Conner v. St. Louis County, Missouri et al

Filing 12

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant County of St. Louiss Motion to Dismiss (Doc. 5 ) is GRANTED in part. Count II is DISMISSED in part and without prejudice. IT IS FURTHERED ORDERED THAT Conner shall have ten (10) days from the date of this Memorandum and Order to amend her complaint should she so choose. Signed by District Judge John A. Ross on 8/31/2016. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DORNELLA CONNER,
Plaintiff,
vs.
ST. LOUIS COUNTY, MISSOURI, et al.,
Defendants.

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Case No. 4:15-cv-01703-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendant St. Louis County, Missouri’s (“the
County”) motion to dismiss (Doc. 5). The issues are fully briefed and ready for disposition. For
the following reasons, the Court will grant the motion in part, dismiss Count II in part and
without prejudice, and grant Plaintiff Dornella Conner leave to amend her complaint.
I. Background
The facts in this 42 U.S.C. § 1983 action, in the light most favorable to Conner, are as
follows. On November 25, 2014, De’Angelas Lee was driving a vehicle in which Conner was a
front-seat passenger (Am. Comp. (Doc. 4) ¶¶ 7-8). As the vehicle exited a gas station parking lot,
a SWAT-like police vehicle (“SWAT vehicle”), bearing a St. Louis County Police Department
(“SLCPD”) logo, approached the gas station and attempted to enter the parking lot (Id. ¶¶ 1011). As Lee’s vehicle exited the parking lot, a SLCPD police officer, Officer Doe I, jumped out
of the passenger side of the SWAT vehicle, and “open[ed] fire” into the passenger window of
Lee’s vehicle (Id. ¶ 14). Unknown projectiles from Officer Doe I’s weapon, as well as broken
glass, struck Conner’s face, causing her serious physical injuries, including permanent loss of
vision in her left eye (Id. ¶¶ 16-17). The petition alleges that Officer Doe I did not order Lee to
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stop his vehicle, that Conner was not armed, and that she did not pose any physical threat to
Officer Doe I or any other person (Id. ¶ 15, 18). Officer Doe II, a “field supervisor,” was also in
the SWAT vehicle during the incident (Id. ¶ 23). He did not intervene when Officer Doe I used
force against Conner, and according to Conner, his failure to do so was the result of a SLCPD
custom or practice (Id. ¶¶ 23-24).
According to Conner, the County failed to properly supervise its police officers, failed to
conduct fair investigations into previous allegations that SLCPD officers had used excessive
force, and thereby fostered and supported an environment that directly led to Officer Doe I’s
unconstitutional use of force against her (Id. ¶¶ 26-27). Conner further alleges that the County
and Officer Doe II developed and promulgated “customs, policies, and/or practices of
unconstitutional conduct in violation of the Fourth Amendment,” including (1) conducting stops
or detentions without reasonable suspicion, (2) discharging weapons without probable cause, (3)
using unnecessary and unreasonably excessive force against citizens, and (4) creating an
atmosphere in which its officers felt free to confront citizens at their discretion and without
lawful authority, i.e., for merely exiting a gas station parking lot (Id. ¶ 29).
Conner’s complaint indicates that she is suing Officer Doe I and Officer Doe II in both
their individual and official capacities, and asserts three counts (Id. ¶¶ 3-4, 31-49). In Count I,
Conner claims that Officer Doe I violated her clearly established rights to be free from excessive
force and to not be deprived of liberty without due process of law (Id. ¶¶ 31-36). In Count II, she
alleges that Officer Doe II and the County had a custom or policy of “negligently hiring and
retaining officers, failing to properly train and/or supervise officers in the use of excessive force .
. . , and in failing to conduct fair and impartial investigations”; and that her injuries were directly
and proximately caused by “failures, negligence and/or carelessness” of Officer Doe II and the
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County (Id. ¶¶ 37-44). In Count III, she claims that Officer Doe II—in his individual and official
capacities—“with knowledge and deliberate indifference to and/or reckless disregard for the
rights of the citizens of St. Louis County, has tolerated, created, failed to correct, promoted, or
ratified a custom, pattern, and practice on the part of St. Louis County police officers who
engage in unjustified, unreasonable, and/or illegal use of excessive force, including deadly
force.” She also claims that Officer Doe II knew or should have known that the inadequate
training and supervision would result in the use of excessive force by Officer Doe I and other
SLCPD officers (Id. ¶¶ 45-49).
II. The County’s Motion to Dismiss
The County now moves to dismiss Count II, arguing that it does not state a plausible
§ 1983 claim against the County; that it states only a claim of negligence under Missouri law;
and that the County enjoys sovereign immunity from negligence claims pursuant to Mo. Rev.
Stat. § 537.600 (Docs. 5-6). 1 In response, Conner contends that Count II asserts more than a
state-law negligence claim. More specifically, she argues that Count II states a viable § 1983
claim against the County because it incorporates her allegations that the County failed to
supervise its police officers, failed to conduct fair investigations into complaints that officers had
used excessive force, and thereby fostered an environment that directly led to Officer Doe I’s use
of excessive force against her. She further contends that Count II states a § 1983 claim against
the County because it incorporates her allegation that the County had unconstitutional policies or
customs of negligently hiring and retaining SLCPD officers and failing to properly supervise
them or to train them in the use of excessive force. Alternatively, Conner seeks leave to amend

