White v. Dulany

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

CENTRAL DIVISION

JAMES ROBERT WHITE, )

)

Plaintiff, )

)

v. ) Case No. 2:21-cv-04103-MDH

)

BRIAN J. DULANY, et al., )

)

Defendants. )

ORDER

Before the Court is Defendants Brian J. Dulany’s, Robert Bias’, Centralia Police

Department’s, and City of Centralia, Missouri’s (“City”) (together “Defendants”) Motion to

Dismiss. (Doc. 8). The only non-moving Defendant is Clint P. Baer. For the reasons set forth

herein, the Motion is GRANTED IN PART AND DENIED IN PART.

BACKGROUND

The facts as set forth in Plaintiff’s Complaint are incorporated herein. For purposes of

ruling on a motion to dismiss, the Court accepts these facts as true. On May 19, 2019, Plaintiff

was a resident of Centralia, Boone County, Missouri, and was operating a 1993 Dodge Dakota

pickup truck. That night, Plaintiff had driven his truck to a Casey’s Convenience Store, located at

208 West Mo-22, Centralia, Missouri, to pick up his girlfriend, who was an employee at the

Casey’s Store and getting off of work. Plaintiff had allegedly previously been advised by his

girlfriend that she was being stalked and harassed by a Centralia Police Officer by the name of

Clint Baer, both at work and elsewhere, and that the acts of stalking and harassment been

allegedly perpetrated by Baer while he was in police uniform, on duty, and also while Baer was

operating a marked police vehicle. The alleged stalking and/or harassment perpetrated by Baer at

Plaintiff’s girlfriend’s place of employment was allegedly noticed by the girlfriend’s supervisor

such that the girlfriend was told by her supervisor not to walk home after work.

The Centralia Police Department allegedly received a report of a vehicle traveling

without headlights, taillights or any illumination at all. The report had allegedly been made much

earlier in the night and the location of this alleged vehicle was a significant distance from the

Casey’s Store. Even so, Brian Dulany, who was on-duty that night as an Officer with the

Centralia Police Department, saw Plaintiff’s truck at Casey’s and allegedly used the earlier call

as an excuse to harass Plaintiff. Dulany allegedly parked his police vehicle a block or so away

and across the street, near the La Crosse Lumber Store, in what he allegedly admitted was an

attempt to conceal himself from Plaintiff and others and surveil Plaintiff. He then allegedly

waited for Plaintiff and his girlfriend to leave the Casey’s Store in Plaintiff’s vehicle so that he

could then confront them in a less conspicuous location.

Almost immediately after Plaintiff and his girlfriend left the convenience store and

headed down Hickman Street, a residential street in Centralia, Dulany allegedly left his “hiding

place” at the lumberyard, disregarded a stop sign, pulled in behind Plaintiff’s vehicle, activated

his emergency lights and pulled over Plaintiff’s vehicle. Dulany’s police car was equipped with a

“Dash Camera” and the video from the “Dash Camera” allegedly clearly shows that the brake

and turn signal lights on Plaintiff’s vehicle were operable at the time he was pulled over by

Dulany and also allegedly shows that Plaintiff almost immediately pulled over, in a safe and

prudent manner.

Immediately upon pulling Plaintiff’s vehicle over, Dulany allegedly used the spotlight on

his police vehicle to flood the cab of Plaintiff’s vehicle with light and to obscure the rearward

vision of the vehicle’s occupants. Although Dulany was wearing a body-worn camera, he did not

turn the camera on until sometime after he initially made contact with Plaintiff. At that time, the

body-worn camera captured some of the interaction between himself and Plaintiff. Additionally,

Plaintiff’s girlfriend captured some of the events of May 19, 2019, on her cellphone.

Within a matter of seconds after Dulany pulled over Plaintiff, Clint Baer appeared on the

scene. Plaintiff alleges that both Dulany and Baer can be seen acting in an overly aggressive

manner toward Plaintiff and can also be heard yelling at Plaintiff, including a demand that

Plaintiff get out of his vehicle. In particular, Dulany can allegedly be heard saying “[L]et me see

your ass” on his body camera. Before turning on his body camera, Dulany can allegedly be seen

on the “dash camera” placing his hand on the door handle of Plaintiff’s truck multiple times and

trying to open the door.

