Case: 4:18-cv-00308-JCH Doc. #: 72 Filed: 07/23/19 Page: 1 of 11 PageID #: 1968

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MICHAEL FAULK,

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Plaintiff,
vs.
CITY OF ST. LOUIS, MISSOURI, et al.,
Defendants.

Case No. 4:18CV308 JCH

MEMORANDUM AND ORDER
This matter is before the Court on the Motion to Dismiss Counts I, IV, V, VII1, VIII, IX
and X by the City of St. Louis (“Defendant” or “City”), filed February 6, 2019. (ECF No. 53).
The motion is fully briefed and ready for disposition.
BACKGROUND2
Taken as true for the purpose of this motion, the facts alleged in the Third Amended
Complaint are as follows.

On September 15, 2017, the Circuit Court of the City of St. Louis

issued its findings and verdict in State of Missouri v. Stockley, prompting some members of the
public to engage in protests around the City.

The protests concerned not only the verdict but

broader issues, including racism in the criminal justice system and the use of force by police
against African-American citizens.

Although most of the protests were non-violent, St. Louis

1 The City is named as a Defendant in neither Count VI, entitled “Missouri State Law: Assault and Battery (Against
Defendant Doe Police Officers 2-5 and Defendant Wismar)”, nor Count VII, entitled “Missouri State Law: False
Arrest and False Imprisonment (Against All Individual Defendants)”. In both Counts, however, Plaintiff includes
allegations regarding the City’s alleged waiver of sovereign immunity due to its procurement of insurance. (See
Compl., ¶¶ 237-239, 244-246). If Plaintiff elects to file a Fourth Amended Complaint, as permitted below, he
should clarify whether he intends to assert claims of assault and battery and/or false arrest and false imprisonment
against Defendant City.
2 The Court’s background section is taken from Plaintiff’s Third Amended Complaint, to which Defendant City has
not yet filed an answer.

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Metropolitan Police Department (“SLMPD”) officers “amassed at several protests wearing
military-like tactical dress, helmets, batons, and full-body riot shields and carrying chemicals.”
(Third Amended Complaint (“Compl.”), ¶ 23).
On September 17, 2017, Plaintiff Michael Faulk, an award-winning journalist, was
reporting on the protests in downtown St. Louis.
bicycle

to

travel

around

Plaintiff

downtown.

was

Around

using
8:30

his

p.m.,

Plaintiff witnessed masked individuals break a restaurant
window.

He also saw several other damaged windows.

Just before 10:00 p.m., Plaintiff rode his bicycle back to the Post-Dispatch parking lot. He
speculated on Twitter that perhaps the worst was over for the night. At some point thereafter,
however, Plaintiff saw emergency lights flashing and officers approaching Tucker Boulevard
between Olive and Washington. From Locust Street, Plaintiff tweeted “Bike cops blocking
Locust and 11th #STLVerdict Spectators there and big group of people at St. Charles/Tucker.”
(Compl., ¶ 137). The officers began to lift their bicycles and pound them on the ground in unison,
while walking west toward Plaintiff and others. Without giving any dispersal orders or warnings
that chemical agents would be used, the officers ordered people to move west on Locust or north
on Tucker.
Plaintiff heeded the officers’ orders, and walked north on Tucker Boulevard to the
intersection of Washington Avenue and Tucker. Suddenly, the riot police north of Plaintiff
started to beat their batons on their shields in unison. Plaintiff sought some way to get out of the
police kettle3 that had formed, but officers ignored his questions and requests for help.

3 According to Plaintiff’s Third Amended Complaint, “kettling” is a law enforcement tactic by which officers
encircle a group of protestors without providing a means of egress.

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Following the lead of others gathered in the intersection, Plaintiff placed his bike on the
ground and got down on his hands and knees over the bike. SLMPD officers approached
individuals in the group who were kneeling or lying down, shouting “Stop Resisting” and “Get
Down!” to the citizens who were, quite visibly, trying to obey whatever SLMPD officers
commanded. (Compl., ¶ 149).
Approaching the group of kettled citizens on the ground, SLMPD officers began
indiscriminately deploying pepper spray on the submissive crowd. Plaintiff felt the pepper spray
land on his back and neck, causing immediate and acute stinging pain.
Officer Willis of the SLMPD grabbed Plaintiff as he lay on the ground, attempting to pull
him up by his collar. Plaintiff shouted several times, “Post-dispatch!”, and lifted his media
credential ID card to show Willis.

