Brittingham v. McConnell

• Court: U.S. District Court — Eastern District of Missouri
• Writing for the Court: E. RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE
• Decision Date: 30 September 2014
• Docket Number: No. 2:13CV00089 ERW,2:13CV00089 ERW
• Citation: Brittingham v. McConnell, No. 2:13CV00089 ERW (E.D. Mo. Sep 30, 2014)
• Parties: JAMES BRITTINGHAM, Plaintiff, v. JAMES MCCONNELL, et al., Defendants.

JAMES BRITTINGHAM, Plaintiff, v. JAMES MCCONNELL, et al., Defendants.

No. 2:13CV00089 ERW

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI NORTHERN DIVISION

September 30, 2014

MEMORANDUM AND ORDER

This matter comes before the Court on "Defendant Gove-Ortmeyer's Motion to Dismiss Plaintiff's Second Amended Complaint" [ECF No. 32].

I. BACKGROUND

On October 11, 2013, Plaintiff James Brittingham ("Plaintiff") filed a "Complaint for Damages Pursuant to 42 U.S.C. § 1983 & Malicious Prosecution, Abuse of Process, False Arrest, Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress," naming the following as defendants: James McConnell; R. Timothy Bickhaus; Stacie Gove-Ortmeyer ("Gove-Ortmeyer"); County of Macon, Missouri ("County"); and State of Missouri ("State") [ECF No. 1]. Plaintiff filed a First Amended Complaint on February 11, 2014, naming only Gove-Ortmeyer, County, and State as defendants [ECF No. 4].

Plaintiff's First Amended Complaint ("Amended Complaint") asserted nine counts: 1) Violation of 42 U.S.C. § 1983 (Wrongful Arrest); 2) Violations of 42 U.S.C. § 1983 (Wrongful Detention); 3) Violations of 42 U.S.C. § 1983 (Conspiracy); 4) Violations of 42 U.S.C. § 1983 (Refusing or Neglecting to Prevent Violations)(against County and State only); 5) MaliciousProsecution; 6) Abuse of Process; 7) False Arrest and Imprisonment; 8) Intentional Infliction of Emotional Distress; and 9) Negligent Infliction of Emotional Distress.

On February 12, 2014, the United States Magistrate Judge issued a Show Cause Order, noting 124 days had elapsed since Plaintiff had filed his original Complaint and the file did not reflect Plaintiff had obtained service upon the defendants. The magistrate ordered Plaintiff to either serve Defendants within thirty days, or show cause why his cause should not be dismissed for failure to comply with Federal Rule of Civil Procedure 4(m) [ECF No. 5]. On February 26, 2014, Plaintiff filed executed summons showing service of the Amended Complaint on Gove-Ortmeyer, County, and State [ECF Nos. 6-8].

Thereafter, County filed a Motion to Dismiss Plaintiff's Amended Complaint, and Gove-Ortmeyer and State jointly filed a Motion to Dismiss the Amended Complaint [ECF Nos. 13, 18]. On May 27, 2014, the case was reassigned from the Magistrate to this Court. On June 24, 2014, this Court granted County's and State's Motions to Dismiss, and dismissed with prejudice, all claims against those two defendants contained in Plaintiff's Amended Complaint [ECF No. 28]. However, the Court denied Gove-Ortmeyer's Motion to Dismiss, and directed Plaintiff to file a Second Amended Complaint ("SAC") asserting claims against Gove-Ortmeyer solely, no later than July 15, 2014.

Plaintiff filed his SAC on July 14, 2014 [ECF No. 29]. The SAC asserts thirteen claims, solely against Gove-Ortmeyer: Count I, 42 U.S.C. § 1983 - Submission of False Affidavit (4^th Amendment); Count II, 42 U.S.C. § 1983 - Suppression of Exculpatory Evidence (14^th Amendment - Procedural Due Process); Count III, 42 U.S.C. § 1983 - Reckless or Intentional Failure to Investigate (14^th Amendment - Substantive Due Process); Count IV, 42 U.S.C. § 1983 - Wrongful Arrest (4^th, 6^th, and 14^th Amendments); Count V, 42 U.S.C. § 1983 - MaliciousProsecution (4^th, 6^th, and 14^th Amendments); Count VI, 42 U.S.C. § 1983 - Wrongful Detention (5^th and 14^th Amendments); Count VII, 42 U.S.C. § 1983 - Conspiracy (5^th and 14^th Amendments); Count VIII, 42 U.S.C. § 1983 - Refusing or Neglecting to Prevent Violations (4^th, 5^th, 6^th, and 14^th Amendments); Count IX, Missouri State Law - False Arrest; Count X, Missouri State Law - Malicious Prosecution; Count XI, Missouri State Law - Abuse of Process; Count XII, Missouri State Law - Intentional Infliction of Emotional Distress; and Count XIII, Missouri State Law - Negligent Infliction of Emotional Distress.

Subsequently, Gove-Ortmeyer filed an Answer, as well as her Motion to Dismiss Plaintiff's Second Amended Complaint, requesting dismissal of Counts V, VIII, and XIII [ECF Nos. 32. 34]. Plaintiff filed Suggestions in Opposition to Defendant Gove-Ortmeyer's Motion to Dismiss SAC on August 27, 2014 [ECF No. 35]. Gove-Ortmeyer has not filed a timely Reply.

