Franklin v. St. Louis County, Missouri

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

CLIFTON FRANKLIN, )

)

Plaintiff, )

)

vs. ) Case No. 4:20 CV 1134 RWS

)

SAINT LOUIS COUNTY, )

MISSOURI, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

Clifton Franklin (“Franklin”) brings this suit against St. Louis County,

Missouri (“The County”) and five officers of the St. Louis County Police

Department (“SLCPD”), alleging violations of his civil rights under 42 U.S.C.

§ 1983 as well as several state law claims. The County and Officers Gilyon, Santana,

Sondag, Sunderman, and Tiberi move to dismiss all of Franklin’s claims under

Federal Rule of Civil Procedure 12(b)(6). I will grant the motions in part and deny

them in part for the reasons explained below.

BACKGROUND

The events underlying this suit occurred on August 29, 2015 at St. Louis’

Incredible Pizza Company. SLCPD received an anonymous call from that address

reporting that a Black woman and a Black man with dreadlocks were fighting outside

the restaurant. Four officers, Gilyon, Sondag, Sunderman, and Tiberi, responded to

the call.1 At some point, the officers received an additional anonymous tip reporting

that a Black man had entered the restaurant. The man had dreadlocks and was

wearing a blue shirt.2

When the officers arrived at the restaurant, they did not see anyone fighting

outside. Employees at the restaurant’s entrance could not confirm that a fight had

occurred when asked. Tiberi entered the restaurant alone and approached Franklin,

who was eating with his family and celebrating his daughter’s birthday. Tiberi asked

Franklin if he had been involved in a fight; Franklin said that he had not. Tiberi then

“advised” Franklin to come outside with him. Franklin shook his head “no.” Tiberi

“advised” him once more to stand up and leave the restaurant. This time, Franklin

complied and began walking towards the exit, “showing no indication that he was

moving quickly or aggressively.” Compl. at ¶ 16. Tiberi “put his hands” on Franklin.

After Franklin’s family began expressing concern for Franklin, Tiberi “put his

hands” on Franklin a second time.

Tiberi then attempted to force Franklin’s hands behind his back. Franklin

turned to face Tiberi because he was “absolutely confused” and “wanted to know for

1 It is not clear when Santana joined the group.

2 The complaint describes Franklin as a Black man but does not indicate whether he matched the

other elements of this man’s description.

what he was being arrested.”3 Compl. at ¶ 18. Tiberi either let go of Franklin’s hands

or Franklin broke free from Tiberi’s grasp on his own because Franklin turned to

face Tiberi and then “continued towards the exit to clear up the misunderstanding

with a conversation.” Compl. at ¶ 19. Before he reached the exit, however, Sondag,

Santana, and Sunderman entered the premises. They “encircled” Franklin and began

“striking [him] and placed him in a choke hold [sic] until they eventually picked him

up, threw him to the ground, striking his head into a wall. They then violently flipped

him onto his stomach so they could kneel on his back, neck, and head area.” Compl.

at ¶ 20.

Franklin, struggling for breath, began flailing. The officers attempted to

contain him, slamming his head onto the ground and handcuffing him. After he was

handcuffed, they flipped him over onto his back. He “continued to struggle to

breath[e],” and Gilyon tased him. Franklin then got up and Tiberi led him outside

and “slammed” him into the police cruiser before sending him for medical attention.

Compl. at ¶ 24. Franklin sustained several injuries as a result of this episode,

including penetrating taser wounds to his chest, injuries to his wrists from being

3 This paragraph of the complaint discusses Tiberi and a “Mr. Fletcher.” I assume that counsel

mistakenly referred to Franklin by the wrong name, as the paragraphs before and after only

reference Mr. Franklin.

handcuffed, injures to his neck from the chokehold, and abrasions and headaches

from having his head slammed into the wall.

LEGAL STANDARD

In ruling on a motion to dismiss under Rule 12(b)(6), I must accept as true all

factual allegations in the complaint and view them in the light most favorable to the

plaintiff. Hager v. Ark. Dep’t of Health, 735 F.3d 1009, 1013 (8th Cir. 2013). The

federal rules require only a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To survive a motion to dismiss,

a plaintiff need not provide “detailed factual allegations” but must provide

“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).

