Gibson v. Greene County, et al

Filing 59

ORDER granting 50 : The Motion to Dismiss Defendants Greene County and Sheriff Arnott is GRANTED. Signed on 2/21/18 by District Judge Beth Phillips. (Cordell, Annette)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
SHANNON GIBSON,
Plaintiff,
v.
GREENE COUNTY, MISSOURI, et al.,
Defendants.

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No. 17-3255-CV-S-BP

ORDER AND OPINION GRANTING MOTION TO DISMISS
DEFENDANTS GREENE COUNTY AND SHERIFF JAMES ARNOTT
Plaintiff has filed a suit against Greene County, Cedar County, the sheriffs in both
counties, and several deputies in those counties. The Amended Complaint, (Doc. 6), asserts
various claims under state and federal law. Greene County and its sheriff, James Arnott, have
filed a Motion for Judgment on the Pleadings, (Doc. 50), asserting that (1) the state claims
should be dismissed based on various immunities arising under state law, and (2) the federal
claims allege insufficient facts to state a claim against them. Plaintiff opposes these arguments.
The Court concludes that Greene County and Sheriff Arnott are correct, so their motion is
GRANTED and the claims against them are DISMISSED.
I. BACKGROUND
The Amended Complaint, (Doc. 6), alleges that Plaintiff was “placed into detention at the
Greene County Jail” on April 20, 2017, and approximately one week later was transferred to the
Cedar County Jail due to overcrowding in Greene County. (Doc. 6, ¶¶ 12-13.) While in Cedar
County, Deputy Austin Levine allegedly sexually assaulted Plaintiff on numerous occasions.
(E.g., Doc. 6, ¶¶ 20-21.) Plaintiff also alleges (based on facts that need not be detailed here) that
other jail employees in Cedar County knew what Levine was doing. (E.g., Doc. 6, ¶¶ 17, 22-25.)

Plaintiff was transferred back to Greene County on or about May 26, 2017. Notes written
by Levine to Plaintiff were discovered among her belongings, (Doc. 6, ¶ 26), and Plaintiff was
placed in isolation. (Doc. 6, ¶¶ 29-33.) At some point, Lieutenant Mays (whose first name is not
identified in the Amended Complaint or in Mays’ Answer, (Doc 30)) told Plaintiff that she was
placed in isolation because there was an investigation in the Cedar County Jail and Plaintiff
could not speak with anyone else. (Doc. 6, ¶ 35.) Later, an investigator from the Missouri
Highway Patrol tried to interview Plaintiff about Levine, but “Plaintiff did not want to be
interviewed by the investigator and did not give full or complete answers the investigator
wanted.” (Doc. 6, ¶ 36.) Mays then told Plaintiff that she would remain in isolation because of
her incomplete answers and failure to cooperate with the investigation. (Doc. 6, ¶ 37.) Plaintiff
alleges the conditions in solitary were deplorable and that she was denied access to her
medication while there. (E.g., Doc. 6, ¶¶ 31-34, 38-41.)
Plaintiff also alleges, in conclusory fashion, that Sheriff Arnott (among others)
“institute[ed] a policy at the Cedar County jail whereby Defendant Levine was not supervised”
and other Cedar County deputies ignored Levine’s assaults. (Doc. 6, ¶ 56; see also Doc. 6, ¶
75.)1 She makes similar allegations about Greene County, contending that Greene County
“either failed to prevent, or allowed Levine to sexually assault Plaintiff while she was under their
control.” (Doc. 6, ¶ 73; see also Doc. 6, ¶¶ 72, 74.)
The Amended Complaint contains eight counts, but Count VIII only asserts a claim for
attorney fees, so it is not a cause of action that needs to be analyzed. The claims asserted against
Sheriff Arnott are asserted against him in his individual capacity only. (Doc. 6, ¶ 5.) Greene
County and Sheriff Arnott are named in Counts I through IV only; those claims are:

1

The Court reiterates its prior statement that Sheriff Arnott was the Sheriff in Greene County and not Cedar
County. Nonetheless, the Court has accurately set forth Plaintiff’s allegations.

