’x 517, 518 (8th
Cir. 2001). This is the same situation as presented by plaintiffs’ case.

3

The plaintiff in Pierce did not assert a medical malpractice claim.
7

Plaintiffs argue that they do not have to file the § 538.225 affidavit because Count II does
not relate only to the provision of medical services. This unsupported assertion does not convert
plaintiffs’ state law medical malpractice claim to an action under § 1983 or otherwise permit them
to avoid the statutory requirement,4 and this Court has previously rejected a similar argument. In
Grace v. Harris, 2007 WL 3530200, at *1 (E.D. Mo. Nov. 13, 2007), the plaintiff asserted a § 1983
claim and a state law claim of professional negligence based on the defendant healthcare providers’
failure to provide him with certain medications. The Court granted the defendants’ motion to
dismiss the professional negligence claim for failure to file a § 538.225 affidavit. The plaintiff
argued his professional negligence claim was part of his § 1983 claim and therefore the statutory
requirement did not apply, but the Court stated, “plaintiff’s claims of negligence are based on the
defendants’ alleged breach of duty and thus [are] not sufficient to allege a constitutional violation
of his rights.” Id. at *2. As a result, the plaintiff was required to file a § 538.225 affidavit on his
negligence claim. Id. The present case is like Grace, as the plaintiffs’ medical malpractice claim
is based on allegations that the Hospital defendants’ actions did not meet the appropriate standard
of care, and the claim does not suffice to allege a violation of the plaintiffs’ constitutional rights.
Finally, plaintiffs assert that the Court has the discretion to allow a medical malpractice
action to proceed without a § 538.225 affidavit upon a showing of good cause. Mo. Rev. Stat.
538.225.5 provides that the “affidavit shall be filed no later than ninety days after the filing of the
petition unless the court, for good cause shown, orders that such time be extended for a period of
time not to exceed an additional ninety days.” Here, plaintiffs do not offer any reason why the
period of time should be extended, much less make the required showing of good cause. More

4

As stated above and discussed more fully below, the complaint asserts § 1983 claims in
Count III.
8

importantly, because this action was filed in October 2015, the affidavit was due in January 2016
and any extension under the statute could only have been granted until April 2016. This argument
is therefore without merit.
For these reasons, the Hospital defendants’ motion to dismiss Count II without prejudice will
be granted.
2. Count III - 42 U.S.C. §§ 1983 and 1988
The Hospital defendants move to dismiss Count III, which asserts a claims under 42 U.S.C.
§§ 1983 and 1988, asserting different arguments with respect to the hospital and physician
defendants.
a. Defendant SSM Cardinal Glennon Children’s Hospital (“Glennon”)
Defendants state that a corporation acting under color of state law can only be held liable
under § 1983 for its own unconstitutional policies, citing Crumpley-Patterson v. Trinity Lutheran
Hospital, 388 F.3d 588, 590 (8th Cir. 2004), but plaintiffs’ claims against Glennon are explicitly
based on a respondeat superior theory, which the Eighth Circuit has repeatedly held is not a basis
for holding a private corporation liable under § 1983. See Smith v. Insley’s, 499 F.3d 875, 880 (8th
Cir. 2007).
Plaintiffs respond that the complaint “sufficiently alleges a widespread pattern of
unconstitutional conduct on the part of the Hospital. . . . . The Complaint alleges facts which infer
a practice based on a policy on the part of the Hospital that is widespread as a state-imposed
unconstitutional construction of Missouri law is alleged.” Pls.’ Response at 12 (Doc. 68). Plaintiffs
assert that they are “informed that the Hospital has in place policies which implement the
unconstitutional scheme described above” and claim to have “evidence of four affected families”

9

in Illinois and one in Missouri. Id. at 13. Plaintiffs attempt to characterize the complaint’s assertion
of respondeat superior liability against Glennon as “an additional alternative allegation.” Id.
The complaint specifically states that “[l]iability against the Hospital is alleged on the basis
of respondeat superior,” Complaint ¶ 139, and a careful review of the complaint shows that
plaintiffs’ claims against the Hospital are indeed based on that theory. Contrary to plaintiffs’
statements in their Response, the complaint does not include any language or factual allegations
from which a reasonable inference could be drawn that Glennon had an unconstitutional policy or
custom of making unwarranted or false reports to state authorities of child abuse or neglect by
victims of domestic violence. Plaintiffs’ unsupported assertions in their Response cannot serve to
remedy deficiencies in or amend the complaint’s allegations. Further, as a general rule, private
hospitals do not act under color of state law for § 1983 purposes. See, e.g., Blum v. Yaretsky, 457
U.S. 991, 1004 (1982) (“[t]he mere fact that a [nursing home] is subject to state regulation does not
by itself convert its action into that of the State for purposes of the Fourteenth Amendment.”)
(quoted case omitted). “State law does not amount to an actionable hospital policy.” Mueller v.
Auker, 700 F.3d 1180, 1191-92 (9th Cir. 2012) (hospital “did not become a state actor simply
because it complied with state law requiring its personnel to report possible child neglect to Child
Protective Services). Because respondeat superior is not a basis for liability under § 1983, Polk
County v. Dodson, 454 U.S. 312, 325 (1981), the motion to dismiss plaintiffs’ claims against
Glennon in Count III will be granted.
b. Defendants Al-Hosni and Ali
The defendants state that plaintiffs’ § 1983 claims against defendants Al-Hosni and Ali are
based on two theories: First, that Al-Hosni and Ali improperly reported their suspicions that D.T.
was neglected or may be neglected if released to his parents; and second, that they conspired with
10

the St. Louis Metropolitan Police Department to deprive plaintiff Rachel Tracy of her liberty interest
as the parent of D.T.
With respect to the first theory, defendants state that Count III alleges they “used their
inaccurate understanding of the law to undermine Rachel’s parental rights by making exaggerated
accusations of behavior that is not unlawful and that was not related to any harm to D.T.”
Complaint ¶ 129. The complaint explains the “inaccurate understanding of the law” as follows:
128. Specifically, the Defendants knew that a victim of domestic violence
is not a perpetrator of child abuse under any statute or regulation under Illinois law
or Missouri law. Defendants knew that the Illinois Supreme Court had invalidated
Allegation 60 as unauthorized by the Illinois Legislature and that the Illinois
Department of Family Services had not enacted a regulation to replace Allegation 60.
Defendants knew that their accusation did not constitute child abuse under Missouri
law.
129. Nevertheless Defendants used their inaccurate understanding of the law
to undermine Rachel’s parental rights by making exaggerated accusations of
behavior that is not unlawful and that was not related to any harm to D.T. in
derogation of Rachel’s constitutional rights.
Complaint ¶¶ 128-29.
The defendants assert that § 1983 does not reach the conduct of private parties acting in their
individual capacities, citing Holloway v. Ameristar Casino St. Charles, Inc., 2008 WL 762086, at
*3 (E.D. Mo. Mar. 19, 2008), and that private parties cannot be sued under § 1983 for their
interpretations of statutes or regulations, citing Blum, 457 U.S. 991. Defendants also assert the fact
that a private party’s actions are regulated by the state does not change the private party’s actions
to a “state action,” citing San Francisco Arts & Athletics v. U. S. Olympic Committee, 483 U.S. 522,
547 (1987), and Rendell-Baker v. Kohn, 457 U.S. 830, 841 (1982). Defendants argue that to the
extent plaintiffs are attempting to pursue a claim against Al-Hosni and Ali under § 1983 because