Plaintiff apparently inquired as to why he had been pulled over, but Delany and Baer

allegedly refused to answer his question. Plaintiff then asked if a supervisor could be called to

the scene. Dulany allegedly immediately responded that no supervisor was available and Dulany

can allegedly then be seen on the dash camera placing his hand on his gun.

Dulany’s body camera video and the “dash camera” also allegedly show that when Baer

quickly arrived on the scene he almost immediately pulled and exhibited an electric shock device

(commonly referred to and known as a “Taser”). Baer can then allegedly be seen deploying and

exhibiting another weapon (i.e. a metallic, telescopic police baton).

At that point in the stop, Plaintiff allegedly rolled down his window and can be heard

asking Dulany and Baer to calm down and again asking why he was being pulled over. When

Dulany finally advised Plaintiff that the taillights on his truck were not working, Plaintiff began

to produce his driver’s license when Dulany allegedly suddenly and without warning reached

into Plaintiff’s vehicle, unlocked the door, opened it, and then violently drug Plaintiff from his

vehicle. In the process of doing so, Dulany allegedly slammed Plaintiff to the pavement, after

twisting one of Plaintiff’s arms behind Plaintiff’s back. At the time of these actions on the part of

Delany, Plaintiff was allegedly attempting to comply with Delany’s request for his driver’s

license while at the same time trying to de-escalate the situation. Plaintiff can also allegedly be

heard on the dash camera repeatedly asking “[W]hat are you doing?”

After allegedly being violently slammed to the pavement by Dulany, Plaintiff can be

heard complaining of the injury to his shoulder. Dulany can allegedly be heard instructing

Plaintiff to “relax” and to “lay down.” Dulany can also allegedly be overheard telling Plaintiff at

that time “[J]ust cooperate and I won’t have to hurt you.”

After the injury to Plaintiff, Dulany and Baer then allegedly placed Plaintiff in very tight

handcuffs and rolled him onto his injured shoulder. Dulany and Baer then picked him up off the

pavement by the same injured shoulder. Plaintiff was instructed to get into Dulany’s police

vehicle. He complied with that request.

After allegedly dragging Plaintiff from his truck and throwing him violently to the

pavement, where he was handcuffed, Dulany then issued Plaintiff a traffic ticket for an

equipment violation wherein it was alleged that Plaintiff had violated Centralia City Ordinance

18-42 and he was released. Dulany can also be overheard stating that he was not going to cite

Plaintiff for resisting arrest.

Plaintiff was allegedly later diagnosed with and treated for a full thickness tear of the

rotator cuff on his injured shoulder as well as an extreme exacerbation of existing psychological

injuries, including a diagnosis of post-traumatic stress disorder. He also allegedly incurred other

non-medical injuries and damages as set forth in more detail in his Complaint.

Plaintiff’s Complaint advances both civil rights and state tort theories of recovery against

Defendants. In particular, Plaintiff argues that Defendants Dulany and Baer unlawfully and

without probable cause stopped Plaintiff’s vehicle, detained him, seized his person, assaulted,

and battered him. Plaintiff also alleges intentional infliction of emotional distress against

Defendants. Plaintiff also argues that the alleged constitutional violations were committed, as a

result, of the policies and customs of the Police Department and the City. Plaintiff appears to

request injunctive relief, declaratory relief, actual damages, and punitive damages.

STANDARD

The purpose of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is to

test the legal sufficiency of the complaint. NEXTEP, LLC v. Kaba Benzing America, Inc., 2007

WL 4218977, *1 (E.D. Mo. 2007). When considering a 12(b)(6) motion, the factual allegations

of a complaint are assumed true and are considered in the light most favorable to the plaintiff. Id.

To avoid dismissal for failure to state a claim, Rule 8(a)(2) of the Federal Rules of Civil

Procedure requires that the complaint contain “a short and plain statement of the claim showing

that the pleader is entitled to relief.” Id. This statement requires that the plaintiff give the

defendant facts sufficient to give fair notice of what the plaintiff’s claim is and the grounds upon

which it rests. Id. The court may dismiss the complaint when it is clear that no relief can be

granted under any set of facts that could be proved consistent with the complaint. See id.