Willis let go of Plaintiff, who was now standing, but

immediately thereafter, Plaintiff was pushed from behind by another officer. Plaintiff was shoved
in the direction of several other SLMPD officers, who then used their riot shields to shove
Plaintiff off the sidewalk and into the street. Several officers then grabbed Plaintiff from behind,
using their full weight to tackle him to the ground, and one officer used his baton to try and strike
Plaintiff in the genitals as several others jumped on top of him, seizing each of his limbs. Further,
one officer used his weight to press Plaintiff’s head into the street asphalt, and another sprayed
him directly in the face with pepper spray.4 Plaintiff maintains that at all times, he did not resist
the officers in any way.
As Plaintiff lay on the ground, another SLMPD officer very tightly tied his hands with
plastic “zip-cuffs”. Defendant Andrew Wismar then arrested Plaintiff.5 Plaintiff was taken to the

4 Plaintiff does not identify by name the officers who pushed him, grabbed him, assaulted him and sprayed him with
pepper spray.
5 Plaintiff alleges upon information and belief that Defendant Wismar was one of the SLMPD officers who used

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St. Louis City Justice Center, where he was placed in a cell with approximately fifteen other men.
Plaintiff attempted to continue his reporting, but when an officer learned he was a journalist, the
officer removed Plaintiff and placed him in his own cell. Plaintiff eventually was again placed in
an over-capacity cell with other protest arrestees. At no time was he given medical attention,
despite requesting such on several occasions. Plaintiff remained detained for approximately
thirteen hours.
As noted above, Plaintiff claims he was not engaged in unlawful activity at any time
during h i s encounter with police.

Plaintiff further alleges that during and after the arrests,

SLMPD officers were observed high fiving each other, smoking celebratory cigars, taking
“selfies” on their cell phones with arrestees against the arrestees’ will, and chanting “Whose
Streets? Our Streets!”

( C o m p l . , ¶ 90).

Plaintiff filed the instant Third Amended Complaint on January 22, 2019, naming as
Defendants the City and several SLMPD officers alleged to have been involved in the relevant
events. W i t h r e s p e c t t o D e f e n d a n t C i t y , Plaintiff asserts claims for First
and Fourteenth Amendment violations (Count I), § 1983 conspiracy to deprive civil rights (Count
IV), and § 1983 municipal liability for f a i l u r e t o t r a i n , d i s c i p l i n e a n d s u p e r v i s e ,
and for customs of conducting unreasonable searches and seizures and use
of excessive force (Count V) .

Plaintiff further asserts supplemental state-law claims

against Defendant City, alleging intentional and negligent infliction of emotional distress (Counts
VIII and IX), and conversion (Count X).
As noted above, Defendant City filed the instant Motion to Dismiss on February 6, 2019.
(ECF No. 53). The City moves to dismiss Plaintiff’s § 1983 claims, arguing that they fail

excessive force against him.

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adequately to allege municipal liability under Monell v. Department of Social Services of City of
New York, 436 U.S. 658 (1978). Next, the City moves to dismiss Plaintiffs’ § 1983 conspiracy
claim on the basis that it is barred by the intracorporate conspiracy doctrine, citing Kelly v. City of
Omaha, Neb., 813 F.3d 1070, 1078 (8th Cir. 2016).

The City contends that, as the Eighth Circuit

held in Kelly, a local government entity cannot conspire with itself through its agents acting
within the scope of their employment.

Finally, the City argues that Plaintiff’s state-law claims

against it are barred by the doctrine of sovereign immunity.
STANDARD FOR MOTION TO DISMISS
In ruling on a motion dismiss, the Court must view the allegations in the complaint in the
light most favorable to plaintiff. Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008).
The Court, “must accept the allegations contained in the complaint as true and draw all
reasonable inferences in favor of the nonmoving party.” Coons v. Mineta, 410 F.3d 1036, 1039
(8th Cir. 2005) (citation omitted). The complaint’s factual allegations must be sufficient “to raise
a right to relief above the speculative level,” however, and the motion to dismiss must be granted
if the complaint does not contain “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007) (abrogating the “no set of
facts” standard for Fed.R.Civ.P. 12(b)(6) found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
Furthermore, “the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009) (citing Twombly, 550 U.S. at 555 (pleading offering only “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action” will not do)).
DISCUSSION
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I. Monell Claims Against the City
Plaintiff alleges that the following policies, practices, or customs caused the alleged
constitutional violations in this case, thereby making the City liable under Monell:
a. SLMPD officers’ routine use of excessive force when policing protests,
especially those at which police brutality is being protested;
b. SLMPD custom or policy of using chemi cal agents without warning on
citizens who are not resisting arrest and who are exercising First Amendment
rights, whether those rights be protesting or reporting;
c. SLMPD’s policy or custom of issuing vague and even contradictory
dispersal orders without giving an opportunity to comply;
d. SLMPD’s policy of arbitrarily declaring unlawful assemblies in the absence of
any threat or force or violent activity that provides no notice to citizens [of]
unlawful conduct;
e. Additionally, SLMPD has a custom, policy, or practice of violating the
Fourth Amendment by regularly conducting unreasonable seizures and
arresting individuals without probable cause.
(Compl., ¶ 227).