11

they reported possible child abuse and/or neglect as required under Missouri and/or Illinois state
laws and regulations, the action fails to state a claim upon which relief can be granted.
Plaintiffs respond that the complaint sufficiently alleges a constitutional deprivation and state
action on the part of the private actors involved in the case. Plaintiffs assert that state action is
present where there is (1) a constitutional deprivation caused by a rule of conduct imposed by the
State, and (2) the party charged may fairly be said to be a state actor, citing Lugar v. Edmondson Oil
Co, Inc.., 457 U.S. 922, 937 (1982). Plaintiffs assert that the first part of the test is met because AlHosni and Ali reported Rachel Tracy to the Missouri Department of Family Services based on their
“mistakenly broad construction” of the Missouri and Illinois statutes defining actions constituting
child abuse, and the Uniform Child Custody Jurisdiction and Enforcement Act as adopted by
Missouri, Response at 8, that these defendants’ “unconstitutional construction of a statutory scheme
that may otherwise be constitutional” infringed Rachel Tracy’s fundamental rights at D.T.’s parent.
Id. at 9. Plaintiffs’ analysis is difficult to follow, but it appears that plaintiffs argue the first part of
the test is met because Al-Hosni and Ali were required to report potential child abuse or neglect as
a result of a state statute and, in so doing, they misinterpreted and went beyond statutory
requirements.
Plaintiffs argue the second part of the test is met and Al-Hosni and Ali are state actors
because the “procedural scheme which is based upon an unconstitutional construction of statute and
case law constitutes state action.” Response at 10 (citing Adickes v. S. H. Kress & Co., 398 U.S.
144 (1970)). Plaintiffs assert that Al-Hosni and Ali were “implementing standards established by
the State” and jointly participated with the “State in this unconstitutional construction of an
otherwise constitutional statutory scheme[.]” Id. at 10. Plaintiffs argue that “the State has created
a system whereby state officials acted on, participated in and may have required the ex parte
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application of the Hospital, Dr. Ali and Dr. Al-Hosni in deprivation of Rachel Tracy’s and D.T.’s
fundamental constitutional rights. Part two of the test is met.” Id.
To state a claim under 42 U.S.C. § 1983, a plaintiff must establish two essential elements:
(1) the violation of a right secured by the Constitution or laws of the United States, and (2) the
alleged deprivation was committed by a person acting under color of state law. See West v. Atkins,
487 U.S. 42, 48 (1988); Neighborhood Enters., Inc. v. City of St. Louis, 540 F.3d 882, 885 (8th Cir.
2008) (quoting West). To meet the second element in this case, plaintiffs must show that defendants
Al-Hosni and Ali, private individuals, “acted together with or has obtained significant aid from state
officials” or engaged in conduct that is “otherwise chargeable to the State.” Lugar, 457 U.S. at 937.
The rights alleged to have been deprived here are Rachel Tracy and D.T.’s constitutionally
protected liberty interests in the care and companionship of each other. Myers v. Morris, 810 F.2d
1437, 1462 (8th Cir. 1987) (citing Lehr v. Robertson, 463 U.S. 248, 258 (1983)), overruled on other
grounds by Burns v. Reed, 500 U.S. 478 (1991). The right is not absolute, however, as the “liberty
interest in familial relations is limited by the compelling governmental interest in protection of
minor children, particularly in circumstances where the protection is considered necessary as against
the parents themselves.” Myers, 810 F.2d at 1462.
To succeed on their § 1983 claim, plaintiffs must prove that Al-Hosni and Ali deprived them
of their constitutional rights under color of state law. Adickes, 398 U.S. at 150. This requirement
of § 1983 “excludes from its reach ‘merely private conduct, no matter how discriminatory or
wrongful.’” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citations omitted).
“[S]tate action may be found if, though only if, there is such a ‘close nexus between the State and
the challenged action’ that seemingly private behavior ‘may be fairly treated as that of the State

13

itself.’” Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001)
(citations omitted).
The “color of state law” requirement restricts the imposition of § 1983 liability to persons
who “carry a badge of authority of a State and represent it in some capacity, whether they act in
accordance with their authority or misuse it.” National Collegiate Athletic Ass’n. v. Tarkanian, 488
U.S. 179, 191 (1988) (quoted case omitted). “Misuse of power, possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the authority of state law, is action taken
‘under color of’ state law.” Id. (quoted case omitted). In determining whether a person acted under
color of state law, “[f]actors to be considered include: the extent to which the actor relies on
governmental assistance and benefits; whether the actor is performing a traditional government
function; and whether the incident is aggravated in a unique way by the incidents of governmental
authority.” Smith, 499 F.3d at 880 (citing Edmonson v. Leesville Concrete Co., 500 U.S. 614, 62122 (1991)).
Private individuals who are not state actors may also be liable under § 1983 if they have
conspired with or engaged in joint activity with state actors. Adickes, 398 U.S. at 152. The
Supreme Court has explained it is well settled that a private party may be held liable on a § 1983
claim if “he is a willful participant in joint action with the State or its agents.” Dennis v. Sparks, 449
U.S. 24, 27 (1980). The Eighth Circuit has instructed that to be considered a state actor for purposes
of liability under § 1983, a private party must have “reached an understanding” with state officials
to deny civil rights and been a “willful participant in joint activity with the State.” Steele v. City of
Bemidji, 257 F.3d 902, 906 (8th Cir. 2001) (quoting Adickes, 398 U.S. at 152). To survive a motion
to dismiss, “a plaintiff seeking to hold a private party liable under § 1983 must allege, at the very
least, that there was a mutual understanding, or a meeting of the minds, between the private party
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and the state actor.” Mershon v. Beasley, 994 F.2d 449, 451 (8th Cir. 1993) (cited cases omitted).
The facts alleged with respect to a conspiracy must be specific and may not be merely conclusory.
See White v. Walsh, 649 F.2d 560, 561 (8th Cir. 1981).
The complaint’s allegations as to defendants Al-Hosni and Ali are that: (1) Dr. Ali imposed
a restriction on D.T.’s discharge for reasons unrelated to his diagnosis and kept D.T. in the hospital
longer than his medical condition required; (2) Drs. Al-Hosni and/or Ali made false accusations
against Rachel Tracy to child welfare authorities and the police that led to D.T. being placed in
foster care; and (3) Drs. Al-Hosni and Ali conspired with the St. Louis Metropolitan Police
Department and Missouri Department of Social Services (Children’s Division) (“MDSS”).
Complaint ¶¶ 60, 84-85, 105, 113, 115, 134.
The Court must determine whether these actions by private individuals Al-Hosni and Ali,
which eventually resulted in D.T.’s placement in foster care, were taken under color of state law or
amounted to willful participation in a joint activity with state agents. See Adickes, 398 U.S. at 152.
The Court concludes the defendants’ actions do not meet this standard. Several courts have
considered the state action requirement of § 1983 in similar contexts. In the Eighth Circuit, one
court held that a hospital was not a state actor where it provided information regarding possible child
abuse to state agencies as required by state law. Young v. Arkansas Children’s Hosp., 721 F. Supp.
197, 198 (E.D. Ark. 1989). The court stated “the mere furnishing of information by a private party
to a law enforcement official, even if the information is false, is not sufficient to constitute joint
activity with State officials in prohibited action or to state a claim against a private party under
§ 1983.” Id. Rejecting an argument similar to plaintiffs’ in this case, the First Circuit held that a
state law requiring health and social workers to file reports of suspected sexual abuse of children
“does not create the kind of regulatory nexus that could justify treating [a social worker] as a state
15

