Powell v. Shelton et al

Filing 34

OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that defendants motion to dismiss (Doc. No. 25 ] is granted in part and denied in part. IT IS FURTHER ORDERED that Counts II, III, V, and VI are DISMISSED.. Signed by District Judge Henry Edward Autrey on 1/11/19. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KAREN POWELL,
Plaintiff,
v.
NICHOLAS SHELTON, et al.,
Defendants.

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) Case No. 4:17CV2017 HEA
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OPINION, MEMORANDUM AND ORDER
Plaintiff filed this action claiming, among other things, that Defendants
violated Kajieme Powell’s civil rights under 42 U.S.C. § 1983 when Defendants
Shelton and Brown shot and killed him on August 19, 2014. Defendants move to
dismiss Counts II, III, IV, V, and VI of the Plaintiff’s Amended Complaint, [Doc.
No. 25. Plaintiff opposes the Motion. For the reasons set forth below, the Motion
will be granted.
Facts and Background
For the purpose of this motion to dismiss, plaintiff’s allegations are taken as
true. Plaintiff alleges:
Decedent Powell suffered from mental illness at the time of the incident
subject to this case.

On August 19, 2014, Decedent Powell left the Six Star Market in the City of
St. Louis with two cans of soda and a doughnut without paying for the items.
After exiting the Six Star Market, Decedent Powell placed the two cans on the
sidewalk and started pacing back and forth on the sidewalk while mumbling to
himself. An employee from the Six Star Market called 911 and described
Decedent Powell as being mentally ill. In response to the 911 call, Defendant
Shelton and Defendant Brown were dispatched by radio to go to the Six Star
Market. As Defendant Shelton and Defendant Brown pulled up to the street curb
near Decedent Powell, Decedent Powell took approximately 4 steps backwards.
Upon arriving at the Six Star Market, Defendant Shelton and Defendant Brown
exited their squad vehicle with their guns drawn and shouting verbal commands of
“get your hands out of your pockets” to Decedent Powell.
At the time Defendant Shelton and Defendant Brown were shouting verbal
commands of “get your hands out of your pockets,” Decedent Powell’s hands were
not in his pockets, his arms and hands were at his side and it was clearly visible
that Decedent Powell did not have any weapons in his hands.
Decedent Powell stepped up on an approximate 2-foot embankment and
walked down the embankment towards Defendant Shelton and Defendant Brown’s
vehicle. While Decedent Powell was walking towards Defendant Shelton and