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The County erroneously states that Count II is the only claim asserted against it.
Kentucky v. Graham, 473 U.S. 159, 165 (1985) (official capacity suits are, in all respects other
than name, to be treated as suits against the entity).
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her complaint either to allege that the County has waived its sovereign immunity by procuring an
insurance policy, see Mo. Rev. Stat. § 537.610; or to otherwise remedy any pleading defects
(Doc. 8).
III. Motion to Dismiss Standard
Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim
showing that the pleader is entitled to relief.” The pleading standard of Rule 8 “does not require
‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a
motion to dismiss, a complaint must show that the pleader is entitled to relief, in order to give the
defendant fair notice of what the claims are and the grounds upon which they rest. Id.
Federal Rule of Civil Procedure 12(b)(6) provides for a motion to dismiss based on the
failure to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to “‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S .Ct.1937, 1950 (2009). This
obligation requires a plaintiff to plead “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. A
complaint must contain either direct or inferential allegations respecting all the material elements
necessary to sustain recovery under some viable legal theory. Id. at 562. This standard “simply
calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of [the
claim or element].” Id. at 556. When ruling on a motion to dismiss, this Court must take the
allegations of the complaint as true and liberally construe the complaint in the light most
favorable to the plaintiff. Kottschade v. City of Rochester, 319 F.3d 1038, 1040 (8th Cir. 2003).
The Court is “free to ignore legal conclusions, unsupported conclusions, unwarranted inferences
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and sweeping legal conclusions cast in the form of factual allegations.” Wiles v. Capitol Indem.
Corp., 280 F.3d 868, 870 (8th Cir. 2002).
IV. Analysis
The Court will grant the County’s motion to dismiss Count II in part and without
prejudice. Count II states a viable § 1983 claim against the County arising out of allegedly
unconstitutional policies or customs involving SLCPD officers conducting unlawful stops and
detentions, discharging their weapons without probable cause, using unnecessary and
unreasonably excessive force, and creating an atmosphere wherein officers felt free to confront
citizens without lawful authority. However, Count II does not state a § 1983 claim arising out of
Conner’s allegation that the County had a custom of negligently hiring, supervising, and training
SLCPD officers.
It is well established that a municipality cannot be held liable, on a respondeat superior
theory, for the unconstitutional conduct of its agents and employees. Monell v. Dep’t of Social
Servs., 436 U.S. 658, 691 (1978). However, a municipality may be liable under § 1983 if the
unconstitutional conduct was a result of an official municipal policy or custom. Id. at 690-91. An
official policy involves “a deliberate choice to follow a course of action made from among
various alternatives by an official who is determined by state law to have the final authority to
establish governmental policy.” Ware v. Jackson Cty., Mo., 150 F.3d 873, 880 (8th Cir. 1998). A
municipal policy may take the form of a policy statement, local ordinance, regulation, or
decision officially adopted and promulgated by the municipality’s officers. Id. In contrast, a
municipal custom is demonstrated by (1) the existence of a continuing, widespread, persistent
pattern of unconstitutional misconduct by the municipality’s employees; (2) deliberate
indifference to or tacit authorization of such conduct by the municipality’s policymaking
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officials after notice of the misconduct; and (3) the § 1983 plaintiff’s injury by state action taken
pursuant the municipality’s custom, i.e. proof that the custom was the moving force behind the
constitutional violation. Id.
To state a § 1983 claim against a municipality, a plaintiff must plead that his injury was
caused by “the execution of a government’s policy or custom, whether made by its lawmakers or
by those whose edicts or acts may fairly be said to represent official policy.” Id. Such a showing
ultimately requires proof of either the existence of an official municipal policy or misconduct so
pervasive among non-policymaking employees of the municipality as to constitute a custom or
deliberate indifference to individuals’ federal rights. Ware v. Jackson Cty., Mo., 150 F.3d 873,
880 (8th Cir. 1998). Where a policy is constitutional on its face, but it is asserted that a
municipality should have done more to prevent constitutional violations by its employees, a
plaintiff must establish the existence of a “policy” by demonstrating that the inadequacies were a
product of deliberate or conscious choice by policymakers. Szabla v. City of Brooklyn Park,
Minn., 486 F.3d 385, 390 (8th Cir. 2007) (citing City of Canton v. Harris, 489 U.S. 378 (1989)).
In such cases, the standard of fault is “deliberate indifference to constitutional rights.” Id.
(internal quotations omitted). Where a § 1983 plaintiff does not claim that the municipaldefendant directly inflicted her injury, but instead alleges that it has caused an employee to do so,
