Marshall v. Arnold Police Department

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

KEVIN MARSHALL, )

)

Plaintiff, )

)

v. ) No. 4:21-cv-00062-SEP

)

ARNOLD POLICE DEPARTMENT, )

)

Defendant. )

MEMORANDUM AND ORDER

Before the Court is pro se Plaintiff Kevin Marshall’s Second Amended Complaint,

which the Court reviews pursuant to 28 U.S.C. § 1915. For the reasons set forth below, the

case is dismissed without prejudice.

FACTS AND BACKGROUND

On January 13, 2021, Plaintiff, who is currently incarcerated at the Jefferson County

Detention Center in Hillsboro, Missouri, filed a civil action pursuant to 42 U.S.C. § 1983,

naming the Arnold Police Department as the sole defendant. Doc. 1. The Complaint

concerned the alleged excessive force used against him during his arrest. Because Plaintiff

was proceeding in forma pauperis, the Court screened the Complaint under 28 U.S.C.

§ 1915. Based on that review, the Court determined that it was subject to dismissal.

Rather than dismiss the Complaint outright, the Court gave Plaintiff an opportunity to file

an amended complaint and provided instructions on how to properly amend.

On November 22, 2021, Plaintiff submitted an amended complaint, along with a

motion for leave to proceed in forma pauperis and a motion for appointment of counsel.

Docs. 15, 16, 17. As before, the Court reviewed the Amended Complaint under 28 U.S.C.

§ 1915. Doc. 18. Based on that review, the Court determined that the Amended Complaint

was deficient for three reasons. First, regarding the official-capacity claims, Plaintiff had

not stated a claim against the City of Arnold, Defendants’ employer. Second, the Court

noted that Plaintiff had not sufficiently alleged that the arresting officers acted

unreasonably, as there were no allegations that he complied with orders and acquiesced to

arrest. Third, the Court explained that Plaintiff had not made any attempt to identify the

officers involved to allow them to be served. Instead of dismissing the case, the Court again

provided Plaintiff the opportunity to amend his complaint.

Plaintiff filed his Second Amended Complaint (SAC) on March 22, 2022, on a Court-

provided 42 U.S.C. § 1983 form. Doc. 19. As in his previous pleadings, the SAC again names

as Defendants the “Officer Who Wrote Me Trespassing Ticket” and “All Other Arnold Police

Officers on [Scene].” Doc. 19 at 2-3. With regard to the Ticketing Officer, Plaintiff has

seemingly scratched out the checkmark indicating that that officer is sued in an individual

capacity and has clearly marked the box for official capacity. Doc. 19 at 2. Plaintiff sues the

other Officer Defendants only in their official capacities. Doc. 19 at 3.

In the “Statement of Claim,” Plaintiff alleges that he went to the Woodsprings Hotel

in Arnold, Missouri on August 13, 2019, and while he was sitting in his car texting his

girlfriend, “an unnamed Arnold cop pulled up [and] ordered [him] out of [his] car and put

[him] in handcuffs.”1 Id. Plaintiff states that “[i]t gets a little [fuzzy] after that,” id. at 3-4,

but does allege that he “was slammed on the head and to the ground.” Id. at 4. He further

alleges that as he lay face down on the ground, more officers arrived and “began dropping

knees in [his] back [and] head,” and one officer “rubbed [his] face in the pavement[,]

causing scrapes on both sides of [his] face,” while “another unnamed officer put his taser in

[Plaintiff’s] side and began tasing [him].” Doc. 19 at 4. As that occurred, Plaintiff states that

six to eight officers “stood by laughing.” Id.

According to Plaintiff, the “assault went on for over 19 minutes.” Id. Eventually, “an

ambulance arrived,” and Plaintiff was “injected . . . with some drug 3 [separate] times,”

apparently to sedate him. Id. Plaintiff was taken to Mercy South Hospital and “turned over

to the psych ward where [he] spent 3 days” before being released. He further claims that

he has “the entire assault on video.” Id.

As a result of the incident, Plaintiff states he suffered cuts on his forehead, “road

rash to both cheeks,” and bruises on his back and sides. Id. He also claims to have PTSD

“from the assault.” Plaintiff seeks $20 million in damages. Doc. 19 at 5.

