O'Grady v. City of Ballwin

Decision Date27 July 2012
Docket NumberCase No. 4:10CV01707 AGF.
PartiesPaul O'GRADY, et al., Plaintiffs, v. CITY OF BALLWIN, et al., Defendants.
CourtU.S. District Court — Eastern District of Missouri


Kevin J. Dolley, Law Offices of Kevin J. Dolley, LLC, Richard B. Hein, Law Office of Richard B. Hein, St. Louis, MO, for Plaintiffs.

Peter J. Dunne, Pitzer Snodgrass, P.C., Brian R. Plegge, Justin A. Hardin, Moser and Marsalek, P.C., St. Louis, MO, for Defendants.


AUDREY G. FLEISSIG, District Judge.

Plaintiffs Paul O'Grady, Robin Herr, A. H., a minor, by next friend, Amber Picard, and D. H., a minor,1 by next friend, Lisa Gann, bring this action for wrongful death, various violations of state tort law, and, pursuant to 42 U.S.C. § 1983, for violation of the constitutional rights of decedent Josh Herr's (“Herr”), arising from Defendants' actions and responses to the events leading up to Herr's death by suicide. Now before the Court are the motion of Defendant Metro West Fire Protection District (“Metro West”) to dismiss Counts II, IV, VI, VII and IX of Plaintiffs' complaint; the motion of Defendant, the City of Ballwin (“the City”), to dismiss Counts I and III through VIII of Plaintiffs' complaint; and the motion of Defendants Todd Noltkamper, Mark Moore, Jim Moss, Christopher Zang, and Gregory Dahm (“the EMT Defendants) to dismiss Counts II, IV, VII and IX of Plaintiffs' complaint.


Plaintiffs filed their first amended complaint on August 15, 2011, asserting claims against the City of Ballwin, five Ballwin police officers, Metro West, and five Metro West emergency medical technicians. Plaintiffs assert claims for wrongful death, negligent failure to protect, negligent failure to render assistance, negligent supervision and direction, negligent entrustment and assignment, negligent and intentional infliction of emotional distress, and violation of 42 U.S.C. § 1983.

Plaintiffs allege that on September 21, 2009, Herr, the decedent, made threats of suicide in the presence of his mother, Robyn Herr, and Amber Picard. Robyn Herr and Picard called 911 and Defendants Steve Morrison and Curt Saitta, police officers for the City, responded to the call and accompanied Robyn Herr and Picard to Herr's residence. After questioning Herr, Morrison and Saitta left the premises. After the officers departed, Herr ingested a large number of sleeping pills in the presence of Robyn Herr and Picard, and then Herr, too, left the premises.

Robyn Herr and Picard again called 911 and Morrison and Saitta returned to the residence, accompanied by two other Ballwin police officers, David Wangrow and Derek Loeffel. Also with them were the EMT Defendants, employed as emergency medical technicians. Robyn Herr and Picard informed the responding officers and the EMT Defendants of both the type and quantity of pills Herr had ingested. The responding officers and EMT Defendants stated that the dosage would not be fatal, and left the residence without locating Herr. Herr did not return to the residence that evening or thereafter. On October 22, 2009, his severely decomposed body was found in a stream a few hundred feet away from his residence.

On the basis of these allegations Plaintiffs assert claims for wrongful death and state-law torts for negligent and intentional misconduct. Plaintiffs also assert that Defendants were deliberately indifferent to Plaintiffs' constitutional rights under the Equal Protection and the Due Process clauses of the Fourteenth Amendment as a result of Defendants' policies and customs for handling potential suicides; their failure to train officers, employees, and subordinates to render medical assistance to individuals attempting suicide; and their failure to follow City of Ballwin Police Department General Orders 68–09 and 36–07. Plaintiffs further assert that the danger to Herr was foreseeable and that Defendants were deliberately indifferent to that danger by failing to locate Herr and render medical assistance. Finally, Plaintiffs assert that Defendants took affirmative acts which increased the danger to Herr by representing to Robyn Herr and Picard that the pills Herr ingested would not cause his death, thereby convincing Herr's family and friends that he was not in immediate danger and that it was not necessary to locate him.

