Elmore et al v. Mansfield et al

Filing 136

ORDER granting in part 18 Defendant Arnott's motion to dismiss case. Counts IV and X are dismissed without prejudice against Arnott. The Court orders the parties to submit additional briefing with respect to Count V. The balance of the motion is denied. Signed on 6/5/12 by District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
JOHN P. ELMORE, et. al.,
Plaintiffs,
v.
CONNIE MANSFIELD, et. al.,
Defendants.

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Case No. 3:11-cv-5088-DGK

ORDER GRANTING IN PART DEFENDANT ARNOTT’S MOTION TO DISMISS
This case arises out of allegations that Defendants caused Plaintiff John Elmore’s
daughters, Plaintiffs Sarah and Rachael Elmore, to be wrongfully removed from his custody and
subjected to a traumatic and humiliating investigation into false sexual abuse claims. Plaintiffs
have brought multiple claims for damages under 42 U.S.C. § 1983 and Missouri state law.
Now before the Court is Defendant Joanna Arnott’s Motion to Dismiss Plaintiff’s
Complaint (Doc. 18). Arnott, John Elmore’s ex-girlfriend and the children’s mother, raises ten
arguments in support of her motion to dismiss portions of the Complaint against her.
For the following reasons, the motion is GRANTED IN PART. Counts IV and X are
dismissed without prejudice against Defendant Arnott. The Court orders the parties to submit
additional briefing with respect to Count V. The balance of the motion is denied.
Background
The fifteen pages of factual allegations in the Complaint can be summarized as follows.
In the late 1990s, Plaintiff John Elmore (“Elmore”) had a long-term romantic relationship with
Defendant Joanna Arnott (“Arnott”). Two children were born from this relationship; Plaintiff
Rachael Elmore in 1996, and Plaintiff Sarah Elmore in 2000 (collectively “the children”).

The relationship between John Elmore and Arnott concerning custody of their children
was contentious. Elmore repeatedly had to go to court to enforce his visitation rights with his
children. A joint custody order was initially entered, but because Arnott repeatedly failed to
abide by its conditions, the Circuit Court of Stone County, Missouri, granted Elmore full custody
of the children in 2004. Arnott, however, retained visitation rights.
After losing custody of the children, Arnott began to repeatedly make false allegations
that Elmore was abusing the children in order to regain custody. Over time, Arnott’s repeated
false allegations became well-known within the law enforcement and child welfare communities
in southwest Missouri.
On October 6, 2006, an anonymous female called the Missouri Department of Family
Services (“DFS”) and claimed that Elmore had sexually abused his children. The details of these
allegations matched the details of allegations that the Circuit Court of Stone County had
previously found Arnott had been pressuring the children to falsely make against their father.
While the children were in Arnott’s custody, Defendant Connie Mansfield (“Mansfield”), a DFS
agent, met with her and instructed her to violate the Court’s custody order and keep the children.
Before instructing Arnott to do this, Mansfield failed to perform a basic investigation which
would have revealed that the allegations were false.
As a result, Elmore was forced to file a motion with the Stone County Circuit Court to
compel Arnott to return the children to his custody. The court granted the request on October 10,
2006. That same day, a deputy attempted to serve Arnott with this order at a restaurant in
Republic, Missouri. Arnott responded by barricading herself and the children inside her car with
her boyfriend, Defendant John Bradford. Bradford and Arnott then refused to comply with law
enforcement requests to open the car doors for over two hours.

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In the meantime, Arnott called Defendant Michael Castrodale, an ex-boyfriend and offduty Springfield, Missouri, Police Department officer. He came to the scene and attempted to
convince the law enforcement officers who were attempting to serve the court order to ignore it.
His interference further delayed the children’s return.
Eventually, the children were returned to their father. After Mansfield learned this, she
endeavored to reverse this result. Despite clear evidence to the contrary, she and her supervisors,
who are also Defendants, conducted a biased investigation with a preordained conclusion that
John Elmore was abusing his children.
After four law enforcement agencies declined to investigate John Elmore for child abuse
because of Arnott’s history of making false allegations against him, Mansfield contacted a
member of the Missouri Highway Patrol and had him produce the children the following
morning at the offices of Defendant Child Advocacy Center (“CAC”). At CAC Mansfield
directed Defendant Micki Lane, a CAC employee, to interview Rachael Elmore. Although
Rachael made no representation that her father had ever abused her or her sister, Mansfield
ordered Defendant Penkalski, a nurse, to conduct a full gynecological examination of the girls.
Mansfield’s supervisors and the CAC supervisors approved the exams, which terrified and
humiliated the children.
Mansfield was determined to make a report finding that Elmore had abused the children
and ignored evidence to the contrary. After conferring with Arnott, Mansfield produced a report
that included a substantiated finding against Elmore.

