Liggins v. Cohen et al

Filing 28

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that Plaintiffs motion for leave to file a surreply is GRANTED (Doc. No. 19 ). IT IS FURTHER ORDERED that Defendants motion to dismiss (Doc. No. 10 ) is GRANTED. Plaintiffs personal due process claims a gainst both Defendants under § 1983 are DISMISSED without prejudice; Plaintiffs loss of services claim and the assault and battery claims she asserts on behalf of B.C. are DISMISSED without prejudice as to the City only. Signed by District Judge Audrey G. Fleissig on 11/10/2016. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANTOINETTE LIGGINS, et al.,
Plaintiffs,
v.
OFFICER MICHAEL COHEN, et al.,
Defendants.

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Case No. 4:16-cv-00413-AGF

MEMORANDUM AND ORDER
This matter is before the Court on the motion (Doc. No. 10) filed by Defendants
Michael Cohen (“Cohen”) and the City of Saint Louis (“City”) to dismiss certain claims
in Plaintiff Antoinette Liggins’s first amended complaint (Doc. No. 3). Defendants seek
the dismissal of Plaintiff’s due process claims pursuant to 42 U.S.C. § 1983, against both
Defendants, and her claims against the City arising under Missouri law: assault, battery,
and loss of services during her son’s minority. Plaintiff has asserted the state law assault
and battery claims on behalf of her natural son, B.C., a minor. For the reasons set forth
below, Defendants’ motion shall be granted.
BACKGROUND
Plaintiff Antoinette Liggins filed a first amended complaint (Doc. No. 3) against
Defendants Cohen and the City on April 14, 2016, which includes claims on her own
behalf and on behalf of her son, B.C., a minor. In the first amended complaint, Plaintiff
asserts on her own behalf a 42 U.S.C. § 1983 violation based on the deprivation of her

due process rights to care for and associate with her son, as well as a claim under
Missouri law for loss of services during his minority. On behalf of her son, B.C.,
Plaintiff asserts a § 1983 violation based on Cohen’s use of excessive force and the City’s
failure to adequately train, supervise, and control the actions of Cohen; and she asserts
state-law claims of assault and battery under Missouri law. Each of the foregoing claims
arose out of B.C.’s July 11, 2015 arrest and the injuries he sustained during that arrest,
and each claim has been asserted against both Defendants. At issue in the present motion
to dismiss (Doc. No. 10) are Plaintiff’s personal due process claims against both
Defendants, her loss of services claim against the City, and B.C.’s assault and battery
claims against the City.1
As alleged in the amended complaint, on the evening of July 11, 2015, Defendant
Cohen and four other City police officers were dispatched to an address near Hodiamont
Avenue in North Saint Louis, Missouri, in response to a call from a neighborhood
resident identifying an individual believed to have stolen a firearm the previous day. In
responding to this call, Cohen and the other officers encountered B.C., his brother, and
several other neighborhood youths, all of whom had been playing at a park near
Hodiamont Avenue. Upon seeing the police, B.C. and his brother began to run. Plaintiff
alleges that eyewitnesses observed an unarmed B.C. running away from the police
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Defendants have answered the § 1983 excessive force claim against Cohen, the §
1983 failure-to-train claim against the City, and the state-law assault, battery, and loss of
services claims against Cohen.
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officers; but that the officers reported that B.C. either ran toward them or that B.C. ran
away from them but that he was carrying a firearm, which he pointed at them. The
amended complaint further alleges that Cohen then immediately and without warning
brandished his service weapon and fired four shots at B.C., three of which struck his
person. One of the bullets grazed B.C.’s head, while another reached and damaged his
spine, instantly and permanently rendering him paraplegic. B.C. was 16 years old at the
time of this incident.
Plaintiff alleges that Cohen caused her son’s injuries by shooting him three times
with his service weapon, and that the City is responsible for her son’s injuries by failing
to adequately train, supervise, and control the actions of Cohen, its employee. Plaintiff
further alleges that the City was aware of prior, similar behavior by its police officers and
failed to properly respond, resulting in a de facto policy of indifference to its officers’
conduct and to the constitutional violations likely to arise therefrom. Additionally,
Plaintiff alleges that B.C.’s debilitating injuries—which include kidney damage requiring
two weeks of dialysis, a broken forearm requiring a surgically implanted intramedullary
rod, and permanent paralysis in the lower half of his body—have “severely
compromised” Plaintiff’s due process rights to care for and associate with her son. These
alleged deprivations of Plaintiff’s constitutional rights are the bases of Plaintiff’s claims
under 42 U.S.C. § 1983.
Plaintiff next alleges that under Missouri law, Cohen and the City committed

