Thomas v. City of St. Louis

• Decision Date: 29 September 2021
• Docket Number: 4:18-CV-01566 JAR
• Parties: DEMETRIUS THOMAS, Plaintiff, v. CITY OF ST. LOUIS, MISSOURI, et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

DEMETRIUS THOMAS, Plaintiff, v. CITY OF ST. LOUIS, MISSOURI, et al., Defendants.

No. 4:18-CV-01566 JAR

United States District Court, E.D. Missouri, Eastern Division

September 29, 2021

MEMORANDUM AND ORDER

JOHN A. ROSS UNITED STATES DISTRICT JUDGE.

This matter is before the Court on Defendants' Motion to Dismiss Third Amended Complaint. (Doc. No 115).^[1] The motion is fully briefed and ready for disposition. For the following reasons, the motion is granted in part and denied in part.

I. Background

This is one of several cases filed in this District arising out of the protest activity following the September 15, 2017 verdict in State v. Stockley, No. 16220CR02213-01 (Mo. 22nd. Jud. Cir. Sept. 15, 2017). Plaintiff Demetrius Thomas, an independent journalist, filed this action in 2018, alleging he was illegally “kettled, ”^[2] beaten and arrested while observing and documenting the protest on September 17, 2017. Plaintiff amended his complaint on January 9, 2019 and February 14, 2019 and the parties engaged in extensive discovery to identify unnamed Doe defendants.

Following completion of this discovery, Plaintiff filed his third amended complaint on October 21, 2020, alleging claims under 42 U.S.C. § 1983 and Missouri state law as follows:

Count 1: Unreasonable seizure under the Fourth and Fourteenth Amendments against Defendant Officers^[3];

Count 2: Violations of free speech, press association, and assembly under the First and Fourteenth Amendments against Defendant Officers;

Count 3: Conspiracy to violate civil rights against Defendant Officers and Defendant Lt. Col. Lawrence O'Toole, the acting Chief of Police for the City of St. Louis;

Count 4: Failure to train, discipline, and supervise, and an unconstitutional custom of unconstitutional seizures and using excessive force against Defendant City of St. Louis;

Count 5: Assault against Defendant Officers;

Count 6: False arrest against Defendant Officers;

Count 7: Abuse of process against Defendant Officers and Defendant O'Toole;

Count 8: Malicious prosecution against Defendant Officers and Defendant O'Toole;

Count 9: Intentional infliction of emotional distress against Defendant Officers;

Count 10: Negligent infliction of emotional distress against Defendant Officers;

Count 11: Vicarious liability under the City of St. Louis Charter against Defendants O'Toole and Charlene Deeken, Director of Public Safety for the City;

Count 12: Excessive force under the Fourth and Fourteenth Amendments against Defendant Officers;

Count 13: Failure to intervene in the use of excessive force against Defendant Officers and Defendant O'Toole; and

Count 14: Battery against Defendant Officers.

The individual Defendants move to dismiss Plaintiff's third amended complaint for failure to state a claim. Defendants also move to dismiss Plaintiff's § 1983 claims based on qualified immunity and his state law claims based on official immunity. Lastly, Defendants contend the Court should decline to exercise supplemental jurisdiction over Plaintiff's City Charter claim. Other judges in this District have recently addressed the same or similar arguments on motions to dismiss in Stockley protest cases. See Davis v. City of St. Louis, Mo., No. 4:18-CV-1574, 2021 WL 4148331 HEA (Sept. 13, 2021); Newbold v. City of St. Louis, Mo., No. 4:18-CV-1572 HEA, 2021 WL 4061066 (E.D. Mo. Sept. 7, 2021); Ortega v. City of St. Louis, Mo., No. 4:18 CV 1576 DDN, 2021 WL 3286703 (E.D. Mo. Aug. 2, 2021); Street v. O'Toole, No. 4:19-CV-2590 CDP, 2021 WL 677909 (E.D. Mo. Feb. 22, 2021); Baude v. City of St. Louis, Mo., No. 4:18-CV-1564 RWS, 476 F.Supp.3d 900 (E.D. Mo. 2020). The Court has looked to these opinions for guidance.

II. Facts

Taken as true for purposes of this motion, the facts alleged in the operative complaint are as follows. On Friday, September 15, 2017, after a four-day bench trial, Officer Jason Stockley was acquitted of the first-degree murder of Anthony Lamar Smith. Following the announcement of the Stockley verdict, public protests began at multiple locations in the St. Louis metropolitan area. Although most of the protests were nonviolent, SLMPD officers “amassed at several protests wearing military-like tactical dress, helmets, batons, and full-body riot shields and carrying [chemical agents].” (TAC at ¶ 23).