“rigorous standards of culpability and causation must be applied to ensure that the municipality
is not held liable solely for the actions of its employee.” Id. (quoting Bd. of Cnty. Comm’rs v.
Brown, 520 U.S. 397, 404-05 (1997)).
The Court concludes that Conner has stated a plausible § 1983 claim against the County
based on some of its allegedly unconstitutional policies or customs. More specifically, Conner
has stated a municipal liability claim based on SLCPD officers conducting unlawful stops and
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detentions, discharging their weapons without probable cause, and using unnecessary and
unreasonably excessive force. Conner alleges that the County created an atmosphere in which
SLCPD officers felt free to confront citizens at their discretion and without lawful authority, i.e.,
for merely exiting a gas station parking lot. The allegations suggest that the Doe officers acted
pursuant to a County policy given the plausible inference that such coordinated and widespread
conduct could not exist without express or tacit approval by County policymakers. As alleged by
Conner, the Doe Officers’ conduct was not an isolated incident; rather, she claims that their
actions were part of a continuing County practice of condoning SLCPD officers’ use of
excessive force in violation of citizens’ constitutional rights. Accordingly, the Court finds a
reasonable fact finder could conclude that the Doe Officers’ allegedly excessive use of force was
undertaken with the actual or tacit approval of the City.
The Court concludes however, that Conner’s complaint does not state a § 1983 claim
against the County based on its allegedly inadequate hiring, supervision, and training of SLCPD
officers. A municipality cannot be held liable under § 1983 for negligently hiring its employees.
Brown, 520 U.S. at 415-16. As discussed above, the standard of fault in municipal liability
claims is “deliberate indifference.” Szabla, 486 F.3d at 390. To state a claim against a
municipality based on an isolated decision to hire a particular officer without adequate preemployment screening, a plaintiff must allege that the municipality’s decision to hire the
offending officer, made with deliberate indifference as to its known or obvious consequences,
caused her injuries. Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1216 (8th Cir.
2013); see also Dougherty v. City of Covina, 654 F.3d 892, 900-01 (9th Cir. 2011) (allegation of
“negligent” hiring was insufficient to state § 1983 claim against municipality because plaintiff
did not identify any instances of deliberate indifference). Where, as here, a claim is based on the
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negligent hiring of a police officer who later uses excessive force, a plaintiff must allege that the
municipality’s hiring decision “reflected a conscious disregard for a high risk that [the officer]
would use excessive force in violation of [the plaintiff’s] federally protected right.” Id. The
plaintiff must also show that the offending officer was “highly likely to inflict the particular
injury” and that “the connection between the background of the particular applicant and the
specific constitutional violation alleged must be strong.” Id. Similarly, in a failure-to-train claim
against a municipality, the plaintiff must allege that the municipality’s training practices were
inadequate; that the municipality was deliberately indifferent to the rights of others in adopting
the inadequate practices, such that the failure to train reflects a deliberate or conscious choice;
and that the alleged deficiency actually caused the plaintiff’s injuries. Parrish v. Ball, 594 F.3d
993, 997-98 (8th Cir. 2010). Count II does not state a viable § 1983 claim against the County
based on its allegedly inadequate policies for SLCPD officer hiring and training, as it alleges that
the County was merely negligent in those regards. As such, Conner’s allegations regarding the
County’s hiring and training practices, fairly read, state at most a claim of negligence under
Missouri law. The Court agrees with the County that it enjoys sovereign immunity from
Conner’s negligence claim because her complaint does not allege that it has procured an
insurance policy. Mo. Rev. Stat. § 537.610; see also Bennartz v. City of Columbia, 300 S.W.3d
251, 259 (Mo. Ct. App. 2009) (public entities in Missouri are not immune from suit to the extent
they have procured insurance, thereby waiving sovereign immunity up to but not beyond the
policy limit and only for acts covered by the policy). The Court will thus grant the County’s
motion to dismiss to the extent it seeks dismissal of Conner’s claims against the County based on
its hiring, supervising, and training practices. The Court will grant Conner leave to amend her
complaint should she so desire. Fed. R. Civ. P. 15(a)(2); In re Hutchinson Tech., Inc. Sec. Litig.,
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536 F.3d 952, 962 (8th Cir. 2008) (leave to amend should be freely granted when justice so
requires).
V. Conclusion
Accordingly, IT IS HEREBY ORDERED that Defendant County of St. Louis’s Motion
to Dismiss (Doc. 5) is GRANTED in part. Count II is DISMISSED in part and without
prejudice.
IT IS FURTHERED ORDERED THAT Conner shall have ten (10) days from the date
of this Memorandum and Order to amend her complaint should she so choose.
Dated this 31st day of August, 2016.

_______________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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