IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI RYAN FERGUSON, Plaintiff, vs. JOHN SHORT, et al., Defendants.
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Cause No.: 14-4062-CV-NKL JURY TRIAL DEMANDED
DEFENDANT BEN WHITE’S MOTION TO DISMISS COMES NOW Defendant Ben White, by and through the undersigned counsel, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and Rule 7.0 of the Local Rules of the United States District Court for the Western District of Missouri, and for his Motion to Dismiss, states as follows: 1.
On April 4, 2014, Plaintiff Ryan Ferguson (“Plaintiff”) filed a 54-page First
Amended Complaint setting forth eight counts and 284 separate paragraphs and detailing a litany of alleged constitutional violations by two governmental entities and 11 individuals employed by the Columbia, Missouri, Police Department and the Boone County Prosecuting Attorney’s Office, including Defendant White. (ECF Doc. No. 35). 2.
In that Complaint, Plaintiff asserts three claims against Defendant White, each
arising under Section 1983. Id. at ¶¶ 239-262 (Counts III-V). 3.
Each of those claims is pleaded in such a conclusory fashion that it wholly fails to
state a claim as to Defendant White and unquestionably fails to satisfy federal notice pleading standards. Ashcroft v. Iqbal, 556 U.S. 662, 678 (U.S. 2009) (“[A] formulaic recitation of the elements of a cause of action will not do.”); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
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(U.S. 2007). Counts III, IV, and V must be dismissed for that reason alone. Id.; FED. R. CIV. P. 12(b)(6). 4.
However, each of Plaintiff’s claims suffers from additional infirmities warranting
dismissal as well. 5.
Count III alleges “reckless or intentional failure to investigate” in violation of
Plaintiff’s substantive due process rights under the Fourteenth Amendment. 6.
However, Plaintiff has not pleaded or set forth any facts indicating how
Defendant White’s conduct in interviewing a witness—the only conduct alleged as to Defendant White—constitutes a failure to investigate. 7.
Moreover, Plaintiff never once states what additional investigation Defendant
White should have undertaken based on the information obtained in the interview. 8.
More importantly, Plaintiff has not gone beyond a conclusory allegation that
Defendant White acted either intentionally or recklessly, offering no factual allegations that would raise Defendant White’s conduct to that level as opposed to mere negligence. This, too, constitutes grounds for dismissal for failure to state a claim. See Amrine v. Brooks, 522 F.3d 823, 835 (8th Cir. 2008); Clemmons v. Armontrout, 477 F.3d 962, 966 (8th Cir. 2007). 9.
Count III should be dismissed, as it fails to state a claim against Defendant White
upon which relief can be granted. FED. R. CIV. P. 12(b)(6). 10.
Count IV purports to state a claim against Defendant White for malicious
prosecution in violation of the Fourth, Sixth, and Fourteenth Amendments. 11.
The Eighth Circuit does not typically recognize claims for malicious prosecution
in the context of Section 1983 actions. Joseph v. Allen, 712 F.3d 1222, 1228 (8th Cir. 2013).
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To the extent such claims are cognizable under Section 1983, the constitutional
violations alleged in Plaintiff’s First Amended Complaint are insufficient to support such a claim. See id.; see also Albright v. Oliver, 510 U.S. 266, 275 (1994); Harrington v. City of Council Bluffs, Iowa, 678 F.3d 676, 679, n.4 (8th Cir. 2012). 13.
As such, Count IV fails to state a claim against Defendant White and must
likewise be dismissed. FED. R. CIV. P. 12(b)(6). 14.
Count V alleges conspiracy to deprive Plaintiff of his constitutional rights.
In that count, Plaintiff wholly fails to plead Defendant White reached agreement
with any of the other defendants to violate Plaintiff’s constitutional rights. Such an allegation is essential to state a conspiracy claim. Deck v. Leftridge, 771 F.2d 1168, 1170 (8th Cir. 1985). 16.
Additionally, Plaintiff fails to plead the substance of the alleged overt act taken in
furtherance of the conspiracy, further rendering his pleading untenably conclusory. See id.; see Iqbal, 556 U.S. at 678. 17.
Count V must therefore be dismissed for failure to state a claim against Defendant
White. FED. R. CIV. P. 12(b)(6). 18.
Finally, notwithstanding Plaintiff’s failure to state a claim on Counts III, IV, and
V, Defendant White is absolutely immune from suit on the facts alleged. Imbler v. Pachtman, 424 U.S. 409, 431 (1976); see also Reasonover v. St. Louis County, Mo., 447 F.3d 569, 579 (8th Cir. 2006). 19.
As such, regardless of whether Plaintiff otherwise states a claim against him, the
claims set forth in Counts III, IV, and V are not cognizable against Defendant White, and Plaintiff’s First Amended Complaint must be dismissed as against Defendant White. Fed. R. Civ. P. 12(b)(6).
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Defendant White incorporates by reference his Suggestions in Support of his
Motion to Dismiss as if fully set forth herein. WHEREFORE, Defendant Ben White respectfully requests this Court issue an Order granting his Motion to Dismiss and awarding such other and further relief as the Court deems just and proper under the circumstances. Respectfully submitted, BROWN & JAMES, P.C. /s/ Michael B. Maguire Russell F. Watters, #25758MO Michael B. Maguire, 35036MO Attorneys for Defendants Boone County and Ben White 800 Market Street, 11th Floor St. Louis, Missouri 63101-2501 314-421-3400 314-421-3128 – FAX firstname.lastname@example.org email@example.com
CERTIFICATE OF SERVICE The undersigned hereby certifies that a true copy of the foregoing was filed electronically with the Clerk of the Court to be served via operation of the Court’s electronic filing system on this 16th day of April, 2014 to: Kathleen T. Zellner Douglas H. Johnson Kathleen T. Zellner & Associates, P.C. 1901 Butterfield Road, Suite 650 Downers Grove, IL 60515 Kathleen.firstname.lastname@example.org Djohnson43@aol.com Attorneys for Plaintiff
Samuel Henderson 2015 Bredell Avenue St. Louis, MO 63143 Hendersa85@hotmail.com Co-counsel for Plaintiff
David S. Baker Fisher, Patterson, Sayler & Smith, LLP 51 Corporate Woods, Suite 300
Marshall V. Wilson Michael G. Berry Berry Wilson, LLC
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9393 West 110th Street Overland Park, KS 66210 email@example.com Attorneys for The City of Columbia, Stephen Monticelli and Randy Boehm
200 East High Street, Suite 300 P.O. Box 1606 Jefferson City, MO 65102 firstname.lastname@example.org email@example.com Attorneys for Defendant William Haws
Bruce Farmer Robert J. Buckley Oliver Walker Wilson, LLC 401 Locust, Suite 406 P.O. Box 977 Columbia, MO 65205-0977 firstname.lastname@example.org email@example.com Co-Counsel for Randy Boehm
B. Daniel Simon Marjorie M. Lewis R. Caleb Colbert Brown, Willbrand, Simon, Powell & Lewis PC 601 East Broadway, Suite 203 P.O. Box 1304 Columbia, MO 65205-1304 firstname.lastname@example.org email@example.com firstname.lastname@example.org Attorneys for Defendant Kevin Crane
Christopher P. Rackers Brad C. Letterman Schreimann, Rackers, Francka & Blunt, LLC 931 Wildwood Drive, Suite 201 Jefferson City, MO 65109 email@example.com firstname.lastname@example.org Attorneys for Defendants John Short, Jeff Nichols, Jeff Westbrook, Brian Liebhart, Latisha Stroer and Lloyd Simons
/s/ Michael B. Maguire 11661630
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