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assault and battery against B.C. through Cohen’s shooting of B.C. with his service
weapon, as described above. Finally, Plaintiff alleges that both Defendants are liable to
Plaintiff for the loss of B.C.’s services during his minority.
ARGUMENTS OF THE PARTIES
With respect to Plaintiff’s due process claims for the loss of the rights to care for
and associate with her son, Cohen and the City argue that Plaintiff fails to state a claim
upon which relief can be granted because she has not alleged acts sufficient to
demonstrate a deprivation of her constitutional rights. Specifically, Defendants assert
that Plaintiff has not pled facts suggesting that she suffered a wholesale relinquishment of
her parental rights over B.C. Defendants argue that merely alleging that Plaintiff’s
interests in caring for and associating with B.C. have been “severely compromised” is
insufficient to sustain an action under § 1983. Moreover, Defendants argue that
Plaintiff’s due process claims must be dismissed because Plaintiff has failed to allege that
Defendants took any action targeted at the parent-child relationship between Plaintiff and
B.C.
Regarding Plaintiff’s state law claim for loss of B.C.’s services during his
minority, and the state law assault and battery claims Plaintiff asserts on B.C.’s behalf,
the City argues that these claims are barred by the doctrine of sovereign immunity, which
prevents holding the government or its political subdivisions liable for the torts of its
officers or agents. Such immunity may be waived and there are established exceptions

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precluding its application, but the City argues that no exception is applicable in the
instant case and that it has not waived its immunity, thus barring Plaintiff’s claims.
In response to Defendants’ contentions regarding her due process claims, Plaintiff
argues that she has adequately alleged a claim under § 1983 and suggests that Defendants
have misarticulated the relevant legal standards. More specifically, Plaintiff argues that
her son’s injuries have sufficiently inhibited her own rights to care for and associate with
him so as to sustain a § 1983 claim for deprivation of those rights.
In response to the City’s contention that Plaintiff’s assault, battery, and loss of
services claims are barred by sovereign immunity, Plaintiff argues that the City’s
proffered legal authority is inapposite or factually distinguishable to the case at bar, and
she reiterates the circumstances under which a law enforcement officer can be held
individually liable in tort. Plaintiff does not argue that the City waived sovereign
immunity, and she does not identify a recognized exception that applies here.
Plaintiff also asks for leave to amend her first amended complaint to re-allege any
claims subject to dismissal under this motion.
By way of separate motion, Plaintiff also requests leave to file a surreply (Doc.
No. 19) to respond to what she alleges are novel claims and legal authority in
Defendants’ reply memorandum in support of its motion to dismiss. Plaintiff included
her proposed surreply in the body of her motion. For good cause shown and no
opposition having been filed by the Defendants, the Court will grant Plaintiff’s motion.

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The Court has considered Plaintiff’s surreply in ruling on Defendants’ motion to dismiss.

DISCUSSION
I.

Legal Standard
To survive a motion to dismiss for failure to state a claim, a plaintiff’s allegations

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 Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The reviewing court must accept the
plaintiff’s factual allegations as true and construe them in plaintiff’s favor, but it is not
required to accept the legal conclusions the plaintiff draws from the facts alleged. Iqbal,
556 U.S. at 678; Retro Television Network, Inc. v. Luken Commc’ns, LLC, 696 F.3d 766,
768-69 (8th Cir. 2012). A court must “draw on its judicial experience and common
sense,” and consider the plausibility of the plaintiff’s claim as a whole, not the
plausibility of each individual allegation. Zoltek Corp. v. Structural Polymer Group, 592
F.3d 893, 896 n.4 (8th Cir. 2010).
II.