ANALYSIS

Franklin has raised claims against the officers in their personal and official

capacities. As the County noted in its motion to dismiss, suits against officers in

their official capacities are construed as suits against their governmental

employers. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). I will dismiss all

claims against the officers in their official capacities as redundant. Veatch v.

Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010).

I. Failure to Train, Discipline, or Supervise

Because Franklin’s first count contains allegations that the officers acted in

accordance with certain unconstitutional “pervasive customs, practices, and usages”

within the SLCPD and that the County failed to adequately train and discipline its

officers, it appears that he intended to state a claim under Monell v. Dep’t of Soc.

Serv. of City of New York, 436 U.S. 658 (1978). I will construe it as such.

A local government may be liable for the unconstitutional actions of its

employees under § 1983 “if the violation resulted from (1) an ‘official municipal

policy,’ (2) an unofficial ‘custom,’ or (3) a deliberately indifferent failure to train or

supervise.” Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1214 (8th Cir.

2013) (internal citations omitted) (quoting Monell, 436 U.S. at 690-91). In order to

impose liability, there must be a “direct causal link” between the policy or custom

challenged and the constitutional violation alleged. City of Canton, Ohio v. Harris,

489 U.S. 378, 385 (1989).

Franklin has not alleged sufficient facts supporting his claim that his injuries

resulted from the officers acting in accordance with any unconstitutional policy or

custom. See Snider v. City of Cape Girardeau, 752 F.3d 1149, 1160 (8th Cir. 2014)

(plaintiff must show “(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”) (citing

Johnson v. Douglas Cty. Med. Dep’t, 725 F.3d 825, 828 (8th Cir. 2013)). He has not

identified any specific official policy or unofficial custom that he believes is

unconstitutional. Rather, he provides a long list of vague, conclusory statements in

¶ 36 of the complaint. Even assuming that any of these conclusory allegations could

be construed as an attempt to identify specific policies or customs, a plaintiff cannot

sustain a Monell claim relying solely on the facts underlying his “own arrest and

detention” because “[g]enerally, an isolated incident of alleged police

misconduct…cannot, as a matter of law, establish a municipal policy or custom

creating liability under § 1983.” Ulrich v. Pope Cty., 715 F.3d 1054, 1061 (8th Cir.

2013) (citing Wedemeier v. City of Ballwin, 931 F.2d 24, 26 (8th Cir. 1991)). While

Franklin alleges “numerous instances of Constitutionally violative conduct by

SLCPD officers,” he does not offer any facts in support of this statement. The only

facts that he has alleged stem from his own interaction with the officers in August

2015.

Franklin has also not alleged facts sufficient to state a claim for failure to train.

Id. (plaintiff must plead facts sufficient to show that the municipality’s “officer-

training practices were inadequate,” the municipality “was deliberately indifferent

to the rights of others in adopting these training practices, and [the municipality’s]

failure to train was a result of deliberate and conscious choices it made,” and the

municipality’s “alleged training deficiencies caused [the plaintiff’s] constitutional

deprivation”) (citations omitted). He merely alleges, in two identical conclusory

paragraphs, that the County has failed to implement “effective policies related to the

use of excessive force.” Compl. at ¶ 40-41. These allegations are bare legal

conclusions devoid of any supporting factual allegations and are insufficient to state

a claim under Rule 12(b)(6). B.A.B., Jr. v. Board of Educ. of City of St. Louis, 698

F.3d 1037, 1040 (8th Cir. 2012).

Franklin’s allegations regarding the County’s failure to discipline and

supervise are even more vague and conclusory than his allegations regarding its

failure to train. He does not provide a single factual allegation in support of these

claims and thus has not satisfied the 12(b)(6) pleading standard.

As the County argues in its motion to dismiss, this claim is really predicated

on a respondeat superior theory of liability, which is not permitted under § 1983.

Monell, 436 U.S. at 691. Because Franklin has not stated sufficient facts “to state a

claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007), I will dismiss this claim.

