# Irvin v. Brown

> District Court, W.D. Missouri · June 6, 2023

URL: https://www.frixlaw.com/law-library/cases/10242813

## Case

- **Court:** District Court, W.D. Missouri
- **Decided:** June 6, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10242813

## How later opinions describe it (automated extraction)

- holding that sovereign immunity shielded the Kansas City Board of Police Commissioners from liability on state law tort claims

## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

MARTEZ L. IRVIN, )
)
Plaintiff, )
)
v. ) No. 4:22-CV-00256-DGK
)
KANSAS CITY, MISSOURI POLICE )
OFFICER TERRENCE BROWN, et al., )
)
Defendants. )

ORDER ON MOTION TO DISMISS

This case arises from Plaintiff Martez Irvin sustaining wounds during an exchange of
gunfire in the Westport neighborhood of Kansas City, Missouri. Plaintiff alleges that Officer
Terrence Brown (“Officer Brown”) of the Kansas City, Missouri Police Department (“KCPD”)
shot him without warning while Plaintiff was trying to defend himself after another individual had
fired upon him. Am. Compl., ECF No. 21. Plaintiff has filed a three-count lawsuit against
Defendants Officer Brown and the Kansas City Board of Police Commissioners (the “Board”),
alleging a violation of 42 U.S.C. § 1983 (Count I), intentional infliction of emotional distress
(Count II), and civil conspiracy (Count III). Id.
Now before the Court is Defendants’ motion to dismiss for failure to state a claim. ECF
No. 22. Defendants move to dismiss Counts II and III as well as the Board as a party to this
lawsuit. Id. For the following reasons, Defendants’ motion is GRANTED. Counts II and III are
dismissed with prejudice, and the Board is dismissed from this case.
Standard
A claim may be dismissed if it fails “to state a claim upon which relief can be granted.”
Fed. R. Civ. P. 12(b)(6). In ruling on a motion to dismiss, the Court “must accept as true all of the
complaint’s factual allegations and view them in the light most favorable to the plaintiff[].”
Stodghill v. Wellston Sch. Dist., 512 F.3d 472, 476 (8th Cir. 2008). To avoid dismissal, a complaint
must include “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff need
not demonstrate the claim is probable, only that it is more than just possible. Id. In reviewing the
complaint, the Court construes it liberally and draws all reasonable inferences from the facts in the
plaintiff’s favor. Monson v. Drug Enforcement Admin., 589 F.3d 952, 961 (8th Cir. 2009).
Statement of Facts
On July 16, 2017, Plaintiff arrived in Westport to celebrate his birthday with his friends
and brothers. When Plaintiff and his companions returned to their vehicles, they saw an unknown
man staring at them. The man exchanged words with Plaintiff and his companions, and he then
started firing shots at them. Two of Plaintiff’s companions were struck. In defense of himself and

his companions, Plaintiff grabbed a firearm from his vehicle and fired three shots at the man.
Officer Brown was nearby controlling traffic when he heard the gunshots. Officer Brown
allegedly saw Plaintiff taking cover with his firearm and looking at the unknown man. Officer
Brown fired multiple shots at Plaintiff, allegedly hitting him. Officer Brown allegedly did not
identify himself as police officer, provide any verbal commands, or give Plaintiff a chance to
surrender before he fired on him. Officer Brown then handcuffed Plaintiff, and he was transported
to the hospital. Plaintiff spent several days in the hospital and suffered permanent injuries.
Plaintiff alleges that there have been “countless” shootings in the recent past where KCPD
officers shot someone without identifying themselves or giving the person a chance to comply
before they used deadly force. Plaintiff further alleges that Officer Brown has also previously used
excessive force against a minor without being held accountable. According to Plaintiff, the KCPD
has failed to train officers, failed to hold them accountable, shown deliberate indifference, and had
an unconstitutional custom or practice.