DISCUSSION

The Complaint alleges six Counts against Defendants. Count I purports to state a claim

under 42 U.S.C. § 1983 for violations of Plaintiff’s Fourth Amendment rights to be free from

unlawful arrest and excessive force against Dulany and Baer. Count II alleges the same against

the City and Centralia Police Department. Count III1 and IV allege assault and battery

respectively against Dulany, Centralia Police Department, and the City. Count V purports to state

a claim for intentional infliction of emotional distress against Dulany, Baer, Centralia Police

Department, and the City. Finally, Count VI alleges negligent hiring, retention, and supervision

against Bias, the City, and Centralia Police Department.

A. Plaintiff’s claim for injunctive relief is dismissed2

First, Plaintiff makes a request for injunctive relief in which he indicates that he is fearful

he could be “subjected to illegal searches and seizures, unlawful arrest, and/or excessive force by

the Defendants in the future because he still lives in the Centralia community.”

In order to properly plead a request for injunctive relief, the Plaintiff must set forth the

following: (1) the threat of irreparable harm to the movant; (2) the state of the balance between

the harm and the injury that granting the injunction will inflict on other party litigants; (3) the

probability that the movant will succeed on the merits; and (4) the public interest. Dataphase

Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc). No single factor

is dispositive. Id. at 113. However, absent a showing of real or immediate threat, there can be no

showing of irreparable injury. Randolph v. Rogers, 170 F.3d 850, 856 (8th Cir. 1999) (quoting

City of Los Angles v. Lyons, 461 U.S. 95, 111 (1983)). The burden of proving that a preliminary

injunction should be issued rests entirely with the movant. Goff v. Harper, 60 F.3d 518, 520 (8th

Cir. 1995).

Here, Plaintiff has failed to sufficiently plead that any of the aforementioned components

necessary for proving that injunctive relief, is in fact, warranted. Most significantly, Plaintiff has

not sufficiently pled that he suffers a real or immediate threat. Without this element, there can be

1 Count III also alleges assault against non-moving Defendant Baer.

2 The Court previously dismissed the request for injunctive relief as it relates to Defendant Baer. (Doc. 36).

no showing of irreparable injury. Additionally, Plaintiff’s claim is void of the remaining

elements and makes no mention of or reference to the balance between the harm and the injury,

the probability that Plaintiff would succeed on the merits, or how a preliminary injunction would

affect the public interest. Plaintiff failed to meet his burden and has not pled that injunctive relief

is warranted. Accordingly, Plaintiff’s request for injunctive relief is dismissed.

B. Plaintiff’s claim for declaratory relief is dismissed

Plaintiff makes a demand for declaratory relief, specifically asking this Court to enter a

declaratory judgment on the issue of whether Defendants’ policies, pattern of practice, lack of

supervision, failure to trains, acts and/or omissions violate the Fourth Amendment to the

Constitution, thereby constituting excessive force in violation of federal law and Missouri state

law.

A complaint for declaratory relief must set forth facts establishing: (1) the existence of a

judiciable controversy, and (2) that the plaintiff has no adequate remedy at law. Declaratory

judgments can be filed in federal court pursuant to Fed. R. Civ. P. 57 and pursuant to 28 U.S.C.

§2201. However, in order to file a request for a declaratory judgment, an actual controversy must

exist, specifically a concrete dispute between the parties with adverse legal interests, and the

plaintiff must seek “specific relief through a decree of conclusive characters, as distinguished

from an opinion advising what the law would be upon a hypothetical state of facts.” Aetna Life

Ins. Co. v. Haworth, 300 U.S. 227 (1937). The burden of establishing the existence of an actual

controversy rests with the party seeking the declaratory judgment. Cardinal Chem. Co. v. Morton

Int’l, Inc., 508 U.S. 83, 95 (1993).

To determine whether an “actual controversy” exists in the declaratory-judgment context,

district courts consider whether the facts alleged under all the circumstances, show that there is a

substantial controversy, between parties having adverse legal interest, of sufficient immediacy

and reality to warrant the issuance of a declaratory judgment. Md. Cas. Co. v. Pac. Coal & Oil

Co., 312 U.S. 270, 273 (1941). A declaratory judgment is not used where an adequate remedy

already exists at law. Thompson v. City of St. Peters, 220 F.Supp.3d 975 (Mo. E.D. 2016). In

other words, the plaintiff must plead that he would not be fully compensated through a properly

alleged claim, seeking an award of damages. Kelly v. Golden, 352 F.3d 344, 353 (8th Cir. 2003).

