Lacy v. Gray
| Decision Date | 16 July 2013 |
| Docket Number | Case No. 4:13CV370 RWS |
| Parties | JERMAINE LACY, Plaintiff, v. COL. RICHARD GRAY, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
On July 5, 2012, Jermaine Lacy trespassed on Lumiere Place Casino & Hotels despite three criminal cases banning him from the property. While there, he got into a fight and was taken into custody by Missouri State Trooper Sergeant Philip Hoffman of the Gaming Division of the State Highway Patrol. Lumiere security guard Charles Mellor, also an EMT, was called to assist Hoffman. After being taken to the casino gaming office, Lacy slumped on the floor, "pretending . . . he was injured." (Pl.'s Second Am. Complaint ¶ ¶ 27-29). Lacy then faked unconsciousness, so Hoffman directed Mellor to perform a sternum rub1 on Lacy to determine whether he was unconscious. Lacy alleges this procedure was unnecessary because Hoffman and Mellor knew he was faking it. After runningLacy's name through a database, Hoffman discovered that he was "to follow Special Order 5-09." (Id. at 38). Hoffman did not know what this meant, so he contacted the St. Louis Metropolitan Police Department, which dispatched officers to the scene. Lacy was then handcuffed to a wheelchair to await the arrival of the police. Lacy alleges that Hoffman then "punched, hit, struck, and/or threatened to" taser him. (Id. at 44).
St. Louis Metropolitan Police Officer Charles Proctor arrived to take Lacy to jail. According to Lacy, when he told Proctor that Hoffman was "beating him," Proctor told him "to shut the fuck up." (Id. at 46). Lacy then claims he "bowed his head, and feigned unresponsiveness." ((Id. at 47.). Lacy alleges that, in response, Proctor took out his baton, hit him on the knee, told him to "wake up motherfucker," and called him a "pussy." (Id. at 55). Lacy alleges that Hoffman then struck him in the stomach. Proctor then told Lacy to be quiet when he was being wheeled through the casino. Mellor then began pushing Lacy's wheelchair, with Proctor and Hoffman steadying the wheelchair on either side. Once on the casino floor, Lacy ignored the instructions of Proctor and began "to make verbal comments" and "to slump down in the wheelchair." (Id. at 60-61). Lacy alleges that Proctor then choked him for 10 seconds, so he slid out of the wheelchair. Lacy alleges that Proctor then lifted him off the ground by either his neck or his shirt and slammed him back in the wheelchair. Proctor then allegedly chokedLacy again, this time for 45 seconds, by pressing on his Adam's apple.
Once outside the casino, Lacy alleges that Proctor rammed his head into the bumper of Proctor's police car and yelled at him. During the ride to jail, Lacy made comments to Proctor about his "weight and/or presumed eating habits." (Id. at 84), causing Proctor to shove him against a wall and to elbow him in the mouth once they arrived at the station. Lacy alleges that he complained about Proctor to the police department, and that after an investigation Proctor was suspended and arrested for his conduct.
In his second amended complaint, Lacy brings § 1983 claims against the St. Louis Police Board members, Proctor, Hoffman in his individual capacity only, the casino, and Mellor for excessive force, denial of medical treatment, breach of duty to protect, and deprivation of free speech. Lacy also alleges Missouri state law claims of assault, battery, and civil conspiracy to commit assault and battery against these defendants and the Missouri State Highway Patrol.
Several groups of defendants have filed motions to dismiss under Fed. R. Civ. P. 12(b)(6). The police board defendants2 move to dismiss all claims against them for failure to adequately allege claims. The Missouri State Highway Patrol moves to dismiss the claims against it and the state law official capacity claimsagainst Hoffman based on sovereign immunity. Hoffman also moves to dismiss the First Amendment claim against him for failure to state a claim. The casino and Mellor seek dismissal of all claims on several grounds. For the reasons stated below, the motions to dismiss will be granted.