The Amended Complaint alleges three claims against Officer Brown and the Board,
including: (1) a violation of § 1983; (2) a Missouri state law claim for intentional infliction of
emotional distress; and (3) a Missouri state law claim for civil conspiracy. The Amended
Complaint makes clear that Officer Brown “was acting in the course and scope of his employment”
at all relevant times. Am. Compl. at ¶ 2. And at no point in the Amended Complaint does Plaintiff
suggest, let alone say that any claims are brought against Officer Brown in his individual capacity.
This lawsuit was first filed in the Circuit Court of Jackson County, Missouri on March 8, 2022.
Defendants then removed to this Court, and Plaintiff amended his complaint.
Discussion
Defendants move to dismiss Counts II and III as well as the Board as a party to the lawsuit.

First, Defendants argue that Counts II and III against Officer Brown are time-barred. Second,
Defendants argue that the Board is shielded from liability on the state law claims (Counts II and
III) because of sovereign immunity. Third, Defendants argue that the Board is not a suable entity
and must be dismissed from the entire lawsuit. The Court addresses each argument in turn.
I. Counts II and III against Officer Brown are time-barred.
Defendants argue that Counts II and III are subject to a three-year statute of limitations
because those claims are brought against Officer Brown for actions taken in the course of his
official duties. Plaintiff argues that a longer statute of limitations period applies.
Counts II and III are each brought under Missouri state law. Under Missouri law, a three-
year statute of limitations applies to “[a]n action against a sheriff, coroner or other officer, upon
liability incurred by the doing of an act in his official capacity and in virtue of his office, or by the
omission of an official duty . . . .” Mo. Rev. Stat. § 516.130.1. Missouri appellate courts as well

as federal courts applying Missouri law have uniformly held that this provision applies to a
municipal police officer’s actions taken in his official capacity. See Laramore v. Jacobsen, 613
S.W.3d 466, 470–71 (Mo. Ct. App. 2020); Dilley v. Valentine, 401 S.W.3d 544, 553 (Mo. Ct. App.
2013); see also Smith v. City of St. Charles, Mo., No. 4:21-CV-93-RWS, 2021 WL 5140268, at *3
(E.D. Mo. Nov. 4, 2021); Franklin v. Saint Louis Cnty., Mo., 527 F. Supp. 3d 1060, 1074 (E.D.
Mo. 2021); Ryno v. City of Waynesville, No. 6:20-CV-03378-MDH, 2021 WL 1062355, at *2
(W.D. Mo. Mar. 18, 2021). And contrary to Plaintiff’s argument, the courts have also found that
where, as here, the complaint’s allegations clearly fall within the language of § 516.130.1, this
more specific statute of limitation applies over the more general statute of limitations governing
certain causes of action. See Laramore, 613 S.W.3d at 471.

Here, Plaintiff does not dispute that he filed suit more than four years after the shooting,
when the statute of limitations began to run. The only question is whether § 516.130.1 applies,
and that answer is yes. Plaintiff has pled himself into the ambit of § 516.130.1. He alleges that
Officer Brown worked for the KCPD, and that he “was acting in the course and scope of his
employment” at all relevant times. Am. Compl. at ¶ 2. And the other allegations make clear that
Officer Brown allegedly shot Plaintiff while he was on duty in Westport. So Officer Brown was
an “other officer” who was “doing an act in his official capacity” at the time of the shooting. That
means both Count II and III are time-barred against Officer Brown, and they must be dismissed.
II. Counts II and III against the Board are dismissed on sovereign immunity grounds.
Defendants argue that the state law claims against the Board (Counts II and III) should be
dismissed based on sovereign immunity. Rather than respond to this argument, Plaintiff spends
multiple pages explaining why the Board is a proper party to Count I. But Defendants reply that

this response misses the mark since they are not seeking dismissal of Count I on that basis.
Defendants are correct. The Eighth Circuit has been clear that “[i]n Missouri, sovereign
immunity is the rule rather than the exception.” Div. of Emp. Sec., Mo. v. Bd. of Police Comm’rs,
864 F.3d 974, 980 (8th Cir. 2017) (holding that sovereign immunity shielded the Kansas City
Board of Police Commissioners from liability on state law tort claims); see also Holmes v. Kansas
City Mo. Bd. of Police Comm’rs ex rel. Its Members, 364 S.W.3d 615, 624 (Mo. Ct. App. 2012).
“As a legal subdivision of the state, a board of police commissioners has sovereign immunity for
the operation and maintenance of a police force.” Div. of Emp. Sec., Mo., 864 F.3d at 980 (internal
quotation marks omitted).
It is well settled that Plaintiff has the burden to show that sovereign immunity from tort

