Elmore et al v. Mansfield et al

Filing 250

ORDER granting in part 202 Defendant Castrodale's Motion to Dismiss. Counts VII-IX are dismissed without prejudice against Castrodale. Castrodale's Motion to Dismiss 142 Plaintiffs' First Amended Complaint is denied as moot. Signed on 2/7/13 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 CASTRODALE’S MOTION TO DISMISS
This case arises from allegations that Defendant Joanna Arnott (“Arnott”) and the other
Defendants made false sexual abuse claims against Plaintiff John Elmore (“Elmore”) in order to
remove his daughters, Plaintiffs S.L.E and R.J.E., from his custody. Plaintiffs allege that as a
result of Defendants’ actions, the children were taken from Elmore and subjected to traumatic
and humiliating gynecological examinations. Plaintiffs have brought sixteen claims for relief
under 42 U.S.C. § 1983 and Missouri state law.
Now before the Court is Defendant Michael Castrodale’s (“Castrodale”) Motion to
Dismiss Plaintiffs’ Second Amended Complaint (Doc. 202).1 Plaintiffs sued Castrodale, who is
employed as a police officer, for allegedly: (1) attempting to persuade other police officers not
to enforce a court order compelling the return of Elmore’s children; and (2) for writing a letter to
the Missouri Department of Family Services falsely claiming he knew that Elmore was abusive
of his daughters.
For the following reasons, the motion is GRANTED IN PART. Counts VII-IX are
dismissed without prejudice against Castrodale.

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Also pending is Castrodale’s Motion to Dismiss Plaintiffs’ First Amended Complaint (Doc. 142). Because the
Second Amended Complaint supersedes the First Amended Complaint, this motion is denied as moot.

Background
The allegations in the Second Amended Complaint (“the Complaint”) can be summarized
as follows.
In the late 1990s, Plaintiff John Elmore (“Elmore”) and Defendant Joanna Arnott
(“Arnott”) had a romantic relationship which resulted in the birth of two children, Plaintiff R.J.E.
and Plaintiff S.I.E. After their relationship ended, the two engaged in a contentious custody
battle. The Circuit Court of Stone County, Missouri, initially awarded the parents joint custody.
In 2004, after years of Arnott failing to abide by the custody order and obstructing Elmore from
seeing his children, the Stone County Circuit Court granted full legal custody to Elmore, with
Arnott retaining visitation rights.
In an attempt to regain custody, Arnott repeatedly made false allegations that Elmore was
sexually abusing the children. Law enforcement and child welfare authorities in southwest
Missouri quickly became familiar with these accusations, and that they were unfounded. The
Circuit Court of Stone County, Missouri also considered these allegations and rejected them.
On October 6, 2006, while the children were in Arnott’s custody for a scheduled
visitation, an anonymous female called the Missouri Department of Family Services (“DFS”)
claiming that Elmore had sexually abused his children. The caller’s allegations matched those
that the Stone County Circuit Court had previously rejected. Defendant Connie Mansfield
(“Mansfield”), a DFS agent, received the call and opened a case file on the matter.
On October 8, 2006, Mansfield attempted to interview R.J.E. at Arnott’s home. R.J.E.
refused to answer Mansfield’s questions. Arnott then gave Mansfield letters and drawing Arnott
claimed R.J.E. independently produced that indicated she had been sexually abused by Elmore.
The letters were obviously false.

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Mansfield instructed Arnott to violate the custody order, which stated Arnott was to
return the children to Elmore, and instead keep the children in her custody. This violated the
court’s custody order and was contrary to DFS policies and procedures.
Before instructing Arnott to keep the children, Mansfield failed to undertake a basic
check into the circumstances surrounding the custody proceedings. If Mansfield had performed
a basic investigation, she would have learned that Arnott had a history of making false
allegations, and that she was notorious in the law enforcement and child welfare communities for
making such allegations. 2
Arnott kept the children and Elmore was forced to file a motion with the circuit court to
compel their return.
On October 10, 2006, the circuit court granted Elmore’s request. Later that day, when a
deputy attempted to serve Arnott with a court order, Arnott barricaded herself and the children
inside her car and refused to open the doors for two hours. The encounter devolved into a
“screaming, hysterical scene.” Arnott called Defendant Michael Castrodale, an ex-boyfriend
who was a Springfield, Missouri Police Department officer. Castrodale came to the scene and
tried to persuade the law enforcement officers there to ignore the order and allow the children to
stay with their mother, delaying their return to Elmore. Eventually, they were returned to
Elmore’s custody.3
When Mansfield learned the children had been returned to their father, she and her DFS
supervisors undertook an investigation designed to find that Elmore was abusing the children.
She appealed to several law enforcement agencies to intervene and investigate Elmore on

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Again, this is a summary of the allegations in Plaintiffs’ Second Amended Complaint.
 The Complaint is silent as to exactly how or when the children were returned. 