Plaintiff has not plead facts establishing that Plaintiff lacks an adequate remedy at law.

The term ‘adequate remedy at law’ generally means that damages will not adequately

compensate the plaintiff for the injury or threatened injury or that the plaintiff would be faced

with a multiplicity of suits at law. Kelly v. Golden, 352 F.3d 344 (8th Cir. 2003). In fact, Plaintiff

makes no mention of and fails to allude to the fact that Plaintiff has an inadequate remedy at law

or that damages will not adequately compensate for Plaintiff’s alleged injury. Secondly, an

adequate remedy at law exists for Plaintiff individually, specifically, a suit for damages for use

of excessive force, which Plaintiff is pursuing in conjunction with his request for declaratory

relief. Where a Complaint states only conclusions and contains no ultimate facts which support

those conclusions, a motion to dismiss is properly granted. Bell Atlantic Corp. v. Twombly, 550

U.S. 544 (2007). Therefore, Plaintiff’s request for declaratory relief is dismissed.

C. Centralia Police Department is dismissed as a party

The capacity to be sued is set forth in Rule 17(b) of the Federal Rules of Civil Procedure.

Relevant here, the capacity to be sued is determined by the law of the state where the court is

located. Fed R. Civ. 17(b)(3). Several courts have held that municipal departments, such as

police departments, cannot be sued unless statutory authorization to be sued has been given to

the departments. See Am. Fire Alarm Co. v. Bd. of Police Comm’rs of Kan. City, 277 S.W. 114,

116 (1920); Ketchum v. City of Memphis Ark., 974 F.2d 81, 82 (8th Cir. 1992)(finding the West

Memphis Police Department was not a suable entity); Atkins v. City of Columbia, 2016 WL

4126549 at *10 (W.D. Mo. Aug. 2, 2016)(stating the Columbia Police Department was not a

suable entity); Walker v. Kan. City Police Dep’t, 2010 WL 2720720 at *1 (W.D. Mo. July 6,

2010)(finding the Kansas City Missouri Police Department was not a suable entity); Kern v. City

of Gerald, 2008 WL 4831775, at *2 (E.D. Mo. Nov. 4, 2008) (dismissing the plaintiff’s claims

against the police department because it was not a suable entity); Estes v. Lederle, 2007 WL

2693823, at *2 (E.D. Mo. Sept. 10, 2007) (finding that the St. Ann Police Department is not a

suable entity). Plaintiff does not plead any statutory authority establishing the ability to sue

Centralia Police Department and does not set out in the Complaint that Centralia Police

Department is a separate legal entity amenable to suit. Accordingly, Centralia Police Department

is dismissed as a party in the above-captioned case.

D. Count I

Count I of Plaintiff’s Complaint pertains to a 42 U.S.C. § 1983 suit for unlawful arrest

and use of excessive force against Defendant Dulany. Defendants argue that Count I should be

dismissed as it pertains to Defendant Dulany in both his official and individual capacities based

on the doctrines of official and qualified immunity. The Court finds that Dulany is not shieled by

official nor qualified immunity at this stage and therefore Count I is not dismissed against

Defendant Dulany.

a. Official immunity does not apply to Dulany under the facts pled

Under Missouri law, the doctrine of official immunity protects public officials from civil

liability for injuries arising out of their discretionary acts or omissions performed in the exercise

of their official duties. McLean v. Gordon, 548 F.3d 613, 617 (8th Cir. 2008). “Police officers

are not liable for negligent acts that are related to discretionary functions.... But official

immunity does not apply to discretionary acts done in bad faith or with malice.” Wealot v.

Brooks, 865 F.3d 1119, 1129 (8th Cir. 2017). Bad faith or malice in this context ordinarily

contains a requirement of actual intent to cause injury. Wealot v. Brooks, 865 F.3d 1119 (8th Cir.

2017). A finding of malice requires conduct which is so reckless or wantonly and willfully in

disregard of one’s right that a trier of fact could infer from such conduct bad faith or any

improper or wrongful motive. Id. at 1128. Acting with malice requires an actual intent to cause

injury. Id. Bad faith embraces more than bad judgment or negligence. It imports a dishonest

purpose, moral obliquity, conscious wrongdoing, or breach of a known duty through some

ulterior motive. Id.