2

Count I

Count I alleges that Plaintiff’s Due Process rights were violated (1) when she was

raped by Levine and the other Cedar County deputies failed to intervene, and (2) when Mays
“lock[ed] her in solitary confinement in order to extract” her cooperation in the investigation.
(Doc. 6, ¶¶ 54, 56.) Count I further alleges that all Defendants (including Greene County and
Sheriff Arnott) are liable for these constitutional violations.
Count II

Count II alleges that Greene County and Sheriff Arnott negligently trained,

supervised, and retained employees, including Mays. (Doc. 6, ¶¶ 60-64, 66.)
Count III

Count III asserts “Municipal Government Liability Under 42 U.S.C. § 1983,”

seeking to hold Greene County and Cedar County liable for the constitutional violations alleged
in the Amended Complaint’s other counts. It alleges that both counties have a policy, practice,
procedure or custom of (1) failing to adequately control male prison guards’ interactions with
female inmates, (2) allowing guards “such as Defendant Levine, to manage the jail population
and to have unfettered access to female inmates without any supervision,” (3) failing to prevent
Plaintiff’s sexual assault, and (4) “allowing Levine to sexually assault Plaintiff while she was
under their control.” (Doc. 6, ¶¶ 71-74.) In addition, Count III alleges that both counties “had
actual or constructive knowledge of . . . Mays [sic] conduct toward Plaintiff” and did not prevent
Mays’ violation of Plaintiff’s rights. (Doc. 6, ¶¶ 78, 80.)
Count IV

Count IV alleges that Greene County and Sheriff Arnott violated Plaintiff’s

Eighth Amendment rights when she “was denied access to medication and medical attention,
access to running water, and access to food while in detention at the Greene County Jail.
Plaintiff was also denied medication for a full week to treat her medically diagnosed conditions.”
(Doc. 6, ¶ 85.)

3

Greene County and Sheriff Arnott McCrary argue that the three federal claims (Counts I,
III, and IV) must be dismissed2 because Plaintiff has not alleged sufficient facts to state a claim.
Both Defendants argue that they are immune from the tort claims asserted in Count II.3 Plaintiff
disputes these contentions, and the Court resolves the parties’ arguments below.
II. DISCUSSION
When considering a motion to dismiss under Rule 12(b)(6), the Court “must accept as
true all of the complaint’s factual allegations and view them in the light most favorable to the
Plaintiff[ ].” Stodghill v. Wellston School Dist., 512 F.3d 472, 476 (8th Cir. 2008).
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. 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. The plausibility standard is not akin to a probability requirement, but it
asks for more than a sheer possibility that a defendant has acted unlawfully.
Where a complaint pleads facts that are merely consistent with a defendant’s
liability, it stops short of the line between possibility and plausibility of
entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible if it allows the
reasonable inference that the defendant is liable for the conduct alleged.

E.g., Horras v.

American Capital Strategies, Ltd., 729 F.3d 798, 801 (8th Cir. 2013); Braden v. Wal-Mart
Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009).
2

Defendants’ Motion is entitled as one seeking judgment on the pleadings, and their Suggestions in Support invoke
Rule 12(c). However, Defendants also repeatedly ask for “dismissal” of the claims against them as opposed to a
“judgment,” and a 12(c) motion can be used to allege the plaintiff has failed to state a claim. Fed. R. Civ. P.
12(h)(2)(B). The Court elects to treat the motion as one seeking dismissal because (1) the standards for the two
motions are the same, e.g., Ellis v. City of Minneapolis, 860 F.3d 1106, 1109 (8th Cir. 2017), and (2) discovery of
certain facts may enable Plaintiff to file a Second Amended Complaint that properly asserts some of the claims at
issue.
3

Greene County and Sheriff Arnott also contend that Plaintiff’s federal claims are barred by the Prison Litigation
Reform Act, (“the PLRA”). The PLRA does not apply if Plaintiff was not in the Greene County Jail when she filed
her Complaint, see, e.g., Nerness v. Jonhnson, 401 F.3d 874, 876 (8th Cir. 2005), and Defendants did not respond to
Plaintiff’s contention that she was not in the Greene County Jail when she filed suit. Therefore, there is no need to
discuss the PLRA.