Her report purposefully omitted or

concealed actions Mansfield had taken that would undermine the validity of her findings. The
report also contained assertions Mansfield knew to be false.

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Based on this report, Mansfield’s DFS supervisors found probable cause of child abuse
and entered information into the DFS database which branded Elmore a child abuser. This
damaged Elmore’s reputation and endangered his job as a law enforcement officer. Elmore
appealed the DFS order in an administrative hearing.
In May of 2007, another judge confirmed an order finding Arnott had forced the girls to
make false accusations. The order directed that the children should remain with John Elmore
and terminated Arnott’s right to unsupervised visitation.

Despite this order, the DFS

subsequently held that Mansfield’s findings were substantiated.
As a result, Elmore was forced to file a petition for a trial de novo in Stone County
Circuit Court. At the close of the DFS’s case, the court granted judgment in Elmore’s favor.
The court’s final judgment and opinion found that the DFS investigation was sloppy, one-sided,
and incomplete; that Mansfield lied in her report; that the physical examinations of the children
were illegal; and that the DFS intentionally and maliciously interfered with Elmore’s rights.
Discussion
I.

John Elmore may bring this action on behalf of his minor daughters without formal
appointment by the Court.
In her initial brief (Doc. 31), Arnott asserts that all claims brought on the children’s

behalf should be dismissed because the Court has not appointed John Elmore as the children’s
representative. In their response, Plaintiffs note Elmore has had sole custody of the children
since 2004. They also cite several recent analogous cases from the Eighth Circuit holding that a
federal court need not formally appoint a parent as next friend.

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Arnott’s reply brief is silent with respect to this argument.1 The Court finds she has
abandoned it. Accordingly, this portion of the motion is denied.
II.

Plaintiffs have pled Arnott is a state actor.
Next, Arnott argues that the § 1983 claims against her should be dismissed because her

actions were those of a private actor. Plaintiffs respond that they have properly pled that Arnott
was acting under color of state law by conspiring with, and acting with, state actors to violate
John Elmore’s constitutional rights.
Section 1983 provides that no person acting under color of state law may violate any
rights secured by the Constitution or laws of the United States.2 Generally, § 1983 acts to
prevent rights from infringement by government actors, not private parties. Crumpley-Patterson
v. Trinity Lutheran Hosp., 388 F.3d 588, 590 (8th Cir. 2004). “Where a private party acts under
color of state law, however, it can be liable under § 1983.” Id. A private individual can be
deemed a state actor for purposes of § 1983 when she acts “under cover of state law and
performs a function traditionally exclusively reserved to the state.” Reasonover v. St. Louis
Cnty, Missouri, 447 F.3d 569, 584 (8th Cir. 2006). To be liable under § 1983, a private actor
must be a willing participant in a joint action with public servants who are acting under color of
state law. Sanders v. City of Minneapolis, Minn., 474 F.3d 523, 527 (8th Cir. 2007). A private
person does not conspire with a state official merely by invoking an exercise of the state
official’s authority. Young v. Harrison, 284 F.3d 863, 870 (8th Cir. 2002) (holding that private
security guard’s calling the police and bringing them to hotel suite was not enough to establish a

1

The Court notes that the attorney who authored the motion and initial brief in support (Doc. 31) withdrew from the
case shortly before Plaintiffs filed their response. Arnott’s present attorney then entered his appearance and filed the
reply brief (Doc. 74). In crafting the reply, new counsel has made a sound strategic decision to abandon the weakest
arguments and focus on the strongest.
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“Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State . . . subjects, 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, shall be liable to the party injured in an action at law . . . for redress.” 42
U.S.C. § 1983.

