Lowe

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

LAKEISHA M. LOWE, )

)

Plaintiff, )

)

v. ) Case No. 1:25-cv-00086-SNLJ

)

JOSEPH WHISTLER and )

CITY OF CAPE GIRARDEAU, )

)

Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court on defendants’ motion to dismiss plaintiff’s

complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) [Docs. 10, 11]. Plaintiff

opposes the motion. [Doc. 13]. For the reasons set forth below, the motion to dismiss

plaintiffs’ complaint is GRANTED in part and DENIED in part.

I. PROCEDURAL BACKGROUND

Plaintiff filed the instant action on May 21, 2025, alleging violations of her civil

rights under 42 U.S.C. § 1983: unreasonable arrest and seizure by defendant Joseph

Whistler (hereinafter referred to as “Whistler”) and Monell liability against defendant

City of Cape Girardeau. [Doc. 1]. Whistler is being sued in his individual capacity only.

[Id.]. Plaintiff’s complaint seeks compensatory, special, and punitive damages, as well as

costs and disbursements, including reasonable attorneys’ fees and prejudgment interest.

[Id.]. Defendants have filed a motion to dismiss plaintiffs’ complaint pursuant to Federal

Rule of Civil Procedure 12(b)(6). [Docs. 10, 11].

II. FACTUAL BACKGROUND

The following is a summary of plaintiffs’ account of the events. Around noon on

April 3, 2021, plaintiff and her daughter gathered trash from their home, carried it to a

small backyard firepit, and ignited the trash. [Doc. 1 at ¶10]. At approximately 1:30

p.m., Cape Girardeau Fire Department arrived at plaintiff’s residence to assess the status

of the trash burn. [Id. at ¶13]. Whistler was dispatched to plaintiff’s residence to assist

the fire department. [Id.]. Upon arrival, one of the firefighters told Whistler that plaintiff

was negligently burning trash in her backyard and that she should be issued a citation.

[Id. at ¶1].

Whistler approached plaintiff to interrogate her and issue her a citation for

negligent burning, a municipal code violation. [Id. at ¶¶1, 14]. Plaintiff told Whistler

and the fire department to leave her property. [Id. at ¶14]. Plaintiff then turned away

from him, ascended the stairs to her back porch, and entered her kitchen. [Id.]. Whistler

followed plaintiff up the stairs, into the back porch, and opened the screen door on the

back door entry into the kitchen. [Id. at ¶16]. Whistler placed his left foot inside the

threshold of the kitchen while his right foot remained outside of the kitchen so that he

was straddling the threshold of the kitchen door. [Id. at ¶¶1, 17].

Whistler then unholstered his taser and pointed it at plaintiff. [Id. at ¶¶1, 18].

Whistler instructed plaintiff to exit her residence. [Id. at ¶1]. Plaintiff did not

immediately comply and instead remained in her kitchen. [Id.]. Whistler then tased

plaintiff in her back. [Id. at ¶¶1, 18]. Plaintiff lost consciousness and went limp. [Id. at

¶¶1, 19]. Plaintiff fell to the floor of her kitchen striking her back and head on the

kitchen floor while convulsing. [Id.]. Plaintiff’s daughter witnessed all of these events.

[Id. at ¶¶1, 20]. Whistler then went into the kitchen and handcuffed plaintiff behind her

back. [Id. at ¶¶1, 21]. Plaintiff was transported to Cape Girardeau Police Department’s

jail and was charged with negligent burning, false declaration, and resisting arrest. [Id.].

III. LEGAL STANDARD

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

is to test the legal sufficiency of a complaint to eliminate those actions “which are fatally

flawed in their legal premises and designed to fail, thereby sparing litigants the burden of

unnecessary pretrial and trial activity.” Young v. City of St. Charles, 244 F.3d 623, 527

(8th Cir. 2001) quoting Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). In addressing

a motion to dismiss, a court must view the allegations of the complaint in the light most

favorable to the plaintiff. United States ex rel. Ambrosecchia v. Paddock Laboratories,

LLC, 855 F.3d 949, 954 (8th Cir. 2017). A complaint must be dismissed for failure to

state a claim upon which relief can be granted if it does not plead “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) (abrogating the prior “no set of facts” standard set forth in Conley v.

