Wolfe v. The City of Town and Country et al

Filing 28

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that defendants' Motion to Dismiss Case 16 is denied, but plaintiff's claim for punitive damages is stricken. IT IS FURTHER ORDERED that defendants' motions to substitute parties 23 , 24 , 25 , 26 are granted. IT IS FURTHER ORDERED that defendants shall answer the complaint in the time allotted by the Federal Rules of Civil Procedure. Signed by District Judge Catherine D. Perry on 6/24/2019. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JEFFREY WOLFE,
Plaintiff,
v.
THE CITY OF TOWN AND
COUNTRY, et al.,
Defendants.

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Case No. 4:17 CV 2942 CDP

MEMORANDUM AND ORDER
Plaintiff Jeffrey Wolfe is a police officer who works for the City of Town
and Country Police Department. He brings this case under 42 U.S.C. § 1983
against the City of Town and Country, the City’s Mayor, the members of the Board
of Alderman, and the Chief of Police, all in their official capacities. He alleges
that defendants violated his First Amendment rights of intimate association when
they demoted him because of his relationship with another officer.
I will deny defendants’ motion to dismiss. Wolfe has plausibly stated a
claim that defendants violated his constitutional rights, and so at this early stage of
the case the claim survives. He also sufficiently alleges that this was done as part
of the official policy of the City of Town and Country, because the action was
taken by the highest decision-makers and affirmed by the Board of Aldermen,
which is the policy-making body of the City. I will strike the claim for punitive

damages as requested by defendants, which plaintiff does not oppose, but the case
will proceed in all other respects.
Background
Wolfe has been a police officer for the City of Town and Country for
twenty-six years and a supervisor for the past twenty-two years. Complaint, ECF 1
at ¶ 12. Defendants are the City of Town and Country, the Board of Aldermen,
the Mayor, and the Chief of Police. The individual defendants are sued in their
official capacities. Id. at ¶ 2-7. In 2012, Wolfe was promoted to the rank of
sergeant; before the alleged incident he had performed his duties satisfactorily. Id.
at ¶ 12. In March 2017, an “unbecoming conduct complaint” was filed against
Wolfe regarding allegations of a relationship with another Town and Country
police officer. Id. at ¶ 13.
Wolfe was ordered to undergo a polygraph examination as part of the
investigation. Id. at ¶ 13 and ¶ 14. In that test Wolfe was asked whether he and
the subordinate officer had made plans for a vacation together and whether, “Prior
to about four weeks ago,” he had physical sexual contact with her, which he
denied. Id. at ¶ 17 and ¶ 18. The polygraph examiner reported that in his opinion
Wolfe had been truthful in his statements during the test. Id. at ¶ 19. The
investigation of Wolfe concluded with a finding that he did not show preferential
treatment to any officer. Id. at ¶ 22. In April 2017, Chief of Police Kranz
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informed Wolfe that he was demoted to Corporal and his compensation was
reduced. Id. at ¶ 20. Wolfe exercised his right of appeal to the Board of
Aldermen, which affirmed the demotion. Id. at ¶ 24-27.
Wolfe alleges that he did not engage in a relationship with the other officer
while he was the officer’s supervisor. Id. at ¶ 23. He alleges that his actions did
not violate any Town and Country policy or regulation regarding workplace
fraternization. Id. at ¶ 28 and 30. Wolfe further alleges that the defendants
demoted him under color of state law and this action was a final policy or was
approved by those with final policy-making authority. Id. at ¶ 36.
Discussion
The purpose of a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., is
to test the legal sufficiency of the complaint. When considering a Rule 12(b)(6)
motion, the court assumes the factual allegations of a complaint are true and
construes them in favor of the plaintiff. Neitzke v. Williams, 490 U.S. 319, 326-27
(1989). Rule 8(a)(2), Fed. R. Civ. P., provides that a complaint must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.”
In Bell Atlantic Corp. v. Twombly, the Supreme Court clarified that under Rule
8(a)(2) a complaint must contain “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” 550 U.S.
544, 555 (2007); accord Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
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Specifically, to survive a motion to dismiss, a complaint must contain enough
factual allegations, accepted as true, to state a claim for relief “that is plausible on
its face.” Twombly, 550 U.S. at 570. I must accept the plaintiff’s factual
allegations as true and construe them in plaintiff’s favor, but I am not required to
accept the legal conclusions the plaintiff draws from the facts alleged. Id. at 555;
Retro Television Network, Inc. v. Luken Commc’ns, LLC, 696 F.3d 766, 768-69
(8th Cir. 2012).
Defendants argue that a police officer has no constitutional right to intimate
association with another officer in an off-duty relationship. They additionally
argue that even if there is such a right, municipal liability cannot be imposed here
because Wolfe has not alleged a governmental policy that caused him injury.
Finally, defendants argue that any infringement on Wolfe’s constitutional rights is
outweighed by the governmental interest in maintaining an orderly, safe, efficient,
fair and trusted police department. 1 ECF # 17 at p. 9.
To state a plausible § 1983 claim, a plaintiff must allege a violation of a
constitutional right and must show the alleged deprivation was committed by a
person “acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