II. Unlawful Stop

In their motions to dismiss, the officers argue that Franklin has not specified

which alleged facts constitute the alleged unlawful stop, and that if a stop did occur,

Tiberi was the only officer involved. Franklin states that the officers “acting alone

and/or together…unreasonably seized [him] for a ‘stop’ in violation of the Fourth

and Fourteenth Amendments.” While not a model of clarity, the complaint

adequately alleges facts, which taken as true, demonstrate that Franklin was subject

to one or more unlawful stops by all of the officers named in the complaint. Under

the liberal standard of federal notice pleading, Fed. R. Civ. P. 8, Franklin’s complaint

is not subject to dismissal on this basis.

Not every interaction with a police officer implicates the Fourth Amendment.

United States v. Jones, 269 F.3d 919, 925 (8th Cir. 2001). A seizure in violation of

the Fourth Amendment occurs “only if, in view of all the circumstances surrounding

the incident, a reasonable person would have believed that he was not free to leave.”

United States v. Mendenhall, 446 U.S. 544, 554 (1980). Even when a seizure has

occurred, it must be unreasonable to impose liability under § 1983. Brower v. Cty.

of Inyo, 489 U.S. 593, 599 (1989). The reasonableness of a seizure is “determined

by the totality of the circumstances and… judged from the viewpoint of a reasonable

officer on the scene, irrespective of the officer’s underlying intent or motivation.”

McCoy v. City of Monticello, 342 F.3d 842, 848 (8th Cir. 2003) (citation omitted).

Tiberi argues that his initial encounter with Franklin was consensual because

he merely “advised” Franklin to go outside to talk and he approached Franklin alone,

without touching him or brandishing his gun. See United States v. Drayton, 536 U.S.

194, 205 (2002) (“[t]he presence of a [police officer’s] holstered firearm…is

unlikely to contribute to the coerciveness of the encounter absent active brandishing

of the weapon.”). Construing these facts in the light most favorable to Franklin, it is

not clear that a reasonable person in his position would have believed that he was

free to leave. Mendenhall, 446 U.S. at 554 (“[e]xamples of circumstances that might

indicate a seizure…would be the threatening presence of several officers, the display

of a weapon by an officer, some physical touching of the person of the citizen, or the

use of language or tone of voice indicating that compliance with the officer’s request

might be compelled”). However, a seizure certainly occurred when Tiberi “put his

hands on” Franklin and when the other officers arrived, “encircled” him, and forcibly

prevented him from leaving the restaurant. California v. Hodari D., 499 U.S. 621,

625-26 (1991) (even brief physical touch can be a seizure because a seizure requires

“either physical force…or, where that is absent, submission to the assertion of

authority”).

Two anonymous tips established the basis for stopping Franklin. The officers

did not personally witness any fighting when they arrived at the restaurant and

employees at the entrance could not confirm that a fight had occurred earlier. The

complaint does not specify whether Franklin matched the description of the man

discussed in the anonymous tips; it only states that both Franklin and the suspect

were Black. The officers suggest that the complaint is purposely silent on this issue

and ask me to assume that Franklin matched the suspect’s description, arguing that

I am “not required, even at this preliminary stage, to draw unreasonable inferences”

from Franklin’s complaint. Brown v. Medtronic, Inc., 628 F.3d 451, 461 (8th Cir.

2010). I do not agree that “the reasonable inference from this omission is that

Franklin did match [the suspect’s] description,” so I will not make this assumption.

As a result, it does not appear that the officers independently corroborated the two

tips in any way.

The officers cite Navarette v. California in support of their argument that the

tips alone provided reasonable suspicion to support stopping Franklin. 572 U.S. 393,

397 (2014) (holding that anonymous tips do not need independent police

corroboration “under appropriate circumstances”). They emphasize that the first tip

was made via a call to the SLCPD while the caller was presumably at the scene of

the fight, watching as it happened. Id. at 400 (tips are considered more reliable if

they are made “contemporaneous with the observation of criminal activity,” or made

via the 911 emergency system because features of the system “provide some

safeguards against making false reports”). Neither tip, as described in the complaint,

was very detailed. See United States v. LaGrange, 981 F.3d 1119, 1122 (8th Cir.

