Naes v. City of St. Louis, Missouri et al
MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Defendants' Motions to Dismiss, Docs. 14 and 16 , are DENIED with respect to Counts I, II, and III.IT IS FURTHER ORDERED that Defendants' Motions to Dismiss, Docs. 14 and 16 , are GRANT ED with respect to Count V. IT IS FINALLY ORDERED that Defendants' Motions to Dismiss, Docs. 14 and 16 , are GRANTED in part and DENIED in part with respect to Count IV. The Motions are granted as to Plaintiff's claims of municipal liabi lity and official capacity liability, but they are denied as to Plaintiff's claims of individual liability. An appropriate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Sarah E. Pitlyk on 10/13/20. (ARL)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
THE CITY OF ST. LOUIS, et al.,
Case No. 4:19-cv-02132-SEP
MEMORANDUM AND ORDER
This matter is before the Court on Defendants City of St. Louis (“City”), Major Angela
Coonce, and Chief John Hayden’s (collectively, “Defendants”) motions to dismiss. Docs. ,
. Both motions are fully briefed. Docs. , , , , . 1 For the reasons set forth
below, both motions are granted in part and denied in part.
The purpose of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is to
test the legal sufficiency of a complaint. When considering a 12(b)(6) motion, the court assumes
the factual allegations of a complaint are true and construes them in the non-movant’s favor.
Neitzke v. Williams, 490 U.S. 319, 326-27 (1989).
Federal Rule of Civil Procedure 8(a)(2) 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 Rule 8(a)(2) requires complaints to contain
On March 30, 2020—after these motions were briefed—Plaintiff filed his Second Amended Complaint
adding claims under the Missouri Human Rights Act in Counts II and III. Doc. . He could not have
included the claims earlier because he was awaiting his Right to Sue letter from the Missouri Commission
on Human Rights. Doc. . The parties requested that the Court apply previously filed motions to the
Second Amended Complaint, id., which request the Court granted on April 1, 2020. Doc. .
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“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).
Specifically, to survive a 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.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570). The issue in considering such a motion is not whether the
plaintiff will ultimately prevail, but whether the plaintiff is entitled to present evidence in support
of the claim. See Twombly, 550 U.S. at 556.
Relevant Facts and Background2
Plaintiff Louis Naes, a male, has been employed as a police officer with the St. Louis
Metropolitan Police Department (“SLMPD”) since 2003. Doc.  ¶ 10. In October 2012, he
was assigned as a detective to the problem properties unit, where he was assigned to the Animal
Abuse Task Force. Id. ¶ 11. His duties involved working with Randy Grim, the founder of Stray
Rescue of St. Louis. Id. ¶ 12. Naes and his partner tried to investigate Grim when they learned
of alleged illegal conduct, as well as racist and sexual comments. Id. ¶¶ 13, 18, 21. When Grim
learned of these investigations, he told Naes that when Defendant Coonce was in charge, he
(Grim) would have the last laugh. Id. ¶ 17.
On April 12, 2018, Coonce was promoted to the rank of major and placed in charge of
the Intelligence Unit. Id. ¶ 22. On April 24, 2018, at Coonce’s direction, Naes was told that he
was no longer allowed to leave headquarters and was not allowed to continue working on certain
ongoing investigations. Id. ¶ 23. On April 27, 2018, Coonce had Naes removed as a detective in
problem properties and replaced him with a new detective with no relevant experience or training
The facts contained herein are taken from the allegations set out in Plaintiff’s Second Amended
Complaint (Doc. ). They are assumed to be true for the purpose of this Memorandum and Order. See
Iqbal, 556 U.S. at 678-79; Neitzke, 490 U.S. at 326-27.
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in dog investigations. Id. ¶ 24. Naes alleges that his replacement was a member of “the Lesbian
Mafia,” a group of homosexual females within the SLMPD whom Coonce advances based upon
gender and sexual orientation rather than knowledge, skills, or abilities. Id. ¶¶ 20, 24.