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conspiracy for purposes of § 1983). To survive a motion to dismiss, “a plaintiff seeking to hold a
private party liable under § 1983 must allege, at the very least, that there was a mutual
understanding, or a meeting of the minds, between the private party and the state actor.”
Mershon v. Beasley, 994 F.2d 449, 451 (8th Cir. 1993).
The allegations in the Complaint are as follows: That Arnott’s goal was to frame Elmore
for child molestation; that Arnott and Mansfield conferred together several times for purposes of
generating a report finding Elmore molested his children; that Mansfield ignored substantial
evidence that Arnott was fabricating a claim; that Mansfield knew or should have known the
allegations were not credible, and that Mansfield purposely omitted or concealed actions she
took that would undermine the validity of her report’s conclusions, specifically that she lied
about the fact that she had had contact with Arnott. While it is a close call whether these
allegations are sufficient to survive a motion to dismiss, the Court finds that if the allegations are
accepted as true and read as a whole, they support an inference that Arnott conspired with
Defendant Mansfield to file a false report accusing Elmore of molestation. Accordingly, this
portion of the motion is denied.
III.

The Court possesses subject matter jurisdiction over Counts I and II.
Next, Arnott argues that even if she acted under color of state law, the § 1983 claims in

Counts I and II should be dismissed against her because the domestic relations exception to
federal jurisdiction divests this Court of subject matter jurisdiction. In response, Plaintiffs argue
that the domestic relations exception applies only to cases based on diversity jurisdiction, not to
lawsuits such as this one where a federal question is presented. They also contend that none of
the clams in this case fall within the exception because nothing in this case invades the province
of state domestic relations policy.

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Arnott’s reply brief is silent with respect on this subject. The Court finds Arnott has
abandoned this argument. Accordingly, this portion of her motion is denied.
IV.

The Court possesses jurisdiction over the state law claims brought against Arnott.
In a one sentence argument in her initial brief, Arnott contends that if the Court dismisses

the § 1983 claims against her then it does not have subject matter jurisdiction over the remaining
state law claims against her.
Plaintiffs respond by noting that as long as the Court has original jurisdiction over at least
one defendant in this action, it could choose to exercise its supplemental jurisdiction to hear
related claims brought against additional parties, such as Arnott. 28 U.S.C. § 1367(a). Plaintiffs
contend that if the Court declines to dismiss the § 1983 claims against Arnott, it possesses
original jurisdiction over these claims and must exercise its supplemental jurisdiction to hear the
related state-law claims against her. ABF Freight Sys. v. Int’l Broth. of Teamsters, 645 F.3d 954,
963 (8th Cir. 2011) (“Once original jurisdiction exists, supplemental jurisdiction over all related
claims is mandatory, absent certain statutory exceptions.”).
In her reply brief, Arnott does not respond to this argument. The Court holds she has
abandoned this argument, and this portion of the motion is denied.
V.

Count IV fails to state a cause of action under Missouri law.
Arnott’s next argument is that Count IV, which is captioned “Missouri Rev. Stat. §

453.110, Improper Transfer of a Child (John, Rachel, and Sarah Elmore),” fails to state a claim
because the statute does not create a private right of action. In their response, Plaintiffs concede
that this Missouri statute does not provide a private right of action, but argue that Count IV is not
pled as a state-law claim but rather as a federal constitutional claim.

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While Plaintiffs may have meant to plead Count IV as a federal claim, as written Count
IV clearly pleads a state law cause of action. In contrast to Counts I, II, and III, which all plead
federal claims, Count IV does not contain the words “federal,” “constitutional,” “§ 1983,” or any
other words which would make a reader believe it was pleading a federal law claim.
Consequently, this portion of the motion is granted. Count IV is dismissed without prejudice.
VI.