2020) (because an anonymous tip “contained a detailed description of a weapon

allegedly in [the suspect’s] possession…[that] entitled the tip to greater weight than

a generalized assertion”) (citing Illinois v. Gates, 462 U.S. 213, 234 (1983)). The

first caller reported that a Black woman and a Black man with dreadlocks were

fighting outside. The complaint does not indicate that the caller provided any details

about the situation; for example, whether the fight was verbal or physical, or whether

either party had been harmed. The second tip was even less detailed, relaying only

that the man who was ostensibly involved in the fight had entered the restaurant

alone.

Importantly, the second tip also established that the fight was over. By the

time they received the second tip, the officers knew that there was no active fight at

the restaurant. The existence of ongoing criminal activity was crucial to the holding

in Navarette; the United States Supreme Court explicitly stated that even a reliable

anonymous tip “will justify an investigative stop only if it creates reasonable

suspicion that ‘criminal activity may be afoot.’” 572 U.S. at 401 (quoting Terry v.

Ohio, 392 U.S. 1, 30 (1968) (contrasting the factual situation at hand—the “ongoing

crime [of] drunk driving”—with “an isolated episode of past recklessness”). Thus,

the officers should have corroborated the two anonymous tips before stopping

Franklin. Based on the allegations in the complaint, there was no reasonable

suspicion to support stopping Franklin, and it appears that he was only stopped

because of his race.

The officers argue that even if the stop was not reasonable, I must dismiss this

claim due to the doctrine of qualified immunity. “An official is entitled to qualified

immunity against a § 1983 action unless (1) the facts, construed in the light most

favorable to the party seeking damages, establish a violation of a constitutional or

statutory right, and (2) the right was clearly established at the time of the violation.”

McKenney v Harrison, 635 F.3d 354, 358 (8th Cir. 2011) (citation omitted). A right

is considered clearly established if it is “sufficiently clear that a reasonable official

would understand that what he is doing violates that right.” Hope v. Pelzer, 536 U.S.

730, 739 (2002). Prior case law must demonstrate that the statutory or constitutional

question at issue is “beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

Based on the facts that Franklin alleged, it appears that he was stopped on account

of his race, with nothing more to support the stop. This is impermissible and was

settled law well before 2015. See, e.g., United States v. Clay, 640 F.2d 157, 159 (8th

Cir. 1981) (“Police cannot have grounds for suspicion based solely on the race of

the suspect”). While discovery may reveal that Franklin did in fact match the

description of the suspect, I cannot draw that conclusion based on the complaint, and

the qualified immunity claim must therefore be denied at this stage of the

proceedings.

III. Unlawful Arrest

The officers also argue that Franklin has not adequately pled an unlawful

arrest. Franklin states that the officers “acting alone and/or together…acted without

probable cause and seized [him] for arrest in violation of the Fourth and Fourteenth

Amendments.” As with the previous claim, the officers argue that Tiberi was the

only officer who potentially effected an unlawful arrest and that this claim should

be dismissed against the other officers. Construing the facts in the light most

favorable to Franklin, the complaint adequately alleges that he was subjected to one

or more unlawful arrests by all officers named in the complaint, including not only

Tiberi but also the other officers who surrounded him and used force to prevent him

from leaving the restaurant. The motion to dismiss this claim will be denied on that

basis.

“A warrantless arrest is consistent with the Fourth Amendment if it is

supported by probable cause, and an officer is entitled to qualified immunity if there

is at least ‘arguable probable cause.’” Borgman v. Kedley, 646 F.3d 518, 522-23

(8th Cir. 2011) (citing Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir.

2005)). Probable cause exists “when the totality of the circumstances at the time of

the arrest ‘are sufficient to lead a reasonable person to believe that the defendant has

committed or is committing an offense.’” Id. (citation omitted). Arguable probable

cause exists when an officer makes an arrest “under the mistaken belief that they

have probable cause to do so, provided that the mistake is objectively reasonable.”

Amrine v. Brooks, 522 F.3d 823, 832 (8th Cir. 2008).

An uncorroborated anonymous tip does not constitute sufficient probable

cause for an arrest. United States v. Roberts, 787 F.3d 1204, 1210-11 (8th Cir. 2015).