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Defendant Brown’s vehicle his arms and hands were swinging by his side and
Decedent Powell did not have a weapon in his hands.
When Decedent Powell got near Defendant Shelton and Defendant Brown
and their vehicle, Defendant Shelton and Defendant Brown opened fire, shooting
Decedent Powell several times. At the time Defendant Shelton and Defendant
Brown shot Decedent Powell, Decedent Powell’s hands were visible to Defendant
Shelton and Defendant Brown. At the time Defendant Shelton and Defendant
Brown shot Decedent Powell, Decedent Powell did not have a knife in his hands.
At the time Defendant Shelton and Defendant Brown shot Decedent Powell,
Decedent Powell did not have a gun in his hands. At the time Defendant Shelton
and Defendant Brown shot Decedent Powell, Defendant Shelton and Defendant
Brown had mace/pepper spray/OC spray, but did not attempt to use it on Decedent
Powell.
At the time Defendant Shelton and Defendant Brown shot Decedent Powell,
Decedent Powell did not make any verbal threats to harm Defendant Shelton and
Defendant Brown. Before Defendant Shelton and Defendant Brown shot Decedent
Powell, Decedent Powell did not make any verbal threats to harm Defendant
Shelton and Defendant Brown.
Plaintiff further alleges that “[i]t was obvious to Defendant Shelton and
Defendant Brown that Decedent Powell had a mental illness because when
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Defendant Shelton and Defendant Brown first arrived, Decedent Powell said
“Shoot me” and “Shoot me mother*****.”
When Defendant Shelton and Defendant Brown shot Decedent Powell,
Decedent Powell had no weapon on his person.
Count I of the Amended Complaint is brought for a violation of Decedent
Powell’s civil rights-excessive force against Defendants Shelton and Brown; Count
II is brought as a failure to train claim against Defendant City of St. Louis; Count
III is a claim based on Respondeat Superior against Defendant City of St. Louis;
Count IV is a wrongful death claim under the Missouri wrongful death statute,
R.S.Mo § 537.080(1); Count V is a state law claim for Assault, and Count VI is a
state law claim for battery. Defendants moves to dismiss Counts II–VI. For the
reasons set forth below, the Motion will be granted in part and denied in part.
Legal Standard
The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim
is to test the legal sufficiency of a complaint so as to eliminate those actions
“which are fatally flawed in their legal premises and deigned to fail, thereby
sparing litigants the burden of unnecessary pretrial and trial activity.” Young v.
City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001) (citing Neitzke v. Williams,
490 U.S. 319, 326–27 (1989)). “To survive a motion to dismiss, a claim must be
facially plausible, meaning that the ‘factual content...allows the court to draw the
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reasonable inference that the defendant is liable for the misconduct alleged.’ ” Cole
v. Homier Dist. Co., Inc., 599 F.3d 856, 861 (8th Cir. 2010) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). The Court must “accept the allegations contained
in the complaint as true and draw all reasonable inferences in favor of the
nonmoving party.” Id. (quoting Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir.
2005)). However, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements,” will not pass muster. Iqbal, 556 U.S. at
678.
Discussion
Count II-Failure to Train
Plaintiff claims that the City is liable under § 1983 for inadequately training
Defendants Shelton and Brown on the arrest and detention of persons having a
mental illness. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). As
relevant here, “liability for a constitutional violation may attach to a municipality if
the violation resulted from ... a deliberately indifferent failure to train or
supervise.” Corwin v. City of Independence, 829 F.3d 695, 699 (8th Cir. 2016);
accord City of Canton v. Harris, 489 U.S. 378, 389 (1989). A claim for inadequate
training exists if (1) the city’s “training practices [were] inadequate”; (2) the
“failure to train reflects a deliberate or conscious choice” by the city; and (3) the
“alleged deficiency in the ... training procedures actually caused the plaintiff’s
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injury.” Parrish v. Ball, 594 F.3d 993, 997 (8th Cir. 2010) (alterations in original)
(quotations omitted). Establishing deliberate indifference on a failure-to-train claim
generally requires “[a] pattern of similar constitutional violations by untrained
employees.” Connick v. Thompson, 563 U.S. 51, 62 (2011).
Plaintiff argues that she has satisfied the notice requirements of Rule 8(a) of
the Federal Rules of Civil Procedure, but acknowledges that the claim must be
supported by sufficient factual allegations to be plausible. The First Amended
Complaint fails to reference any specific policy or pattern of constitutional
violations regarding the claimed failure to properly train on “the arrest and
detention of persons having a mental illness.” The allegations in the First
Amended Complaint are thus insufficient to support a Monell claim.
Plaintiff also contends that she need not allege a pattern of similar
constitutional violations, relying on Canton, 489 U.S.378, at 390 n.10 (suggesting
possible single-incident liability for Monell claims). But Plaintiff’s sole allegation
that the City’s alleged failure to train officers based on the “obviously” mentally ill
decedent is insufficient. Count II will be dismissed.
Count III-Respondeat Superior
Plaintiff recognizes that Count III, under current law, fails to state a claim,
and has preserved her claim for appeal. Bd. of Cty. Comm’rs of Bryan Cty., Okl v.
Brown, 520 U.S. 397 (1997). Count III will be dismissed.
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Count IV-Wrongful Death
Defendants argue that Count IV should be dismissed because it is styled
“Wrongful Death” and that there is no independent cause of action for “wrongful
death.” The Court agrees with Plaintiff that Count IV is indeed an action under the
Missouri Wrongful Death statute, R.S.Mo § 537.080(1), and is pled as such. The
Motion will be denied with respect to Count IV.
Counts V and VI-Assault and Battery
Defendants contend that Missouri state law claims for the assault and battery
are barred by the applicable statute of limitations requiring the actions to be
commenced within two years of the claim, while Plaintiff argues that the claims
must be commenced within three years. § 516.130(1) RSMo. Specifically, the
statute states:
Within three years: (1) An action against a sheriff, coroner or other officer,
upon a liability incurred by the doing of an act in his official capacity and in
virtue of his office, or by the omission of an official duty, including the
nonpayment of money collected upon an execution or otherwise.
Id. There is some confusion in the law regarding whether that three-year statute of
limitations or the assault-and-battery-specific two-year statute of limitations
applies. That statute states:
Within two years: an action for libel, slander, injurious falsehood, assault,
battery, false imprisonment, criminal conversation, malicious prosecution or
actions brought under section 290.140...
§ 516.140 RSMo (emphasis added).
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This Court has held that, where plaintiffs bring claims against officers in their
individual capacities, the three-year statute does not apply to assault and battery
claims. See Nonn v. Curtis, 2017 WL 5070530, at *1–3 (E.D. Mo. 2017); Doe v.
Rainey, 4:15CV01484 AGF, 2016 WL 2986398, at *3 (E.D. Mo. May 24, 2016);
Gaulden v. City of Desloge, Mo., 2009 WL 1035346, at *14 (E.D. Mo. 2009) (“An
action against an officer in his or her individual capacity does not fall within the
parameters of Section 516.130.”) (citing Miller Cty. v. Groves, 801 S.W. 2d 777,
778–79 (Mo. Ct. App. 1991)). That, of course, leaves the two-year statute of
limitation for plaintiff’s claims, which of course appears to have expired in August,
2016, long before plaintiff filed suit in 2017.
Plaintiff must have thus filed her complaint in August 2016. The statute of
limitations has long since expired, and Counts V and VI must be dismissed.
Conclusion
Based upon the foregoing analysis, Defendants’ motion to dismiss will be
granted in part and denied in part.
Accordingly,
IT IS HEREBY ORDERED that defendants’ motion to dismiss (Doc. No.
25] is granted in part and denied in part.
IT IS FURTHER ORDERED that Counts II, III, V, and VI are
DISMISSED.
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Dated this 11th day of January, 2019.

___________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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