Defendants argue that Plaintiff sets forth no facts sufficiently showing that Dulany acted

with the intent to cause injury to Plaintiff. This is plainly untrue. The allegations in the

Complaint primarily allege that Dulany’s actions in Plaintiff’s arrest and seizure were conducted

both in bad faith and with malice. The facts provided by Plaintiff, if true, strongly support the

allegations. Accordingly, official immunity does not apply to Dulany for purposes of Count I and

Count I is not dismissed against Dulany in his official capacity.

b. Qualified immunity does not apply to Dulany under the facts pled

“Government officials performing discretionary functions generally are shielded from

liability for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982); see also Pearson v. Callahan, 555 U.S. 233, 231 (2009). The relevant,

dispositive inquiry in determining whether a right was clearly established is whether it would be

clear to a reasonable officer that his conduct was unlawful in the situation he confronted.

Coleman v. Parkman, 349 F.3d 534, 538 (8th Cir. 2003). Finally, the Court must evaluate the

defense of qualified immunity “from the perspective of a reasonable police officer based on facts

available to the officer at the time of the alleged constitutional violation.” Anderson v. Creighton,

483 U.S. 635, 638 (1987).

The inquiry on a motion to dismiss brought by an official seeking qualified immunity

requires the Court to consider: (1) whether the facts alleged or shown by the plaintiff make out a

violation of a constitutional right; and (2) whether the right at issue was clearly established at the

time of the defendant’s alleged misconduct. Ehlers v. City of Rapid City, 846 F.3d 1002, 1008

(8th Cir. 2017). “Unless the answer to both of these questions is yes, the defendants are entitled

to qualified immunity.” Krout v. Goemmer, 583 F.3d 557, 564 (8th Cir. 2009). In order to assert

that Defendant Dulany violated a constitutional right, the Plaintiff must plead facts sufficient to

allege that Dulany acted unreasonably. Anderson at 638. To prevail on a motion to dismiss on

qualified immunity grounds, defendants must show they are entitled to qualified immunity on the

face of the complaint. Kiesling v. Holladay, 859 F.3d 529, 533 (8th Cir. 2017) (citing Bradford v.

Huckabee, 394 F.3d 1012, 1015 (8th Cir. 2005)).

The Fourth Amendment protects individuals against law enforcement's use of

unreasonable force during seizure. In that regard, Plaintiff has alleged that when Dulany stopped

his vehicle on May 19, 2019, forcibly removed Plaintiff from his vehicle, and then threw him to

the ground causing the severe injury to Plaintiff’s shoulder, Dulany used excessive force.

As to whether to facts shown by Plaintiff make out a violation of a constitutional right,

this requirement is met with respect to Plaintiff’s allegations. Plaintiff pleads in detail alleged

actions by Dulany that plausibly state a claim for excessive force in violation of the Fourth

Amendment. Second, as to whether the right at issue was clearly established at the time of

Defendant Dulany’s alleged misconduct, this is also clearly met. The right to be free from

excessive force during seizure was undoubtedly “clearly established” at the time of Plaintiff’s

arrest in May of 2019. Therefore, qualified immunity does not apply to Dulany for purposes of

Count I and Count I is not dismissed against Dulany is his individual capacity.

E. Count II

Count II alleges violations of 42 U.S.C. § 1983 for unlawful arrest and excessive force

for failure against the City. Defendants argue that Plaintiff’s claim fails as a matter of law,

because a municipality can be sued under § 1983 for an officer’s misconduct only where the

misconduct is alleged to have implemented or executed a policy, ordinance, regulation, decision,

or custom of the municipality. Monnell v. Dep’t. of Soc. Servs., 436 U.S. 658, 690 (1978). A

municipality cannot be held liable under § 1983 on a respondeat superior theory. Id. at 691. In

Monell, the Supreme Court required a plaintiff seeking to impose liability on a municipality

under § 1983 to identify a municipal policy or custom that caused the plaintiff’s injury. Bd. of

Cty. Comm’rs of Bryan Cty. Okla. v. Brown, 520 U.S. 391, 403 (1997). A plaintiff cannot

establish liability by only identifying conduct properly attributable to the municipality; instead, a

“plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the

‘moving force’ behind the injury alleged.” That is, a plaintiff must show that the municipal

action was taken with the requisite degree of culpability and must plead a direct causal link

between the municipal action and the deprivation of federal rights. Id. at 404.