Gibson, 355 U.S. 41, 45-46 (1957)). A complaint must set forth factual allegations which

are enough to “raise a right to relief above the speculative level.” Id. “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements” is

not sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Where a court can infer from

the factual allegations no more than a “mere possibility of misconduct,” the complaint

must be dismissed. Cole v. Homier Distributing Co., Inc., 599 F.3d 856, 861 (8th Cir.

2010) citing Iqbal, 556 U.S. at 662.

IV. DISCUSSION

Plaintiff filed this action pursuant to 42 U.S.C. § 1983, which was designed to

provide a “broad remedy for violations of federally protected civil rights.” Monell v.

Department of Social Services, 436 U.S. 658, 685 (1978). To state a claim under 42

U.S.C. § 1983, a plaintiff must establish: (1) the violation of a right secured by the

Constitution or laws of the United States, and (2) that the alleged deprivation of that right

was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42,

48 (1988).

Plaintiff’s claim in Count 1 is for unreasonable arrest and seizure by Whistler in

violation of the Fourth Amendment. Specifically, plaintiff alleges that (1) the unlawful,

warrantless arrest and seizure insider her home violated her Fourth Amendment rights;

(2) the excessive use of force in tasering her was objectively unreasonable and violated

clearly established Fourth Amendment law; and, (3) Whistler violated her Fourth and

Fourteenth Amendment rights by failing to render her medical aid.

Whistler contends that he is entitled to qualified immunity because: (1) he did not

violate a constitutional right when he pursued plaintiff inside her home and arrested her;

(2) he did not violate a constitutional right when he used a taser to accomplish the arrest;

(3) any claim that he failed to provide medical aid is conclusory and insufficient to state a

claim; and, (4) plaintiff has not sufficiently plead that he violated a clearly established

law. The City of Cape Girardeau contends that plaintiff has failed to state a claim upon

which relief can be granted against it under Monell.

A. Whistler’s Motion to Dismiss Count I based on Qualified Immunity

“Qualified immunity shields public officials from liability for civil damages if

their conduct did not violate clearly established statutory or constitutional rights of which

a reasonable person would have known.” Watkins v. City of St. Louis, Missouri, 102

F.4th 947, 951 (8th Cir. 2024). “To overcome qualified immunity at the motion to

dismiss stage, a plaintiff must plead facts showing (1) that the official violated a statutory

or constitutional right, and (2) that the right was clearly established at the time of the

challenged conduct.” Id. The court may consider these steps in any order, but unless the

answer to both of these questions is yes, the defendants are entitled to qualified

immunity. Ehlers v. City of Rapid City, 846 F.3d 1002, 1008 (8th Cir. 2017).

A right is clearly established if, “at the time of the officer’s conduct, the law was

‘sufficiently clear that every reasonable official would understand that what he is doing ‘

is unlawful.” Gerling v. City of Hermann, Missouri, 2 F.4th 737, 741-42 (8th Cir. 2021)

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). A plaintiff must show either

“controlling authority” or a “robust ‘consensus of cases of persuasive authority’” that

“placed the statutory or constitutional question beyond debate.” Id. (quoting Ashcroft,

563 U.S. at 741-42). Accordingly, in analyzing qualified immunity, this Court must

determine whether plaintiffs’ allegations present a claim that defendants violated well-

established rights of the plaintiffs. Otey v. Marshall, et al., 121 F.3d 1150, 1155 (8th Cir.

1997).

1. Warrantless arrest and seizure inside home

The Fourth Amendment provides in relevant part that “[t]he right of the people to

be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated.” U.S. v. Jones, 565 U.S. 400, 404 (2012). An officer may

carry out a warrantless arrest in a public place if he has probable cause to believe that a

person is committing or has committed “even a very minor criminal offense.” Gerling, 2

F.4th at 742 (quoting Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001)).

“Probable cause by itself, however, is insufficient to justify an arrest in a home.”

Gerling, 2 F.4th at 742. “[T]he Fourth Amendment has drawn a firm line at the entrance

to the house. Absent exigent circumstances, that threshold may not reasonably be

crossed without a warrant. Id. (quoting Payton v. New York, 445 U.S. 573, 590 (1980)).

“[A] warrantless arrest that occurs inside an individual’s home is unconstitutional unless

the officers demonstrate the existence of probable cause and exigent circumstances.” Id.