Plaintiff’s Due Process Claims Under 42 U.S.C. § 1983
To successfully state a claim under § 1983, a plaintiff must plead: (1) the existence

of a constitutional right; and (2) deprivation of that right, (3) by state action or by an
individual acting under the color of state law. 42 U.S.C. § 1983; see also Roe v. Humke,

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128 F.3d 1213, 1215 (8th Cir. 1997) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). The
relevant issues before the Court regarding Plaintiff’s due process claims are, first,
whether Plaintiff has sufficiently pled the existence of cognizable constitutional rights;
and second, whether Plaintiff has pled facts tending to demonstrate the deprivation of her
asserted constitutional rights. The Court finds that although the Plaintiff has
demonstrable constitutional rights to care for and associate with her son, she has not pled
facts tending to show a deprivation of those rights so as to be actionable under § 1983.
The Supreme Court has explained that “the interest of parents in the care, custody,
and control of their children—is perhaps the oldest of the fundamental liberty interests
recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 65 (2000). Other courts have
articulated various formulations of parental due process rights. See, e.g., Harpole v.
Arkansas Dep’t of Human Servs., 820 F.2d 923, 927 (8th Cir. 1987) (finding parental
interest in “companionship” with the child); Myers v. Morris, 810 F.2d 1437, 1462 (8th
Cir. 1987) (parental interest in “familial relations” with a child), abrogated on other
grounds by Burns v. Reed, 500 U.S. 478, 483 (1991); Helleloid v. Independent School
Dist. No. 361, 149 F. Supp. 2d 863, 874 (D. Minn. June 19, 2001) (parental interest in
“creation and maintenance of the parent-child relationship”). Irrespective of the precise
framing employed, it is clear that both the Supreme Court and the Eighth Circuit Court of
Appeals have recognized constitutionally-protected parental rights. Harpole, 820 F.2d at
927 (citing Lehr v. Robertson, 463 U.S. 248, 258 (1983)).

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The Eighth Circuit has recognized two subcategories of cases implicating parental
due process rights: first, those in which a parent seeks to prevent the government from
interfering with “the right to make private decisions affecting the family, such as whether
to bear children[;]” and second, cases in which a parent objects to “governmental
attempts to directly affect the parent-child relationship by means such as determining
paternity or determining parental rights.” Harpole, 820 F.2d at 927-28 (citing with
approval Ortiz v. Burgos, 807 F.2d 6 (1st Cir. 1986) (internal citations omitted)); see also
Helleloid, 149 F. Supp. 2d at 874-75. Plaintiff’s claim regarding her interest in the care,
custody, and control of B.C., as stated, is of the former variety because it alleges that
Defendants have interfered with her right to raise her son and make decisions about his
upbringing. Plaintiff’s claim regarding her right to freely associate with B.C.—which has
been recognized as discrete from her right to make family decisions—falls into the latter
category. See, e.g., Doe A v. Special Sch. Dist. of St. Louis Cty,, 637 F. Supp. 1138, 1146
(E.D. Mo. 1986) (explaining that the “Due Process Clause also guarantees to parents the
right to associate with their children”) (emphasis added). Given that Plaintiff’s claims
each fit into one of the Ortiz categories as endorsed by the Eighth Circuit in Harpole, in
addition to the above-noted legal authority countenancing parental due process rights, the
Court finds that Plaintiff has sufficiently pled the existence of cognizable constitutional
rights such that deprivation of the same, if proven, could sustain a § 1983 action against
Cohen and the City.