II. LEGAL STANDARD: MOTION TO DISMISS

A party may move under Rule 12(b)(6) to dismiss a complaint for Afail[ing] to state a claim upon which relief may be granted.@ Fed. R. Civ. P. 12(b)(6). The purpose of a motion to dismiss is to test Athe sufficiency of a complaint[.]@ M.M. Silta, Inc. v. Cleveland Cliffs, Inc., 616 F.3d 872, 876 (8th Cir. 2010).

ATo survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.@ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citation omitted). AA 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.@ Id. Ordinarily, only the facts alleged in the complaint are considered for purposes of a motion to dismiss; however, materials attached tothe complaint may also be considered in construing its sufficiency. Reynolds v. Dormire, 636 F.3d 976, 979 (8th Cir. 2011).

When ruling on a motion to dismiss, a court Amust liberally construe a complaint in favor of the plaintiff[.]@ Huggins v. FedEx Ground Package Sys., Inc., 592 F.3d 853, 862 (8th Cir. 2010). However, if a claim fails to allege one of the elements necessary to recovery on a legal theory, that claim must be dismissed for failure to state a claim upon which relief can be granted. Crest Constr. II, Inc. v. Doe, 660 F.3d 346, 355 (8th Cir. 2011). AThreadbare recitals of a cause of action, supported by mere conclusory statements, do not suffice.@ Iqbal, 556 U.S. at 678; Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). Although courts must accept all factual allegations as true, they are not bound to take as true Aa legal conclusion couched as a factual allegation.@ Twombly, 550 U.S. at 555 (internal quotations and citation omitted); Iqbal, 556 U.S. at 677-78.

III. DISCUSSION

For purposes of this discussion, the Court accepts the following well-pleaded facts, as alleged in the SAC [ECF No. 29], as true.

Plaintiff James Brittingham was the Defendant in a criminal case filed in the Circuit Court of Macon County, Missouri, and styled State of Missouri v. James Brittingham. Gove-Ortmeyer, who is sued in her individual capacity, worked as an Investigator for the Criminal Tax Investigations Bureau of the Missouri Department of Revenue, at all relevant times.

On July 16, 2010, Gove-Ortmeyer conducted an investigation regarding alleged nonpayment of Employer Withholding and Sales Taxes by Bob Bickhaus Motors, Inc. (doing business as, and hereinafter, referred to as, "Bentz Motors"), located in Macon County, Missouri. Thereafter, Gove-Ortmeyer affirmatively represented to Macon County Prosecutor R. TimothyBickhaus that Plaintiff had committed the class D felony criminal offense of Failure to Pay Sales Tax with Intent to Defraud, in violation of Section 144.080 of the Revised Statutes of Missouri. Gove-Ortmeyer also affirmatively represented to Prosecutor Bickhaus that Plaintiff had committed the class D felony of Failure to Pay Withholding Taxes with Intent to Defraud, in violation of Section 143.221 of the Revised Statutes of Missouri. Additionally, Gove-Ortmeyer, in support of a request to have a warrant issued for Plaintiff's arrest, affirmatively represented to a Macon County circuit court judge that Plaintiff had committed these crimes. She knowingly or recklessly filed a false, misleading, incorrect and incomplete affidavit with the court to secure an Arrest Warrant for Plaintiff, and did so to materially mislead the circuit court judge on the probable cause determination.

The representations made by Gove-Ortmeyer to Prosecutor Bickhaus and to the circuit court judge were false and made by Gove-Ortmeyer either knowing of their falsity, or with a reckless disregard as to whether the representations were actually true. These misrepresentations were material to a finding of probable cause for the issuance of an Arrest Warrant for Plaintiff.

Although she knew the Sale and Withholding taxes were paid by Bentz Motors through its Office Manager, Sherry Frazier, Gove-Ortmeyer did not interview Frazier, investigate any pertinent information, or review any pertinent documents possessed by Frazier, until after criminal charges were filed against Plaintiff, an Arrest Warrant was issued, and Plaintiff was arrested, detained and incarcerated on felony criminal charges. Throughout her purported investigation, Gove-Ortmeyer recklessly or intentionally failed to conduct an investigation that would have revealed Plaintiff had no individual liability for payment of the Withholding and Sales Taxes for Bentz Motors; the payment of such taxes was a function performed by Frazier; and Plaintiff did not direct Frazier to not pay the taxes, with the intent to defraud. Gove-Ortmeyer's unlawful and malicious actions or omissions caused Plaintiff to be wrongfully detained and confined, thereby depriving him of his liberty without due process of law, and his right to equal protection. Her acts caused the due course of justice to be wrongfully impeded, in violation of the Fifth and Fourteenth Amendments. At all times relevant, Gove-Ortmeyer was acting knowingly, recklessly, or with gross negligence, in failing to investigate the non-payment of the taxes by unlawfully and maliciously harassing Plaintiff; causing his arrest, imprisonment, and prosecution; causing others to violate the rights, privileges and immunities guaranteed him; and depriving him of rights, privileges and immunities.

Before any criminal charges were filed against Plaintiff, Gove-Ortmeyer knew, or should have known: a) Plaintiff did not commit any such criminal offenses; 2) Pla...