On May 2, 2018, Naes complained about this illegal discrimination and other alleged
misconduct to Hayden. Id. ¶ 26. On May 4, 2018, an Employee Misconduct Report (“EMR”)
was filed against Naes, which Naes believes was an attempt to intimidate him and prevent him
from speaking out about the discrimination he suffered. Id. ¶ 27. The EMR remained pending as
of the date of filing of his amended complaint. Id. ¶ 28. On May 18, 2018, Naes filed a Charge
of Discrimination with the EEOC and Missouri Commission on Human Rights regarding his
April 27, 2018, removal as a detective in problem properties. Id. ¶ 35.
On April 24, 2019, the detective position Naes had held in problem properties was
posted. Id. ¶ 29. Naes applied for the position, but he learned on May 24, 2019, that the same
alleged “Lesbian Mafia” member who had replaced him the year before, and who had less
experience than Naes, had been selected to fill the position. Id. ¶¶ 30-31. According to the
applicable collective bargaining agreement, Naes should have been selected for the position
because he was more qualified. Id. ¶ 33. Additionally, if the two had been equally qualified, he
should have been selected because he had more seniority. Id. ¶¶ 33-34.
Naes claims to have lost over $10,000 in overtime compensation and suffered emotional
damages as a direct and proximate result of Defendants’ actions. Id. ¶¶ 39-40. He has exhausted
administrative remedies and received a Right to Sue Letter prior to filing. Id. ¶¶ 35-38.
Naes’s Second Amended Complaint has five counts:
Count I: Gender discrimination for his April 27, 2018, removal (“2018
Removal”), in violation of Title VII and the Missouri Human Rights Act
(“MHRA”), against the City;
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Count II: Gender discrimination for his non-selection for the April 24,
2019, job posting (“2019 Posting”), in violation of Title VII and the
MHRA, against the City;
Count III: Retaliation for his May 2, 2018, complaint of discrimination
to Hayden and May 18, 2018, Charge of Discrimination, in the form of his
non-selection for the April 24, 2019, job posting, in violation of Title VII,
against the City;
Count IV: Denial of equal protection, in violation of the Fourteenth
Amendment to the United States Constitution and 42 U.S.C. § 1983,
against all Defendants (and against Coonce and Hayden in both their
individual and official capacities);
Count V: Failure to instruct, supervise, control, and discipline, in
violation of 42 U.S.C. § 1983, against the City and Hayden (in both his
individual and official capacity).
Defendants filed two motions to dismiss. The first was filed by the City, along with
Coonce and Hayden in their official capacities. The second was filed by Coonce and Hayden in
their individual capacities. Between the two motions, Defendants seek dismissal of all counts.
The Court will address each count in turn, addressing the arguments from both motions, as
Gender Discrimination (2018 Removal)
Under the familiar McDonnell Douglas framework, to establish a prima facie case of sex
discrimination under Title VII, Naes must allege that: 1) he belonged to a protected class; 2) he
was qualified to perform his job; 3) he suffered an adverse employment action; and 4) he was
treated differently from similarly situated females. McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973); Turner v. Gonzales, 421 F.3d 688, 694 (8th Cir. 2005).
Defendants argue that Plaintiff’s Count I fails to identify an adverse employment action
sufficient to state a claim of discrimination. Doc.  at 2-3. According to Defendants, Naes
fails to allege that he was terminated, that he received any cut in pay or benefits, or that his
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transfer from problem properties affected his future career prospects; he was simply transferred
out of the unit. Id. at 3. Defendants further contend that Naes fails to allege that he was
prohibited from working overtime because of his transfer. While he implies that he lost overtime
pay due to the transfer, Defendants complain that he fails to state why or how his overtime was
prevented. Id. at 3-4.