1 This and the following facts are taken from the SAC and accepted as true. See Neitzke v. Williams,

490 U.S. 319, 326-27 (1989).

LEGAL STANDARD

Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in

forma pauperis if it is frivolous or malicious, or if it fails to state a claim upon which relief

can be granted. To state a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate a

plausible claim for relief, which is more than a “mere possibility of misconduct.” Ashcroft v.

Iqbal, 556 U.S. 662, 679 (2009). “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.” Id. at 678. “Determining whether a complaint states a

plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to

draw upon judicial experience and common sense.” Id. at 679. The court must “accept as

true the facts alleged, but not legal conclusions or threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements.” Barton v. Taber, 820 F.3d 958,

964 (8th Cir. 2016); see also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73 (8th

Cir. 2016) (court not required to “accept as true any legal conclusion couched as a factual

allegation”).

When reviewing a pro se complaint under 28 U.S.C. § 1915(e)(2), the Court must

give it the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972).

“Liberal construction . . . mean[s] that if the essence of an allegation is discernible . . . then

the district court should construe the complaint in a way that permits the layperson’s claim

to be considered within the proper legal framework.” Solomon v. Petray, 795 F.3d 777, 787

(8th Cir. 2015) (quoting Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). But even pro se

complaints are required to allege facts that, if true, state a claim for relief as a matter of law.

Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980). See also Stone v. Harry, 364 F.3d

912, 914-15 (8th Cir. 2004) (federal courts are not required to “assume facts that are not

alleged, just because an additional factual allegation would have formed a stronger

complaint”). The Court need not assume facts that are not alleged, Stone, 364 F.3d at 914-

15; nor must it interpret procedural rules to excuse mistakes by those who proceed

without counsel, see McNeil v. United States, 508 U.S. 106, 113 (1993).

DISCUSSION

I. Official-Capacity Claims

Plaintiff brings suit against all Defendants in their official capacities. In an official-

capacity claim against an individual, the claim is actually “against the governmental entity

itself.” White v. Jackson, 865 F.3d 1064, 1075 (8th Cir. 2017). A “suit against a public

employee in his or her official capacity is merely a suit against the public employer.”

Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999); see also Brewington v.

Keener, 902 F.3d 796, 800 (8th Cir. 2018) (explaining that official capacity suit against

sheriff and his deputy “must be treated as a suit against the County”). Here, Defendants are

all alleged to be police officers for the City of Arnold. As such, the official-capacity claims

against them are actually claims against the City of Arnold.

To establish § 1983 liability against a municipality, “a plaintiff must show that a

constitutional violation was committed pursuant to an official custom, policy, or practice of

the government entity.” Moyle v. Anderson, 571 F.3d 814, 817 (8th Cir. 2009); Monell v.

Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658 (1978) (“[I]t is when execution of a

government’s policy or custom, whether made by its lawmakers or by those whose edicts

or acts may fairly be said to represent official policy, inflicts the injury that the government

as an entity is responsible under § 1983.”). To establish § 1983 liability against a

municipality, the “plaintiff must show that a constitutional violation resulted from (1) an

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

supervise.” Aldridge v. City of St. Louis, 2019 WL 1695982, at * 9 (E.D. Mo. Apr. 17, 2019)

(citing Mick v. Raines, 883 F.3d 1075, 1089 (8th Cir. 2018)).

A. Official Policy

“Court[s] do[ ] not use the terms ‘policy’ and ‘custom’ interchangeably when

conducting a Monell analysis.” Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999).

“[A] ‘policy’ is an official policy, a deliberate choice of a guiding principle or procedure

made by the municipal official who has final authority regarding such matters.” Mettler,

165 F.3d at 1204 (citing Ware v. Jackson Cnty., 150 F.3d 873, 880 (8th Cir. 1998)).

Plaintiff does not identify any official City policy that could have caused him to be

injured by the Defendants’ alleged conduct. The Court must therefore turn to whether

Plaintiff has established the existence of an unofficial custom.

