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

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Case No. 2:14-CV-04062-NKL

REPLY SUGGESTIONS IN SUPPORT OF DEFENDANTS THE CITY OF COLUMBIA, BOEHM AND  MONTICELLI’S  PARTIAL  MOTION  TO  DISMISS COME NOW Defendants The City of Columbia, Boehm and Monticelli, and offer the following Reply in support of their Partial Motion to Dismiss. Count IV § 1983  “Malicious  Prosecution” In opposing dismissal of the § 1983 malicious prosecution claim, Plaintiff does not suggest this theory is based on the violation of a procedural due process right. Instead, he acknowledges it is asserted under the  Fourth  Amendment:  “Permitting  §  1983  malicious  prosecution  claims  based   on  the  Fourth  Amendment  is  logical.”    (Doc.  No.  67,  p.  6.)    However,  controlling precedent in this Circuit compels the conclusion this theory is not viable and, therefore, Count IV must be dismissed. The  Eighth   Circuit  has  stated  it  has  “uniformly   held   that  malicious  prosecution  by  itself  is   not   punishable under § 1983 because it does not allege a constitutional   injury.”     Kurtz v. City of Shrewsbury, 245 F.3d 753, 758 (8th Cir. 2001). This conclusion was reaffirmed as recently as last year. Joseph v. Allen, 712 F.3d 1222, 1228 (8th Cir.   2013)   (“under   our   holding   in   Kurtz, [plaintiff’s]  allegations  of  malicious  prosecution  cannot  sustain  a  valid  claim  under  §  1983”).    It  is   respectfully submitted this Court is obliged to follow this precedent. Hood v. United States, 342

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F.3d 861, 864 (8th Cir. 2003) (stating a district  court  “is  bound,  as  are  we,  to  apply the precedent of  this  Circuit”).    See also Brown  v.  First  Nat’l.  Bank  in  Lenox, 844 F.2d 580, 582 (8th Cir. 1988) (“one  panel  of  this  Court  is  not  at  liberty  to  overrule  an  opinion  filed  by  another  panel.    Only  the   Court en banc may take  such  a  step”). Defendants Monticelli and Boehm are also shielded from liability on this Count by qualified  immunity.    In  his  opposition,  Plaintiff  argues  Defendants  “take  too  narrow  an  approach   with  respect  to  the  ‘clearly  established’  prong.”    Doc. No. 75, p. 2. The Supreme Court has recently provided  guidance  on  when  a  right  is  clearly  established:  “We  do  not  require  a  case  directly  on   point, but existing precedent must have placed the statutory or constitutional question beyond debate.”    Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2083 (2011). In Livers v. Schenck, 700 F.3d 340 (8th Cir. 2012), the Court considered qualified immunity in a case in which the federal circuits disagreed on whether the challenged conduct violated the Constitution and the Eight Circuit had not previously addressed the question. Id. at 360. In such a situation, the Court stated the “conduct  does  not  violate  clearly  established  law  because  it  is  unfair to subject police to money damages for picking the losing side  of  the  controversy.”    Id. (internal quotation marks omitted). In the case at bar, the conclusion that qualified immunity is applicable is even more compelling because the Eighth Circuit has previously determined the pleaded § 1983 malicious prosecution claim is not viable. Kurtz, 245 F.3d at 758. The individual defendants are entitled to dismissal under qualified immunity. Count VI – Monell Claim Against City and Boehm in his Official Capacity1 In opposing dismissal of the official policy claims, Plaintiff acknowledges he has not alleged  a  “specific  written  unconstitutional  policy”  existed  (Doc.  No.  75,  p.  8),  but  argues  he  has  

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Plaintiff has conceded the official capacity claim against Defendant Boehm may be dismissed. Doc. No. 75, p. 11. As a result, this issue is not addressed further. {O0313626}