Since the officers did not independently corroborate the details of the two tips when

they arrived at the restaurant, as previously discussed, the complaint adequately

supports the inference that they did not have probable cause to arrest Franklin for

fighting. As a result, when Tiberi first “put his hands on” Franklin, that arrest was

unlawful.

Tiberi argues that he did not make an arrest when he initially touched Franklin.

In the alternative, he argues that if he did arrest Franklin, it was not unlawful because

an individual’s “response to even an invalid arrest or Terry stop may constitute

independent grounds for arrest.” United States v. Dawdy, 46 F.3d 1427, 1431 (8th

Cir. 1995). In support of this argument, he points to United States v. Collins, 200

F.3d 1196, 1198 (8th Cir. 2000), in which the Eighth Circuit held that the plaintiff

would have provided a reasonable officer with probable cause for resisting arrest

under Missouri law by “jerking, and turning away from [the officer], jerking his arm

free of [the officer’s] grasp,” and “taking a couple of steps [away].”

The complaint states that Franklin “turned to face” Tiberi as Tiberi attempted

to put Franklin’s hands behind his back. Compl. at ¶ 18. Then, after freeing himself

from Tiberi’s grasp, Franklin began walking towards the exit in what he claims was

an attempt to comply with Tiberi’s earlier requests to leave the building. These facts

are different from those at issue in Collins, as it was not objectively reasonable for

an officer in Tiberi’s position to believe that Franklin was fleeing and thus

attempting to avoid arrest, especially since Tiberi had twice instructed Franklin to

go outside. As a result, I cannot decide as a matter of law that there was arguable

probable cause to make the arrest and therefore Tiberi and the other officers are not

entitled to qualified immunity. Ehlers v. City of Rapid City, 846 F.3d 1002, 1009-

10 (8th Cir. 2017).

IV. Excessive Force

Courts evaluate an officer’s use of force “from the perspective of a reasonable

officer present at the scene.” Carpenter v. Gage, 686 F.3d 644, 649 (8th Cir. 2012).

The amount of force used must be “objectively reasonable under the particular

circumstances.” Greiner v. City of Champlin, 27 F.3d 1346, 1354 (8th Cir. 1994).

Several factors influence whether force was reasonable, including “the severity of

the crime at issue, whether the suspect poses an immediate threat to the safety of the

officers or others, and whether he is actively resisting arrest or attempting to evade

arrest by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989) (citation omitted).

Police can use force to prevent a suspect from fleeing the scene. Greiner, 27

F.3d at 1355. Franklin argues that he was not attempting to flee when he “turned to

face” Tiberi, got free of the officer’s grasp, and began walking towards the exit. As

previously discussed, it is unclear from the facts alleged that Franklin’s actions could

have been interpreted as an attempt to flee. Franklin states that he was merely

walking towards the exit of the restaurant, “not moving quickly or aggressively,”

when the officers began using force against him.

Viewing the facts in the complaint in the light most favorable to Franklin, as

I must, I find that he has stated a claim for excessive force against the officers. In

their motions to dismiss, the officers contend that their use of force against Franklin

was justified because he “flailed throughout the course of his arrest” and “a

reasonable officer can conclude that flailing constitutes unlawful resistance to justify

a use of force.” But this is not an accurate description of the facts that Franklin

alleged. The complaint states that he “began flailing as he gasped for breath” after

the officers had already struck him, put him in the chokehold, picked him up and

threw him on the ground, hit his head into the wall, flipped him onto his stomach,

and knelt on him. This fact makes the instant case distinguishable from the cases that

the officers cited in support, including Turner v. Tillman, 2020 WL 2198933, at *6

(E.D. Mo. May 6, 2020) (plaintiff’s flailing during the officers’ attempt to subdue

him “posed a serious threat” to the officers’ safety; one of the officers “tried

repeatedly to get [the suspect] to comply without force, [but] when given the

opportunity to comply without force, [the suspect] instead attacked [the officers]”)

and McManemy v. Tierney, 970 F.3d 1034, 1037 (8th Cir. 2020) (plaintiff flailed

as officers attempted to handcuff him and they were only able to restrain him “at the

tail end of a ‘tumultuous’ struggle”) (quoting Rudley v. Little Rock Police Dep’t,

935 F.3d 651, 654 (8th Cir. 2019)). According to the complaint, there was no

struggle or resistance that prompted the officers’ use of force. Franklin was

complying with instructions he had been given, was not resisting arrest or fleeing

the scene, and did not pose an immediate threat to the safety of the officers or anyone

in the vicinity when the officers began using force against him. Additionally, as

discussed previously, it does not appear, from the allegations in the complaint, that

the officers had reasonable suspicion to even stop, let alone probable cause to arrest,

Franklin.