(quoting Duncan, 869 F.2d at 1102). “[I]n the absence of exigent circumstances, an

officer cannot reach over the threshold and into a person’s home to forcibly effectuate a

warrantless arrest.” Id. (quoting Mitchell v. Shearrer, 729 F.3d 1070, 1076 (8th Cir.

2013)).

Exigent circumstances applies when “‘the exigencies of the situation make the

needs of law enforcement so compelling that [a] warrantless search is objectively

reasonable.” Lange v. California, 594 U.S. 295, 301 (2021) (quoting Kentucky v. King,

563 U.S. 452, 460 (2011)). This exception allows officers to handle emergency

situations presenting a “compelling need for official action and no time to secure a

warrant.” Id. (quoting Riley v. California, 573 U.S. 373, 402 (2014)). Those exigencies

that have been recognized include entering a home without a warrant to render

emergency assistance to an injured occupant, to protect an occupant from imminent

injury, to ensure the officer’s own safety, to prevent imminent destruction of evidence, or

to prevent a suspect’s escape. Lange, 594 U.S. at 301. Those situations are considered

exigent or emergency because a delay required to obtain a warrant would bring about

“some real immediate and serious consequences” – and so the absence of a warrant is

excused. Id. at 302 (quoting Welsh v. Wisconsin, 466 U.S. 740, 751 (1984)).

In the present case, the issue raised is whether Whistler is entitled to qualified

immunity on plaintiff’s Fourth Amendment claim that he entered her home without a

warrant to effect an arrest. The Court’s first inquiry must be whether sufficient facts have

been alleged that Whistler violated plaintiff’s Fourth Amendment rights. In reviewing

the allegations of plaintiff’s complaint in the light most favorable to the plaintiff, plaintiff

was never told that she was under arrest when she was confronted by Whistler outside her

home. Rather, the allegations of the complaint only indicate that Whistler sought to

interrogate her and issue her a citation. Plaintiff then informed Whistler and the fire

department to leave her property. She turned and proceeded to walk towards her

residence. The allegations of the complaint then indicate that Whistler proceeded to

follow her. There are no allegations that Whistler ever told plaintiff she was under arrest

or that she needed to stop. Whistler proceeded to follow plaintiff to the threshold of her

residence where he then had one foot inside her residence and one foot outside. Again,

there are no allegations that Whistler ever told plaintiff she was under arrest or needed to

stop. The first and only allegation we have regarding commands given by Whistler are

after he pulled his taser, pointed it at plaintiff, and told her to exit her residence. When

plaintiff did not immediately comply, Whistler tased plaintiff before moving in to

handcuff her and place her under arrest. If these allegations made by plaintiff are

accepted, then any reasonable officer should have known that he could not enter

plaintiff’s home to make an arrest without a warrant or an exception to the warrant

requirement that is not present here. Plaintiff has thus set forth sufficient facts to show an

alleged violation of her Fourth Amendment right to be free from an unreasonable seizure

by way of the warrantless arrest inside her residence.

The second inquiry the Court must consider regarding the qualified immunity

analysis is whether the right to be free from an unreasonable seizure by way of a

warrantless arrest inside a residence was a clearly established right as of April 2021. This

Court finds that it was. In fact, it has long been established that warrantless searches and

seizures inside a home are presumptively unreasonable. The burden is on the government

to demonstrate exigent circumstances that overcome the presumption of

unreasonableness that attaches to all warrantless home entries. See Welsh v. Wisconsin,

466 U.S. 740, 750 (1984). That burden cannot be satisfied based upon the allegations in

plaintiff’s complaint. See Gibb v. Scott, 958 F.2d 814, 816 (8th Cir. 1992) (the court

must decide Rule 12(b)(6) motions based solely upon the allegations contained in the

face of the complaint).

Based on the foregoing and accepting plaintiff’s version of the facts as true, this

Court concludes that she has sufficiently alleged a violation of her clearly established

right to be free from a warrantless arrest and seizure insider her residence under the

Fourth Amendment. Thus, Whistler is not entitled to qualified immunity at this stage.

Plaintiff’s claim for unreasonable seizure under the Fourth Amendment shall not be

dismissed.