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While Plaintiff has properly pled that her rights to make family decisions and to
associate with her son are constitutionally protected, Plaintiff has failed to plead facts
tending to demonstrate a violation of those rights. More specifically, accepting the
allegations of the first amended complaint as true, Plaintiff is not entitled to relief under §
1983 for deprivation of her own due process rights.
To the extent that Plaintiff claims her interest in the care, custody, and
companionship of B.C. has been violated, Defendants correctly argue that Plaintiff has
failed to plead facts tending to show that Defendants deprived Plaintiff of such interest.
Plaintiff has not alleged that Defendants caused B.C. to be removed from her custody.2
Nor has Plaintiff alleged that Defendants have deprived her of the right to make family
decisions regarding B.C. To be sure, Plaintiff asserts that Defendants’ actions have
caused her to make difficult family choices regarding B.C.’s upbringing and future;
however, she makes no claim that Defendants have attempted to dispossess her of the
right to make those choices, or to displace her in making those choices. See Doe A, 637
F. Supp. at 1146 (holding that “the fundamental right to family integrity is not implicated
unless the actions result in a wholesale relinquishment of the parents’ rights”). Critically,
Defendants are not coercing Plaintiff to make or to abstain from any choices.
Moreover, the Eighth Circuit has held that to properly state a parental rights claim
under § 1983, a plaintiff must allege that the state action complained of was directed at
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It is clear by virtue of this very action—and Plaintiff’s assertion of B.C.’s legal
rights on his behalf—that Plaintiff has retained custody over B.C.
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the parent-child relationship. See Harpole, 820 F.2d at 927-28 (explaining that
“[p]rotecting familial relationships does not necessarily entail compensating relatives
who suffer a loss as a result of wrongful state conduct, especially when the loss is an
indirect result of that conduct.”) (emphasis added). The majority of other Circuits that
have considered the issue have also required a parent seeking to maintain a § 1983 claim
to demonstrate that the objectionable state action was aimed directly at the parent-child
relationship. Pittsley v. Warish, 927 F.2d 3, 8 (1st Cir. 1991); McCurdy v. Dodd, 352
F.3d 820, 828 (3d Cir. 2003); Shaw v. Stroud, 13 F.3d 791, 794 (4th Cir. 1994); Jaco v.
Bloechle, 739 F.2d 239 (6th Cir. 1984)); Russ v. Watts, 414 F.3d 783 (7th Cir. 2005)
(expressly overruling Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984)); Trujillo
v. Board of County Commissioners, 768 F.2d 1186 (10th Cir. 1985); but see Kelson v.
City of Springfield, 767 F.2d 651 (9th Cir. 1985) (indicating that a plaintiff may proceed
on a § 1983 claim where the alleged injury is an incidental result of the contested state
action). Plaintiff does not allege that Cohen, in shooting and arresting B.C., or that the
City, in failing to train, supervise, and control Cohen, took action targeted at Plaintiff’s
relationship with her son. As a result, Plaintiff’s claim for the alleged deprivation of her
right to associate with B.C. must also fail.
Finally, the result reached by the Court is buttressed by Plaintiff’s inability to
identify legal authority supporting her position. Plaintiff fails to cite a single case
standing for the proposition that a parent whose child was physically injured by a police

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officer may recover under § 1983 for deprivation of the parent’s right to care for or
associate with his or her child. Plaintiff instead analogizes B.C.’s paraplegia to cases in
which a child was slain by a police officer and the parent was permitted to pursue a §
1983 claim. Both the analogy and Plaintiff’s proffered legal authority are inapposite.
First, upon a child’s death, the surviving parent is entirely and permanently dispossessed
of the right to care for, exercise custody over, and experience companionship with the
child. As described above, Plaintiff has not successfully plead deprivation of those rights
with respect to B.C. Second, the cases Plaintiff relies on—Bell v. Milwaukee, 746 F.2d
1205 (7th Cir. 1984); Mattis v. Schnarr, 502 F.2d 588 (8th Cir. 1974); and Trujillo v.
Board of County Commissioners, 768 F.2d 1186 (10th Cir. 1985)—fail to support her
position. Mattis at most supports a parent’s standing to pursue a § 1983 claim under facts
such as these, but does not affirm Plaintiff’s notion of what constitutes deprivation. 746
F.2d 1205.3 Trujillo, aside from being non-binding Tenth Circuit authority, is actually in
accordance with the Eighth Circuit in requiring an allegation that the state action
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At issue in Mattis was “whether a father’s interest in familial association permitted
him to raise a constitutional challenge for a declaratory judgment against a Missouri
statute,” not “[w]hether a father could maintain a § 1983 [due process] action against a
police officer who shot and killed his son[,]” based on deprivation of his parental rights.
Harbury v. Deutch, No. 96-00438 CKK, 1999 WL 33456919, at *11 & n.6 (D.D.C. Mar.
23, 1999), rev’d in part on other grounds, 233 F.3d 596 (D.C. Cir. 2000). Moreover, the
Eighth Circuit’s decision in Harpole raises serious doubts about Mattis’s continued
vitality by adopting a markedly different approach to the right of familial association.
Harpole, 820 F.2d at 927-28; see also Ellingson v. Piercy, 2016 WL 2745868, at *9
(W.D. Mo. May 11, 2016) (distinguishing Mattis and, in any event, reading Harpole to
require that state action have “the direct intent of affecting the parent-child relationship”
to sustain a § 1983 claim).
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complained of be directed at the parent-child relationship. 768 F.2d 1186, 1190
(analyzing the right to intimate association under both the First and Fourteenth
Amendments and holding “an allegation of intent to interfere with a particular [protected]
relationship . . . is required to state a claim under section 1983”). Most significantly,
Bell, 746 F.2d 1205, was expressly overruled by Russ v. Watts, 414 F.3d 783 (7th Cir.
2005), which meticulously detailed why the Seventh Circuit was joining the balance of
Circuits—including the Eighth—in requiring that the state action complained of be
directed at the parent-child relationship. In short, though B.C.’s physical injuries are
undoubtedly severe and Plaintiff’s relationship with B.C. will surely be changed as a
result thereof, Plaintiff’s own injuries, as alleged, do not give rise to a constitutional
claim sufficient to maintain a § 1983 action.
III.