A plaintiff must plead facts plausibly showing that the alleged policy or custom subjects

the municipality to liability under Monell. Twombly, 556 U.S. at 678-680. The elements of an

official policy claim include deprivation of a plaintiff’s constitutional right that results from the

municipality’s official policy. It is not enough for the plaintiff to show that the municipality

employed a person who violated the plaintiff’s rights. The plaintiff must show that the violation

resulted from the municipality’s official policy. Monell at 691. Additionally, the elements of a

custom claim are: (1) the existence of a continuing, widespread, persistent pattern of

unconstitutional misconduct by the municipality’s employees; (2) deliberate indifference to or a

tacit authorization of such conduct by the municipality’s officials after notice of the misconduct;

and (3) the pattern of misconduct must be moving force behind the plaintiff’s injury. Mettler v.

Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999).

Plaintiff fails to plead any facts suggesting the existence of a continuing, widespread,

persistent pattern of unconstitutional misconduct. Plaintiff attempts to argue that Count II should

not be dismissed against the City as the City had knowledge or notice of Defendant Baer’s illegal

behavior and sexual deviancy, and that the City went so far as to aid and abet Defendant Baer’s

illegal behavior. Plaintiff did not plead any actual facts indicating that the City allegedly had

notice of Defendants Dulany’s or Baer’s alleged propensity to use excessive force and engage in

illegal/unlawful arrests. Furthermore, Baer’s illegal sexual misconduct and/or behavior has no

bearing on the alleged violations that led to the harm of Plaintiff. Even if the City was aware of

Baer’s sexual misconduct prior to Plaintiff’s arrest, Plaintiff does not argue that the alleged

misconduct led to any injury to Plaintiff. Accordingly, the Count II is dismissed against the City.

As noted above, Centralia Police Department is dismissed as a party to the case. Therefore,

Count II is dismissed in its entirety.

F. Counts III and IV

Counts III and IV allege the intentional torts of assault and battery respectively against

Dulany and the City.

a. Sovereign immunity applies to the City

Sovereign immunity has existed by statute in Missouri since 1977, with certain

exceptions that Missouri courts construe narrowly. Specifically, Revised Statute of Missouri

§ 537.600, provides that municipalities generally retain sovereign immunity for tort claims

unless an express exception applies. Review of the statute demonstrates that sovereign immunity

can be waived, for example, in automobile cases and cases involving injury caused by a

dangerous condition of public property. Additionally, Missouri Courts have long held that for a

plaintiff to successfully bring a tort claim against a municipality, the plaintiff must plead specific

facts that the municipality falls under one of the statutory exceptions. Epps v. City of Pine Lawn,

353 F.3d 588, 594 (8th Cir. 2003). Plaintiff’s allegations are void of any specific facts suggesting

that the City falls under one of the statutory exceptions, permitting Plaintiff to bring suit against

the municipality for an intentional tort.

Plaintiff attempts to argue that 42 U.S.C. § 1983 prohibits a defense of sovereign

immunity. Courts have noted that while § 1983 provides a mechanism for individuals to sue state

actors for violations of federal laws; it is not concerned with violations of state law, nor does it

preempt state-law claims. Richardson v. University of Texas Sys., 2019 WL 5306782 (W.D. Tex.

2019). In Richardson, the court held that § 1983 is not a vehicle to sue state employees for

violations of state laws, such as state tort laws. Id. Thus, the existence of a § 1983 claim did not

preempt application of the statutory immunity provisions to the plaintiff’s state law tort claims.

Id. Supreme Court case Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989) concluded

that § 1983 does not disturb a state’s sovereign immunity and right not to be sued. Accordingly,

Counts III and IV are dismissed against the City.

b. Dulany

Defendants argue that Counts III and IV should be dismissed against Dulany in both his

official and individual capacities, because sovereign immunity applies to Dulany in his official

capacity and official immunity in his individual capacity.

i. Sovereign immunity applies to Dulany in his official capacity

When a cause of action is asserted against a state official in his official capacity, the

action is considered to be one against the state. Will v. Michigan Dept. of State Police, 491 U.S.