Furthermore, “when a person is subdued and restrained with handcuffs, ‘a

gratuitous and completely unnecessary act of violence’ is unreasonable and violates

the Fourth Amendment.” Blazek v. City of Iowa City, 761 F.3d 920, 925 (8th Cir.

2014) (quoting Henderson v. Munn, 439 F.3d 497, 503 (8th Cir. 2006)). Franklin

had been forced to the ground and was laying on his back, with his hands cuffed

underneath him, when Gilyon used the taser on him. It is not clear that Franklin was

flailing after he was handcuffed; the complaint states that he “continued to struggle

to breath[e] until he was flipped over” after the cuffs were placed on his wrists. It is

also not clear, at this stage in the case, that this “struggle” for breath could be

construed as an attempt to resist.

The allegations in the complaint are also sufficient to support Franklin’s claim

against Tiberi, Santana, Sondag, and Sunderman for failing to protect Franklin from

Gilyon’s use of the taser. Compl. at ¶ 67(d). “[A]n officer who fails to intervene to

prevent the unconstitutional use of excessive force by another officer may be held

liable for violating the Fourth Amendment.” Nance v. Sammis, 586 F.3d 604, 612

(8th Cir. 2009). The complaint indicates that Tiberi, Santana, Sondag, and

Sunderman stood by as Gilyon tased Franklin and did not intervene to stop it. As a

result, I find that Franklin has also stated a claim for failure to intervene to prevent

the unconstitutional use of excessive force.

The officers argue that even if the force used against Franklin was excessive

and not reasonable under the circumstances, I must dismiss this claim because they

are entitled to qualified immunity. While the facts that Franklin has alleged are not

perfectly analogous to facts from any previous case, exact factual similarity is not

necessary “to overcome qualified immunity, as long as the unlawfulness was

apparent in light of preexisting law.” Blazek, 761 F.3d at 926 (citation omitted). Case

law prior to August 2015 established that officers were not permitted to use this

degree of force against a suspect who does not present any threat of violence or

attempt to resist arrest. See Small v. McCrystal, 708 F.3d 997, 1005 (8th Cir. 2013)

(unreasonable for an officer “to use more than de minimis force” against an

intoxicated plaintiff who did not pose an immediate threat to anyone’s safety, had

not been told that he was under arrest, was not in flight or resisting arrest, and was

in fact walking away from the scene when the officer “tackl[ed] him from behind

without warning”); Shannon v. Koehler, 616 F.3d 855, 862-63 (8th Cir. 2010)

(unreasonable for an officer to take down and handcuff the plaintiff, who was

intoxicated and had assaulted someone during a bar fight, because he was not

suspected of committing a serious crime, was not threatening anyone or resisting

arrest, and did not pose a threat to the officers’ safety); Brown v. City of Golden

Valley, 574 F.3d 491, 497 (8th Cir. 2009) (force not reasonable because the plaintiff

“posed at most a minimal safety threat,” “was not actively resisting arrest or

attempting to flee,” gave no indication that she would potentially hurt the officers,

“did not threaten the officers, verbally or physically,” and the circumstances were

not “tense, uncertain, and rapidly evolving”) (quoting Graham, 490 U.S. at 397)).

Prior to August 2015, only one Eighth Circuit case, LaCross v. City of Duluth,

713 F.3d 1155, 1157 (8th Cir. 2013), had addressed the use of a taser on a handcuffed

individual. In LaCross, the court affirmed the district court’s finding that an officer

who tased a handcuffed suspect did not act unreasonably because the suspect had

“kicked at the [police] car’s windows, spat, and attempted to bite [the officer].” In

finding that the officer was not entitled to qualified immunity, the court focused on

the fact that in 2006, case law had not clearly established that the use of a taser

causing de minimis injury could violate the Fourth Amendment. See Hollingsworth

v. City of St. Ann, 800 F.3d 985, 990-91 (8th Cir. 2015) (explaining LaCross

reasoning). That is not at issue here. Furthermore, the Eighth Circuit recently cited

LaCross as precedent establishing that “the use of tasers on detainees in handcuffs

[is permitted] in appropriate circumstances.” See Franklin v. Franklin Cty., 956 F.3d

1060, 1062 (8th Cir. 2020) (emphasis added).