2. Excessive Force

The analysis of excessive force claims focuses on the context of seizures under the

Fourth Amendment, applying its reasonableness standard. Henderson v. Munn, 439 F.3d

497, 501 (8th Cir. 2006). “To establish a constitutional violation under the Fourth

Amendment’s right to be free from excessive force, the test is whether the amount of

force used was objectively reasonable under the particular circumstances.” Id. at 502

(quoting Littrell v. Franklin, 388 F.3d 578, 583 (8th Cir. 2004)). The reasonableness of

an officer’s use of force is evaluated from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight. Graham v. Connor, 490 U.S. 386,

396 (1989). This allows “for the fact that police officers are often forced to make split-

second decisions – in circumstances that are tense, uncertain, and rapidly evolving –

about the amount of force that is necessary in a particular situation.” Id. at 397. “The

reasonableness inquiry, however, is an objective one: ‘the question is whether the

officers’ actions are ‘objectively reasonable in light of the facts and circumstances

confronting them.’” Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009)

(quoting Graham, 490 U.S. at 397). Relevant factors include (1) the severity of the crime

at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or

others; and, (3) whether the suspect is actively resisting arrest or attempting to evade

arrest by flight. Graham, 490 U.S. at 396. If someone is not suspected of a serious

crime, is not threatening anyone, and is neither feeling nor resisting arrest, then it is

unreasonable for an officer to use more than de minimis force against them. See e.g.,

Jackson v. Stair, 944 F.3d 704, 713 (8th Cir. 2019). “Force is least justified against

nonviolent misdemeanants who do not flee or actively resist arrest and pose little or no

threat to the security of the officers or the public. Shekleton v. Eichenberger, 677 F.3d

361, 366 (8th Cir. 2012).

Given the circumstances surrounding plaintiff being tasered and arrested, the

Court is not convinced that Whistler’s use of force was objectively reasonable. First, the

complaint did not suggest that plaintiff was suspected of anything more than negligently

burning trash in her backyard, which was merely an ordinance violation. Second,

plaintiff’s actions posed, at most, a minimal safety threat to Whistler. Plaintiff walked

away from Whistler to her residence, she never had a weapon, and she never verbally or

physically threatened anyone. Third, the complaint does not suggest that plaintiff was

ever told that she was going to be under arrest. Instead, the facts of the complaint only

allege that Whistler had indicated an intent to interrogate plaintiff to issue her a citation.

The complaint also does not suggest that Whistler told her to stop when she turned to

walk to her residence. Accordingly, based on the allegations in the complaint, there is

nothing definitive that would indicate plaintiff was actively resisting arrest or trying to

evade arrest by flight. Her principal offense, it would appear, was walking away from

Whistler and then disobeying his command to exit her residence. Accordingly, plaintiff

has presented sufficient allegations for a cause of action alleging that Whistler violated

her Fourth Amendment rights when he tased her.

Next, the Court must consider whether the right to be free from excessive use of

force was clearly established as of April 2021. “The relevant, dispositive inquiry is

whether it would be clear to a reasonable officer that his conduct was unlawful in the

situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). The right to be free

from excessive force in the context of an arrest was clearly established under the Fourth

Amendment’s prohibition against unreasonable searches and seizures. Graham, 490 U.S.

at 396. Moreover, it was clearly established that force is least justified against nonviolent

misdemeanants who do not flee or actively resist arrest and pose little or no threat to the

security of the officers or the public. Id. At the time Whistler deployed his taser and

arrested plaintiff, the law was sufficiently clear to inform a reasonable officer that it was

unlawful to taser a nonviolent, suspected misdemeanant who was not actively fleeing or

resisting an arrest, who posed little to no threat to anyone’s safety, and whose only

noncompliance from the facts alleged in the complaint was to disobey one order to exit

her residence.

Accepting plaintiff’s version of the facts as true, this Court concludes that she has

sufficiently alleged a violation of her clearly established right to be free from excessive

force. Thus, Whistler is not entitled to qualified immunity at this stage. Plaintiff’s claim

for excessive force under the Fourth Amendment shall not be dismissed.