actor.”). Brown v. Newberger, 291 F.3d 89, 93 (1st Cir. 2002). Other courts have uniformly held
that private hospitals and physicians who reported suspected instances of child abuse or neglect do
not become state actors simply because the reporting is carried out pursuant to state law. See
Schneider v. Sutter Amador Hosp., 2014 WL 5473545, at *8 (E.D. Cal. Oct. 28, 2014) (doctors’
compliance with state reporting requirement did not make them state actors); Storck v. Suffolk
County Dep’t of Social Servs., 62 F.Supp.2d 927, 941 (E.D.N.Y. 1999) (physician and hospital’s
compliance with state reporting requirement did not make them state actors); see Haag v. Cuyahoga
County, 619 F. Supp. 262, 283 (N.D. Ohio 1985) (licensed psychologist who had mandatory duty
under state statute to report child neglect and/or abuse was not a state actor), aff’d, 798 F.2d 1414
(6th Cir. 1986) (Table decision); see also Mueller, 700 F.3d at 1191-92 (hospital “did not become
a state actor simply because it complied with state law requiring its personnel to report possible child
neglect to Child Protective Services. State law does not amount to an actionable hospital policy.”);
Thomas v. Beth Israel Hosp. Inc., 710 F. Supp. 935, 940 (S.D.N.Y. 1989) (where hospital complied
with state statute by reporting suspected child abuse it did not act under color of state law.). Cf.
Ferebee v. Smith, 2005 WL 2709588, at *3 (D.S.D. Oct. 21, 2005) (where defendants made an
allegedly false police report that plaintiff had violated an order of protection resulting in plaintiff’s
false arrest, the defendants’ actions were not “willful participation in a joint activity with state
agents.”).
Missouri law requires that health practitioners and others who have “reasonable cause to
suspect that a child has been or may be subjected to abuse or neglect or observes a child being
subjected to conditions or circumstances which would reasonably result in abuse or neglect, . . . shall
immediately report to the” MDSS. § 210.115.1, Mo. Rev. Stat. Plaintiffs allege that by making a
false report to state authorities under this statute, Al-Hosni and Ali acted under color of state law.
16

Based on the foregoing authorities, the Court disagrees and holds that Al-Hosni and Ali were not
state actors in carrying out their mandatory duty created by the Missouri statute to report suspected
child abuse or neglect.
Having determined that Al-Hosni and Ali are not state actors, the Court must determine
whether plaintiffs have alleged facts sufficient to impose liability on them for conspiring with state
actors. Defendants move for dismissal of the conspiracy claims in Count III on the basis that
plaintiffs’ complaint contains only conclusory allegations and a formulaic recitation of the elements
of conspiracy, citing Twombly, 550 U.S. at 570.
To properly plead a claim for civil conspiracy under § 1983, a plaintiff must include factual
allegations showing a “meeting of the minds” concerning unconstitutional conduct. Although an
express agreement between the purported conspirators need not be alleged, there must be something
more than the summary allegation of a conspiracy before such a claim can withstand a motion to
dismiss. See Mershon, 994 F.2d at 451. Here, plaintiffs’s allegations concerning a conspiracy
consist of labels and formulaic legal conclusions:
134. Cardinal Glennon Hospital staff members and Dr. Ayoob Ali and/or Dr.
Mohamad Al-Hosni conspired with the Metropolitan Police Department and Missouri
Department of Social Services (Children’s Division). Specifically, state action is
involved based upon joint participation, entwinement, nexus and delegation. In
addition, there is deprivation of civil rights in furtherance of the conspiracy by each
Defendant.
135. The Defendants agreed on a joint course of conduct to cause the constitutional
deprivation set forth in paragraphs 1 through 95. In particular, 1) the constitutional
deprivation caused by a rule of conduct imposed by the State and 2) the party charged
may fairly said to be a state actor. The private entities and individuals are
implementing standards established by the State.
Complaint ¶¶ 134-35. The complaint does not offer facts to describe what the alleged conspiracy or
joint course of conduct entailed. Referenced paragraphs 1 through 95 of the complaint do not allege

17

any facts that tend to show a meeting of the minds as to unconstitutional conduct. The complaint
alleges that Dr. Ali imposed medically unnecessary restrictions on D.T.’s discharge, and that Dr. AlHosni and/or Dr. Ali and a police officer provided an affidavit or emergency report that resulted in
a MDSS social services worker and a police officer coming to the Hospital to take protective custody
of D.T. Plaintiffs also allege that although Dr. Al-Hosni attested to the alleged threat to D.T.’s safety,
he was not previously involved in D.T.’s treatment.
Plaintiffs’ allegations fall far short of what is required to state a claim for conspiracy under
§ 1983, as they fail to allege facts sufficient to give rise to the inference that either Al-Hosni or Ali
came to a mutual understanding with any state actors to violate plaintiffs’ constitutional rights. As
a result, neither defendant Al-Hosni nor defendant Ali can be held liable for the constitutional claims
at issue in this lawsuit, and their motion to dismiss Count III will be granted.
B. Defendant Dotson’s Motion to Dismiss
Defendant Samuel L. Dotson, III moves to dismiss plaintiffs’ § 1983 claims in Count III for
failure to state a claim upon which relief can be granted. Plaintiffs assert claims against Dotson in
his official capacity as Chief of Police of the Metropolitan Police Department of the City of St. Louis
(“Police Department”), and seek injunctive relief “enjoining [the Police Department] from further
deprivation of Rachel’s rights.” Complaint ¶ 144(c).
Dotson moves for dismissal on the basis that plaintiffs make only conclusory allegations and
fail to allege facts showing that an official policy or custom of the Police Department actually caused
an employee to violate plaintiffs’ constitutional rights, citing Monell v. Department of Social
Services of City of New York, 436 U.S. 658, 692 (1978), and Elder-Keep v. Aksamit, 460 F.3d 979,
986 (8th Cir. 2006) (local government cannot be held liable under § 1983 on a respondeat superior
theory). Dotson asserts that plaintiffs’ only concrete allegation of wrongdoing as to the Police
18

