Works v. Newton County, Missouri et al

Filing 19

ORDER granting 8 Motion to Dismiss for Failure to State a Claim; denying 10 Motion to Dismiss for Failure to State a Claim and directing that further briefing be submitted on Plaintiff's request to amend her complaint. Signed on 04/13/2011 by District Judge Ortrie D. Smith. (Will-Fees, Eva)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION

CHRISTINE WORKS, Individually,
and as Successor and Representative of
Decedent LARRY WORKS,
Plaintiff,
vs.
NEWTON COUNTY, MISSOURI, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Case No. 11-03034-CV-S-ODS

ORDER AND OPINION
(1) DENYING STEPHENSON’S MOTION TO DISMISS (DOC. 10);
(2) GRANTING NEWTON COUNTY’S MOTION TO DISMISS (DOC. 8); AND
(3) DIRECTING THAT FURTHER BRIEFING BE SUBMITTED ON PLAINTIFF’S
REQUEST TO AMEND HER COMPLAINT
Christine Works on behalf of herself and her deceased husband, Larry Works,
asserts federal constitutional claims against Newton County and three of its sheriff’s
officers: Stephen Cathers, Kevin Stephenson, and Dan Hollingshead. She also asserts
negligence claims against the officers and a loss of consortium claim against all
Defendants.1
Ms. Works alleges that on July 29, 2006, Mr. Works was attempting to park his
truck at a truck stop in Joplin, Missouri, when he encountered Cathers, who was sitting
in a sheriff’s car in the parking lot. Mr. Works made a “questioning, shrugging gesture”
to see if Cathers was intending to leave his parking space; Cathers allegedly became
enraged, exited his car, and eventually ordered Mr. Works out of his truck.
The complaint recites that Mr. Works initially refused Cather’s order, but he
complied after additional officers arrived, his truck windows were broken, and he was
shot with pepper spray and Taser darts. The officers continued to taze Mr. Works after
he exited his vehicle and fell forward on the ground, even though he allegedly never

1

Ms. Works voluntarily dismissed her negligence claim against Newton County.

offered “active resistance” against them. Cathers also allegedly beat Mr. Works with his
fists while Mr. Works lay incapacitated.

I. DISCUSSION

Newton County and Officer Stephenson have filed motions to dismiss. To
survive a motion to dismiss, a complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
claim for relief must be “‘plausible on its face,’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009) (citation omitted), meaning it must “plead[ ] factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged,” id.2

Negligence

Stephenson argues the negligence count against him should be dismissed
because Ms. Works alleges only intentional conduct. The Court disagrees with this
characterization. In addition to allegations of intentional conduct, Ms. Works has
alleged facts which would allow the Court to reasonably infer liability for negligence.3
Stephenson counters that if the negligence claim is not dismissed, he is entitled
to official immunity. Official immunity shields public officials from liability for negligently
committing a discretionary act. McCormack v. Douglas, 328 S.W.3d 446, 449 (Mo. Ct.
App. 2010). But if the act was done with malice, official immunity is lost. Id. at 450.

2

Contrary to Ms. Works’ argument, the “no set of facts” language from Conley v.
Gibson, 355 U.S. 41, 45-46 (1957), was abrogated by Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 560-63 (2007).

3

Stephenson’s argument that Ms. Works is attempting to recover for “negligent
use of excessive force” mischaracterizes her claim. Ms. Works’ negligence allegations
are not premised on Stephenson’s alleged intentional acts.
2

Ms. Works has alleged sufficient facts for the Court to infer Stephenson acted
maliciously.