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criminal grounds. All of these agencies declined based on Arnott’s history of making false
accusations.
On the evening of October 10, 2006, Mansfield contacted a state highway patrolman and
directed him to take the children to the offices of Defendant Child Advocacy Center (“CAC”) the
next morning. When the children arrived at the CAC on October 11, 2006, Mansfield directed
an employee, Defendant Micki Lane, to interview R.J.E. She also ordered a nurse, Defendant
Melissa Penkalski, to conduct a full gynecological examination of the girls. These exams were
approved by Mansfield’s supervisors and the CAC supervisors and conducted by Defendant
Penkalski, a registered nurse and a CAC agent. The exams terrified and humiliated the children.
Despite a total absence of evidence that Elmore had ever abused either of his children,
Mansfield was insistent that Elmore had abused his children and was determined to make a
report that made a finding against him.
At the urging of Defendants Arnott and Mansfield, Castrodale wrote Mansfield a letter
“stating that he knew Mr. Elmore to be abusive of his daughters.” These accusations were false
and designed to provide false evidence for Mansfield’s report.
Mansfield eventually wrote a knowingly false report which substantiated a finding of
sexual abuse against Elmore. In the report, Mansfield purposely omitted or concealed actions
she took which would undermine the validity of her findings, including failing to divulge her
ongoing conversations with Arnott and Castrodale.
Based on this report, Mansfield’s DFS supervisors found probable cause of child abuse
and entered this information in a DFS database. Contrary to Missouri law and DFS policy, at no
point prior to entering a finding against Elmore did any DFS or CAC employee interview Elmore
or examine the numerous court orders entered by the Stone County Circuit Court. Entering this

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information in the database damaged Elmore’s reputation and endangered his employment as a
deputy sheriff.
To clear his name and preserve his job, Elmore requested a full hearing pursuant to
DFS’s appeals procedures. He also filed a complaint with the Child Advocate for the state of
Missouri. Instead of investigating, as he was required to do, the Child Advocate did nothing.
In May of 2007, prior to the DFS appeals hearing, the Stone County Circuit Court
conducted a full hearing on Arnott’s request for custody. At the conclusion of the hearing, the
court entered an order finding that Arnott had forced the girls to make false accusations. The
court directed that the children remain in Elmore’s custody and terminated Arnott’s rights to
unsupervised visitation.
On May 22, 2007, despite the available evidence indicating Elmore had not abused his
children, the DFS completed its hearing and concluded that Mansfield’s findings were
substantiated.
In order to clear his name, Elmore filed a petition for a trial de novo in the Stone County
Circuit Court. After holding a two-day trial, on July 1, 2009, the circuit court granted judgment
in Elmore’s favor, finding that the DFS investigation was sloppy, that Mansfield had lied in her
report, that the children’s examinations were illegal, and that the DFS had intentionally and
maliciously interfered with Elmore’s rights.
The above summarizes the allegations in the Second Amended Complaint. On October
4, 20011, Plaintiffs filed the pending lawsuit.
Standard of Review
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). To avoid dismissal, a complaint must include

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“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Benton v. Merrill Lynch & Co., Inc., 524 F.3d 866, 870 (8th Cir. 2008). In ruling on a
motion to dismiss, the court assumes the facts alleged in the complaint are true and draws all
reasonable inferences from those facts in the plaintiff’s favor. Monson v. Drug Enforcement
Admin., 589 F.3d 952, 961 (8th Cir. 2009).
Discussion
In their response, Plaintiffs clarify that Counts I – IV, VI, X –XII, and XV – XVI are not
brought against Castrodale. Also, by not responding to Castrodale’s argument that he cannot be
liable on Count VIII because he is entitled to qualified immunity, Plaintiffs concede this point
and so Count VIII is dismissed against Castrodale. The parties dispute whether the following
counts state a claim for relief against Castrodale: Count V, a § 1983 claim for a due process
violation; Count VII, a § 1983 claim for “failure to intervene;” Count IX, a state law claim for
malicious prosecution; Count XIII, a state law claim for defamation; and Count XIV, a state law
claim for conspiracy.
I.

