Brown v. City of St. Louis

CRYSTAL BROWN, Plaintiff, v. CITY OF ST. LOUIS, MISSOURI, et al., Defendants.

Case No. 4:18 CV 1676 (JMB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

August 6, 2019

MEMORANDUM AND ORDER

Plaintiff Crystal Brown alleges that she was pepper-sprayed during a peaceful protest. She brings this civil-rights action against the City of St. Louis, Missouri (City), John Hayden, and William Olsten. Defendants move to dismiss plaintiff's first amended complaint, pursuant to Rule 8(a) and Rule 12(b)(6), Fed. R. Civ. P. In the alternative, defendants move to strike specific allegations, pursuant to Rule 12(b)(f). Plaintiff has filed a response in opposition and the issues are fully briefed. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

Background¹

On September 15, 2017, the Circuit Court of the City of St. Louis issued the verdict in State of Missouri v. Stockley, acquitting a police officer of first-degree murder in the shooting death of an African-American man. For several days following the verdict, members of the public engaged in protests around the metropolitan St. Louis area, targeting both the verdict and the use of forceby police officers more broadly. This case is one of several lawsuits that challenge the use of pepper spray by SLMPD officers during the Stockley protests² and directly parallels the case Aldridge v. City of St. Louis, Missouri et al., 4:18-CV-1677 (CAS), 2019 WL 1695982 (E.D. Mo. Apr. 17, 2019), which involves the same incident plaintiff proceeds on here.

On the evening of September 29, 2017, plaintiff was present at a protest near Busch Stadium, where a game was in progress. The SLMPD presence initially consisted of uniformed and bicycle officers who were later joined by SLMPD's Civil Disobedience Team. The members of this team wore "military-like tactical dress" and helmets and carried "long wooden batons and full-body riot shields." Amended Complaint at ¶¶ 39-43 [Doc. # 17]. Around 9:00 p.m., protestors began converging toward Busch Stadium. According to plaintiff, a video shows that protestors peacefully entered the intersection at Broadway and Walnut. Without warning, an SLMPD officer "violently threw Reverend Darryl Gray to the ground, breaking [his] glasses." Id. at ¶¶ 45-47. Several people — including protestors, elected officials, members of the media, and people who had attended the ball game — began to voice concern. Around the same time, two officers began to chase protestor Calvin Kennedy. While one officer grabbed Mr. Kennedy by the shirt, the other deployed a Taser against him. Protestors again spoke out in protest. Id. at ¶¶ 49-54.

According to plaintiff, defendant Olsten can be heard antagonizing the protestors, yelling at one, "Come and fuck me up then." Two police officers tried to move defendant Olsten away from the crowd and calm him down. Id. at ¶ 56. Video shows that defendant Hayden was standing within five feet of defendant Olsten who was becoming "more and more agitated." Id. at ¶¶ 57-58. Without giving a warning or dispersal order, defendant Olsten deployed pepper spray from a large cannister, hitting four people, including plaintiff, an elected official,³ and a person in a wheelchair. After pepper spraying these people, Olsten walked away without arresting them. Id. at ¶¶ 60-63. Plaintiff was not offered medical care or the opportunity to wash the chemical agent out of her eyes or off her body and clothes. Id. at ¶ 71. Plaintiff alleges that defendant Olsten's conduct violated the terms of a settlement agreement in Templeton v. Dotson, 4:14-CV-2019 (CEJ), under which the City agreed not to use chemical agents against "individuals engaged in non-criminal activity" without first issuing warnings or as a punitive response to the exercise of constitutional rights. Id. at ¶¶ 31, 36.

On November 15, 2017, the Court entered a preliminary injunction in Ahmad v. St. Louis, 4:17-CV-2455 (CDP), in which plaintiffs challenged the use of chemical agents by SLMPD officers against protestors on September 15, 2017. Id. at ¶¶ 72-75. The Court found that the Ahmad plaintiffs were likely to prevail on the merits of their claims that their First Amendment rights were violated by the City's customs or policies regarding the use of hand-held chemical agents. The Court further found that the use of such agents against nonviolent protestors circumvented the protections of the Templeton settlement agreement. In addition, the Court found that the plaintiffs' evidence showed that officers exercised their authority in an arbitrary and retaliatory fashion to punish protestors. Id. at ¶ 75.