Department is that a John Doe officer took a police report based on a complaint by Drs. Ali and AlHosni, and that this resulted in D.T. being placed in state custody “without a hearing.” Complaint
¶ 81.
Dotson states that plaintiffs also broadly allege the Hospital, Drs. Ali and Al-Hosni, the Police
Department and Social Services conspired with each other, and “agreed on a joint course of conduct
to cause the constitutional deprivation set forth in paragraphs 1 through 95.” Id. ¶¶ 134-35. Dotson
states that while plaintiffs make the conclusory allegation that a “custom or policy of the Police
Department and the private defendants caused the Constitutional violation alleged herein,” id. ¶ 133,
the complaint fails to include factual allegations tending to show that the Police Department had a
policy or custom that caused the alleged constitutional violation.
Dotson also asserts that plaintiff Rachel Tracy fails to state a plausible claim for injunctive
relief because she has not identified an irreparable harm she will suffer absent the issuance of an
injunction, citing City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983), and Smith v. Western
Electric Co., 643 S.W.2d 10, 13 (Mo. Ct. App. 1982). Dotson states that plaintiff only alleges she
“plans to have more children who likely will require care in Missouri” and that she “plans to travel
to Missouri by herself and with D.T. and other children she may have in the future.” Complaint ¶ 95.
Dotson argues that these speculative allegations fail to show plaintiffs will be subject to a real and
immediate threat of harm, and therefore do not show the irreparable harm required for injunctive
relief.
Plaintiffs respond that the complaint alleges the policy or custom “in great detail,” citing to
paragraphs 128 through 133 of Count III.5 Plaintiffs agree that Dotson correctly identifies the

5

Paragraphs 128 through 133 of the complaint allege:
19

constitutional infringement allegation as the John Doe police officer taking a police report based on
the complaint by Drs. Ali and Al-Hosni, which resulted in D.T. being placed in State custody
without a hearing. Pls.’ Response at 5. Plaintiffs also state that paragraph 90 of the complaint
alleges MDSS sent a social worker and police officer to the hospital to take D.T. into protective

128. Specifically, the Defendants knew that a victim of domestic violence
is not a perpetrator of child abuse under any statute or regulation under Illinois law
or Missouri law. Defendants knew that the Illinois Supreme Court had invalidated
Allegation 60 as unauthorized by the Illinois Legislature and that the Illinois
Department of Family Services had not enacted a regulation to replace Allegation 60.
Defendants knew that their accusation did not constitute child abuse under Missouri
law.
129. Nevertheless Defendants used their inaccurate understanding of the law
to undermine Rachel’s parental rights by making exaggerated accusations of
behavior that is not unlawful and that was not related to any harm to D.T. in
derogation of Rachel’s constitutional rights.
130. In addition, Defendants used Missouri’s broad definition of subject
matter jurisdiction over child custody issues to exceed federal statutory and
constitutional jurisdictional limits. The scheme also violated separation of powers
limits found in the Missouri Constitution, Art 2, §1 and principles of federal
supremacy.
131. The state procedural scheme formed the basis of a state-enforced
custom.
132. The state procedural scheme was exacerbated by a medical standard of
care that imposed culpability for child abuse or neglect on a victim of domestic
violence when no law imposes such a standard. This exceeds constitutional
boundaries because it deprives the domestic violence victim of fundamental right
without notice that would be provided by a lawfully imposed statute or regulation
that would allow her to govern her conduct without loss of liberty.
133. The custom or policy of the Police Department and the private
defendants caused the Constitutional violation alleged herein.
Complaint at 21-22.
20

custody and that MDSS “employed a policy that allowed ex parte removal from the home if the
police department and a health care provider were jointly involved.” Response at 6.
Plaintiffs state their factual allegations are that D.T. was restrained in the hospital, reported
to “child protected authorities” for actions that do not constitute child abuse, and placed in foster
care for two weeks without any explanation to the parents. Pls.’ Response at 5-6 (Doc. 74).
Plaintiffs assert that their policy or custom allegations are that the foregoing actions were “done as
a result of a flaw in the construction of the constitutional and statutory provisions that has resulted
in a custom or policy being implemented by the medical defendants, the police and the State.”
Response at 6.
Plaintiffs appear to misunderstand Dotson’s irreparable harm argument, and devote much
of their response to the argument that they have standing to seek relief. Dotson’s motion to dismiss
does not challenge plaintiffs’ standing. To the extent their Response is relevant to Dotson’s
argument, plaintiffs state only that Rachel “desires to have more children and, even though she could
choose to seek medical care in Evansville, Indiana, her emergency health care provider will likely
be the one to decide. Also, Rachel Tracy will have to avoid travel to Missouri in order to avoid the
unconstitutional risk to her children.” Response at 9.
Plaintiffs have sued Dotson in his official capacity as Chief of Police of the St. Louis
Metropolitan Police Department. A claim made against a public official in his or her official
capacity is merely another way of pleading an action directly against the public entity itself. Hafer
v. Melo, 502 U.S. 21, 25 (1991). As a result, suits against public officials in their official capacity
must be treated as suits against the public entity. Kentucky v. Graham, 473 U.S. 159, 166 (1985).
The Court therefore treats the complaint as asserting claims against the City of St. Louis (the
“City”), as the Police Department lacks a legal identity apart from the city in which it operates, see
21

Franklin v. City of St. Louis, 2016 WL 2986373, at *4 (E.D. Mo. May 24, 2016), and police
departments are not suable entities under § 1983. Graham v. St. Louis Metro. Police Dep’t, 2016
WL 11090625, at *3 (E.D. Mo. Mar. 21, 2016) (citing Ketchum v. City of West Memphis, Ark., 974
F.2d 81, 82 (8th Cir. 1992)).
It is well established that § 1983 will not support a claim based on a respondeat superior
theory of liability. Polk County v. Dodson, 454 U.S. 312, 325 (1981); Monell, 436 U.S. at 694.
Liability under § 1983 requires a causal link to and direct responsibility for the alleged deprivation
of rights. Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990). The City therefore cannot be
held liable under section 1983 for an injury inflicted solely by its employees or agents on a theory
of respondeat superior. See Andrews v. Fowler, 98 F.3d 1069, 1074 (8th Cir. 1996) (citing Monell,
436 U.S. at 694). Rather, a plaintiff seeking to impose liability on a municipality is required to
identify either an official policy or a widespread custom or practice that was the moving force
behind the plaintiff’s constitutional injury. See Board of County Comm’rs of Bryan County, Okla.
v. Brown, 520 U.S. 397, 403 (1997); Crawford v. Van Buren County, Ark., 678 F.3d 666, 669 (8th
Cir. 2012) (quoted case omitted).
An official policy represents the decisions of a municipality’s legislative body, or of an
official who maintains the final authority to establish governmental policy. Brown, 520 U.S. at 403;
Ware v. Jackson County, Mo., 150 F.3d 873, 880 (8th Cir. 1998). “Although rare, a public official’s
single incident of unconstitutional activity can establish the requisite policy if the decision is ‘taken
by the highest officials responsible for setting policy in that area of the government’s business.’”
Rynders v. Williams, 650 F.3d 1188, 1195 (8th Cir. 2011) (quoting City of St. Louis v. Praprotnik,
485 U.S. 112, 123 (1988)). “Alternatively, liability may be established through proof that the
alleged misconduct was so pervasive among the non-policy making employees of the municipality
22