The Court orders additional briefing concerning Count V.
Count V is brought on behalf of John Elmore only and pleads a state law tort claim for

“Tortious Interference with Parental Rights.” Arnott moves to dismiss, arguing in her initial
brief: (1) that whatever Count V is titled, it is actually a claim for loss of alienation of children’s
affection, a claim that is not recognized under Missouri law; (2) it is unclear whether the tort of
interference with parental rights is still recognized under Missouri law, since several state
appellate courts have questioned its utility; (3) the claim should be dismissed because it fails to
allege that Arnott abducted the children, an element of the tort; and (4) even if properly pled, this
claim is barred because it could have been raised at the state court hearing on the motion to
compel return of the children, and Missouri law prevents claims arising from the same event
from being tried piecemeal.
In response, Elmore argues (1) that tortious interference with parental rights is a viable
cause of action, and he has properly plead it, and (2) this claim was not required to be brought in
the state court hearing because that action was lodged against the state agency that seized the
children, not Defendant Arnott.
In her reply brief, Arnott concedes that Missouri still recognizes such a claim, but argues:
(1) this case is not one of those rare cases where a tortious interference claim is actionable; and

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(2) the claim should be barred as improper piecemeal litigation. The Court finds no merit with
respect to the second argument.
With respect to the first argument, Arnott intimates that Missouri courts have limited, or
would limit, the cause of action to those cases where the interference with the parental right was
substantial in duration and effect, and that the interference here was not sufficiently substantial to
be actionable. This is a persuasive argument. Unfortunately, it is raised for the first time in the
reply brief when it could have been raised earlier. Although the Court usually strikes such
arguments, the Court will consider it because it is arguably a fair reply to the arguments made in
the brief in opposition. The Court also notes that this argument is potentially dispositive and
ruling on this issue now might eliminate the need for briefing this issue at the summary judgment
stage of the litigation. Additionally, any concerns about fairness can be addressed by allowing
Elmore to file a sur-response.
Accordingly, this portion of the motion is taken under advisement. The Court orders the
parties to submit additional briefing addressing two questions: (1) whether Missouri law limits,
or would limit, any claim for tortious interference with parental rights to those cases where the
interference was substantial in duration and effect; and (2) if so, whether the interference alleged
here is actionable. Plaintiffs’ brief shall be filed on or before June 19, 2012 and shall not exceed
five pages. Arnott’s sur-reply brief shall be filed within fourteen days after Plaintiffs’ brief is
filed. It is limited to three pages and may address only those arguments raised in Plaintiffs’ surresponse.

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VII.

The Complaint does not establish that Count VIII, the defamation claim, is barred

by the statute of limitations.
In Count VIII, brought on behalf of John Elmore only, alleges that Defendant Arnott and
others “created or caused to be created false reports indicating that Mr. Elmore had abused his
children. These reports were entered into the DFS database, where they could be searched by
law enforcement personnel. Defendant Arnott also published these reports to various media
agencies.” Compl. at ¶ 124. Elmore also alleges that as a result of the false report and
inadequate review process he was forced to file suit in the Circuit Court of Stone County,
Missouri to clear his name, and that on July 1, 2009, the court granted judgment in his favor.
Compl. at ¶¶ 79-80.
Arnott notes that Missouri has a two year statute of limitations for defamation. She
contends this statute of limitations began running no later than July 1, 2009,3 by which time the
Department of Family Services’ reports had been created and published, but that Elmore filed
this lawsuit more than two years later, on October 4, 2011. Elmore responds that bar by a statute
of limitations is not ordinarily grounds for a Rule 12(b)(6) dismissal. He contends that while
there is no doubt that Arnott made defamatory statements more than two years before he filed
suit, he needs to conduct discovery to prove that defamatory publication continued after October
4, 2009. In her reply, Arnott asserts that information in the Complaint indicates that the statute
of limitations on the defamation claim has run.
“Bar by a statute of limitation is typically an affirmative defense, which the defendant
must plead and prove.” Jessie v. Potter, 516 F.3d 709, 713 n.2 (8th Cir. 2008). “A defendant
does not render a complaint defective by pleading an affirmative defense.” Id. “Thus, as a

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In her reply brief, Arnott argues for the first time that Elmore’s damages were ascertainable two years earlier, on
June 1, 2007. Because this argument is raised for the first time in a reply brief and it could have been raised earlier,
the Court will not consider it at the present time. Arnott may renew this argument at the summary judgment stage.

