Blakeney v. City of Pine Lawn, Case No. 4:19-cv-02017-SNLJ

CourtUnited States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
Writing for the CourtSTEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
PartiesSTEVE BLAKENEY, Plaintiff, v. CITY OF PINE LAWN, MISSOURI, et al. Defendants.
Decision Date07 August 2020
Docket NumberCase No. 4:19-cv-02017-SNLJ

STEVE BLAKENEY, Plaintiff,
v.
CITY OF PINE LAWN, MISSOURI, et al.
Defendants.

Case No. 4:19-cv-02017-SNLJ

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

August 7, 2020


MEMORANDUM AND ORDER

This matter comes before the Court on twelve motions. Plaintiff's first amended complaint was filed midway between the myriad motions, mooting several of them directed to a since-nullified complaint. See Thomas v. United Steelworkers Local 1938, 743 F.3d 1134, 1139 (8th Cir. 2014) (an amended complaint nullifies the original complaint). As such, the following motions are DENIED AS MOOT: defendant City of Pine Lawn's motion to dismiss (ECF #40), defendant Missouri Public Entity Risk Management Fund's ("MOPERM") motion to dismiss (ECF #45), defendants Anthony Gray, Brian Krueger, and Donnell Smith's motion to dismiss (ECF #48), defendants Lashawn Colquitt, Willie Epps, Clarence Harmon, Paul Rinck, and John Struckhoff's motion to dismiss (ECF #53), and MOPERM's substitute motion to dismiss (ECF #55).

That leaves the following motions to be decided: plaintiff's motion to disqualify judge (ECF #42), defendant City of Pine Lawn's motion to dismiss (ECF #67), defendants Gray, Krueger, and Smith's motion to dismiss (ECF #69), defendant MOPERM's motion to dismiss (ECF #73), defendants Colquitt, Epps, Harmon, Rinck,

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and Struckhoff's motion to dismiss (ECF #80), defendant MOPERM's motion for sanctions (ECF #96), and defendant Donnell Smith & Associates, LLC.'s ("Smith & Associates") motion to dismiss (ECF #108).

I. BACKGROUND

Plaintiff, a former police officer for Pine Lawn, Missouri, brings more than 150 counts against Pine Lawn and various employees thereof alleging they retaliated against him and worked to use the judicial process in their favor after he attempted to whistleblow about various circumstances of corruption within Pine Lawn's ranks. Before this case was filed, plaintiff was convicted and sentenced in October 2016 to 51 months in prison involving claims that he orchestrated the arrest of mayoral candidate Nakisha Ford during a 2013 mayoral election. Prior to that, plaintiff was also terminated by unanimous vote of the Pine Lawn Board of Alderman in December, 2014, allegedly because he drugged or otherwise managed to incapacitate two women (one a police officer) after meeting with them at a bar—both women having "woken up at [plaintiff's home" with "no memory" of what happened. Plaintiff says these events and outcomes, among many others, were based on falsities perpetrated by the various defendants to make plaintiff "look like a terrible person and a bad police officer." In total, plaintiff says he diligently tried to expose Pine Lawn's mass corruption and paid the price for doing so through a total destruction of his livelihood and reputation.

Plaintiff brings various counts to this effect, including whistleblowing, retaliation, intentional infliction of emotional distress, several Section 1983 claims based on provisions of the U.S. Constitution, invasion of privacy, abuse of process, malicious

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prosecution, and civil conspiracy. Defendants have filed many motions to dismiss arguing, similarly with each other, that sovereign immunity and the applicable statute of limitations bar plaintiff's claims. In addition, defendants attack the elements of plaintiff's claims or point to pleading deficiencies as further reason to dismiss them. In several instances, plaintiff concedes that certain counts should be dismissed; but, many others remain in dispute. The Court endeavors to address each of the many remaining arguments below.

II. ANALYSIS

A. Plaintiff's Motion to Disqualify Judge, ECF #42

The Court begins with plaintiff's motion to disqualify. Plaintiff asserts that, in this case, he is seeking "damages related to the sentence imposed by this Court," which was influenced by "false, misleading, and illegally/improperly offered [] evidence" perpetrated by defendants. He alleges that "[t]his Court will likely be a material witness in this proceeding." He also points out how this Court, when imposing its sentence in the underlying criminal matter, said "[Blakeney is] the one who has become a disgrace."

None of these arguments suffice to justify disqualification. 28 U.S.C. § 455(a) states that "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." A "party introducing a motion to recuse carries a heavy burden of proof; a judge is presumed to be impartial and the party seeking disqualification bears the substantial burden of proving otherwise." In Re Steward, 828 F.3d 672, 682 (8th Cir. 2016). A "party is not entitled to recusal merely because a judge is 'exceedingly ill disposed' toward

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them, where the judge's 'knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings.'" Id. (quoting Liteky v. United States, 510 U.S. 540, 551 (1994)).