as to constitute a ‘custom or usage’ with the force of law.” Crawford, 678 F.3d at 669 (quoted case
omitted). “Liability for an unconstitutional custom or usage, however, cannot arise from a single
act.” Id. (quoted case omitted). “Rather, ‘a custom can be shown only by adducing evidence of a
continuing, widespread, persistent pattern of unconstitutional conduct.’” Id. (quoted case omitted).
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, 165-66 (1993). To survive a motion to dismiss, however, 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 the City, plaintiffs
were required to plead facts sufficient to show at least an inference that their constitutional rights
were violated as a result of action taken pursuant to an official policy, or as a result of misconduct
so pervasive among non-policymakers as to constitute a widespread custom or practice with the
force of law. See Kuha v. City of Minnetonka, 365 F.3d 590, 603-04 (8th Cir. 2003), overruled on
other grounds by Szabla v. City of Brooklyn Park, Minn., 486 F.3d 385 (8th Cir. 2007) (en banc).
Here, plaintiffs’ complaint alleges that an unidentified City police officer took a police report
based on the complaint by Drs. Ali and Al-Hosni, which eventually resulted in D.T. being placed
in State custody without a hearing; and that MDSS sent a social worker and an unidentified City
police officer to the hospital to take D.T. into protective custody. The facts alleged do not involve
action by the City’s highest policymaking officials, and plaintiffs do not allege a deliberate choice
to follow a course of action made by an official who maintains the final authority to establish
governmental policy. Thus, although the complaint alleges the existence of a official policy, this
is a mere conclusion and the Court finds plaintiffs do not allege facts that permit it to infer the
existence of an official municipal policy.
23

Assuming for purposes of the instant motion that plaintiffs suffered a constitutional
deprivation, they have pleaded no facts in the complaint that permit the Court to infer the existence
of a widespread municipal custom or practice that caused the deprivation. Plaintiffs’ allegations
concerning custom or practice are mere labels and conclusions which are inadequate to state a claim.
See Twombly, 550 U.S. at 555. Although plaintiffs need not identify the specific unconstitutional
policy to survive a motion for judgment on the pleadings, see Crumpley-Patterson, 388 F.3d at 591,
they must at least allege facts that would support the drawing of an inference that the conduct
complained of resulted from the existence of an unconstitutional municipal custom or practice. Id.
Plaintiffs’ complaint does not meet this standard as it does not allege any facts to support the
inference of a continuing, widespread, persistent pattern of unconstitutional misconduct that was the
moving force behind the alleged constitutional violation. See Monell, 436 U.S. at 694. “Generally,
an isolated incident of alleged police misconduct, such as [plaintiffs] allege[] occurred here, cannot,
as a matter of law, establish a municipal policy or custom creating liability under § 1983.” Ulrich
v. Pope County, 715 F.3d 1054, 1061 (8th Cir. 2013). Plaintiffs’ conclusory allegation in paragraph
90 that MDSS had a policy or custom of taking children into custody on the joint report of
healthcare providers and the police does not allege an official policy or custom and practice of the
City.
Plaintiffs’ allegations that the Police Department conspired with the other defendants to
violate plaintiffs’ constitutional rights fail to state a claim for the same reasons as discussed above
with respect to the Hospital defendants. To plead a claim for civil conspiracy under § 1983,
plaintiffs must make factual allegations showing a “meeting of the minds” concerning
unconstitutional conduct. While an express agreement between the purported conspirators need not
be alleged, there must be something more than the summary allegation of a conspiracy before such
24

a claim can withstand a motion to dismiss. See Mershon, 994 F.2d at 451. The complaint’s
allegations concerning a conspiracy are summary and conclusory, and fail to allege facts sufficient
to give rise to the inference that any employee of the Police Department came to a mutual
understanding with the other defendants to violate plaintiffs’ constitutional rights. Plaintiffs’
allegations fall far short of what is required to state a claim for conspiracy under § 1983.
In the absence of any factual allegations to support the existence of an unconstitutional
municipal policy or custom, or to support the existence of a civil conspiracy to violate plaintiffs’
constitutional rights, there is no basis upon which to hold the City liable.
In addition, Dotson correctly observes that plaintiffs fail to allege sufficient irreparable harm
to warrant the imposition of prospective injunctive relief. “A district court’s decision to issue a
preliminary injunction ‘depends upon a “flexible” consideration of (1) the threat of irreparable harm
to the moving party; (2) balancing this harm with any injury an injunction would inflict on other
interested parties; (3) the probability that the moving party would succeed on the merits; and (4) the
effect on the public interest.’” Richland/Wilkin Joint Powers Auth. v. United States Army Corps
of Engineers, __ F.3d __ , 2016 WL 3383978, at *3 (8th Cir. June 20, 2016) (quoted cases omitted).6
The party seeking preliminary injunctive relief bears the burden to show a threat of irreparable harm.
Roudachevski v. All-American Care Centers, Inc., 648 F.3d 701, 705 (8th Cir. 2011) (cited case
omitted). In the absence of irreparable injury, a party is not entitled to injunctive relief. See
Chlorine Institute, Inc. v. Soo Line R. R., 792 F.3d 903, 914-15 (8th Cir. 2015).