In addition to LaCross, the Eighth Circuit had decided several cases involving

other exercises of force on handcuffed individuals before 2015. These cases further

demonstrate that the law at that time permitted police to use force against handcuffed

suspects only when such suspects resisted or were noncompliant. See Blazek, 761

F.3d at 925-26 (officers who “jerked” the plaintiff from the floor to his bed after he

was “handcuffed and under control” were not entitled to qualified immunity because

the suspect was “not resisting and posed no threat to the officers”); Krout v.

Goemmer, 583 F.3d 557, 566 (8th Cir. 2009) (objectively unreasonable for officers

to kick and punch a suspect who was handcuffed, on the ground, and not resisting);

Henderson, 439 F.3d at 502-03 (unreasonable for an officer to use pepper spray on

a suspect who was handcuffed, subdued, and lying face-down on the ground because

“in this compromising position, [plaintiff] posed little or no threat to the safety of

the officers or others,” despite the fact that he may have resisted arrest before he was

cuffed).

Thus, the officers are not entitled to qualified immunity on Franklin’s

excessive force claims at this stage of the proceedings.

V. Conspiracy Claims

To state a claim for conspiracy under § 1983, a plaintiff must show that “(1)

[the police] conspired to deprive [him] of a constitutional or federal right; (2) ‘at

least one of the alleged coconspirators engaged in an overt act in furtherance of the

conspiracy,’ and (3) [plaintiff] was injured by that overt act.” S.L. ex rel. Lenderman

v. St. Louis Metro. Police Dep’t Bd. of Police Com’rs, 725 F.3d 843, 850 (8th Cir.

2013) (citation omitted). Franklin has alleged that the officers “conspired with each

other to violate [Franklin’s] Civil Rights,” and that the overt acts taken in furtherance

of the conspiracy consist of assault and battery, including the deployment of the

taser; failing to warn Franklin that he was going to be tased; allowing him to be tased

when it was not necessary; and creating and filing false incident reports. These acts

resulted in “numerous serious injuries,” including sustained penetrating taser

wounds to Franklin’s chest.

Case law does not support Franklin’s argument that an officer must warn a

suspect that he is about to be tased. In fact, the Eighth Circuit has repeatedly

“eschewed a bright-line rule requiring officers to issue a warning before deploying

a taser against a suspect.” Boudoin v. Harsson, 962 F.3d 1034, 1043 (8th Cir. 2020)

(citing Brown, 574 F.3d at 499). Because there is no constitutional violation, this

part of the conspiracy claim must be dismissed.

Additionally, Franklin has not pled sufficient facts in support of his claim that

the officers conspired to file false reports, which can be a violation of § 1983. S.L.,

725 F.3d at 853. Due to the clandestine nature of most conspiracies, a plaintiff is not

required “to provide direct evidence of a conspiratorial agreement” in order to

survive a motion to dismiss. Smith v. Bacon, 699 F.2d 434, 437 (8th Cir. 1983).

However, a plaintiff must still allege “specific facts tending to show a ‘meeting of

the minds’ among the alleged conspirators.” Murray v. Lene, 595 F.3d 868, 870 (8th

Cir. 2010) (citations omitted). The complaint does not contain any allegations that a

meeting of the minds occurred. It also does not contain any allegations relating to

overt acts in furtherance of the conspiracy to file false reports, beyond the conclusory

allegation that the officers “intentionally created and agreed to file incident reports”

containing false information. Furthermore, Franklin has not alleged that he suffered

an injury as a result of this conspiracy, which is also fatal to his claim.