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Defendants also argue that Wolfe cannot obtain punitive damages from the city and that
the individual defendants are entitled to qualified immunity if Wolfe is suing them in their
individual capacities. The complaint is clear that Wolfe is suing the defendants in their official
capacities only, and his brief does not argue otherwise. He also does not argue that punitive
damages are available against the municipality, see City of Newport v. Fact Concerts, Inc., 453
U.S. 247 (1981), so I need not discuss these issues further.

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A municipality may be held liable under § 1983 if the municipality, “under color of
any statute, ordinance, regulation, custom, or usage of any State ..., subjected, or
causes to be subjected, any citizen of the United States … to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C.
§ 1983. Section 1983 may impose liability upon a municipality when a municipal
custom or policy resulted in the deprivation of a right protected by the constitution
or federal law. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658,
690 (1978).
The Supreme Court has recognized that a decision “to enter into and
maintain certain intimate human relationships” is a form of freedom of association
that “receives protection as a fundamental element of personal liberty.” Roberts v.
U.S. Jaycees, 468 U.S. 609, 617-18 (1984). The Supreme Court explained that:
[T]he constitutional shelter afforded such relationships reflects the
realization that individuals draw much of their emotional enrichment
from close ties with others. Protecting these relationships from
unwarranted state interference therefore safeguards the ability
independently to define one’s identity that is central to any concept of
liberty.
Id. at 619 (internal citations omitted). In Roberts the Court found it unnecessary to
precisely identify every factor that would entitle such relationships to protection,
but noted that “such attributes as relative smallness, a high degree of selectivity in
decisions to begin and maintain the affiliation, and seclusion from others in critical