6

The standard for determining whether a permanent injunction should issue is essentially the
same as the standard for a preliminary injunction, except that to obtain a permanent injunction the
moving party must attain success on the merits. Bank One, Utah, N.A. v. Guttau, 190 F.3d 844, 887
(8th Cir. 1999) .
25

Plaintiffs allege that Rachel Tracy, an Illinois resident, plans to have more children who will
likely require care in Missouri if they need emergency or complex care, that Rachel plans to travel
to Missouri with D.T. and other children she may have in the future, and that they will be at risk of
constitutional deprivation when they travel to Missouri. Complaint ¶¶ 102-03. These allegations
are simply too speculative to establish the irreparable harm required for injunctive relief. See, e.g.,
Novus Franchising, Inc. v. Dawson, 725 F.3d 885, 895 (8th Cir. 2013) (“In order to demonstrate
irreparable harm, a party must show that the harm is certain and great and of such imminence that
there is a clear and present need for equitable relief.” (internal quotation marks omitted)); S.J.W. ex
rel Wilson v. Lee’s Summit R-7 Sch. Dist., 696 F.3d 771, 779 (8th Cir. 2012) (“Speculative harm
does not support a preliminary injunction.”). “Merely demonstrating the ‘possibility of harm’ is not
enough.” Chlorine Institute, 792 F.3d 915-16 (cited case omitted).
As a result, defendant Dotson’s motion to dismiss should be granted.
C. Defendant Kinkade’s Motion to Dismiss
Defendant Kinkade moves to dismiss plaintiffs’ claims in Count III for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1), Fed. R. Civ. P., and for failure to state a claim upon which
relief can be granted pursuant to Rule 12(b)(6), Fed. R. Civ. P. Kinkade asserts that he is entitled
to Eleventh Amendment Immunity, as he is sued in his official capacity and the State of Missouri
is therefore the real party in interest, citing Pennhurst State School & Hospital v. Halderman, 465
U.S. 89, 101-02 (1984). Kinkade acknowledges the exception to Eleventh Amendment immunity
where a plaintiff is seeking prospective injunctive relief, Edelman v. Jordan, 415 U.S. 651 (1974),
but asserts that the exception prohibits prospective injunctive relief against the enforcement of state
law as plaintiffs seek here, citing Pennhurst, 465 U.S. at 106.

26

Kinkade argues that plaintiffs cannot obtain prospective injunctive relief to compel
compliance with any federal statute, because such relief requires a continuing violation of federal
law, citing Green v. Mansour, 474 U.S. 64, 71 (1985), and plaintiffs have not alleged a continuing
violation here. Kinkade states that the complaint alleges Rachel Tracy “plans to have more children
who likely will require care in Missouri,” that she “also plans to travel to Missouri by herself and
with D.T. and other children she may have in the future,” and that she and D.T. “will suffer
irreparable harm as they will be at risk of constitutional deprivation when they travel to Missouri
or if D.T. requires emergency or complex medical care.” Complaint ¶¶ 102-03. Kinkade also
argues that plaintiffs’ claim for prospective injunctive relief is moot as the complaint indicates the
social services case was transferred back to Illinois and Rachel has regained custody of D.T., so her
claims of possible future harm are speculative at best and should be denied as moot.
Plaintiffs respond that Kinkade is not entitled to Eleventh Amendment immunity because
they are seeking prospective injunctive relief as permitted by Ex Parte Young, 209 U.S. 123, 155-56
(1908), which they contend “provides a specific exception to Eleventh Amendment prohibitions
allowing prospective injunction of State enforcement of state law that violates the federal
constitution, as alleged here.” Pls.’ Response at 4 (Doc. 72). Plaintiffs also assert that Missouri’s
acceptance of federal funding for placement of children in foster care under the Child Abuse
Prevention and Treatment and Adoption Reform Act constitutes another exception to Eleventh
Amendment immunity, citing South Dakota v. Dole, 483 U.S. 203 (1987).7

7

There are no allegations in the complaint that Missouri accepts federal funds under the Child
Abuse Prevention and Treatment and Adoption Reform Act, and plaintiffs’ assertion in their
Response that Missouri accepts such funds is not supported by any citation to statutory or other
authority. In addition, Plaintiffs’ Response provides an incorrect citation for this Act; the correct
citation is 42 U.S.C. §§ 5111-5115.
27

With respect to injunctive relief, plaintiffs respond that they sufficiently allege a continuing
violation as they “characterize the events in terms of a past occurrence that may present a problem
in the future.” Id. at 7. Plaintiffs contend that “because children from southern Illinois are regularly
transported to St. Louis for medical care, this solitary family can allege that injunction of the
unconstitutional conduct provides a remedy to it.” Id. at 5. Plaintiff request leave to seek class
certification in an amended pleading if the complaint is dismissed for insufficient allegations of a
continuing violation are insufficient. Id.
Plaintiffs assert that they present an actual justiciable case or controversy, as required for
standing, although Kinkade does not move to dismiss their complaint for lack of standing. Plaintiffs
argue their claim for relief is not moot merely because D.T. was returned to his mother in Illinois
and that they have standing because their complaint:
alleges that participants were following a State-imposed construction of state law
that violates the federal constitution, that the scheme is ongoing and that, as a result,
Plaintiffs are at risk of future deprivation if the scheme is not enjoined. These
allegations take the form of allegations involving risk to one family, who live in an
area of the country where complex medical problems are addressed by transfer to
Missouri.
Pls.’ Response at 12.
Finally, plaintiffs argue their case is not moot under the public policy exception to the
mootness doctrine, as the challenged conduct is “capable of repetition, yet evading review,” quoting
Weinstein v. Bradford, 423 U.S. 147, 149 (1975). In support, plaintiffs offer only the conclusory
assertion that the “facts alleged in the Complaint fall within this exception to the mootness doctrine.”
Pls.’ Response at 14.
Plaintiffs assert claims against defendant Kinkade in his official capacity as director of
MDSS. A suit against a state employee in his official capacity is the functional equivalent of a suit

28

against the state. See Monell, 436 U.S. at 690 n.55; Veatch v. Bartels Lutheran Home, 627 F.3d
1254, 1257 (8th Cir. 2010). It is well established that states and state officials acting in their official
capacities are not “persons” within the meaning of 42 U.S.C. § 1983. Will v. Michigan Dep’t of
State Police, 491 U.S. 58, 71 (1989). The Eleventh Amendment bars § 1983 claims against states,
their agencies and state officials in their official capacities when the state itself is “the real,
substantial party in interest.” Ford Motor Co. v. Department of Treasury of State of Ind., 323 U.S.
459, 464 (1945), overruled on other grounds by Lapides v. Board of Regents of Univ. Sys. of Ga.,
535 U.S. 613 (2002); see Murphy v. State of Ark., 127 F.3d 750, 754 (8th Cir. 1997).
State officials acting in their official capacities are “persons” under § 1983, however, when
sued for prospective injunctive relief, and the Eleventh Amendment does not bar such relief. Andrus
ex rel. Andrus v. State of Ark., 197 F.3d 953, 955 (8th Cir. 1999) (citing Ex Parte Young, 209 U.S.
123). The Supreme Court and Eighth Circuit have made it clear that “[w]hile claims against state
officers which seek only prospective relief are not barred, see Edelman v. Jordan, 415 U.S. 651
(1974), this exception is available only when a plaintiff seeks to vindicate a federal right.” Grand
River Enters. Six Nations, Ltd. v. Beebe, 467 F.3d 698, 701 (8th Cir. 2006). “Absent waiver by the
state, a federal court has no power to order a state officer exercising delegated authority to comply
with duties imposed by state law.” Id. at 701-02 (citing Pennhurst, 465 U.S. at 106).
“A state may waive its sovereign immunity, generally in one of two ways: either by
voluntarily invoking the jurisdiction of the federal courts or by making a ‘clear declaration’ that it
intends to submit itself to federal jurisdiction.” Id. at 702 (citing College Sav. Bank v. Florida
Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675-76 (1999) (citations omitted)).
Neither situation is present in this case. Plaintiffs’ argument that the State of Missouri waived its