Plaintiff also claims that the City inadequately trained, supervised, and

disciplined SLMPD officers, including the remaining Defendants, with respect to the use of
chemical agents and the use of force. ( Id., ¶ 228).
For § 1983 liability to attach to the City, Plaintiff must show that a constitutional violation
resulted from an official municipal policy, an unofficial custom, or a deliberately indifferent
failure to train or supervise.

Mick v. Raines, 883 F.3d 1075, 1079 (8th Cir. 2018).

In its Motion

to Dismiss, the City argues that Plaintiff’s factual allegations are insufficient to establish any of
these bases for liability.
a. Official Policy or Custom
As other judges in this District have held with respect to similar Monell allegations in the
related cases, Plaintiff’s Third Amended Complaint plausibly alleges that specific SLMPD
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policies or customs were the moving force behind the constitutional violations he suffered.

See

Aldridge v. City of St. Louis, Mo., 4:18CV1677 CAS, 2019 WL 1695982, at *9-10 (E.D. Mo. Apr.
17, 2019); Laney v. City of St. Louis, Mo., 4:18CV1575 CDP, 2019 WL 2423308, at *5 (E.D. Mo.
Jun. 10, 2019). Specifically, Plaintiff alleges a pattern of using chemical agents without warning
against peaceful protestors complaining of police actions, including incidents in October and
November 2014, in May and August 2015, and in July 2017; as well as additional incidents that
occurred after the Stockley verdict on September 15, 2017, and thereafter. Plaintiff also alleges
that the City entered into a settlement agreement in March, 2015, in Templeton, et al. v. Dotson,
et al., No. 4:14-CV-2019 CEJ (E.D. Mo.), in which it agreed not to use chemical agents to
disperse groups of individuals engaged in non-criminal activity without first issuing clear and
unambiguous warnings that such chemical agents would be used and without ensuring that there
is a means of safe egress from the area (among other protections), but that thereafter SLMPD
officers continued to use chemical agents against non-violent protestors without adequate
warning or opportunity to comply.

These factual allegations are sufficient to support the

existence of an unconstitutional policy or custom that plausibly caused the constitutional
violations here.

The City’s Motion to Dismiss Plaintiff’s Monell claims based on an

unconstitutional policy or custom will therefore be denied.
b. Failure to Train or Supervise
With respect to Plaintiff’s failure to train or supervise claim, however, the Court agrees with
the City that Plaintiff’s conclusory allegations fail to survive a motion to dismiss. To state a
viable § 1983 claim against the City for failure to train or supervise, Plaintiff must plead facts
sufficient to show that: 1) the City’s police officer training and supervision practices were
inadequate; 2) the City was deliberately indifferent to the rights of others in adopting these
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practices, such that the City’s failure to train and supervise was a result of deliberate and
conscious choices; and 3) the City’s training and supervision deficiencies caused Plaintiff’s
constitutional deprivation.

See Ulrich v. Pope Cty., 715 F.3d 1054, 1061 (8th Cir. 2013)

(citations omitted).
Plaintiff pleads no factual allegations in support of this claim, other than the conclusion that
the “City has inadequately trained, supervised, and disciplined SLMPD officers, including the
remaining Defendants, with respect to its officers’ use of chemical agents, understanding of
probable cause, use of force, and recognition of rights of members of the press.”
¶ 228).

(Compl.,

The undersigned agrees with the judges in the related cases, who have held that

such an allegation, alone, is insufficient to state a claim.
*11; Laney, 2019 WL 2423308, at *6.

See Aldridge, 2019 WL 1695982, at

The Court thus will grant the City’s Motion to Dismiss

Plaintiff’s Monell claim to the extent it is based on the City’s alleged failure to supervise, train,
and discipline SLMPD police officers, but will grant Plaintiff leave to amend this claim if he
chooses to do so.
II.

Civil Conspiracy Claim
“To prove a 42 U.S.C. § 1983 conspiracy claim, a plaintiff must show: (1) that the

defendant conspired with others to deprive him of constitutional rights; (2) that at least one of the
alleged co-conspirators engaged in an overt act in furtherance of the conspiracy; and (3) that the
overt act injured the plaintiff.” White v. McKinley, 519 F.3d 806, 814 (8th Cir. 2008) (citation
omitted).