Under Eighth Circuit precedent, “a compulsory, unwanted transfer constitutes an adverse
employment action when the transfer results in a significant change in working conditions or a
diminution in the transferred employee’s title, salary, or benefits.” Bonenberger v. St. Louis
Metro. Police Dep’t, 810 F.3d 1103, 1108 (8th Cir. 2016) (quoting Fisher v. Pharmacia &
Upjohn, 225 F.3d 915, 919-20 (8th Cir. 2000) (emphasis in Bonenberger) (internal quotation
marks omitted). Naes alleges that he “has lost over $10,000 in overtime compensation because
not working as a detective.” Doc.  ¶ 39. A loss of $10,000 in compensation represents “a
diminution in [Naes’s] title, salary or benefits.” Bonenberger, 810 F.3d at 1108. Therefore,
Naes has adequately pleaded an adverse employment action. See also Kerns v. Capital
Graphics, Inc., 178 F.3d 1011, 1016 (8th Cir. 1999) (“Termination, cuts in pay or benefits, and
changes that affect an employee’s future career prospects are significant enough to meet the
standard” for an adverse employment action.).
At the motion to dismiss stage, the pleading standard “simply calls for enough fact to
raise a reasonable expectation that discovery will reveal evidence of [the claim].” Twombly, 550
U.S. at 555. While Naes will need to establish further factual support for his claim to lost
compensation to survive summary judgment, his allegation of lost overtime pay is enough to
survive a motion to dismiss.
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Gender Discrimination (2019 Posting)
Defendants similarly contend that Naes fails to allege an adverse employment event with
respect to his not being hired back into his old position in 2019. Naes “has alleged no evidence
that Defendants took any action to prevent him from applying or interviewing for the open
position in April 2019,” they point out, arguing that having applied and interviewed and not been
selected are not sufficient. Doc.  at 4.
Defendants’ argument again fails. “Denial of a sought-after transfer may constitute an
adverse employment action if the transfer would result in a change in pay, rank, or material
working conditions.” Bonenberger, 810 F.3d at 1107 (emphasis in original). The alleged loss of
$10,000 in overtime compensation is a change in pay, and he claims he has suffered that loss
from “not working as a detective,” which implies that being hired back into his old position
would also have brought a change in rank. As such, Plaintiff has adequately alleged an adverse
employment action, and Defendants’ motion to dismiss Count II fails.
“To establish a prima facie case of retaliation, [Naes] must show (1) [he] engaged in
protected conduct, (2) [he] suffered a materially adverse employment act, and (3) the adverse act
was causally linked to the protected conduct.” Bunch v. Univ. of Ark. Bd. of Trs., 863 F.3d 1062,
1069 (8th Cir. 2017) (internal quotation marks removed) (quoting Guimaraes v. SuperValu, Inc.,
674 F.3d 962, 978 (8th Cir. 2012)).
Defendants argue that Naes has failed to state a claim for retaliation in violation of Title
VII because he has not alleged a causal nexus between his protected activity (his complaint to
Harden and Charge of Discrimination, both in May 2018) and the adverse employment action
(his being passed over for the 2019 Posting). Doc.  at 5. It is unsurprising, they argue, that
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Naes was not selected for a position from which he had already been transferred. Id. Defendants
further contend that there is no causal nexus between the 2018 Charge of Discrimination and
complaint to Hayden and Naes’s failure to obtain a job posted almost a year later, pointing out
that more than a temporal connection is required to demonstrate the causal link necessary for a
retaliation claim. Id. (citing Gagnon v. Sprint Corp., 284 F.3d 839, 851 (8th Cir. 2002)).
Naes responds that he does not attempt to establish a causal link by temporal proximity.
Doc.  at 4. Instead, the fact that he was more qualified, or equally qualified with more
seniority, than the person hired, and that therefore he should have been awarded the position
under the applicable collective bargaining agreement, “would allow a reasonable jury to infer
that there was a causal connection” between his 2018 complaints and his rejection in 2019. Id.
Unlike the Eighth Circuit in Gagnon, this Court is evaluating Naes’s claim on a motion to
dismiss, not a motion for summary judgment. See 284 F.3d at 851-52. The question before this
Court is not whether Naes has produced sufficient evidence to prove the causal connection
between his 2018 complaints and his not being hired in 2019; it is whether his complaint
sufficiently alleges such a connection. See Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678.