29

Eleventh Amendment rights by accepting federal funds for placement of children in foster care
pursuant to a federal statute is entirely unsupported by legal authority, and therefore fails.8
Because the State of Missouri has not waived its sovereign immunity in this matter, the Court
has no power to order prospective injunctive relief directing Kinkade to comply with duties imposed
by state law. See Pennhurst, 465 U.S. at 106. Plaintiffs’ argument that Ex Parte Young authorizes
such relief is wrong and evidences a misunderstanding of relevant case law. The Supreme Court
stated in Pennhurst, “[I]t is difficult to think of a greater intrusion on state sovereignty than when
a federal court instructs state officials on how to conform their conduct to state law. Such a result
conflicts directly with the principles of federalism that underlie the Eleventh Amendment. We
conclude that Young and Edelman are inapplicable in a suit against state officials on the basis of
state law.” Id. at 106 (emphasis added). See also Papasan v. Allain, 478 U.S. 265, 277 (1986)
(Young “does not foreclose an Eleventh Amendment challenge where the official action is asserted
to be illegal as a matter of state law alone. See Pennhurst, 456 U.S. at 104-06. In such a case,
federal supremacy is not implicated because the state official is acting contrary to state law only.”)
Thus, to the extent plaintiffs’ complaint seeks prospective injunctive relief requiring Kinkade to
comply with Missouri law, it must be dismissed for lack of subject matter jurisdiction as such relief
is barred by the Eleventh Amendment.9

8

In South Dakota v. Dole, 483 U.S. 205 (1987), the sole case cited by plaintiffs in support
of their waiver argument, the Supreme Court addressed the constitutional limits of Congress’
spending power and, in particular, its ability to attach conditions on the states’ receipt of federal
funds. Dole did not mention the Eleventh Amendment or the issue of a state’s waiver of the
Eleventh Amendment. Plaintiffs’ citation to Dole is completely inapposite.
9

Dismissal on 11th Amendment grounds is not a judgment on the merits, but rather a
dismissal for lack of jurisdiction. Cook v. Gibbons, 124 F. App’x 475, 476-77 (8th Cir. 2005)
(unpublished per curiam) (citing Republic of Paraguay v. Allen, 134 F.3d 622, 626 (4th Cir. 1998);
Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989) (Eleventh Amendment presents jurisdictional
30

The complaint also seeks prospective injunctive relief requiring Kinkade to comply with the
“Interstate Child Custody Jurisdiction and Enforcement Act,” which Kinkade appears to believe is
a federal statute. Plaintiffs’ response to the motion to dismiss acknowledges that they seek an
injunction to require Kinkade to comply with state law, Pls.’ Response at 4 (Doc. 72), but does not
specifically state that they are not seeking to require Kinkade to comply with a federal statute. The
Court concludes the complaint’s reference to the “Interstate Child Custody Jurisdiction and
Enforcement Act” is a drafting error, and that plaintiffs intended to refer to the Uniform Child
Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified in Missouri at §§ 452.700452.930 of the Missouri Revised Statutes. See Al-Hawarey v. Al-Hawarey, 388 S.W.3d 237, 242
(Mo. Ct. App. 2012). This conclusion is supported by (1) the non-existence of any federal statute
titled “Interstate Child Custody Jurisdiction and Enforcement Act,” and (2) plaintiffs’ statement in
their opposition to the Hospital defendants’ motion to dismiss that the defendants’ actions violate
three statutes: “The Missouri statute defining actions constituting child abuse, the Illinois statute
defining actions constituting child abuse and the Uniform Child Custody Jurisdiction and
Enforcement Act provision adopted by Missouri[.]” Pls.’ Response at 5 (Doc. 68); see also id. at
6-8 (discussing Missouri case law interpreting the UCCJEA). Because the complaint seeks
prospective injunctive relief requiring Kinkade to comply with the UCCJEA, the requested relief
is barred by the Eleventh Amendment, as the UCCJEA is state law. As a result, the Court does not
reach defendant Kinkade’s argument that plaintiffs cannot establish a continuing violation of federal
law as required for prospective injunctive relief.

limit on federal courts in civil rights cases against states and their employees))
31

Defendant Kinkade’s motion to dismiss should therefore be granted based on lack of subject
matter jurisdiction.
D. Plaintiffs’ Request to Amend Complaint
As stated above, plaintiffs’ Response includes an alternative request to amend their
complaint for a fourth time, to assert claims on behalf of a class if the Court finds they do not assert
a continuing violation. Although leave to amend should be freely given “when justice so requires,”
Fed. R. Civ. P. 15(a)(2), “plaintiffs do not have an absolute or automatic right to amend.” United
States ex rel. Lee v. Fairview Health Sys., 413 F.3d 748, 749 (8th Cir. 2005). Where, as here, a
party seeks leave to amend its complaint after the deadline for amending pleadings established by
the Case Management Order has passed, Fed. R. Civ. P. 16(b)’s good-cause standard applies, not
the standard of Rule 15(a). Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716 (8th Cir. 2008);
Popoalii v. Correctional Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008). Plaintiffs have not
addressed the issue of good cause, or the requirements of Rule 23, Fed. R. Civ. P.
More critically, plaintiffs have not filed a motion for leave to amend their complaint or
submitted a proposed amended complaint. “[I]n order to preserve the right to amend the complaint,
a party must submit the proposed amendment along with its motion.” Clayton v. White Hall Sch.
Dist., 778 F.2d 457, 460 (8th Cir. 1985). The Eighth Circuit has repeatedly held that district courts
do not abuse their discretion in denying leave to amend where the plaintiff did not file a motion for
leave to amend and submit a proposed amended complaint, and merely asked for leave to amend in
its response to a motion to dismiss. See, e.g., Geier v. Missouri Ethics Comm’n, 715 F.3d 674, 678
n.4 (8th Cir. 2013); Minneapolis Firefighters’ Relief Ass’n v. MEMC Electronic Materials, Inc., 641
F.3d 1023, 1030 (8th Cir. 2011); In re 2007 Novastar Financial, Inc., Secs. Litig., 579 F.3d 878, 88485 (8th Cir. 2009); Clayton, 778 F.2d at 460.
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The Court finds that plaintiffs have not followed the necessary procedural steps and declines
their request for leave to file a fourth amended complaint to assert class claims.
E. Diversity Jurisdiction Does Not Exist, and Court Declines to Exercise Supplemental
Jurisdiction Over the Remaining State Law Claim
“Courts have an independent obligation to determine whether subject-matter jurisdiction
exists[.]” Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010). The complaint’s jurisdictional allegations
assert that both federal question jurisdiction and diversity jurisdiction exist. Complaint ¶¶ 6, 7. The
Court has now dismissed the federal claims under § 1983 in Count III and the state law medical
malpractice claim in Count II, leaving only Count I, a state law claim for false imprisonment.
Although plaintiffs have filed multiple amended complaints, the Third Amended Complaint fails to
allege jurisdictional facts sufficient to establish diversity jurisdiction.
The diversity statute, 28 U.S.C. § 1332(a)(1), requires complete diversity of citizenship
between plaintiffs and defendants. Buckley v. Control Data Corp., 923 F.2d 96, 97, n.6 (8th Cir.
1991). “Complete diversity of citizenship exists where no defendant holds citizenship in the same
state where any plaintiff holds citizenship.” OnePoint Solutions, LLC v. Borchert, 486 F.3d 342,
346 (8th Cir. 2007). As the parties asserting federal jurisdiction, plaintiffs bear the burden to
establish complete diversity of citizenship. See Branson Label, Inc. v. City of Branson, Mo., 793
F.3d 910, 917 (8th Cir. 2015). Plaintiffs have not met this burden, as their citizenship allegations
are markedly deficient. Plaintiffs do not plead facts to establish the citizenship of defendant SSM
Cardinal Glennon Children’s Hospital because they do not plead the state in which its principal
place of business is located.10 Plaintiffs do not plead any facts concerning the citizenship of