Failure to Train

Ms. Works alleges Newton County is liable under 42 U.S.C. § 1983 for failing to
train its officers on the prohibition of excessive force. “Plaintiffs who seek to impose
liability on local governments under § 1983 must prove that ‘action pursuant to official
municipal policy’ caused their injury.” Connick v. Thompson, No. 09–571, 2011 WL
1119022, at *6 (U.S. March 29, 2011). “The failure to provide proper training may fairly
be said to represent a policy for which the [municipality] is responsible” if the
municipality was deliberately indifferent to the need for more or different training. City of
Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989).
Ms. Works provides no allegations of deliberate indifference. She merely claims
the failure to train “constituted a choice or policy” that led to the excessive force, and
later alleges Newton County’s “policies, patterns, practices, and/or customs were the
moving force” of the damages. These bare assertions are conclusory, not entitled to the
assumption of truth. See Iqbal, 129 S. Ct. at 1951 (holding that allegations of being
subjected to harsh conditions of confinement “‘as a matter of policy,’” solely for
discriminatory reasons, were bare assertions not entitled to be assumed true). Newton
County’s motion to dismiss Count II is granted.

Leave to Amend

Ms. Works requests that she be permitted to amend her complaint to add
allegations to her failure-to-train claim against Newton County. Ms. Works still would be
alleging only a single incident of unconstitutional activity.4 In Oklahoma City v. Tuttle,

4

The fact that Ms. Works alleged “multiple officers” tazed her husband does not
change this result. “[C]ontemporaneous or subsequent conduct cannot establish a
pattern of violations that would provide ‘notice to the cit[y] and the opportunity to
3

471 U.S. 808, 823-24 (1985), a plurality of the Supreme Court stated that “[p]roof of a
single incident of unconstitutional activity is not sufficient to impose liability under
Monell, unless proof of the incident includes proof that it was caused by an existing,
unconstitutional municipal policy.”
But in City of Canton, the Supreme Court “did not foreclose the possibility that
evidence of a single violation of federal rights, accompanied by a showing that a
municipality has failed to train its employees to handle recurring situations presenting an
obvious potential for such a violation, could trigger municipal liability.” Board of County
Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 409 (1997) (citation omitted).

[I]t it may happen that in light of the duties assigned to specific officers or
employees the need for more or different training is so obvious, and the
inadequacy so likely to result in the violation of constitutional rights, that
the policymakers of the city can reasonably be said to have been
deliberately indifferent to the need.
City of Canton, 489 U.S. at 390. This is what Ms. Works must show to impose singleincident liability on Newton County.
Ms. Works’ proposed allegations assert Newton County failed to train its officers
in numerous ways regarding “widely known and accepted standards for the use of
[T]asers” (e.g., “[T]asers should not be used against persons not offering active
resistance”). For the purpose of her request to amend, the Court accepts as true her
allegation that Newton County failed to train its officers in these areas.5 But Ms. Works
cites no authority that the need for this specific training was “obvious” –indicating
deliberate indifference – within the meaning of City of Canton.
The Court concludes more briefing is necessary. The parties’ supplemental

conform to constitutional dictates . . . .’” Thompson, 2011 WL 1119022, at *8 n.7
(citation omitted).
5

The Court reminds Ms. Works that she must have a reasonable basis for
believing her allegations regarding Newton County’s training policy likely will have
evidentiary support. See Fed. R. Civ. P. 11(b)(3).
4

briefing should apply the Eighth Circuit’s test for determining whether the need for
training was “obvious,” which asks “whether the employee violated a ‘clear constitutional
duty’ and whether there were ‘clear constitutional guideposts’ for municipalities in the
area.” Szabla v. City of Brooklyn Park, Minnesota, 486 F.3d 385, 393 (8th Cir. 2007)
(citation omitted). Szabla demonstrates the particularity of this inquiry; the Eighth
Circuit held it was not clearly established in August 2000 that an officer in a certain
situation give advance warning before commanding a canine to bite and hold a suspect.
486 F.3d at 393. The parties should discuss whether in July 2006 the Constitution
clearly required the specific training Ms. Works maintains Newton County failed to
provide.
II. CONCLUSION

Newton County’s motion to dismiss Count II is granted. Stephenson’s motion to
dismiss Count III is denied. Ms. Works she shall file her supplemental briefing – with
her proposed amended complaint attached – on or before May 4, 2011. Newton
County’s response shall be filed on or before May 18, 2011.
IT IS SO ORDERED.

/s/ Ortrie D. Smith
ORTRIE D. SMITH, JUDGE
UNITED STATES DISTRICT COURT

DATE: April 13, 2011

5