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alleged sufficient facts to support this theory. Defendant City respectfully disagrees. While the Eight Circuit has previously determined a plaintiff  need  not  plead  “the specific existence of an unconstitutional policy”  to  survive  a  Rule  12(b)(6)  motion,  Doe v. Sch. Dist. of Norfolk, 340 F.3d 605, 614 (8th Cir. 2003), it is necessary to plead facts to support the existence of an unconstitutional policy. Id. (“[a]t a minimum, a complaint must allege facts which would support the existence of an unconstitutional  policy  or  custom”).    It  is  respectfully  submitted  the  Amended  Complaint  does   not contain sufficient allegations of fact; instead, it contains only legal conclusions to support the assertion of an unconstitutional policy – and conclusions are insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). In opposing dismissal of his unconstitutional custom and failure to train claims, Plaintiff argues his  Amended  Petition  contains  assertions  that  “go  well  beyond  the  general  and  nondescript   allegations” in Ulrich v. Pope County, 715 F.3d 1054, 1058 (8th Cir. 2013). (Doc. No. 75, p. 8.) Respectfully, Plaintiff appears to misunderstand the import of Ulrich to the point the City is attempting to make. Specifically, Ulrich is cited for the reason it addresses the types of fact a plaintiff must assert when, as here, there is an allegation a governmental entity failed to “adequately  supervise  and  train  the  County’s  deputies  and  for  developing  policies  or  customs  that   exhibited  deliberate  indifference  to  the  constitutional  rights  of  citizens.”    715 F.3d at 1058. The Eighth Circuit concluded in order to survive a Rule 12(b)(6) motion, the complaint must allege facts which satisfy the notice requirement. Id at  1061  (stating  allegations  describing  the  entity’s   supervision and training practices as inadequate, but pointing to no facts to support this assertion other than the example of his own arrest and detention are generally insufficient). In this case, the Amended Complaint contains no allegation of fact about prior incidents of similar unconstitutional conduct.    As  a  result,  the  “notice”  element  necessary  to  support  a  viable  Monell unconstitutional

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custom or failure to train claim has not been pleaded. See Atkinson v. City of Mountainview, 709 F.3d 1201, 1216 (8th Cir. 2013) (“Notice is  the  touchstone  of  deliberate  indifference  in  the  context   of  §  1983  municipal  liability”). Plaintiff also argues this claim is sufficiently pleaded because he “alleged   concerted   unconstitutional   conduct   on   the   part   of   eight   separate   City   officers,   which   further  shows  a  custom  of  unconstitutional  conduct.” 2 Doc. No. 75, p. 9. A similar argument was presented to the Supreme Court in Connick v. Thompson, ___ U.S. ___, 131 S.Ct. 1350 (2011). There, the Court considered the viability of a § 1983 failure to train claim concerning a prosecutor’s  failure  to   train   his   assistants   of   Brady3 disclosure requirements. In support of his contention he had presented a viable claim, Thompson argued four other prosecutors had also withheld   evidence.     The   Supreme   Court   rejected   the   argument,   stating   “contemporaneous or subsequent conduct cannot establish a pattern of violations  that  would  provide  ‘notice to the cit[y] and the opportunity to conform to constitutional dictates.’” Id at 1360 n. 7, quoting City of Canton v. Harris, 489 U.S. 378, 395 (1989). Finally, Plaintiff attempts to avoid the conclusion he has not properly alleged facts to satisfy the notice requirement by suggesting his failure to train claim concerning Brady obligations “can  give  rise  to  liability  without  any  pre-existing pattern of unconstitutional conduct where the need  to  train  is  ‘obvious.’”    Doc.  No.  75,  p.  9.    This  “single-incident”  argument is wide of the mark for at least two reasons. First, it fails to acknowledge the Amended  Complaint’s  “failure  to  train”   claims involve more than just alleged Brady issues. For example, Count VI also alleges (in conclusory  fashion)  there  existed  “a  policy,  practice,  and  custom  of  fabricating  evidence,  including   2

Plaintiff also  argues  the  “Missouri  Court  of  Appeals  even  held  that  Defendants  in  this  case  engaged  in  a  ‘pattern’   of  unconstitutional  conduct.”      Doc. No. 75, p. 6. Plaintiff cites as support for this statement paragraphs 202 and 203 of his Amended Complaint. However, when those paragraphs are reviewed, it is clear the Court of Appeals was addressing alleged conduct of individuals who are not employees of the City of Columbia. As a result, it is inappropriate for Plaintiff to suggest this assertion supports his claim against the City. 3

Brady v. Maryland, 373 U.S. 83 (1963).