3. Deliberate Indifference to a Medical Need

To establish a claim for deliberate indifference to a medical need under § 1983, a

plaintiff must demonstrate that she suffered an objectively serious medical need, and that

the officer had actual knowledge of that need but deliberately disregarded it. Carpenter

v. Gage, 686 F.3d 644, 650 (8th Cir. 2012). A medical need is serious “if the medical

need in question is supported by medical evidence, such as a physician’s diagnosis, or is

so obvious that even a layperson would easily recognize the necessity for a doctor’s

attention.” Ryan v. Armstrong, 850 F.3d 419, 425 (8th Cir. 2017). An officer’s deliberate

indifference to a serious medical need is “more than negligence, more even than gross

negligence.” Presson v. Reed, 65 F.4th 357, 366 (8th Cir. 2023). “The level of culpability

required to demonstrate deliberate indifference on the part of prison officials is equal to

criminal recklessness.” Holden v. Hirner, 663 F.3d 336, 343 (8th Cir. 2011).

Plaintiff’s only allegation in her complaint for deliberate indifference to a serious

medical need is that Whistler failed to render aid following her loss of consciousness.

[Doc. 1 at ¶44]. Other than a broad statement that plaintiff lost consciousness after being

tased, plaintiff apparently regained consciousness as Whistler rushed in to handcuff her.

[Id. at ¶1]. Other than this brief loss of consciousness, there are no additional factual

allegations to support that plaintiff suffered a serious medical need. Nor are there

additional factual allegations upon which this Court could find deliberate indifference

arising to a level of criminal recklessness on the part of Whistler. This “threadbare

recital” of an alleged cause of action for deliberate indifference supported only by

conclusory statements is insufficient to survive a motion to dismiss. See Iqbal, 556 U.S.

at 678.

Accordingly, plaintiff’s claim against Whistler for failing to render medical aid

must be dismissed and stricken from the complaint.

B. City of Cape Girardeau’s Motion to Dismiss Count II based on Monell

Under § 1983, a municipality cannot be held liable “solely because it employs a

tortfeasor.” Monell v. Dep’t of Soc. Servs. Of City of New York, 436 U.S. 658, 691

(1978). Rather, a municipality may be liable only for a constitutional violation that

resulted from an official municipality policy, an unofficial custom, or a deliberately

indifferent failure to train or supervise. Mick v. Raines, 883 F.3d 1075, 1079 (8th Cir.

2018). Here, plaintiff asserts in her complaint that the City of Cape Girardeau has a

custom of permitting police officers to use excessive force, which is endorsed by city

officials, as evidenced by their failure to discipline officers for improper use of force.

To state a claim for custom liability, plaintiff must allege facts that demonstrate:

a) The existence of a continuing, widespread, persistent pattern of

unconstitutional misconduct by a governmental entity’s employees;

b) 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

c) That [she] was injured by acts pursuant tot the governmental entity’s custom,

i.e., that the custom was a moving force behind the constitutional violation.

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

(cleaned up).

Liability for an unconstitutional custom cannot arise from a single act. Id. “The pattern

of unconstitutional conduct must be so pervasive and widespread so as to have the effect

and force of law.” Brewington v. Keener, 902 F.3d 796, 801 (8th Cir. 2018) (cleaned up).

The City of Cape Girardeau argues in its motion to dismiss that the municipal

liability claim must be dismissed because the allegations are insufficient to establish a

pattern. “The Eighth Circuit has not directly addressed the quantum of continuing,

widespread, persistent conduct a plaintiff must allege to satisfy the Iqbal standard in [the

motion to dismiss] context.” Ball-Bey v. Chandler, 415 F. Supp. 3d 884, 895 (E.D. Mo.

2019) (cleaned up). In a summary judgment analysis, the Eighth Circuit has held that,

“two incidents of excessive force – even assumed to be true – cannot be considered a

pattern of widespread and pervasive unconstitutional conduct.” Brewington, 902 F.3d at

802. At the other end of the spectrum, the Eighth Circuit has ruled that “copious

evidence of past misconduct,” including corroborated testimony that a city had received

“many citizen complaints,” does constitute sufficient evidence to establish a municipal

custom. Harris v. City of Pagedale, 821 F.2d 499, 504-06 (8th Cir. 1987) (finding that

the plaintiff proved the existence of a municipal custom based on detailed evidence

regarding the particular police officer’s previous misconduct and the city’s failure to

investigate or punish that conduct).