Franklin’s allegations related to the officers conspiring to use excessive force

and failing to protect him from being tased are more detailed; as previously stated,

he has adequately alleged constitutional violations in support of those claims. The

officers argue that they are entitled to qualified immunity. Their arguments on this

point are general, and none of their motions to dismiss discuss the intracorporate

conspiracy doctrine. I will address the issue because it is relevant to their claim of

qualified immunity.

The intracorporate conspiracy doctrine derives from the nature of conspiracy,

which requires an agreement between or among two or more separate persons. Ziglar

v. Abbasi, 137 S.Ct. 1843, 1867 (2017). When two agents of the same legal entity

make an agreement in the course of their official duties, their acts are attributed to

their principal as a practical and legal matter. Thus, it follows that there has not been

an agreement between two or more separate people and conspiracy liability cannot

be imposed. Id. at 1867-68. The Eighth Circuit has already applied the intracorporate

conspiracy doctrine to claims brought under 42 U.S.C. § 1985. L.L. Nelson Enter.,

Inc. v. Cty. of St. Louis, Mo., 673 F.3d 799, 812 (8th Cir. 2012). Other circuits have

also extended the doctrine to § 1983 claims. See Jackson v. City of Cleveland, 925

F.3d 793, 819-20 (6th Cir. 2019); Grider v. City of Auburn, Ala, 618 F.3d 1240,

1261-62 (11th Cir. 2010). Judges in this district have declined to extend the doctrine

to § 1983 cases in the absence of clear guidance from the Eighth Circuit. Laird v.

City of St. Louis, Mo., 2019 WL 2647273, at *5 (E.D. Mo. June 27, 2019); Aldridge

v. City of St. Louis, Mo., 2019 WL 1695982, at *8 (E.D. Mo. Apr. 17, 2019); Golden

v. Moutray, 2018 WL 1784395, at *4 (E.D. Mo. Apr. 13, 2018); Powers v. City of

Ferguson, 229 F.Supp.3d 894, 906 (E.D. Mo. 2017); Anzaldua v. Ne. Ambulance

and Fire Protection Dist., 2014 WL 466234, at *8 (E.D. Mo. Feb. 5, 2014).

In Abbasi, the Supreme Court held that officials were entitled to qualified

immunity because the law regarding the applicability of the intracorporate

conspiracy doctrine to § 1985(3) claims was not well established. According to the

Court, “when the courts are divided on an issue so central to the cause of action

alleged, a reasonable official lacks the notice required before imposing liability.”

137 S.Ct. at 1868. As in Abbasi, the question here is whether the officers could

reasonably have known that any agreements they entered into with one another could

subject them to conspiracy liability. Given the uncertainty regarding the applicability

of the intracorporate conspiracy doctrine in § 1983 cases, the officers could not have

reasonably known in 2015 that their actions might expose them to liability for a

conspiracy. Therefore, the officers are entitled to qualified immunity as to Franklin’s

conspiracy claims.

VI. State Law Claims

The officers contend that Franklin’s state law claims of assault, battery, and

false imprisonment are all time-barred under Mo. Rev. Stat. § 516.130(1), which

provides that any “action against a sheriff, coroner or other officer, upon a liability

incurred by the doing of any act in his official capacity and in virtue of his office, or

by the omission of an official duty” must be brought within three years. Police

officers are considered “other officers” within the meaning of the statute. Dilley v.

Valentine, 401 S.W.3d 544, 551-52 (Mo. Ct. App. 2013). An officer acts in an

official capacity when he or she “is acting within the scope of what he or she is

employed to do rather than being engaged in a personal frolic.” Id. at 553. If a

plaintiff brings state law tort claims against a police officer in his or her individual

capacity, then a different, two-year statute of limitations applies. Mo. Rev. Stat.

§ 516.140.

Franklin’s claims are time-barred under both statutes of limitations because

he filed his complaint almost five years after the incident occurred. Accordingly, his

assault, battery, and false imprisonment claims are dismissed.

Accordingly,

IT IS HEREBY ORDERED that Defendants’ motions to dismiss, [25], [27],

and [31] are GRANTED as to Counts I, V, VI, VI, and VIII and DENIED as to

Counts IT, UI, and IV.

Ww

RODNEY W. SIPPEL

UNITED STATES DISTRICT JUDGE

Dated this 22nd day of March, 2021.

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