claims does not apply by showing his case fits within one of the exceptions to it. See Newsome v.
Kansas City, Mo. Sch. Dist., 520 S.W.3d 769, 775–76 (Mo. 2017). And it is equally well settled
that “statutory provisions waiving sovereign immunity must be strictly construed.” Richardson v.
State Hwy & Transp. Comm’n, 863 S.W.2d 876, 880 (Mo. 1993). Those exceptions are: “(1)
where a plaintiff’s injury arises from a public employee’s negligent operation of a motor vehicle
in the course of his employment; (2) where the injury is caused by the dangerous condition of the
municipality’s property; (3) where injury is caused by the municipality performing a proprietary
function as opposed to a governmental function; and (4) to the extent the municipality has procured
insurance, thereby waiving sovereign immunity up to but not beyond the policy limit and only for
acts covered by the policy.” Div. of Emp. Sec., Mo., 864 F.3d at 980 n.4 (quoting Phelps v. City
of Kansas City, 371 S.W.3d 909, 912 (Mo. Ct. App. 2012)).
Both Counts II and III allege tort claims against the Board, and Plaintiff does not come
close to pleading that any exception to sovereign immunity applies. In fact, Plaintiff does not

make any argument in opposition on this point, which waives any argument against Defendants’
position. See Johnson Tr. of Operating Eng’rs Loc. #49 Health & Welfare Fund v. Charps Welding
& Fabricating, Inc., 950 F.3d 510, 523 (8th Cir. 2020). Even if Plaintiff had made a specific
argument on this point, it would have been futile. The most the Amended Complaint does is make
passing reference that sovereign immunity does not apply. See Am. Compl. at ¶¶ 31, 36. That is
not enough because the Amended Complaint does not specifically and plausibly plead which of
the exceptions to sovereign immunity applies here. See Gabriel v. Andrew Cnty., Mo., No. 5:18-
CV-06158-DGK, 2019 WL 3210086, at *2 (W.D. Mo. July 16, 2019). So the Court finds that
sovereign immunity shields the Board from liability on Counts II and III.1
III. The Board is dismissed as it is not a suable entity.

Defendants argue that the Board must be dismissed from this case because caselaw makes
clear that it is not a suable entity. Defendants further argue that Plaintiff must sue the
Commissioners individually, which he has not done. Plaintiff never directly responds to this
argument; he only argues that a § 1983 claim is possible against the Board.
The Eighth Circuit has been clear that the “St. Louis Board of Police Commissioners is not
a suable entity;” “[j]urisdiction can only be obtained by suing its individual members.” Edwards

1 Even if the Court had not already dismissed Counts II and III against Officer Brown on statute of limitations grounds,
it would have done so on alternative grounds. The Amended Complaint only alleges that the claims are brought
against Officer Brown in his official capacity; there is not a single allegation that the Court could construe as bringing
any claims against Officer Brown in his individual capacity. So Counts II and III would have been dismissed as
redundant of the claims against the Board. See Gabriel, 2019 WL 3210086, at *2.
v. Baer, 863 F.2d 606, 609 (8th Cir. 1988). Subsequent courts have applied this rationale to the
Kansas City Board of Police Commissioners, as it is substantively the same as the St. Louis Board.
Stearns v. City of Kansas City, No. 4:21-CV-662-HFS, 2022 WL 1438957, at *2 (W.D. Mo. Mar.
3, 2022) (collecting cases).

Much like the above basis for dismissal, Plaintiff has waived any argument against this
basis because he never specifically responded to this argument or the cited caselaw. See Charps
Welding & Fabricating, Inc., 950 F.3d at 523. But again, even if he had done so, the law is clear
that dismissal is appropriate here because Plaintiff has sued only the Board, not its members. The
Board is thus dismissed as an entity from this lawsuit.
Conclusion
For the foregoing reasons, Defendants’ motion is GRANTED. Counts II and III are
dismissed with prejudice, and the Board is dismissed from this case.
IT IS SO ORDERED.
Date: June 6, 2023 /s/ Greg Kays
GREG KAYS, JUDGE
UNITED STATES DISTRICT COURT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10242813. Public record. Not legal advice.