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aspects of the relationship” are factors that may define such relationships. Id. at
619, 620. Later, in Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme Court
further explained that “the State is not omnipresent in the home… Liberty
presumes an autonomy of self that includes freedom of thought, belief, expression,
and certain intimate conduct.” Id. at 562.
The Eighth Circuit has not clearly delineated the scope of protection for a
law enforcement officer’s sexual relationships with a fellow officer or others with
whom the officer has a professional relationship. In Sylvester v. Fogley, 465 F.3d
851, 858 n.6 (8th Cir. 2006), the court noted that under Lawrence “police officers
generally have a right of privacy in their private sexual relations,” but also noted
that the standard for considering a police force’s interest in regulating such
relationships was not clear. Id. at 858 n. 6. In that case the Court recognized that
the police department had a compelling interest – for many legitimate law
enforcement purposes – in disciplining a police officer who had a sexual
relationship with a crime victim and lied about it. See also Vieira v. Presley, 988
F.2d 850, 852-53 (8th Cir. 1993) (friendships and acquaintances are not the type of
intimate relationship that Roberts recognized as warranting protection).
Some other circuits have ruled more definitively on this issue. For example,
the Eleventh Circuit has explicitly recognized that “dating is a type of association
which must be protected by the first amendment’s freedom of association.” Wilson
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v. Taylor, 733 F.2d 1539, 1544 (11th Cir. 1984), abrogated on other grounds as
noted in Scala v. City of Winter Park, 116 F.3d 1396, 1402 (11th Cir. 1997). The
Ninth Circuit explicitly recognized that a police officer has a privacy interest in
private sexual activities and that these “activities are within the zone protected by
the constitution.” Thorne v. City of El Segundo, 726 F.2d 459, 468 (9th Cir. 1983);
but see Perez v. City of Roseville, No. 15-16430, 2019 WL 2182488 at * 6 (9th
Cir. May 21, 2019) (holding that officials were entitled to qualified immunity and
noting that Thorne “explicitly rejected a per se rule that a police department can
never consider its employees’ sexual relationships.”) The Sixth Circuit found, “at
least for summary judgment purposes,” that a police officer’s relationship with an
administrative employee of the police department was within the range of intimate
associations recognized by Roberts, but then concluded that the city’s interests in
avoiding conflict in the workplace outweighed the officer’s rights. Anderson v.
City of LaVergne, 371 F.3d 879, 882-83 (6th Cir. 2004).
The Fifth and Tenth Circuits have reached different results. In Coker v.
Whittington, 858 F.3d 304 (5th Cir. 2017), the Fifth Circuit affirmed the denial of
relief for deputy sheriffs who had been terminated after they each moved in with
the other’s wife. The Court considered the County’s interest in avoiding “internal
dissension within the force” and stated that the relationships might be used
adversely in litigation concerning the deputies’ official conduct. It also stated,
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“There are no decisions … suggesting that the deputies … have constitutional
rights to ‘associate’ with each other’s spouses before formal divorce.” Id. at 306.
In Seegmiller v. LaVerkin City, 528 F.3d 762, 772 (10th Cir. 2008), the Tenth
Circuit held that a police officer had no fundamental liberty interest in engaging in
sexual activity with a fellow officer while on a work-related trip.
Closer to home, this Court in Wieland v. City of Arnold declined to rule that
“all dating relationships are Constitutionally protected,” but concluded that a police
officer’s relationship with a convicted felon who was on probation was entitled to
“some degree” of protection. 100 F. Supp. 2d 984, 988 (E.D. Mo. 2000). That
case held that the City had proven that it had a legitimate concern that the
relationship could undermine the authority of law enforcement officers, interfere
with the chain of command, and adversely affect the public image of the
department.
Most of the cases cited above that found no constitutional protection were
based – at least in part – on weighing the police officer’s right to an intimate
relationship against the interests of the governmental authority. As pointed out in
Sylvester, the exact amount of scrutiny that should be applied has varied greatly
among the decisions. Defendants here urge me to apply the balancing test from
Pickering v. Board of Educ., 391 U.S. 563 (1968), as another judge of this Court
did in Weiland. I am not sure that is the correct test, but I need not decide that at
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this time. The cases relied on by defendants and cited above were cases considered
on a full factual record, rather than on a motion to dismiss. Plaintiff’s complaint
here carefully avoided making any allegations about the interests of the City. I will
not go outside the pleadings in deciding this motion to dismiss, especially because
any application of a balancing test – whatever standard is applied – requires a
factual record, both about the scope of the relationship and about the interests of
the governmental authority.
Wolfe has sufficiently alleged that his relationship with the other officer is
entitled to some level of constitutional protection, and he has stated a plausible
claim that his First Amendment rights were violated. I also conclude that Wolfe
has sufficiently alleged a claim for municipal liability, because the Board of
Aldermen affirmed the discipline when he appealed it under the City’s procedures.
“[M]unicipal liability may be imposed for a single decision by municipal
policymakers under appropriate circumstances.” Pembaur v. City of Cincinnati,
475 U.S. 469, 480 (1986). “If the decision to adopt that particular course of action
is properly made by that government’s authorized decisionmakers, it surely
represents an act of official government ‘policy’ as that term is commonly
understood.” Id. at 481. A policy can include a statement, ordinance, regulation,
or decision adopted and promulgated by the municipality’s governing body. City
of St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988). A plaintiff must demonstrate
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that an official policy was a deliberate choice made by the municipal official who
has final authority over such matters and that the policy decision was the reason
behind a constitutional violation. Marsh v. Phelps Cty., 902 F.3d 745, 752 (8th
Cir. 2018) (citing Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999)).
Wolfe alleges that the decision made by the Board of Alderman when he
exercised his right to appeal under the Town and Country Municipal Code
constitutes the official government policy of the city. Id. at ¶ 25. The allegations
of the complaint are sufficient to allege that his demotion was a deliberate and
official policy choice made by those with final authority. See Angarita v. St. Louis
Cty., 981 F.2d 1537, 1547 (8th Cir. 1992). Wolfe has sufficiently alleged a basis
for imposing municipal liability. Accordingly,
IT IS HEREBY ORDERED that defendants’ Motion to Dismiss Case [16]
is denied, but plaintiff’s claim for punitive damages is stricken.
IT IS FURTHER ORDERED that defendants’ motions to substitute parties
[23, 24, 25, 26] are granted.
IT IS FURTHER ORDERED that defendants shall answer the complaint
in the time allotted by the Federal Rules of Civil Procedure.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 24th day of June, 2019.
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