10

For a corporate party, there must be allegations of both its state of incorporation and
principal place of business. 28 U.S.C. § 1332(c)(1); see Sanders v. Clemco Industries, 823 F.2d 214,
215 n.1 (8th Cir. 1987).
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defendants Amy Meyer, Dr. Ayoob Ali or Dr. Mohamad Al-Hosni. Plaintiffs also do not plead any
facts concerning the citizenship of defendants “John Does 1 through 30,” including the John Doe
police officer alleged to have taken an active role in violating their rights. See Lee v. Airgas-Mid
South, Inc., 793 F.3d 894, 899 (8th Cir. 2015) (“[t]he general rule . . . has been that, on challenge,
the diverse citizenship of the fictitious defendants must be established by the plaintiff in order to
continue a federal court action.”) (quoted source omitted). Because complete diversity of citizenship
does not appear from the face of the complaint, there is no diversity jurisdiction.
The Court has supplemental jurisdiction over plaintiffs’ state law claim pursuant to 28 U.S.C.
§ 1367(a). It is within the Court’s discretionary authority, however, to decline to exercise
supplemental jurisdiction over state law claims once it has “dismissed all claims over which it has
original jurisdiction.” 28 U.S.C. § 1367(c)(3); see Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S.
635, 639 (2009); Simes v. Arkansas Judicial Discipline and Disability Comm’n, 734 F.3d 830, 835
(8th Cir. 2013). The Eighth Circuit has stated that “federal courts should exercise judicial restraint
and avoid state law issues wherever possible.” Thomas v. Dickel, 213 F.3d 1023, 1026 (8th Cir.
2000) (internal quotation marks and quoted case omitted). As a result, “in the usual case in which
all federal-law claims are eliminated before trial, the balance of factors to be considered under the
pendent jurisdiction doctrine–judicial economy, convenience, fairness, and comity–will point toward
declining to exercise jurisdiction over the remaining state-law claims.” Barstad v. Murray County,
420 F.3d 880, 888 (8th Cir. 2005) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7
(1988)).
Here, the federal claims in Count III over which the Court had original jurisdiction have been
dismissed, and the only remaining claim is under state law. The Court in the exercise of its

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discretion will decline to exercise supplemental jurisdiction over this claim and will dismiss it
without prejudice to refiling in state court.
IV. Conclusion
For the foregoing reasons, the Court will grant defendants SSM Cardinal Glennon Children’s
Hospital, Dr. Ayoob Ali, and Dr. Mohamad Al-Hosni’s motion to dismiss plaintiffs’ medical
malpractice claim in Count II without prejudice for failure to file the affidavit required by § 538.225,
Mo. Rev. Stat., and grant their motion to dismiss the § 1983 claims in Count III for failure to state
a claim upon which relief can be granted. The Court will grant defendant Dotson’s motion to
dismiss plaintiffs’ § 1983 claims in Count III for failure to state a claim upon which relief can be
granted. The Court will grant defendant Kinkade’s motion to dismiss plaintiffs’ § 1983 claims in
Count III without prejudice for lack of subject matter jurisdiction. Because the Doe defendants in
this action have never been served, the claims against them will be dismissed without prejudice. See
Ballinger v. Cedar County, Mo., 810 F.3d 557, 559 n.1 (8th Cir. 2016).
The Court concludes that diversity jurisdiction does not exist on the face of the Third
Amended Complaint. In the exercise of its discretion the Court declines to exercise supplemental
jurisdiction over plaintiffs’ remaining state law claim in Count I and will dismiss it without
prejudice.
Accordingly,
IT IS HEREBY ORDERED that defendants SSM Cardinal Glennon Children’s Hospital,
Dr. Ayoob Ali and Dr. Mohamad Al-Hosni’s motion to dismiss Count II for failure to obtain the
affidavit required by § 538.225, Missouri Revised Statutes, and to dismiss Count III of Plaintiffs’
Third Amended Complaint for failure to state a claim, is GRANTED. [Doc. 64]

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IT IS FURTHER ORDERED that defendant Samuel Dotson, III in his official capacity as
Chief of Police of the St. Louis Metropolitan Police Department’s motion to dismiss Count III of
Plaintiffs’ Third Amended Complaint for failure to state a claim is GRANTED. [Doc. 71]
IT IS FURTHER ORDERED that defendant Brian Kinkade in his official capacity as
Director of the Missouri Division of Social Services, Children’s Division’s motion to dismiss Count
III of Plaintiffs’ Third Amended Complaint for lack of subject matter jurisdiction is GRANTED.
[Doc. 62] Defendant Kinkade’s motion to dismiss Count III for failure to state a claim is DENIED
as moot. [Doc. 62]
IT IS FURTHER ORDERED that the Court declines to exercise supplemental jurisdiction
over plaintiffs’ remaining state law claim for false imprisonment in Count and will dismiss that
claim without prejudice.
IT IS FURTHER ORDERED that plaintiffs’ claims against defendants John Does 1
through 30 are DISMISSED without prejudice.
IT IS FURTHER ORDERED that all other pending motions are DENIED as moot. [Docs.
101, 106, 108, 114, 117]
An Order of Dismissal will accompany this Memorandum and Order.

__________________________________
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 12th day of July, 2016.

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