Count V fails to state a Section 1983 due process claim against Castrodale.
Count V alleges that Castrodale, acting “individually, jointly, and in conspiracy” with

other Defendants acting “under color of law and within the scope of their employment, deprived

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[Elmore] of his constitutional right to an impartial adjudication” of the child abuse claims of
levied against him. (Doc. 192 at ¶ 109.) It alleges that Defendants “withheld exculpatory
evidence, thereby misleading and misdirecting the DFS and state-court civil proceedings against
Plaintiff” (id. at ¶ 110); knowingly made false statements that Elmore abused his children, id. at
113; and “fabricated false reports . . . and engaged in deliberate deception, all to institute and
continue the DFS and state-court civil proceedings against Plaintiff and to procure an adverse
finding against Plaintiff in those proceedings.” (Id. at ¶ 111.) “As a result of these violations of
his constitutional right to a fair trial,” Elmore was damaged. (Id. at ¶ 116.)
Castrodale first argues these allegations are insufficient to state a claim for relief that is
plausible on its face as required by Iqbal, 556 U.S. at 678, because they are too vague.
Castrodale argues it is difficult to tell if he is even named in some of the counts. While the Court
is sympathetic to Castrodale’s position—there are 14 different Defendants in this case and the
Complaint uses the word “defendants” indiscriminately, sometimes applying to Castrodale,
sometimes not—the allegations in Count V are not impermissibly vague.

When read in

conjunction with the Complaint’s general assertions, it is clear that Count V alleges that (1)
Castrodale was employed as a police officer by the Springfield, Missouri Police Department; (2)
that while Arnott was barricaded in her car refusing to return the children, Castrodale tried to
persuade other law enforcement officers not to enforce a court order compelling the children’s
return; (3) Castrodale wrote Mansfield a letter “stating that he knew Elmore to be abusive of his
daughters” and that these accusations were false; and (4) that these actions violated Elmore’s
right to a fair trial. These allegations are reasonably specific. That said, they fail to state a due
process claim under § 1983 against Castrodale.

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A.

Count V does not state a claim for a procedural due process violation.

Due process claims fall into two categories, procedural due process and substantive due
process.

In procedural due process claims, the focus is not on whether there has been a

deprivation of a constitutionally protected interest, but on whether there has been “the
deprivation of such an interest without due process of law.” To plead a procedural due process
claim, a plaintiff must allege (1) that he had a life, liberty, or property interest protected by the
due process clause of the Fourteenth Amendment; (2) that he was deprived of this interest within
the meaning of the due process clause; and (3) that the state did not afford him adequate
procedural rights before depriving him of this interest. Vaughn v. Ruoff, 304 F.3d 793, 796 (8th
Cir. 2002) (citing Hahn v. Star Bank, 190 F.3d 708, 716 (6th Cir. 1999)). Elmore has not alleged
a valid procedural due process claim here because he has not alleged that the state failed to
afford him adequate procedural rights, that is, that the state of Missouri failed to provide him
with adequate process. Here the state of Missouri not only provided him with due process (a
right to appeal the initial DFS determination, a trial, etc.), but at the last step in the process, the
trial de novo in the Stone County Circuit Court, the state remedied at least part of the wrong here
by granting judgment in his favor. Thus there is no procedural due process violation here.
B.

Count V does not state a claim for a substantive due process violation.

Elmore cannot maintain a substantive due process claim against Castrodale either. The
elements of a substantive due process claim are (1) the defendant violated a fundamental
constitutional right of the plaintiff; and (2) this violation shocks the contemporary conscience.
C.N. v. Willmar Public Schools, Indep. School Dist. No. 347, 591 F.3d 624, 634 (8th Cir. 2010).
This is a high standard. Id. To rise to the level of a substantive due process violation, a claim
must involve a violation of personal rights so severe and “so inspired by malice or sadism rather