In Count I, Plaintiffs assert a claim for wrongful death against the City and police officers Morrison, Saitta, Wangrow and Loeffel (the “Responding Officers”). In Count II, Plaintiffs assert a claim for wrongful death against Metro West and the EMT Defendants. In Count III, Plaintiffs allege a claim of negligent failure to protect against the City and the Responding Officers, and in Count IV, Plaintiffs allege a claim based on negligent failure to render assistance against all Defendants other than Defendant Mark Lang. In Counts V and VI, Plaintiffs allege claims against the City and Metro West for negligent supervision and direction (Count V) and negligent entrustment and assignment (Count VI). In Count VII, Plaintiffs allege claims against all Defendants, other than Lang, for negligent and intentional infliction of emotional distress. In Count VIII, Plaintiffs allege a claim of intentional infliction of emotional distress against the City and Lang, related to statements made by Lang during the course of the investigation into the cause of Herr's death. In Count IX, Plaintiffs assert a claim for violation of 42 U.S.C. § 1983 against all Defendants, other than Lang. The claims against the individual Defendants are asserted against them in their individual and official capacities.

Metro West moves to dismiss counts II, IV, VI, VII and IX on the grounds of sovereign immunity. The City moves to dismiss all counts asserted against it, other than the § 1983 claim, on the basis of sovereign immunity, and also moves to strike all allegations of punitive damages. The EMT Defendants have also moved to dismiss the claims against them, contending that they are protected under the public duty doctrine, which shields government or municipal employees from liability if their actions are taken as part of the duties of their employment owed to the general public, and the doctrine of official immunity, which shields government or municipal employees from liability if their actions are taken as part of the duties of their employment owed to the general public, and not to particular individuals such as Plaintiffs or the decedent. Finally, Metro West and the EMT Defendants argue that the allegations of Plaintiffs' complaint fail to state a claim for a constitutional violation under 42 U.S.C. § 1983.

Motion to Dismiss Standard

A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). To survive a Rule 12(b)(6) motion to dismiss, a complaint “does not need detailed factual allegations,” but the allegations must nonetheless “be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). This requires more than mere “labels and conclusions,” id., and must state a claim that is “plausible on its face.” Id. at 570, 127 S.Ct. 1955. “Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short ... of entitlement to relief.’ Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)(quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Because the § 1983 Claim in Count IX provides the source for this Court's jurisdiction, the Court shall address that claim first.

Plaintiffs' § 1983 Claim

“A § 1983 plaintiff must allege ‘that the defendants (1) acted under color of state law and (2) that the alleged wrongful conduct deprived plaintiff of a constitutionally protected federal right.’ Zutz v. Nelson, 601 F.3d 842, 848 (8th Cir.2010) (quoting Hart v. City of Little Rock, 432 F.3d 801, 804 (8th Cir.2005)). Here, Plaintiffs fail to assert a § 1983 violation because the allegations in the amended complaint do not allege a constitutional claim, under either the Due Process Clause or the Equal Protection Clause.

The Due Process Clause of the Fourteenth Amendment provides that [n]o State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. To establish a substantive due process violation, a plaintiff must first show a deprivation of life, liberty, or property. DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 196, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). The Due Process Clause “imposes no duty on the State to provide members of the general public with adequate protective services. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security....” Id. The State's knowledge of a person's danger and its expressions of willingness to protect him against that danger do not establish a “special relationship” giving rise to an affirmative constitutional duty to protect. Id. An affirmative duty on the part of a state actor “to protect” arises not from knowledge of an individual's predicament or from expressions of intent to help him, but from the limitations such as “imprisonment, institutionalization, or other similar restraint of personal liberty” imposed by the State which prevent an individual from acting on his own behalf. Id.

A substantive due process right to protection can arise under two theories. Under the first theory, the state may owe a duty to protect individuals in its custody. Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir.1992). Under the second, the state may owe a duty to protect individuals if it created the danger to which they become subject. Id.; see also Burton v. Richmond, 370 F.3d 723 (8th Cir.2004). [T]he test ......

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