58, 72 (1989). The United States Supreme Court held that “obviously, state officials literally are

persons, however, a suit against a state official in his or her official capacity is not a suit against

the official, but rather a suit against the official’s office. Brandon v. Holt, 469 U.S. 464, 471

(1985).

This theory was further evaluated in the case of Shell v. Ebker, in which the plaintiff

brought a false imprisonment claim and battery claim against the former sheriff of Gasconade

County, Missouri, along with a § 1983 claim. 2006 WL 1026982 (Mo. E.D. 2006). The sheriff

successfully pursued dismissal of the tort claims under the doctrine of sovereign immunity. Id. at

*8. The plaintiff asserted that sovereign immunity did not apply to intentional torts made by

public employees. Id. at *9. In that case, the Missouri Court concluded that the plaintiff’s

intentional tort claims were unfounded, noting several decisions in which intentional torts were

included in the protection of sovereign immunity. See e.g., Credit Acceptance v. Smith, 991

S.W.2d 710, 721 (Mo. Ct. App. 1999) (city entitled to qualified immunity on conversion claim);

Mitchell v. Village of Edmundson, 891 S.W.2d 848, 850 (Mo. Ct. App. 1995) (holding that

intentional torts have consistently been found to fall within the shield of sovereign immunity);

Carmelo v. Miller, 569 S.W.2d 365, 267-68 (Mo. Ct. App. 1978) (holding that sovereign

immunity applied to a claim for assault and battery and false imprisonment by a police officer);

McBride v. Clark, 2006 WL 581139, *24 (W.D. Mo. Mar. 8, 2006) (holding that under Missouri

law, “intentional torts have consistently been found to fall within the shield of sovereign

immunity.”) (quoting Harden v. St. Louis County, 2005 WL 1661505 (E.D. Mo. July 5, 2005)).

In essence, Plaintiff’s assault and battery claim against Dulany is construed as an assault

and battery claim against the City. Wirken v. Miller, 978 S.W.2d 60, 62 (Mo. Ct. App. 1998).

Therefore, sovereign immunity applies to Dulany for Plaintiff’s tort claims and Counts III and IV

are dismissed against Dulany in his official capacity.

ii. Official immunity does not apply to Dulany in his individual capacity

Under the doctrine of official immunity, public officials acting within the scope of their

authority are not liable for injuries arising from their discretionary acts or omissions. Porter v.

Williams, 436 F.3d 917, 921 (8th Cir. 2006). However, official immunity does not apply where

the discretionary act is “willfully wrong or done with malice or corruption.” Id. Similar to the

discussion above for Count I, Plaintiff pleads adequate facts at this stage in litigation to support

the allegations that Dulany acted “willfully wrong” or acted “with malice or corruption.”

Accordingly, official immunity does not apply to Dulany and Counts III and IV are not

dismissed against him in his individual capacity.

G. Count V

Plaintiff’s Count V pertains to an allegation of intentional infliction of emotional distress

against the City and Dulany. Similar to Counts III and IV, Count V of Plaintiff’s Complaint

pertains to a state law tort claim. Therefore, the City and Dulany in his official capacity are

immune from suit under the doctrine of sovereign immunity.

In order to state a claim for intentional infliction of emotional distress, the Plaintiff must

plead that: (1) the defendants’ conduct was extreme and outrageous; (2) the conduct was

intentional or done recklessly; (3) the conduct caused severe emotional distress that resulted in

bodily harm. Gillis v. Principia Corp., 832 F.3d 865 (8th Cir. 2016). Courts have further held

that the defendants’ conduct must be more than simply malicious or intentional; the conduct

must have been “so outrageous in character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized

community. Gillis at 873. The conduct must also be “intended only to cause extreme emotional

distress to the victim.” Id.