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than a merely careless or unwise excess of zeal that it amounted to brutal and inhumane abuse of
official power literally shocking to the conscience.” Id. (quoting Golden v. Anders, 324 F.3d
650, 652-53 (8th Cir. 2003)).
Elmore suggests Castrodale is liable under section 1983 because “his reckless or
intentional failure to investigate amounted to a due process violation” (Doc. 182 at 10). He cites
two Eighth Circuit decisions in support: Moran v. Clarke, 296 F.3d 638 (8th Cir. 2002) (holding
that police investigators who purposefully conspired to manufacture false evidence and to
“scapegoat” the plaintiff could be liable for a substantive due process violation) and Wilson v.
Lawrence County, 260 F.3d 946 (8th Cir. 2001) (holding reckless failure by police to investigate
other leads post-arrest could be actionable as a due process violation if the failure shocks the
conscience). Neither case is analogous to this one. In both Moran and Wilson the defendants
were police officers who had been formally tasked with investigating the plaintiff for a crime,
thus under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny the law imposed a duty on
the officers to conduct a fair investigation of the plaintiff. See Wilson, 260 F.3d at 957.
The facts here are different. This lawsuit does not arise in the context of a criminal case,
but in an administrative proceeding initiated by the Missouri Department of Family Services.
Additionally, Castrodale was never tasked with investigating Elmore; he simply provided a letter
to Mansfield.

Apart from the rote allegation that “during all relevant times, Defendant

Castrodale was acting under color of state law and within the scope of his employment,” there is
no allegation Castrodale signed the letter in his official capacity as a police officer, nor could the
Court draw such an inference from the facts alleged. On the contrary, given the Complaint’s
other allegations, the most reasonable inference is that Castrodale sent the letter because he had a
personal relationship with Arnott.

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Consequently, any failure on his part to conduct a fair investigation before writing his
letter is not actionable as a substantive due process violation. While Elmore has a fundamental
constitutional right to a fair investigation from a police officer in a criminal case, Wilson v.
Lawrence Cnty., 260 F.3d 946, 957 (8th Cir. 2001), he does not have a constitutional right to
fairness from a non-state actor in an administrative proceeding.

Accordingly, Count V is

dismissed against Castrodale.
II.

Count VII fails to state a section 1983 failure to intervene claim against Castrodale.
Count VII alleges that Castrodale is liable under section 1983 for failure to intervene.

The allegations, in their entirety, are as follows:
Count VII: 42 U.S.C. § 1983
Failure to Intervene
123. Plaintiff incorporates all of the paragraphs in this Complaint
as if fully restated here.
124. During the constitutional violations described in this
Complaint, one or more of the Defendants stood by without
intervening to prevent the misconduct.
125. As a result of the Defendants’ failure to intervene to prevent
the violation of Plaintiff’s, R.J.E.’s, and S.I.E.’s constitutional
rights, Plaintiff, R.J.E., and S.I.E. suffered pain and injury, as well
as emotional distress.
126. These Defendants had a reasonable opportunity to prevent this
harm, but failed to do so.
127. The misconduct described in this Count was undertaken with
malice, willfulness, and reckless indifference to the rights of
others.
128. The misconduct described in this Count was undertaken under
color of state law, and the Defendants acted at all times within the
scope of their employment.
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129. As a result on this misconduct, Plaintiff, R.J.E. and S.I.E.
sustained, and continue to sustain, injuries including pain and
suffering.
(Doc. 182). These allegations fail to state whether Castrodale was one of the “one or more”
Defendants who failed to intervene, much less state what acts Castrodale did or failed to do
which makes it plausible that he is liable on this claim. These are precisely the kind of formulaic
allegations that should be dismissed under Iqbal. Accordingly, Elmore has failed to state a claim
that he is entitled to relief against Castrodale on this count, and Count VII is dismissed against
Castrodale.
III.

Count IX fails to state a claim for malicious prosecution against Castrodale.
Count IX alleges a Missouri state law claim for malicious prosecution.