On the evening of September 17, 2017, Plaintiff received a phone call from a friend telling him about protests that were occurring downtown. Plaintiff headed downtown to record the protests, taking his professional camera and a drone. By the time he arrived, however, the protests had ended. While driving to the intersection of Olive Street and Tucker Boulevard, a large group of officers surrounded and then passed by his car. Plaintiff got out of his car to record their actions. An officer, who Plaintiff believed to be a supervisor, told him he was permitted to record as long as he remained on the sidewalk. Plaintiff complied and joined members of the media, including a person known as “RebZ, ” on a sidewalk corner. Plaintiff observed a large black SLMPD police truck making some inaudible announcement. Suddenly, Plaintiff noticed a change in the demeanor of the officers. His attempt to exit through an alley was blocked by an officer with a baton who then directed him back to the intersection of Washington Avenue and Tucker Boulevard.

Upon arriving at the intersection, Plaintiff observed between 100 to 200 officers pounding their batons against their shields and the ground. Plaintiff attempted to get to his car parked on Washington Avenue west of Tucker Boulevard, but police prevented him from leaving, even though he was loudly pleading with them to be allowed to leave. In response to his pleas, a SLMPD officer pointed a large can of pepper spray at Plaintiff and told him to “get out of here, ” and directed him back to the intersection of Washington Avenue and Tucker Boulevard.

Upon returning to the intersection, Plaintiff encountered a large group of terrified people trying to leave the area. He and the rest of the group tried to leave by going east of Washington Avenue, but were prevented from leaving by a phalanx of bike officers. Plaintiff quickly attempted to secure his $6, 000 camera. Soon after, he was knocked to the ground. He heard his friend yell “They are pushing us.” Without warning, SLMPD officers, including Defendants Bill Kiphart, Matthew Burle, and Tom Long, began to indiscriminately pepper spray the people that had been kettled.

Even though Plaintiff was on the ground and fully compliant, an unidentified officer grabbed him by his arms and dragged him to another spot in the intersection. Despite Plaintiff's full compliance, Defendants Samuel Gilman, Brian Lemons, Joseph Rodriguez, Timothy McNamara, Trenton Lee, Patrick Daut, and Nicholas Lee grabbed him by the arms and legs while one of them repeatedly beat him in the ribs with a baton. (TAC at ¶ 171). The City has identified Defendant Trenton Lee as Plaintiff's arresting officer. (Id. at ¶ 172). These Defendants confiscated Plaintiff's camera, broke his drone, and roughly, painfully zip tied his hands. (Id. at ¶¶ 173-74). They further terrorized Plaintiff by carrying him by each of his limbs, across the intersection before returning him to his feet. (Id. at ¶ 175).

Even after he was zip tied, Plaintiff did not believe he was going to be arrested, as he had done nothing wrong. Yet, Plaintiff spent at least 48 hours in jail. Upon his release, Plaintiff received a criminal summons and a court date for an initial appearance. 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!” (Id. at ¶ 101).

In addition to the factual allegations regarding the protests on the night of September 17, 2017, Plaintiff's complaint details other allegations of the SLMPD's use of chemical agents against protestors without warning, use of excessive force, and the history of litigation against the City for these types of incidents.

III. Legal Standard

“To survive a motion to dismiss for failure to state a claim, the complaint must show the plaintiff ‘is entitled to relief,' Fed.R.Civ.P. 8(a)(2), by alleging ‘sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'” In re Pre-Filled Propane Tank Antitrust Litig., 860 F.3d 1059, 1063 (8th Cir. 2017) (en banc) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court accepts all factual allegations as true and construes all reasonable inferences in the light most favorable to the nonmoving party. Usenko v. MEMC LLC, 926 F.3d 468, 472 (8th Cir.), cert. denied, ___ U.S. ___, 140 S.Ct. 607 (2019). The Court need not accept as true a plaintiff's conclusory allegations or legal conclusions drawn from the facts. Waters v. Madson, 921 F.3d 725, 734 (8th Cir. 2019). The complaint “must allege more than ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements'” and instead must “allege sufficient facts that, taken as true, ‘state a claim to relief that is plausible on its face.'” K.T. v. Culver-Stockton Coll., 865 F.3d 1054, 1057 (8th Cir. 2017) (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 544, 678 (2009) (internal quotation marks omitted). A facially plausible claim is one “that allows the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged.” Wilson v. Ark. Dep't of Human Servs., 850 F.3d 368, 371 (8th Cir. 2017) (internal quotation omitted). Thi...