That is a substantially lower bar than that applied at summary judgment, and Naes has met it.
In his Second Amended Complaint, Naes alleges all of the elements of a prima facie case
for retaliation: (1) that he engaged in protected conduct, (2) that he experienced an adverse
employment action, and (3) that the two were causally connected. See Bunch, 863 F.3d at 1069;
see, e.g., Doc.  ¶ 59 (“Defendant would not have selected a candidate other than Naes but for
his filing of his Charge of Discrimination in May 2018 and/or complaining about illegal
discrimination to Defendant Hayden during this same timeframe, in that the stated reason(s) for
the decision to select the female who initially replaced Naes was nothing but pretext to hide
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illegal retaliation.”). Naes’s allegations of a causal connection are more than mere “labels and
conclusions,” Twombly, 550 U.S.at 555, and, if true, they “state a claim for relief that is plausible
on its face,” Iqbal, 556 U.S. at 678. Whether he can prove them is a question for later in this
case. For now, his retaliation claim survives Defendants’ motion to dismiss.
Equal Protection Violation3
Naes brings Count IV against the City as well as Coonce and Hayden in both their
individual and official capacities.4 He alleges that Defendants, acting under color of state law,
deprived him of his Fourteenth Amendment right to equal protection by removing him from
problem properties and not selecting him for the open detective position because of his gender, in
violation of 42 U.S.C. § 1983.
A. Claim Against the City
“To establish municipal liability under § 1983, a plaintiff must show that a constitutional
violation was committed pursuant to an official custom, policy, or practice of the governmental
entity.” Moyle v. Anderson, 571 F.3d 814, 817 (8th Cir. 2009) (citing Monell v. N.Y. Dep’t of
Soc. Servs., 436 U.S. 658, 690-92 (1978)). “There are two basic circumstances under which
municipal liability will attach: (1) where a particular municipal policy or custom itself violates
federal law, or directs an employee to do so; and (2) where a facially lawful municipal policy or
custom was adopted with ‘deliberate indifference’ to its known or obvious consequences.” Id. at
As Naes concedes, Doc.  at 6, he may not invoke 42 U.S.C. § 1983 to redress a violation of a right
conferred by Title VII. Henley v. Brown, 686 F.3d 634, 641 (8th Cir. 2012). Therefore, the Court will
ignore that alternative basis for Plaintiff’s Count IV. See Doc.  ¶ 66.
Notwithstanding Defendants’ arguments to the contrary, Naes has alleged an adverse employment action
sufficient to state a discrimination claim. See Section I, supra.
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“A ‘policy’ is an official policy, a deliberate choice of a guiding principle or procedure
made by the municipal official who has final authority regarding such matters.” Mettler v.
Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999). A “custom” can be shown through evidence of
the “existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by
the governmental entity’s employees.” Id.
Defendants argue that Naes makes a blanket statement alleging that the actions described
in the complaint constitute a violation of his equal protection rights, but he fails to allege “that
Defendants had an official policy or unofficial custom that cause these alleged violations,” and
he does not allege “a widespread, persistent pattern of discrimination.” Doc.  at 6.
In response, Naes argues that he has made out a claim for municipal liability based on
custom because he “has alleged a pattern of illegal discrimination and retaliation, costing the
City more than three million dollars during the past several years[.]” Doc.  at 5 (citing Doc.
 ¶¶ 73-74). He further alleges that the City protects command rank officers when they
engage in illegal discrimination, and that the City’s actions were the direct and proximate cause
of his injury. Id. (citing Doc.  ¶¶ 74, 80).
To allege a custom resulting in municipal liability, Naes must plead:
(1) The existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the governmental entity’s employees;
(2) Deliberate indifference to or tacit authorization of such conduct by the
governmental entity’s policymaking officials after notice to the officials of that
(3) Th[e] plaintiff[’s] injur[y] by acts pursuant to the governmental entity’s
custom, i.e., [proof] that the custom was the moving force behind the
Ware v. Jackson Cty., 150 F.3d 873, 880 (8th Cir. 1998) (alterations in original) (citing Jane Doe
A v. Special Sch. Dist., 901 F.2d 642, 646 (8th Cir. 1990)). Because a municipality cannot be
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liable on a respondeat superior theory, “the pattern of unconstitutional conduct must be so
pervasive and widespread so as to have the effect and force of law.” Brewington v. Keener, 902
F.3d 796, 801 (8th Cir. 2018) (internal quotations and citations omitted).