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general rule, the possible existence of a statute of limitations defense is not ordinarily a ground
for Rule 12(b)(6) dismissal, unless the complaint itself establishes the defense.” Walker v.
Berrett, 650 F.3d 1198, 1203 (8th Cir. 2011) (internal citations and alterations omitted).
Additionally, under Missouri law, the statute of limitations does not run from the date the
defamatory statement is made or published but from the date on which the damage from the false
statements appears and is ascertainable. See Thurston v. Ballinger, 884 S.W.2d 22, 26 (Mo. Ct.
App. 1994).
In the present case, although it is a close call, the Court finds the Complaint does not
establish that the statute of limitations on the Elmore’s defamation claim has run. Although the
Complaint clearly alleges that Arnott made defamatory statements more than two years before
Arnott filed suit, it does not contain statements from which the Court can infer that Arnott ceased
making or publishing defamatory statements after this date. Accordingly, the Court cannot
dismiss the defamation claim at this time.
VIII.

Count IX, the state law conspiracy claim, states a cause of action.
Count IX is a state law claim for conspiracy brought on behalf of all Plaintiffs. It alleges

that Defendants conspired to deprive the Plaintiffs of their constitutional rights by knowingly and
willfully separating the children from their father. In moving to dismiss this count, Arnott
repeats her argument that Plaintiffs have failed to plead allegations sufficient to support a finding
that there was an actual meeting of the minds between Arnott and any of the other defendants.
As discussed in section II of this order, the Court finds the Complaint’s allegations
support an inference that Arnott conspired with Defendant Mansfield to file a false report
accusing John Elmore of molestation. This is enough to survive a motion to dismiss. Thus, this
portion of the motion is denied.

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IX.

Count X fails to state a claim for intentional infliction of emotional distress.
Count X is brought by all Plaintiffs and asserts a state law claim for intentional infliction

of emotional distress. It contends that under the circumstances all Defendants’ actions were
extreme and outrageous and were undertaken with intent or knowledge that their conduct was
likely to inflict severe emotional distress on the Plaintiffs.
Arnott argues that Plaintiffs have failed to plead that the emotional distress resulted in
bodily harm. In reply, John Elmore does not object to dismissing his claim for intentional
infliction of emotional distress. The children, however, argue their claims are well-pled. They
contend that when construed as a whole, the Complaint alleges that as a result of Arnott’s actions
they “were forced to falsely claim that their father sexually abused them, forced to undergo an
invasive physical exam, and were taken from their loving custodial parent.”
To state a claim for intentional infliction of emotional distress, a plaintiff must allege that
the emotional distress resulted in bodily harm. Crow v. Crawford & Co., 259 S.W.3d 104, 119
(Mo. Ct. App. 2008). That is, the severe emotional distress must manifest itself in some physical
way.

In the present case, the children allege that the physical examination caused them

emotional distress, not that the emotional distress was so severe that it resulting in symptoms of
bodily distress. Consequently, they have failed to properly plead this claim. This portion of the
motion is granted.
X.

Section 210.135 does not provide Arnott with immunity to the state law claims.
Finally, Arnott contends that under state law she is entitled to immunity on the state law

claims because her actions were taken in cooperation with an official investigation into an
allegation of child abuse. In relevant part, Missouri law provides that:
Any person . . . in cooperation with the Division, or any other law
enforcement agency, juvenile office, court, or child protective
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service agency of this or any other state, in any of the activities
pursuant to §§ 210.110 to 210.165 or any other allegation of child
abuse, neglect or assault, pursuant to §§ 568.045 to 568.060,
RSMo., shall have immunity from any liability, civil or criminal,
that otherwise might result by reason of such actions. Provided,
however, any person . . . intentionally filing a false report, acting in
bad faith, or with ill intent, shall not have immunity from any
liability, civil or criminal.
Mo. Rev. Stat. § 210.135.1.
In their response, Plaintiffs note that filing a false report, as they have alleged, is not
protected by the statute. Arnott does not respond to this persuasive argument in her reply, and
the Court finds she has abandoned it. Accordingly, this portion of the motion is denied.
Conclusion
For the reasons discussed above, Defendant Arnott’s Motion to Dismiss (Doc. 18) is
GRANTED IN PART. Counts IV and X are dismissed without prejudice against Arnott. The
Court orders the parties to submit additional briefing with respect to Count V. The balance of
the motion is denied.
IT IS SO ORDERED.
Dated: June 5, 2012

/s/ Greg Kays
GREG KAYS,
UNITED STATES DISTRICT JUDGE

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