When ruling upon a motion to dismiss under Fed. R. Civ. P. 12(b)(6), I must accept as true all factual allegations in the complaint and view them in the light most favorable to Lacy. Erickson v. Pardus, 551 U.S. 89, 94 (2007). "To 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A 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. Although I must "accept as true all facts pleaded by the non-moving party and grant all reasonable inferences from the pleadings in favor of the non-moving party," United States v. Any & All Radio Station Transmission Equip., 207 F.3d 458, 462 (8th Cir. 2000), "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' " Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). "Where the allegations show on the face of the complaint there is someinsuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate." Benton v. Merrill Lynch & Co., Inc., 524 F.3d 866, 870 (8th Cir. 2008).
The Missouri State Highway Patrol contends that Lacy's state law claims against it are barred by sovereign immunity. Mo. Rev. Stat. § 537.600 provides that public entities such as the Missouri State Highway Patrol enjoy immunity from suit unless it is waived, abrogated, or modified by statute. Richardson v. City of St. Louis, 293 S.W.3d 133, 136 (Mo. Ct. App. 2009); Fischer v. Steward, 2010 WL 147865, *11 (E. D. Mo. Jan. 11, 2010). "Under Missouri law, sovereign immunity is waived only in cases involving injuries directly resulting from the negligent act of a public employee arising out of the operation of a motor vehicle within the course of the person's employment, or for injuries caused by the condition of a public entity's property." Shell v. Ebker, 2006 WL 1026982, *10 (E.D. Mo. Apr. 14, 2006) (citing Mo. Rev. Stat. § 537.600.1 (1)-(2)). Because these exceptions do not apply to this case, sovereign immunity bars Lacy's state law claims for assault, battery, and civil conspiracy against the Missouri State Highway Patrol. Moreover, as "[a] suit against a government officer in his official capacity is functionally equivalent to a suit against the employing governmental entity," Veatch v. Bartles Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010), Lacy's state law claims brought against Hoffman in his official capacity are also barred by sovereign immunity and will be dismissed.
Lacy, relying on Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613 (2002), argues that these defendants waived their right to assert sovereign immunity as a defense to the state law claims because they consented to the removal of this suit to federal court. Lacy is wrong. Johnson v. Board of Police Commissioners, 2007 WL 1629909, *3 (E.D. Mo. June 7, 2007). Like this Court's Chief Judge Catherine D. Perry concluded in Johnson, I too conclude that the Missouri defendants' "immunity remains in federal court, even though [they] removed the case" because they did not waive "sovereign immunity from suit for common law tort claims in [their] own state courts." Id. Therefore, the Missouri State Highway Patrol is dismissed from this action, and Lacy's state law claims against Hoffman in his official capacity only are also dismissed.
Hoffman also contends that Lacy has failed to state a first amendment retaliation claim against him. To state a § 1983 claim for retaliation in violation of the First Amendment, Lacy must allege that he engaged in protected activity; that the government official took adverse action against him that would chill a personof ordinary firmness from continuing in the activity, and that the adverse action was motivated at least in part by the exercise of the protected activity. Santiago v. Blair, 707 F.3d 984, 991 (8th Cir. 2013). Here, Lacy alleges that his first amendment rights were violated "when Officer Proctor told Mr. Lacy 'to shut the fuck up,' when Officer Proctor told Mr. Lacy that he was not to say anything as they left the casino, when Officer Proctor choked Mr. Lacy in an attempt to stifle Mr. Lacy's speech once Mr. Lacy did begin to speak, and when Officer Proctor forced Mr. Lacy against a wall at the justice center and hit Mr. Lacy in the mouth with his forearm and/or elbow in response to Mr. Lacy's comments about Officer Proctor's weight and/or presumed eating habits." (Pl.'s Sec. Am. Comp. ¶ 125). None of these allegations involve Hoffman. Lacy's sole allegation against Hoffman is that "Hoffman . . . acting at the direction of Officer Proctor in assisting in the wheeling of Mr. Lacy out of the casino while Officer Proctor choked Mr. Lacy in an attempt to stifle Mr. Lacy's speech, assisted in said stifling." (Id. at 126).
This claim lacks facial plausibility and is insufficient to establish that Hoffman violated Lacy's First Amendment rights. Lacy has failed to plead sufficient factual content which would allow this Court to draw the reasonable inference that Hoffman is liable for Proctor's alleged violation of Lacy's first amendment rights simply by steadying a wheelchair Lacy was riding...
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