“The Eighth Circuit has not directly addressed the quantum of ‘continuing, widespread,
persistent’ conduct that a plaintiff must allege to satisfy the Iqbal standard in [the motion to
dismiss] context.” Ball-Bey v. Chandler, 415 F. Supp. 3d 884, 895 (E.D. Mo. 2019). It has held
in the summary judgment context that, “in the face of an express municipal policy prohibiting
excessive force,5 two incidents of excessive force—even assumed to be true—cannot be
considered a pattern of widespread and pervasive unconstitutional conduct.” Brewington, 902
F.3d at 802. And, at the other end of the spectrum, it has adjudged that “copious evidence of
past misconduct,” including corroborated testimony that a city had received “many citizen
complaints,” does constitute sufficient evidence to establish a municipal custom. Harris v. City
of Pagedale, 821 F.2d 499, 504-06 (8th Cir. 1987) (relying in part on Herrera v. Valentine, 653
F.2d 1220 (8th Cir. 1981), in which “many prior citizen complaints to the City of Gordon and to
state agencies about police mistreatment of Indians, and also the report of an outside
investigation” were found sufficient to ground municipal § 1983 liability). In Brewington, the
Eighth Circuit also cited approvingly a Fifth Circuit case holding that eleven documented
warrantless searches failed to establish “a pattern of illegality in one of the Nation’s largest cities
and police forces,” in part because “the sample of alleged unconstitutional events is just too
small.” Pineda v. City of Houston, 291 F.3d 325, 329 (5th Cir. 2002). See also Plamp v.
Mitchell Sch. Dist. No. 17-2, 565 F.3d 450, 460 (8th Cir. 2009) (“[T]hree concrete complaints
Naes concedes that the City of St. Louis and the St. Louis Police Department “purportedly have policies
and procedures prohibiting discrimination and/or retaliation.” Doc.  ¶ 73.
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. . . scattered over approximately twelve years and contain[ing] little in terms of content” did not
amount to an unconstitutional custom.).
Given the highly fact-specific character of each of these determinations, the Court does
not have the benefit of a brightline rule for how many incidents Naes must have alleged—much
less with what frequency, level of detail, or degree of similarity—to successfully plead a
“continuing, widespread, persistent pattern of unconstitutional misconduct” that could give rise
to custom liability. Ware, 150 F.3d at 880. Still, the precedents do make clear that Naes’s
allegations are insufficient.
Naes’s evidence for the alleged “pattern of illegal discrimination and retaliation” consists
of five incidents “during the past several years.” Doc.  ¶¶ 73-76; Doc.  at 5. The only
date provided is for a judgment of a “City of St. Louis jury” in 2014, id. ¶ 4, which—considering
how long it takes even an uncomplicated case to proceed from filing to a jury verdict—
presumably related to conduct dating from substantially earlier. Therefore, Naes’s claim of a
“continuing, widespread, persistent pattern of unconstitutional misconduct,” Ware, 150 F.3d at
880, rests on five instances of misconduct over a span of substantially greater than five years.
Naes’s opposition to the City’s Motion to Dismiss points to no case in which a court has held
that conduct that occurs less than once a year constitutes a “continuing, widespread, persistent
pattern” in any context, much less in a context similar to that of this case. Ware, 150 F.3d at
880; see Doc.  at 5. See also Andrews v. Fowler, 98 F.3d 1069 (8th Cir. 1996) (two
instances in two months does not constitute a widespread pattern); Ball-Bey, 415 F. Supp. 3d at
896 (fourteen instances in six years is not a custom); Burbridge v. City of St. Louis, 430 F. Supp.
