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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI RYAN FERGUSON, Plaintiff, vs. JOHN SHORT, et al., Defendants.

) ) ) ) ) ) ) ) )

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

Case 2:14-cv-04062-NKL Document 49 Filed 04/16/14 Page 1 of 5


(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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12.

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.

15.

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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20.

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 rwatters@bjpc.com mmaguire@bjpc.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.zellner@gmail.com 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 dbaker@fisherpatterson.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 marshallwilson@berrywilson.com michaelberry@berrywilsonlaw.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 bfarmer@owwlaw.com bbuckley@owwlaw.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 bdsimon@bwsplaw.com mlewis@bwsplaw.com ccolbert@bwsplaw.com 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 cpr@srfblaw.com bcl@srfblaw.com 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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Defendant ben white's motion to dismiss  
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