4

A. Count I
Count I broadly alleges that all Defendants are liable for all denials of Plaintiff’s Due
Process rights occurring in both Cedar County and Greene County. The Court will address the
events in each county separately.
1. Violation of Plaintiff’s Constitutional Rights in Cedar County
Plaintiff alleges in a conclusory manner that Greene County and Sheriff Arnott instituted
policies in Cedar County that allowed her to be raped in Cedar County, and that they failed to
properly supervise Levine. Plaintiff does not allege any facts, however, that explain how Greene
County and its Sheriff had any control over, or even knowledge of, what was happening in Cedar
County. Therefore, the Court concludes that Count I does not set forth a plausible basis for
holding Greene County or Sheriff Arnott liable for any Due Process violations that occurred in
Cedar County.
For the third time, (see Doc. 28, p. 16; Doc. 49, p. 12),4 Plaintiff characterizes defendants
in this case as arguing “that inmates have no right to bodily privacy whatsoever, and that no
matter what the circumstances, male staff may look at a naked female inmate while she is
showering, toileting, or dressing, without violating her constitutional rights.” (Doc. 53, p. 16.)
For the third time, the Court points out that “[t]his is not an accurate characterization of
Defendants’ argument.” (Doc. 44, p. 9 n.6; Doc. 54, p. 3 n.4.) Defendants do not argue that
Levine’s alleged actions did not violate Plaintiff’s rights; they argue that the Amended
Complaint does not set forth facts that would make Greene County or Sheriff Arnott liable for
Levine’s invasion of Plaintiff’s rights, and Plaintiff does not address this point.

4

All page numbers are those generated by the Court’s CM/ECF system.

5

The Court agrees with Defendants that the Amended Complaint does not allege any facts
that plausibly connect them to the events in Cedar County. Therefore, this aspect of Count I
must be dismissed for failure to state a claim.
2. Violation of Plaintiff’s Constitutional Rights in Greene County
Count I also seeks to hold Greene County and Sheriff Arnott liable for Mays’ alleged
unconstitutional conduct of placing Plaintiff in isolation. Plaintiff re-alleged Greene County’s
liability in Count III, and the Court will discuss Greene County’s liability while addressing
Count III.
With respect to Sheriff Arnott, Count I does not allege that Sheriff Arnott was involved in
Mays’ actions (by, for instance, ordering that Mays confine Plaintiff in solitary confinement).
(Doc. 6, ¶ 56.) Various allegations in the Amended Complaint suggest that Plaintiff is relying
solely on Sheriff Arnott’s status as the sheriff to make him liable for Mays’ actions. But
respondeat superior liability does not exist under § 1983, e.g., Langford v. Norris, 614 F.3d 445,
460 (8th Cir. 2010), and Sheriff Arnott cannot be held liable simply because he is the Sheriff.
“[A] supervisor incurs liability for a violation of a federally protected right when the supervisor
is personally involved in the violation or when the supervisor’s corrective inaction constitutes
deliberate indifference toward the violation.” Ottman v. City of Independence, 341 F.3d 751,
761 (8th Cir. 2003). Plaintiff does not contend that the Amended Complaint plausibly suggests
Sheriff Arnott’s involvement in Mays’ actions or that Sheriff Arnott was deliberately indifferent
to Mays’ actions; instead, Plaintiff’s discussion of Count I focus on his allegations about
Levine’s actions in Cedar County. (Doc. 53, pp. 9-11.) Given the Amended Complaint’s lack of
facts demonstrating Sheriff Arnott’s involvement in (or even awareness of) Mays’ actions, Count
I fails to state a claim against Sheriff Arnott.

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B. Count II
1. Negligence Claims Against Greene County
Greene County argues that the tort claims for negligent hiring, supervision, and retention
are barred by sovereign immunity. Plaintiff argues that one of the exceptions to sovereign
immunity recognized under Missouri law applies in this case.5 The Court agrees with Greene
County.
Under Missouri law, public entities – including counties – enjoy sovereign immunity that
protects them from tort claims. E.g., Mangum v. Webster County, 2017 WL 2291514 (Mo. Ct.
App. 2017); Ford v. Cedar County, 216 S.W.3d 167, 170-71 (Mo. Ct. App. 2006); Sisk v. Union
Pac. R. Co., 138 S.W.3d 799, 806 (Mo. Ct. App. 2004). Sovereign immunity bars state claims
regardless of whether they are based on negligence or constitute intentional torts. E.g., Brooks v.
City of Sugar Creek, 340 S.W.3d 201, 206 (Mo. Ct. App. 2011) (quoting Bennartz v. City of
Columbia, 300 S.W.3d 251, 262 (Mo. Ct. App. 2009)). Thus, sovereign immunity applies to all
of Plaintiff’s negligence claims against Greene County.
The only exceptions to sovereign immunity are for injuries (1) arising from an
employee’s negligent operation of a motor vehicle in the course of his employment, (2) caused
by a dangerous condition on property, (3) caused by the performance of a proprietary (and not
governmental) function, and (4) that are covered by insurance procured by the governmental
entity. Bennartz, 300 S.W.3d at 259; Mo. Rev. Stat. § 537.600. Plaintiff’s argument is not clear,
but she has emphasized the second exception and seems to argue that Greene County’s policies