3d 595, 620-21 (E.D. Mo. 2019) (finding “two or three” instances a year apart is not a custom).
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Nor does Naes allege any facts that would bolster his claim that the five alleged instances
of “illegal discrimination and retaliation” over substantially more than five years evince a
“continuing, widespread, persistent pattern” that includes his claims. Ware, 150 F.3d at 880. He
does not provide, for example, the number of detectives removed from their roles over a
particular time period; the number of vacancies filled during that period; the proportion of
vacancies filled by men versus women; or the ratio of men to women in the relevant applicant
pools. Nor does Naes allege any other facts that might enable the Court to infer that those five
alleged incidents instantiate a pervasive pattern of unconstitutional conduct. Brewington, 902
F.3d at 801. See also Ball-Bey, 415 F. Supp. 3d at 896 (noting the absence of pleaded facts that
could ground a “plausible inference that fewer than 2.5 instances per year over a six-year period,
in a major metropolitan police department serving a city of over 319,000 residents, constitutes a
pattern or practice”).
Additionally, Naes fails to allege that the five alleged past instances of “illegal
discrimination and retaliation” are sufficiently similar to each other and to his own allegations to
be considered part of the same municipal custom. The Eighth Circuit has held that a “custom”
requires proof of factually similar conduct or incidents. See Mettler, 165 F.3d at 1205
(dismissing evidence of prior complaints where petitioner had not “shown that the incidents
giving rise to these complaints bear any factual similarity” to the incident at issue in the case). In
his Second Amended Complaint, Naes alleges no factual commonality between his own claims
and the five other examples with which he purports to establish a custom, other than that they all
fall under the heading “illegal discrimination and/or retaliation.” See, e.g., Doc. 28 ¶ 74. He
does not allege, for example, that any of the past incidents had anything to do with gender or
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sexual orientation. Nor does he allege any instances of reverse discrimination or discrimination
against males in particular.
Naes also fails to account for apparent dissimilarities between his own claims and the
past incidents, such as the fact that most of the past instances occurred under the leadership of a
different Chief of Police, and at least one (i.e., the one resulting in jury verdict in 2014, Doc. 28
¶¶ 4, 75(a)) likely occurred before the Defendant City of St. Louis assumed control of the St.
Louis Police Department in September 2013. Doc.  ¶ 72. In sum, Naes fails to allege
sufficient facts to support an inference that the five examples he cites of past retaliation and
discrimination are sufficiently factually similar to his claims to be manifestations of the same
“continuing, widespread, persistent pattern.” Ware, 150 F.3d at 880. See Thiel v. Korte, 954
F.3d 1125, 1129 (8th Cir. 2020) (“Though Thiel alludes to prior complaints against Baker and
Minor, he fails to provide the details necessary for us to determine whether these complaints . . .
involved conduct sufficiently similar to what is alleged here . . . .”).
Because Naes fails to plead a “continuing, widespread, persistent pattern of
unconstitutional misconduct” sufficient to support a finding of a municipal custom, his § 1983
claim against the City for violation of his right to equal protection is dismissed. Ware, 150 F.3d
B. Official Capacity Claims
Naes’s § 1983 claims against individual employees of the City in their official capacities
are redundant of his claim against the City. Veatch v. Bartels Lutheran Home, 627 F.3d 1254,
1257 (8th Cir. 2010) (“A suit against a government officer in his official capacity is functionally
equivalent to a suit against the employing governmental entity.”). Therefore, Naes’s official
capacity claims are dismissed.