B. Unofficial Custom

To state a viable § 1983 claim against the City based on an unconstitutional custom,

the plaintiff must allege facts that 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) The plaintiff’s injury by acts pursuant to the governmental entity’s

custom, i.e., proof that the custom was the moving force behind the

constitutional violation.

Ware, 150 F.3d at 880 (quoting Jane Doe A v. Special Sch. Dist., 901 F.2d 642, 646 (8th Cir.

1990)).

Plaintiff has not established the “existence of a continuing, widespread, persistent

pattern of unconstitutional misconduct by” City employees, much less that policymaking

officials were deliberately indifferent to or tacitly authorized such misconduct. Id. Rather

than a “persistent pattern,” the SAC alleges only the incident involving Plaintiff. A single

incident does not constitute a pattern. Brewington, 902 F.3d at 801 (holding that two or

three instances a year apart is not a custom).

C. Failure to Train or Supervise

To state a claim for failure to train or supervise, Plaintiff must allege facts sufficient

to show: (1) the City’s training or supervision practices were inadequate; (2) the City was

deliberately indifferent to the rights of others in adopting its training or supervision

practices; (3) the City’s failure to train or supervise was the result of deliberate and

conscious choices that it made; and (4) the City’s alleged training or supervision practices

caused Plaintiff’s constitutional deprivation. Ulrich v. Pope Cnty., 715 F.3d 1054, 1061 (8th

Cir. 2013). “A pattern of similar constitutional violations by untrained employees is

‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to

train.” Ball-Bey v. Chandler, 415 F. Supp. 3d 884, 900 (E.D. Mo. 2019) (quoting Connick, 563

U.S. at 60). “[P]laintiff must prove that the City ‘had notice that the training procedures and

supervision were inadequate and likely to result in a constitutional violation.’” Aldridge,

2019 WL 1695982, *11 (quoting Brewington v. Keener, 902 F.3d 796, 803 (8th Cir. 2018)).

Plaintiff has not demonstrated that the City was deliberately indifferent to any

widespread violations of its citizens’ constitutional rights. He has not alleged a pattern of

unconstitutional violations but rather concentrates on a single instance; nor has he alleged

that the City was on notice of any such violations and deliberately failed to act in response.

Because Plaintiff has failed to allege facts demonstrating the existence of an official

policy, an unofficial custom, or a failure to train, he fails to state a § 1983 claim against the

City. His official-capacity claims against Defendants therefore must be dismissed.

II. Individual-Capacity Claims

On its face, the SAC sues Defendants only in their official capacities. To the extent

that the SAC can be construed as asserting individual-capacity claims, however, Plaintiff

fails to state a viable cause of action.

Individual liability in a 42 U.S.C. § 1983 case is personal. Frederick v. Motsinger, 873

F.3d 641, 646 (8th Cir. 2017). “Government officials are personally liable only for their

own misconduct.” S.M. v. Krigbaum, 808 F.3d 335, 340 (8th Cir. 2015). As such, § 1983

liability “requires a causal link to, and direct responsibility for, the deprivation of rights.”

Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006) (quoting Madewell v. Roberts, 909

F.2d 1203, 1208 (8th Cir. 1990)). A plaintiff must allege facts connecting each defendant to

the challenged action. See Bitzan v. Bartruff, 916 F.3d 716, 717 (8th Cir. 2019).

Here, Plaintiff has named Ticketing Officer as a defendant, but Ticketing Officer is

not mentioned in the “Statement of Claim,” and there are no specific allegations made

against him. Simply naming a person as a defendant is not sufficient to assert his or her

responsibility. See Allen v. Purkett, 5 F.3d 1151, 1153 (8th Cir. 1993) (affirming dismissal of

two defendants who were named as defendants in the complaint, but who had no factual

allegations made against them); Krych v. Hvass, 83 Fed. Appx. 854, 855 (8th Cir. 2003)

(affirming dismissal of defendants who were listed in the complaint but not alleged to have

been personally involved in the constitutional violations). Plaintiff has thus failed to

demonstrate a causal connection between Ticketing Officer’s actions or inactions and the

alleged violation of Plaintiff’s constitutional rights.