5

Plaintiff also mischaracterizes Greene County’s argument as contending that the Eleventh Amendment bars the
claims against it. (Doc. 53, pp. 11-12.) The Court need not address Plaintiff’s Eleventh Amendment arguments
because they do not apply here, where (1) Greene County has not invoked the protections of the Eleventh
Amendment and (2) the issue is whether Missouri’s application of sovereign immunity bars a cause of action arising
under Missouri law.

7

created a “dangerous condition on property.” (See Doc. 53, p. 19.) However, this exception is
limited to physical conditions or deficiencies in (or on) real property. E.g., Rodgers v. City of
North Kansas City, 340 S.W.3d 154, 158 (Mo. Ct. App. 2011). In Rodgers, the plaintiff argued
that allowing a nurse to be alone with female patients in rooms that could be locked constituted a
dangerous condition on property. The Missouri Court of Appeals rejected the theory, holding
that “the ‘placement’ of [the nurse] in relation to non-defective property is not the equivalent of
the circumstances contemplated” by this exception. Id. at 159. Similarly, Greene County’s
policies regarding the interaction between deputies and detainees will not qualify as an exception
to sovereign immunity.
Greene County is immune from the tort claims Plaintiff has asserted. Accordingly,
Greene County is dismissed from Count II.
2. Negligence Claims Against Sheriff Arnott
Sheriff Arnott contends that Plaintiff’s state claims against him are barred by official
immunity.6 Plaintiff argues that official immunity does not apply to intentional torts or actions
taken in bad faith or with malice. The Court agrees with Sheriff Arnott that under Missouri law
he is immune from the state claims Plaintiff has presented.
“Official immunity protects public officials from liability for alleged acts of ordinary
negligence committed during the course of their official duties for the performance of
discretionary acts.” Davis v. Lambert-St. Louis Int’l Airport, 193 S.W.3d 760, 763 (Mo. 2006)
(en banc). Claims alleging negligent supervision, hiring, and training are barred by official
immunity. E.g., Southers v. City of Farmington, 263 S.W.3d 603, 621 (Mo. 2008) (en banc);

6

Sheriff Arnott also contends that the public duty doctrine bars Plaintiff’s state claims against him. There is no need
to address the public duty doctrine in light of the Court’s discussion about official immunity.

8

Sherill v. Wilson, 653 S.W.2d 661, 669 (Mo. 1983) (en banc); Nguyen v. Grain Valley R-5 Sch.
Dist., 353 S.W.3d 725, 733 (Mo. Ct. App. 2011).
Plaintiff argues that malicious acts are not barred by official immunity.

Official

immunity is not applicable where the discretionary act “is willfully wrong or done with malice or
corruption.” Southers, 263 S.W.2d at 610 (citation omitted).