In the context of a motion to dismiss, as we are dealing with here, rulings in this

district have found that claims of prior unconstitutional conduct, which exceeded the

number of prior excessive force incidents alleged by plaintiff, were insufficient to

establish custom. See, e.g., Ball-Bey, 415 F. Supp. 3d at 895 (finding fourteen instances

alleged by the plaintiff over a six-year period in a city with 319,000 residents did not

plausibly suggest the existence of a widespread, persistent pattern of unconstitutional

misconduct); Naes v. City of St. Louis, 4:19-CV-02132-SEP, 2020 WL 6044356 (E.D.

Mo. Oct. 13, 2020) (finding five instances of misconduct over more than five years are

insufficient to establish a continuing, widespread, persistent pattern of unconstitutional

conduct); Burbridge v. City of St. Louis, 430 F. Supp. 3d 595, 620-21 (E.D. Mo. 2019)

(finding “two or three” instances of unconstitutional conduct a year apart does not

establish a custom).

Further, plaintiff cannot rely on settlements to prove a custom.1 The mere fact that

a complaint for excessive force was filed and eventually settled does not, in and of itself,

prove the use of excessive force. Ball-Bey v. Chandler, 4:18-CV-01364-SPM, 2020 WL

6708516, at *9 (E.D. Mo. Nov. 16, 2020) (quoting Simpson v. Ferry, 202 F. Supp. 3d

444, 453 (E.D. Pa. 2016) (“mere allegations, and even settlements, do not establish

liability or the existence of an unlawful custom”). This is especially true of complaints or

cases that are still pending.

Considering the allegations in the complaint within the relevant legal framework,

the incidents or allegations of alleged use of excessive force by officers in 2020, 2021,

2022, and 2025 are insufficient to establish a continuous, widespread, and persistent

pattern.

1 Under certain circumstances, prior settlements may show notice of an unlawful custom.

Naes v. City of St. Louis, 4:19-CV-02132-SEP, 2021 WL 6049815 (E.D. Mo. Dec. 21,

2021) (citing Fed. R. Evid. 408; Weems v. Tyson Foods, Inc., 665 F.3d 958, 966 (8th Cir.

2011).

Plaintiff also assert a failure to train or supervise by the City of Cape Girardeau as

a basis for municipal liability. That claim fails for the same reason as the custom claim.

Plaintiff has not alleged sufficient facts to support the existence of a continuing,

widespread, persistent pattern of the use of excessive force. See Ulrich v. Pope Cnty.,

715 F.3d 1054, 1061 (8th Cir. 2013) (affirming district court’s dismissal of Monell failure

to train or supervise claim where the plaintiff failed to allege sufficient facts

demonstrating the existence of a custom that caused the alleged deprivation of the

plaintiff’s rights).

Since plaintiff has not alleged sufficient facts to support a municipal liability claim

against he City of Cape Girardeau, Count II is dismissed. The Court is cognizant that

“[w]hen a complaint is filed, a plaintiff may not be privy to the facts necessary to

accurately describe or identify any policies or customs which may have caused the

deprivation of a constitutional right.” Doe ex rel. Doe v. Sch. Dist. of City of Norfolk,

340 F.3d 605, 614 (8th Cir. 2003). If plaintiff discovers more instances of police officers

using excessive force in the City of Cape Girardeau sufficient to demonstrate a

continuing, widespread, and persistent pattern, she may seek leave to amend the

complaint.

V. CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that defendants’ motion to dismiss [Doc. 10] is

GRANTED in part and DENIED in part as set forth herein.

IT IS FURTHER ORDERED that defendants’ motion to dismiss [Doc. 10] is

GRANTED as to the claim in Count II against defendant City of Cape Girardeau. The

claim in Count II and the defendant City of Cape Girardeau are DISMISSED without

prejudice.

IT IS FURTHER ORDERED that the defendants’ motion to dismiss [Doc. 10] is

GRANTED in part and DENIED in part as to the claim in Count I against defendant

Joseph Whistler. Plaintiff's claim against defendant Joseph Whistler for violation of her

Fourth and Fourteenth Amendment rights in failing to render medical aid to a serious

medical need [Doc. | at §44] is DISMISSED and shall be stricken from the complaint.

Plaintiff's remaining claims in Count I against defendant Joseph Whistler for other

violations of her Fourth Amendment rights shall remain.

IT IS FINALLY ORDERED that this matter will be scheduled for a Rule 16

conference by separate Order.

Dated this 22™ day of February, 2026.

STEPHEN N. LIMBAUGH,

SENIOR UNITED STATES DISTRICT JUDGE

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