The first element “requires allegations of specific facts tending to show a ‘meeting of

the minds’ among the alleged conspirators.” Murray v. Lene, 595 F.3d 868, 870 (8th Cir. 2010)
(citations omitted).

“The plaintiff is additionally required to prove a deprivation of a

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constitutional right or privilege in order to prevail on a § 1983 civil conspiracy claim.”

White,

519 F.3d at 814 (citation omitted).
The City challenges Plaintiff’s § 1983 conspiracy claim on the basis that it is barred by the
intracorporate conspiracy doctrine.

The cases relied upon by the City involved conspiracy

claims under 42 U.S.C. § 1985, however.

See Kelly, 813 F.3d at 1078. The Eighth Circuit has

not addressed whether the doctrine applies to § 1983 conspiracy claims, and in the absence of
such direction from the Eighth Circuit, the judges in this District—including in another Stockley
protest case—have consistently declined to extend the doctrine’s reach, at least at the pleading
stage.

See Aldridge, 2019 WL 1695982, at *8 (collecting cases).

Here, too, the Court finds

that it is inappropriate to apply the intracorporate conspiracy doctrine at this stage.

As such, the

City’s Motion to Dismiss Plaintiff’s § 1983 conspiracy claim will be denied.
III.

Sovereign Immunity

Defendant City finally asserts Plaintiff’s state law claims are barred by the doctrine of
sovereign immunity. “[I]n the absence of an express statutory exception to sovereign immunity,
or a recognized common law exception such as the proprietary function and consent exceptions,
sovereign immunity is the rule and applies to all suits against public entities[.]”

Metro. St. Louis

Sewer Dist. v. City of Bellefontaine Neighbors, 476 S.W.3d 913, 921-22 (Mo. 2016).

Missouri

law provides statutory exceptions to sovereign immunity including, as relevant here, when a
political subdivision purchases liability insurance to cover certain tort claims, in the amount of
and for the purposes covered by the insurance purchased.

Mo. Rev. Stat. § 537.610.1; see also

Hammer v. City of Osage Beach, 318 F.3d 832, 841 (8th Cir. 2003).

“[A] plaintiff must

specifically plead facts demonstrating that the claim is within this exception to sovereign

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immunity” by pleading the existence of insurance and that the insurance covers the plaintiff’s
claim.

Epps v. City of Pine Lawn, 353 F.3d 588, 594 (8th Cir. 2003).
As to each state-law claim, Plaintiff has pleaded that the City obtains insurance through

the Public Facilities Protection Corporation (“PFPC”), a not for profit corporation into which the
City pays funds yearly; that the funds are later disbursed by the corporation to pay claims against
the City; and that, alternatively, the City’s relationship with the PFPC serves as a self-insurance
plan. (See Compl., ¶¶ 255-256, 262-263, 273-274). The undersigned agrees with the other judges
in this District who have held that the same or similar allegations of PFPC insurance or selfinsurance are sufficient at this stage to demonstrate that Plaintiff’s state-law tort claims fall within
an exception to sovereign immunity under § 537.610.1. See, e.g., Aldridge, 2019 WL 1695982,
at *13; Laney, 2019 WL 2423308, at *7; see also Fortenberry v. City of St. Louis, No. 4:18-CV01937-JCH, 2019 WL 1242671, at *7 (E.D. Mo. Mar. 18, 2019).

The Court therefore will deny

the City’s Motion to Dismiss Plaintiff’s state-law tort claims on the basis of sovereign immunity.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the Motion to Dismiss Counts I, IV, V, VII, VIII, IX
and X by the City of St. Louis (ECF No. 53) is GRANTED in part and DENIED in part.

The

motion is GRANTED as to Plaintiff’s § 1983 Monell claims against Defendant City of St. Louis
in Count V based on failure to train and supervise, and DENIED in all other respects.
IT IS FURTHER ORDERED that Plaintiff is granted leave to file a F o u r t h
A mended C omplaint by August 6, 2019, to assert Monell failure to train and supervise claims,
and/or assault and battery, false arrest and false imprisonment claims, against the City.

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IT IS FURTHER ORDERED that Defendants are granted an extension of time to file their
answers to Plaintiff’s Third Amended Complaint. If Plaintiff does not file a Fourt h Amended
C omplaint, Defendants shall file their answers by August 12, 2019. If P laintiff files a Fourth
Amended Complaint, Defendants shall file their answers thereto within the time allowed by Rule
15(a)(3), Fed. R. Civ. P.

Dated this 23rd Day of July, 2019.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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