However, in arguing that Sheriff

Arnott acted maliciously, she focuses exclusively on Levine’s actions. (Doc. 53, pp. 12-13.)
Plaintiff does not explain how, as the Greene County Sheriff, Sheriff Arnott had anything to do
with Levine’s hiring, supervision or training in Cedar County. Plaintiff also does not explain,
either in her written arguments or the Amended Complaint, how Sheriff Arnott acted maliciously
with respect to his hiring, supervision or training of Mays. Therefore, Sheriff Arnott is entitled
to official immunity, and he is dismissed from Count II.
C. Count III
Plaintiff’s substantive constitutional claims against Greene County (Counts I and IV)
arise under 42 U.S.C. § 1983. A plaintiff alleging municipal liability under § 1983 must allege
and prove the additional elements set forth in Monell v. Department of Social Servs., 436 U.S.
658 (1978). Plaintiff attempts to plead Monell’s requirements in Count III. Greene County
alleges that Plaintiff’s pleading is insufficient, and the Court agrees.
“Section 1983 liability for a constitutional violation may attach to a municipality if the
violation resulted from (1) an official municipal policy, (2) an unofficial custom, or (3) a
deliberately indifferent failure to train or supervise.” Corwin v. City of Independence., MO., 829
F.3d 695, 699 (8th Cir. 2016) (quotations and citations omitted).

A “policy” and a “custom”

are not the same thing. Id. at 699-700. A policy is an expression of the municipality’s
deliberate choice to adopt a guiding principle or procedure. Id. at 700; see also Szabla v. City of

9

Brooklyn Park, MN, 486 F.3d 385, 389-90 (8th Cir. 2007) (en banc). A custom is established by
demonstrating “(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 misconduct; and (3) that plaintiff was injured by acts pursuant
to the governmental entity’s custom, i.e., that the custom was a moving force behind the
constitutional violation.” Snider v. City of Cape Girardeau, 752 F.3d 1149, 1160 (8th Cir.
2014).
Neither the Amended Complaint generally, nor Count III specifically, alleges that Greene
County has (1) deliberately adopted a principle or procedure or (2) engaged in a custom that is
relevant to Plaintiff’s claims. Plaintiff points to paragraph 72 of the Amended Complaint, (Doc.
53, p. 19), but paragraph 72 alleges that Greene County (and Cedar County) “maintained a
policy, practice, procedure and/or custom of allowing a jail guard, such as Defendant Levine, to
manage the jail population and to have unfettered access to female inmates without any
supervision.” Paragraph 73 alleges that the two counties “either failed to prevent, or allowed
Levine to sexually assault Plaintiff while she [was] under their control.” However, as noted
previously, Levine was a deputy in Cedar County, and nothing in the Amended Complaint (or
elsewhere) presents facts or argument establishing that Greene County had anything to do with
Levine’s actions. The Amended Complaint’s conclusory allegation that Greene County had a
policy or custom governing Cedar County deputies is insufficient to plead a basis for municipal
liability under § 1983. Plaintiff also has not identified – either in the Amended Complaint or her
response to the instant motion – any policies or customs that might make Greene County liable
for Mays’ actions.

10

Count III does not allege a basis for imposing liability on Greene County; therefore,
Count III and the constitutional claims that depend on it (Counts I and IV) must be dismissed as
to Greene County.
D. Count IV
Count IV alleges Plaintiff’s rights under the Eighth Amendment were violated. However,
the Amended Complaint alleges that Plaintiff was a pretrial detainee and not a convicted
prisoner. The Eighth Amendment applies only to individuals who have been found guilty of a
crime and does not apply to pretrial detainees. E.g., City of Revere v. Massachusetts Gen. Hosp.,
463 U.S. 239, 244 (1983). The Due Process Clause applies to pretrial detainees, id., and the Due
Process Clause (which forms the basis for Count I) gives pretrial detainees rights that are at least
as great as the protections provided by the Eighth Amendment. E.g., Walton v. Dawson, 752
F.3d 1109, 1117 (8th Cir. 2014). Despite the similarity in the claims, Count IV must be
dismissed because the Eighth Amendment did not apply to Plaintiff.7
III. CONCLUSION
The motion filed by Greene County and Sheriff Arnott seeking dismissal of the claims
against them, (Doc. 50), is GRANTED, and all claims against Greene County and Sheriff James
Arnott are DISMISSED.8
IT IS SO ORDERED.
/s/ Beth Phillips
BETH PHILLIPS, JUDGE
UNITED STATES DISTRICT COURT

DATE: February 21, 2018

7

This serves as an independent justification for dismissing Count IV as to Greene County.

8

Unlike the other claims addressed in this Order, Counts I and III could be viable depending on information learned
during discovery. Therefore, the Court's dismissal of Greene County and Sheriff Arnott from Counts I and III is
without prejudice to Plaintiff's ability to seek leave to file a Second Amended Complaint that properly alleges these
claims.

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