Plaintiff has likewise failed to establish a causal connection for the other

Defendants—loosely identified as “All Other Arnold Police Officers on [Scene].” Plaintiff

states that one officer tased him but provides no other facts to show that the use of the

taser was excessive under the circumstances: He does not allege that he was compliant,

that he was submitting to arrest, or that the officer had other, less forceful means to secure

Plaintiff’s cooperation. The same analysis applies to the other unnamed Officer Defendants,

as well. Plaintiff does not provide any facts showing that the Officer Defendants’ actions

were unreasonable—that is, not proportional to the needs of the situation—under the

circumstances in which they acted.

In the Court’s previous order, it explicitly directed Plaintiff to connect each named

defendant to a constitutional violation. He has ignored that instruction.

Plaintiff has also made no attempt to identify any of the officers, despite the Court’s

two previous warnings to do so. It is generally impermissible to name fictitious parties as

defendants, see Estate of Rosenberg by Rosenberg v. Crandell, 56 F. 3d 35, 37 (8th Cir. 1995);

see also Phelps v. U.S. Fed. Gov’t., 15 F.3d 735, 739 (8th Cir. 1994) (concluding that the

“district court did not err by dismissing the ‘unknown defendants’ without prejudice”);

however, dismissal is only proper “when it appears that the true identity of the defendant

cannot be learned through discovery or the court’s intervention.” Munz v. Parr, 758 F.2d

1254, 1257 (8th Cir. 1985). An action may proceed against an unknown party as long as

the complaint makes “allegations specific enough to permit the identity of the party to be

ascertained after reasonable discovery.” Estate of Rosenberg, 56 F.3d at 37. Despite the

Court’s previous instruction to the contrary, Plaintiff refers to the officers only as an

undifferentiated group. There are no names, no badge numbers, and no physical

descriptions. Plaintiff fails to provide even the officers’ most general characteristics such

as their race or gender.

Finally, Plaintiff has failed to allege facts showing that the use of force was excessive

under the circumstances, despite being previously advised of this requirement by the

Court. Whether force was excessive under the Fourth Amendment requires a

determination of whether law enforcement officers’ actions were “objectively reasonable in

light of the facts and circumstances confronting them, without regard to their underlying

intent or motivation.” Ellison v. Lesher, 796 F.3d 910, 916 (8th Cir. 2015). Factors that are

relevant to the reasonableness of an officer’s conduct include “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.” Burnikel

v. Fong, 886 F.3d 706, 710 (8th Cir. 2018).

Again, despite the Court’s previous instruction, Plaintiff has failed to establish the

context in which the force against him occurred, leaving the Court to speculate as to

whether it was excessive. Plaintiff does not state that he was complying with orders and

submitting to arrest; nor does he provide any facts to support such a proposition. Instead,

Plaintiff alleges that things got “a little [fuzzy].” Nevertheless, the facts he does provide

lead to a contrary inference. Plaintiff acknowledges that an ambulance had to be called and

that he apparently needed to be sedated—a task that required three separate injections—

before being taken to a hospital’s psychiatric ward. Those allegations support an inference

that Plaintiff was not complying with the Officer Defendants’ directives.

For the foregoing reasons, even if the SAC could be construed as suing Defendants in

their individual capacities, Plaintiff has failed to state a cognizable claim against them.

CONCLUSION

The Court previously determined that Plaintiff's Complaint and Amended Complaint

were deficient and subject to dismissal. Rather than dismiss the action outright, the Court

gave Plaintiff the opportunity to amend both pleadings and provided him with specific

instructions on how to cure their deficiencies. Despite those opportunities, the SAC still

fails to state a viable claim against any identifiable defendant. Therefore, this case will be

dismissed without prejudice.

Accordingly,

IT IS HEREBY ORDERED that this action is DISMISSED without prejudice. See 28

U.S.C. § 1915(e)(2)(B). A separate Order of Dismissal will be entered herewith.

IT IS FURTHER ORDERED that an appeal from this dismissal would not be taken in

good faith.

Dated this 215 day of October, 2022.

UNITED STATES DISTRICT JUDGE