Plaintiff’s State Law Claims Against the City

Finally, the Court agrees with the City that the doctrine of sovereign immunity
bars Plaintiff’s claim for loss of B.C.’s services during his minority and the assault and
battery claims Plaintiff asserts on his behalf. Sovereign immunity is:
A judicial doctrine which precludes bringing suit against the government without
its consent. Founded on the ancient principle that “the King can do no wrong,” it
bars holding the government or its political subdivisions liable for the torts of its
officers or agents unless such immunity is expressly waived by statute or by
necessary inference from legislative enactment.
BLACK’S LAW DICTIONARY 1396 (6th ed.1990).
Missouri courts have recognized the doctrine since 1821 and continue to do so.

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Mo. Rev. Stat. § 537.600 (“Such sovereign or governmental tort immunity as existed at
common law in this state . . . shall remain in full force and effect[.]”); Metro. St. Louis
Sewer Dist. v. City of Bellefontaine Neighbors, 476 S.W.3d 913, 921–22 (Mo. 2016)
(citation omitted). Accordingly, the issues before this court are: (1) whether the doctrine
is applicable to Plaintiff’s claims; (2) whether the City has waived its sovereign
immunity; and (3) if not, whether the present controversy is otherwise covered by a
statutory exception. Plaintiff does not dispute that B.C.’s assault and battery claims are
torts under Missouri law. It is also clear under Missouri law that Plaintiff’s claim for the
loss of B.C.’s services is an action in tort. Clark v. Martin, 650 S.W.2d 699, 701 (Mo.
Ct. App. 1983). Given that Plaintiff’s claims are actions in tort alleged against the City, a
political subdivision of the Missouri government, sovereign immunity applies here,
absent waiver or an applicable exception. See State ex rel. City of Grandview v. Grate,
490 S.W.3d 368 (Mo. 2016), reh’g denied (May 24, 2016) (finding plaintiff’s battery
claim based on officers’ actions barred as to the city); Lacy v. Gray, 2013 WL 3766567 at
*2 (E.D. Mo. July 16, 2013) (finding plaintiff’s assault and battery claims against state
highway patrol barred by sovereign immunity). As Plaintiff neither alleges that the City
has waived its immunity nor argues that any statutory exceptions apply, Plaintiff’s claim
for loss of B.C.’s services during his minority and B.C.’s assault and battery claims
against the City are barred by sovereign immunity.

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CONCLUSION
For these reasons, the Court will grant Defendants’ motion to dismiss, but the
Court will dismiss the claims at issue without prejudice to Plaintiff’s ability to seek leave
to replead if she believes she can cure the pleading deficiencies.
For the reasons set forth above,
IT IS HEREBY ORDERED that Plaintiff’s motion for leave to file a surreply is
GRANTED (Doc. No. 19).
IT IS FURTHER ORDERED that Defendants’ motion to dismiss (Doc. No. 10)
is GRANTED. Plaintiff’s personal due process claims against both Defendants under §
1983 are DISMISSED without prejudice; Plaintiff’s loss of services claim and the
assault and battery claims she asserts on behalf of B.C. are DISMISSED without
prejudice as to the City only.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 10th day of November, 2016.

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