Plaintiff here asserts claims under § 1983 against defendants Olsten and Hayden for violations of her rights to the freedom of association and freedom of speech under the First and Fourteenth Amendments (Count I), against all three defendants for conspiracy to deprive plaintiff of her civil rights (Count II), against the City for a custom of conducting unreasonable searches and seizures and using excessive force and for failure to train, discipline, and supervise (Count III), and against defendant Olsten for excessive force (Count VII). She also asserts state law claims against all defendants for assault (Count IV), intentional and negligent infliction of emotional distress (Counts V and VI), and battery (Count VIII). Plaintiff has attached as exhibits to her complaint the September 15, 2017, verdict in Stockley, the temporary restraining order and settlement agreement in Templeton, and the transcript and preliminary injunction order in Ahmad.

Defendants move to dismiss the complaint in its entirety for failure to comply with the "short and plain statement" requirement of Rule 8(a). The City moves to dismiss under Rule 12(b)(6), arguing that plaintiff fails to allege facts necessary to support her § 1983 claims of civil conspiracy and municipal liability claims and that it is entitled to sovereign immunity in her state tort claims. Defendant Hayden moves to dismiss plaintiff's § 1983 claims, arguing that plaintiff fails to allege that he personally participated in the alleged violations of her constitutional rights. Defendants Hayden and Olsten argue that plaintiff's state-law claims against them are barred by the official immunity doctrine. Finally, defendants move to strike some allegations under Rule 12(f). Defendant Olsten has not moved to dismiss plaintiff's claims in Counts I and VII.

Discussion

A. Motion to dismiss under Rule 8(a)

Defendants move to dismiss the amended complaint under Rule 8(a), arguing that the complaint is "replete with tendentious and immaterial allegations attacking the integrity of theMissouri courts, injecting spurious issues to which defendants cannot possibly frame a response, and including voluminous exhibits and references to other litigation . . . without specifying wherein and how the exhibits reflect facts germane to plaintiff's claims." [Doc. # 25 at 2]. Defendants further object that the complaint includes "inflammatory rhetoric ill-suited for a complaint" and "imposes an unnecessary burden on defendants in seeking to understand the claims actually asserted." In addition, defendants argue, the paragraphs dealing with the alleged violation of the settlement agreement in Templeton are improper under Rule 408, Fed. R. Evid. Finally, defendants object to plaintiff's "inclusion of voluminous exhibits."

Rule 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief," while Rule 12(b)(6) provides for a motion to dismiss based on the "failure to state a claim upon which relief can be granted." To survive a motion to dismiss pursuant to Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A complaint states a plausible claim for relief if its 'factual content . . . allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to defeat a motion to dismiss. Iqbal, 556 U.S. at 678 (citation omitted). As noted by other judges addressing the same challenge in the related cases, as a result of the plausibility requirements set forth in Twombly and Iqbal, "complaints naturally tend to include more factual detail and be longer." Aldridge, 2019 WL 1695982, at *4; Laney, 2019 WL 2423308, at *3; see also Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Ind., 786 F.3d 510, 526 (7th Cir. 2015) ("plaintiff must include enoughdetails about the subject-matter of the case to present a story that holds together") (internal quotation marks and citation omitted); Hernandez v. TLC of the Bay Area, Inc., 263 F. Supp. 3d 849, 853 (N.D. Cal. 2017) ("plaintiffs must include sufficient factual enhancement to cross the line between possibility and plausibility") (internal quotation marks and citation omitted).

The complaint here is 25 pages long, contains numbered paragraphs, identifies each defendant by name, makes specific allegations as to each defendant's conduct, and sets forth separate counts that identify each claim and the defendants against whom it is asserted. Cf. Michaelis v. Nebraska State Bar Ass'n, 717 F.2d 437, 439 (8th Cir. 1983) (affirming dismissal of a 98-page pro se complaint, the "style and prolixity" of which "would have made an orderly trial impossible"); Smith v. Republic Servs., Inc., 2017 WL 4038143, at *3 (E.D. Mo. Sept. 13, 2017) (dismissing complaint under Rule 12(b)(6), noting it violated Rule 8(a) because it did not contain numbered...