Plaintiff’s Complaint merely indicates that Defendant Dulany “acted intentionally or

recklessly with regard to the [Plaintiff] and that his conduct was extreme and outrageous and was

the cause of or contributed to cause several emotional distress” to Plaintiff. Moreover, in

Missouri, a claim for intentional infliction of emotional distress will not lie when the action

amounts to a traditional tort and was not intended to cause extreme emotional distress to the

victim. Diehl v. Fred Weber, Inc., 309 S.W.3d 309 (Mo. E.D. 2010). As such, the allegation for

intentional infliction of emotional distress will be viewed as duplicative in nature of other tort

allegations and recovery must be had under the appropriate traditional tort action. Id. at 322.

Plaintiff’s Complaint fails to plead that Defendants’ actions were intended to cause extreme

emotional distress to Plaintiff and the actions pled amount to the traditional torts of assault and

battery already alleged in Plaintiff’s Complaint. As such, Count V is dismissed in its entirety.

Damages relating to emotional distress may be recoverable under damages relating to the assault

and battery allegations in Counts III and IV.

H. Count VI

Plaintiff’s Count VI in his Complaint pertains to negligent hiring, negligent retention, and

negligent supervision against Defendants Bias and the City. To establish a claim for negligent

hiring or retention [of an employee], a plaintiff must show: (1) the employer knew or should

have known of the employee’s dangerous proclivities, and (2) the employer’s negligence was the

proximate cause of the plaintiff’s injuries.” Stars Investment Group, LLC v. AT&T Corp., 2017

WL 747610 (Mo. E.D. Feb. 27, 2017); Clevenger v. Howard, 2015 WL 7738372 (Mo. W.D.

Nov. 30, 2015). A cause for negligent hiring or negligent supervision requires “evidence that

would cause the employer to foresee that the employee would create an unreasonable risk of

harm outside the scope of his employment.” Clevenger at *3. In a claim for negligent hiring, the

employee misconduct must be consistent with the employee’s particular dangerous proclivity

exhibited by the prior acts of misconduct. Id.

Here, Plaintiff has failed to plead facts that Defendant Dulany had dangerous proclivities

or was incompetent beyond the single instance set forth in the underlying claim. Further, Plaintiff

makes no mention as to whether Dulany’s alleged misconduct is consistent with his “particular

dangerous proclivity exhibited by prior acts of misconduct” because no prior acts of misconduct

are alleged against Dulany. While Plaintiff makes reference to Defendant Baer’s subsequent

termination from the Police Department in October of 2019 after being charged with the crime of

using interstate commerce for the purpose of engaging in illicit sexual conduct with a minor, this

subsequent action has no bearing on the allegations at hand. Plaintiff also asserts that the Police

Department has been “long known” for staffing itself with “cast-offs” from other police

departments, many of whom were terminated from prior employment due to misconduct, but

such an allegation alone does not suffice to show that the City knew or should have known of

Baer’s or Dulany’s “dangerous proclivities”.

Additionally, Plaintiff failed to meet the second prong as set forth Stars Investment, in

which Plaintiff must establish that the employer’s negligence was the proximate cause of the

Plaintiff’s injuries. Stars Investment at *7. Instead, Plaintiff pleads facts that are “merely

consistent with” a defendant’s liability. Twombly at 570. For example, Plaintiff contends that the

City failed to properly, hire, train, retain and supervise employees, and that as a proximate cause

of the City’s negligence, Plaintiff suffered damages. Such statements fail to specifically show

how the employer’s alleged negligence caused Plaintiff’s injuries. As such, Plaintiff failed to

meet the standard necessary to establish a negligent hiring or retention claim, and thus, Plaintiff’s

negligent hiring claim fails as a matter of law. Accordingly, Count VI is dismissed in its entirety.

CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss (Doc. 8) is GRANTED IN

PART AND DENIED IN PART.3 Defendant Centralia Police Department is dismissed as a

party to this case. Count I is not dismissed. Count II is dismissed in its entirety. Counts III and IV

are dismissed against Defendants City of Centralia Missouri and Brian J. Dulany in his official

capacity, but Counts III and IV are not dismissed against Defendant Dulany in his individual

capacity. Counts V and VI are dismissed in their entireties. Lastly, Plaintiff’s claims for

injunctive are declaratory relief are dismissed.

IT IS SO ORDERED.

Dated: September 21, 2021 /s/ Douglas Harpool______

DOUGLAS HARPOOL

United States District Judge

3 As Defendant Baer is a non-moving party, Counts I, III, and IV are not dismissed against him in either his official

or individual capacities.