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C. Individual Capacity Claims
Coonce and Hayden contend that Naes does not adequately allege that either of them
directly participated in his removal or non-selection to sustain claims against them in their
individual capacities. Doc.  at 3. They also argue that Naes’s failure to plead “any specific
action taken by either Hayden or Coonce” entitles them to qualified immunity. Id. at 7. Because
Naes does plead specific violations of his constitutional rights by both Hayden and Coonce, both
While § 1983 claims may not be based on a respondeat superior theory, the Eighth
Circuit recognizes that a supervisor may be held individually liable under § 1983 if he or she
“directly participates in the constitutional violation[.]” Brockinton v. City of Sherwood, 503 F.3d
667, 673 (8th Cir. 2007). Naes does allege that Coonce and Hayden “directly participate[d]” in
the discrimination against him. Id.; see Doc.  ¶¶ 23, 24, 26, 30-34. He claims, for instance,
that “Coonce had [him] removed as a detective in problem properties and assigned a member of
‘the Lesbian Mafia’ to replace him, even though this officer had no experience or training in
handling dog investigations.” Id. ¶ 24. He also claims that he “complained about this illegal
discrimination and other misconduct to Defendant Hayden,” and that Hayden “took no action
when he learned about the discrimination Naes suffered, other than to allow an Employee
Misconduct Report to be filed against Naes to intimidate and silence Naes . . . .” Id. ¶¶ 26, 78.
To survive a motion to dismiss, a plaintiff must 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. Naes has cleared that bar. The complaint describes Coonce’s and Hayden’s personal
involvement in the alleged violations of Naes’s constitutional rights. Though Naes will
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eventually have to adduce evidence to support those allegations, the allegations themselves are
sufficient to defeat Defendants’ motion to dismiss.
Failure to Train or Supervise
Naes brings Count V against the City and against Hayden in his official and individual
capacities. Naes alleges that if Defendants had trained, supervised, controlled, or disciplined law
enforcement personnel properly, “the gender-based discrimination and retaliation of Plaintiff
would not have occurred.” Doc.  ¶¶ 77-79.
A. Claim Against the City
Naes argues that “[t]he facts supporting [his] custom claim against the City also show a
deliberate indifference to or tacit authorization of this illegal discrimination,” supporting his
failure to train or supervise claim. Doc.  at 5; see Connick v. Thompson, 563 U.S. 51, 62
(2011) (“A pattern of similar constitutional violations by untrained employees is ‘ordinarily
necessary’ to demonstrate deliberate indifference for purposes of failure to train.”) (quoting Bd.
of Cty. Comm’rs v. Brown, 520 U.S. 397, 409 (1997)). As discussed in Section IV(A), above,
Naes has failed to state a claim for § 1983 municipal liability based on a custom of illegal
discrimination and retaliation. Naes has therefore also failed to establish a pattern of
constitutional violations on the basis of which the City could be found to have failed to train or
supervise its employees. See City of Canton v. Harris, 489 U.S. 378, 389 (1989) (“Only where a
failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a municipality . . . can a city be
liable for such a failure under § 1983.”); Ball-Bey, 415 F. Supp. 3d at 901 (finding that fourteen
instances of purportedly similar conduct that do not establish a municipal custom also do not
ground a failure to train claim). Naes’s § 1983 claim against the City for failure to train or
supervise therefore fails.
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B. Official Capacity Claim
Again, Naes’s claim against Hayden in his official capacity is redundant of his claim
against the City. “A suit against a government officer in his official capacity is functionally
equivalent to a suit against the employing governmental entity.” Veatch, 627 F.3d at 1257. The
official capacity claim is therefore dismissed.
C. Individual Capacity Claim
To show that Hayden violated Naes’s constitutional rights by failing to train or supervise,
Naes must show that: 1) Hayden received notice of a pattern of unconstitutional acts by
subordinates; 2) that Hayden demonstrated deliberate indifference to or tacit authorization of the
offensive acts; 3) that Hayden failed to take sufficient remedial action; and 4) that such failure
proximately caused Naes’s injury. Otey v. Marshall, 121 F.3d 1150, 1155 (8th Cir. 1997).
Under § 1983, a claim for failure to supervise requires the same analysis as a claim for failure to
train. Liebe v. Norton, 157 F.3d 574, 579 (8th Cir. 1998). “Neither claim can succeed without
evidence [a defendant] ‘[r]eceived notice of a pattern of unconstitutional acts committed by [his
or her employees].’” Atkinson v. City of Mountain View, 709 F.3d 1201, 1216-17 (8th Cir. 2013)
(quoting Parrish v. Ball, 594 F.3d 993, 1002 (8th Cir. 2010)).