It alleges

“Defendants caused Plaintiff to be improperly subjected to the DFS and state-court civil
proceedings against him . . .” (Doc. 192 at ¶ 139). Under Missouri law, a malicious prosecution
claim must plead: (1) the commencement of an earlier suit against the plaintiff; (2) that the
defendant instigated the suit; (3) the suit was terminated in plaintiff’s favor; (4) lack of probable
cause for the suit; (5) malice by defendant in instituting the suit; and (6) that the suit damaged the
plaintiff. State ex rel. Police Ret. Sys. of St. Louis v. Mummert, 875 S.W.2d 553, 555 (Mo. banc
1994).
The elements of a malicious prosecution arising from an administrative proceeding are
the same as one arising from a criminal prosecution. Davis v. Bd. of Educ. Of City of St. Louis,
963 S.W.2d 679, 685-86 (Mo. Ct. App. 1998). But in an agency setting, whether the defendant
has initiated the charges is determined by how the charges are brought to the agency for
adjudication. Id. at 686. Where an agency official has sole authority to initiate the action,
persons who provide information to that official are not held to have initiated or taken an “active
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part” in initiating the action. Id. An individual is not liable for malicious prosecution if he
merely provides information concerning the plaintiff’s conduct to the agency officer who
possesses the authority to issue charges. Id. Complaints made to the Missouri DFS fall into this
category because only DFS officials decide whether to conduct an investigation and issue
charges. See Mo. Rev. Stat. § 210.145.3 (“Upon receipt of a report, the division shall determine
if the report merits investigation.”). Consequently, because the DFS possessed sole authority to
launch an investigation or bring charges, as a matter of law Castrodale could not have instigated
the proceedings against Elmore by sending a letter making allegations.
Count IX is dismissed against Castrodale.
IV.

The Court cannot hold that Count XIII is barred by the statute of limitations.
Count XIII is Plaintiff’s state law claim for defamation. It alleges Castrodale 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.” (Doc. 192 at ¶ 162.) As a result of these false reports, Elmore suffered
damages and incurred legal expenses clearing his name so he would not lose his job in law
enforcement. (Doc. 192 at ¶ 164.)
Castrodale argues this claim is barred by Missouri’s two-year statute of limitations for
defamation. He asserts the statute of limitations began running on May of 2007, when the DFS
appeal process had been completed. Castrodale cites paragraph 77 of the Complaint in support,
which states that, “[o]n May 22, 2007, despite all of the available evidence that indicated Mr.
Elmore had not abused his children, DFS completed its hearing and concluded that Defendant
Mansfield’s findings were substantiated.” Alternately, Castrodale argues Elmore knew of the
allegedly defamatory statements by July 1, 2009, when the Stone County Circuit Court held the

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trial de novo. Elmore suggests that in either case the statute has run because Elmore filed his
lawsuit on October 4, 2011.
“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
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).
Under Missouri law, the statute of limitations for defamation runs from the time “when
the fact of damages appears.” Thurston v. Ballinger, 884 S.W.2d 22, 26 (Mo. Ct. App. 1994). In
the present case, the Court cannot ascertain from the Complaint when the fact of damages first
appeared; the Complaint simply makes no allegations from which the Court can make this
determination. Consequently, the Court cannot grant this portion of Castrodale’s motion to
dismiss.
V.

Count XIV adequately pleads a state law claim of conspiracy.
Count XIV asserts a state law claim for conspiracy. It incorporates all of the Complaint’s

other allegations and also asserts that the
DFS Defendants, CAC Defendants, and Defendants Arnott,
Castrodale, and Morrow, by their actions, conspired to deprive
[Plaintiffs] of their constitutional rights by knowingly and willfully
separating the children from their father, subjecting the children to
invasive and humiliating SAFE examinations, and persisting in
making findings against Mr. Elmore that caused him to incur
substantial legal expenses to clear his name, despite knowledge
that the accusations against Mr. Elmore were false and there was
no reasonable basis to remove the girls from his custody or
conduct the SAFE exams.

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Castrodale argues this count should be dismissed because under Missouri law a civil
conspiracy claim is not by itself actionable, an underlying tort must also be committed, see
Tindall v. Holder, 892 S.W.2d 314, 321 (Mo. Ct. App. 1994), and the Complaint fails to
establish that Castrodale committed any underlying tort. As discussed above, the Court finds the
Complaint sufficiently pleads a claim for defamation, thus the Complaint has stated an
underlying tort against Castrodale. Accordingly, this portion of the motion is denied.
Conclusion
For the reasons discussed above, the Motion to Dismiss (Doc. 202) is GRANTED IN
PART. Counts VII-IX are dismissed without prejudice against Castrodale. The balance of the
motion is denied.
IT IS SO ORDERED.
Dated: February 7, 2012

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

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