As it has already in a separate case, this Court's comment about Blakeney being a "disgrace" was "a comment related to Blakeney's misconduct as a police officer" that was "based solely on the evidence presented to this Court." Blakeney v. United States, 4:19-cv-00079-SNLJ, ECF #32 (E.D. Mo. Aug. 2, 2019). If, from this case, the evidence previously relied upon turns out to have been false or misleading as plaintiff now argues, nothing in his motion even remotely hints at the impossibility for this Court to remain impartial as to those revelations. Terse as his arguments are, plaintiff does nothing to carry the "heavy burden of proof" his motion imposes. In Re Steward, 828 F.3d at 682. Nor does plaintiff's bald suggestion that "this Court will likely be a material witness" require recusal. Those comments—taken alone and in the vacuum for which they were argued in plaintiff's brief—are self-serving, subjectively based, and nothing but conjecture. Section 455(a) "establishes an objective standard" and "is not intended to give litigants a veto power over sitting judges, or a vehicle for obtaining a judge of their choice." White v. National Football League, 585 F.3d 1129, 1138 (8th Cir. 2009) (emphasis added). Plaintiff's motion to disqualify is denied.

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B. Defendant City of Pine Lawn's Motion to Dismiss, ECF #67

Defendant City of Pine Lawn's Rule 12(b)(6) motion notes 17 counts have been filed against it.1 Through the briefing, plaintiff conceded that certain counts should be legally dismissed, including Counts II, X, XI, and XVI. Those counts are so dismissed. Another count, Count IV, contains strikethrough lines, fails to state a legally cognizable claim (referred to simply as "Missouri Common Law"), and appears to be inadvertently included in the complaint—certainly plaintiff does nothing to defend it. It will also be dismissed. Many arguments have been made regarding the remaining 12 counts, but the threshold issue of sovereign immunity takes center stage. The Court begins there.

i. State Sovereign Immunity Applicable to Plaintiff's State Claims

Sovereign immunity "protects governmental entities from tort liability." State ex rel. Alsup v. Kanatzar, 588 S.W.3d 187, 190 (Mo. banc. 2019). It is the rule, rather than the exception, Metro. St. Louis Sewer Dist. v. City of Bellefontaine Neighbors, 476 S.W.3d 913, 922 (Mo. banc. 2016), and as such "is not an affirmative defense but is part

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of the plaintiff's prima facie case." St. John's Clinic, Inc. v. Pulaski Cty. Ambulance Dist., 422 S.W.3d 469, 471 (Mo. App. S.D. 2014) (compiling cases), cited approvingly in Newsome v. Kansas City, Mo., 520 S.W.3d 769, 776 (Mo. banc. 2017). Accordingly, "plaintiff must plead with specificity facts demonstrating his claim falls within an exception to sovereign immunity." Parish v. Novus Equities Co., 231 S.W.3d 236, 242 (Mo. App. E.D. 2007); Stat ex rel. City of Lee's Summit v. Garrett, 568 S.W.3d 515, 519 (Mo. App. W.D. 2019) (accord); see also State ex rel. City of Kansas City v. Harrell, 575 S.W.3d 489, 492 (Mo. App. W.D. 2019) (to survive dismissal, petition must plead specific facts that, taken as true, establish an exception to the rule of sovereign immunity).

As applied to municipalities, sovereign immunity is not all-encompassing but is, instead, limited in several respects. First, "municipalities are not provided immunity for proprietary functions—those performed for the benefit or profit of the municipality as a corporate entity." Southers v. City of Farmington, 263 S.W.3d 603, 609 (Mo. banc. 2008). But, municipalities "are immune for government functions—those performed for the common good." Id. Second, sovereign immunity is statutorily waived for injuries caused by the negligent operation of a motor vehicle by public employees and for injuries caused by the dangerous conditions of public property, § 537.600.1(1)-(2) RSMo, as well as when liability insurance is purchased to cover tort claims other than those just described—though only in an amount of and for the purposes covered by the insurance purchased. See § 537.610.1 RSMo; see also § 71.185 RSMo (liability insurance purchased by municipalities to cover "tort liability for governmental acts").

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Plaintiff says immunity does not exist here both because Pine Lawn was engaged in a proprietary function and because it purchased insurance covering his claims. Those arguments are diametrically opposed, though. Proprietary functions are never immunized and simply do not come under the purview of sovereign immunity, whereas insurance acts as a waiver to otherwise applicable immunity. See, e.g., Gregg v. City of Kansas City, 272 S.W.3d 353, 359 (Mo. App. W.D. 2008) (treating proprietary function and insurance arguments in the disjunctive). This is seen specifically in Section 71.185, which allows a municipality to carry liability insurance, and thus waive immunity, for injuries "caused while in the exercise of [] governmental...

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