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reports, witness  statements,  and  confessions.”    Doc. No. 35, p. 47, ¶ 269.b. However, the Eighth Circuit has previously determined training for this type of conduct is not patently obvious. Livers, 700  F.3d  at  356  (“Sheriff  Dunning  faced  no  ‘patently  obvious  need’  to  train  DCCSI  employees  – whose  job  was  to  ‘identify,  document,  collect  and  preserve  evidence  from  crime  scenes’  – not to fabricate evidence.

Any reasonable DCCSI employee would know fabricating evidence is

unacceptable”) (internal citation omitted). Second, Connick supports the conclusion the singleincident theory concerning Brady violations is not viable. In that case, the Supreme Court stated “[a] pattern  of  similar  constitutional  violations  by  untrained  employees  is  ‘ordinarily  necessary’  to   demonstrate  deliberate  indifference  for  the  purposes  of  failure  to  train.”    131  S.  Ct.  at  1360.    Absent   notice its course of training is deficient  in  a  particular  respect,  “decisionmakers  can  hardly  be  said   to have deliberately chosen a training program that will cause violations of constitutional rights.”     Id. Even though the case at bar deals with the consequences of failing to train police officers (as opposed to prosecutors) of Brady obligations, that distinction does not dictate a different result. The Supreme Court has made clear the obligation to comply with Brady ultimately falls on the prosecutor, not police officers. In order to comply with Brady,  it  is  the  prosecutor  who  “has  a  duty   to  learn  of  any  favorable  evidence  known  to  the  others  acting  on  the  government’s  behalf  in  the   case,  including  the  police.”    Kyles v. Whitley, 514 U.S. 419, 437 (1995). See also United States v. Tyndall, 521 F.3d 877, 882 (8th Cir.  2008)  (“A prosecutor has a duty to disclose evidence known by police officers, even if not known by the prosecutor, because a prosecutor has a duty to learn of such information”).   As  a  result,  the  “single-incident”  theory  does not support a viable claim that the City failed to train its police officers about Brady requirements. While the police officer may have a duty to disclose exculpatory evidence to the prosecutor, the Supreme Court has made clear that the buck stops with the prosecutor: it   is   the   prosecutor’s   duty   to   learn   of   any   evidence   favorable   to   the   accused that is known to police officers. Kyles, 514 U.S. at 437. In light of the {O0313626}

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prosecutor’s proactive  duty  to  track down Brady material, the Court cannot say that a failure to train police officers in Brady would   lead   to   the   “highly   probable”   consequence [of] a constitutional violation. . . . So even if police officers may not have been trained in the nuances of Brady,   prosecutors’   legal   training   and   professional responsibility . . . are a buffer against recurring constitutional violations.    Accordingly,  [the  City’s]  alleged  failure  to  train  officers  in  Brady before [plaintiff’s]  arrest  and  conviction  cannot  support a  §  1983  “failure  to  train”  claim   based on a single-incident theory of liability. LeFever v. Ferguson, Nos. 2:11-cv-935, 2:12-cv-664, 2013 WL 3568053, at *8 (S.D. Ohio, July 11, 2013) (emphasis in original). Count VIII – Defamation Claim Against Boehm In his response, plaintiff does not deny that he has not been exonerated and that probable cause exists to support his arrest and conviction for the murder of Kent Heitholt. Plaintiff also does not address the fact that, under Missouri law, comments on the results of an investigation or whether an investigation was proper are matters of opinion that cannot form the basis of a defamation claim. See Nigro v. St. Joseph Medical Center, 371 S.W.3d 808, 820 (Mo. App. 2012); Rice v. Hodapp, 919 S.W.2d 240, 243-44 (Mo. banc 1996); Turnbull v. Harold Co., 459 S.W.2d 516, 519 (Mo. App. 1970). Plaintiff does not dispute that expressions of opinion cannot form the basis of a defamation claim. Nevertheless,   plaintiff   argues   that   opinion   can   be   actionable   if   the   “words   imply some unstated defamatory facts.”  Doc. 75, p.11, citing Henry v. Haliburton, 690 S.W.2d 775, 790 (Mo. App. 1995). Missouri law, however, is that  statements  that  start  with  the  phrase  “it  is  my  opinion”   cannot  mean  anything  other  than,  “it  is  my  belief”,  which  reflect  the  expressions  of  opinion,  not   fact. Pape v. Reither, 918 S.W.2d 376, 380 (Mo. App. 1996); see also Ruzicka Elec. and Sons, Inc. v.  Int’l  Bhd.  of  Elec.  Workers, Local 1, AFL-CIO, 427  F.3d  511,  523  (8th  Cir.  2005)  (speaker’s   statements that   they   “thought”  plaintiff’s  work  was  “shoddy”   and  “felt”   work  was   “dangerous,   improper,  and  not  up  to  code”  are  not  actionable  under  Missouri  defamation  law).   {O0313626}