Naes has failed to allege that Hayden had notice of a pattern of unconstitutional acts by
his subordinates. In his complaint, Naes alleges five examples of conduct that he believes
establish a pattern of which Hayden should have known. Doc.  ¶ 75. None of those
examples involves sex discrimination. “To impose supervisory liability, other misconduct must
be very similar to the conduct giving rise to liability.” S.M. v. Krigbaum, 808 F.3d 335, 340 (8th
Cir. 2015) (internal quotation omitted). Here, there is no pattern of “very similar” conduct (i.e.,
sex discrimination within the SLMPD) of which Hayden could or should have had notice.
Case: 4:19-cv-02132-SEP Doc. #: 39 Filed: 10/13/20 Page: 17 of 18 PageID #: 170
Naes further alleges two instances of retaliation, but even assuming arguendo that they
are “very similar” to the retaliation he alleges he endured, that is not enough to establish a pattern
for purposes of liability for failure to supervise. See Jacob v. City of Osceola, 2006 WL 741918,
at *8 (W.D. Mo. Mar. 20, 2006) (“The Eighth Circuit has held that isolated incidents are
insufficient to establish supervisory liability for a constitutional violation because they do not
provide adequate notice of a pattern of misconduct.”); see also Doe v. Gooden, 214 F.3d 952 (8th
Cir. 2000) (finding no notice of a pattern of unconstitutional behavior where supervisor knew of
a teacher’s repeated verbal abuse of students and two incidents of physical abuse); Thelma D. v.
Bd. of Educ. of St. Louis, 934 F.2d 929 (8th Cir. 1991) (five complaints of abuse over sixteenyear period against teacher insufficient to establish pattern of misconduct); Jane Doe A By &
Through Jane Doe B v. Special Sch. Dist. of St. Louis Cty., 901 F.2d 642 (8th Cir. 1990) (finding
no notice of a pattern of unconstitutional behavior where no official received more than two
complaints); Robinson v. City of St. Louis, No. 4:17-cv-156 PLC, 2018 WL 1695534, at *17
(E.D. Mo. Apr. 6, 2018) (finding no notice or pattern of discrimination where there were fifteen
claims of misconduct over an eleven-year period), aff’d in part, rev’d in part and remanded sub
nom. Robinson v. Hawkins, 937 F.3d 1128 (8th Cir. 2019).
Notice is the touchstone of deliberate indifference in the context of § 1983 liability. See
Brown, 520 U.S. at 409; Szabla v. City of Brooklyn Park, 486 F.3d 385, 392-93 (8th Cir. 2007).
Absent notice, a defendant cannot be liable for his subordinates’ misconduct. Doe v. Hansen,
No. 4:16-cv-546 JAR, 2018 WL 2223679, at *11 (E.D. Mo. May 15, 2018), aff’d sub nom. Doe
v. Fort Zumwalt R-II Sch. Dist., 920 F.3d 1184 (8th Cir. 2019). Because Hayden did not have
notice of a pattern of unconstitutional conduct, Naes’s § 1983 claim against Hayden for failure to
train or supervise must be dismissed.
Case: 4:19-cv-02132-SEP Doc. #: 39 Filed: 10/13/20 Page: 18 of 18 PageID #: 171
IT IS HEREBY ORDERED that Defendants’ Motions to Dismiss, Docs.  and ,
are DENIED with respect to Counts I, II, and III.
IT IS FURTHER ORDERED that Defendants’ Motions to Dismiss, Docs.  and
, are GRANTED with respect to Count V.
IT IS FINALLY ORDERED that Defendants’ Motions to Dismiss, Docs.  and ,
are GRANTED in part and DENIED in part with respect to Count IV. The Motions are
granted as to Plaintiff’s claims of municipal liability and official capacity liability, but they are
denied as to Plaintiff’s claims of individual liability.
An appropriate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 13th day of October, 2020.
SARAH E. PITLYK
UNITED STATES DISTRICT JUDGE
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