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Instead, plaintiff’s response  relies  almost  entirely  on  Harrington v. Wilber, 353 F. Supp. 2d 1033  (S.  D.  Iowa  2005).  Plaintiff’s  reliance  is  misplaced.  There,  unlike  Defendant Boehm, the defendant was the current prosecutor. As the current prosecutor, the defendant personally moved to dismiss criminal charges against plaintiff stating there was not  sufficient  “admissible  evidence”   to support a conviction. After doing so, the prosecutor called a press conference and issued a lengthy press release explaining his decision. In the course of the press conference and within the press release, the prosecutor  stated  that  he  “personally”  spent  “hundreds  of  hours”  reviewing  the   case  and  concluded  that  “I  have  no  doubt  that  Terry  Harrington  committed  the  murder  …  .”  353   F.  Supp.2d  at  1037.  The  court  held  that  the  prosecutor’s  reference  to  the  insufficiency  of  admissible evidence indicated that his “hundreds hours of investigation revealed facts to him supporting his certainty that Plaintiff  is  a  murderer.”  Harrington, 353 F. Supp. 2d at 1043. The court, therefore, concluded that plaintiff made a submissible case against the prosecutor under Iowa law. In  contrast,  Defendant  Boehm’s  statement  contained  three  short  sentences: I had and still have complete confidence in our investigative team that worked this case. I believe the case was worked professionally and ethically and I still believe that the people responsible for this crime are the people that we arrested. I also had and still have complete confidence in the professionalism and integrity of Kevin Crane. Defendant Boehm had long retired as the police chief   at   the   time   plaintiff’s   conviction   was   reversed and the statement made. Doc. No. 35, ¶ 12. There is no allegation that Defendant Boehm was involved in the post-conviction proceedings. Defendant Boehm had no involvement in the decision made by the Attorney   General’s   Office   on   whether   to   proceed   with   criminal   charges. Defendant Boehm did not call a press conference or issue a press release. Defendant Boehm’s   statements of confidence in the investigative team and the prosecutor do not imply any hidden facts or any special knowledge on whether plaintiff was a murderer. Defendant Boehm’s  belief  

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that the arrest was proper is supported by numerous court decisions upholding plaintiff’s   conviction, rejecting his post-conviction motions and allowing plaintiff to be retried. Missouri  law  requires  the  court  to   determine  whether   “a  statement   is   capable  of  a  nondefamatory   meaning,   and   can   be   reasonably   construed   in   an   innocent   sense   …   .”   Mandel v. O’Connor,  99 S.W.3d 33, 36 (Mo. App. 2003). If so construed, the court “must  hold  the  statement   nonactionable  as  a  matter  of  law.”  Id.; see also Ampleman v. Scheweppe, 972 S.W.2d 329, 333 (Mo. App. 1998). Here,   defendant   Boehm’s   statement   is   nondefamatory   as   a   matter   of   law.   Defendant   Boehm’s  belief,  expressed  five  years  after his retirement as police chief, that the investigative team and prosecutor were professional and that the arrest was lawful is not capable of a nondefamatory meaning. Defendant Boehm’s statement does not imply unstated defamatory facts. Defendant Boehm has an absolute constitutional privilege to express his opinion on the competency of the investigative team, the prosecutor and the propriety of the arrest. Each and every day, law enforcement officials announce an arrest and tell the public that they believe they arrested the people   responsible.   Under   plaintiff’s   theory,   each   defendant   who   is   acquitted   or   has   charges   dismissed would have an actionable cause of action against law enforcement officials for defamation. That is not the law in Missouri. Conclusion For these reasons, as well as those previously discussed in the earlier filed Suggestions, it is respectfully submitted the Partial Motion to Dismiss should be granted.

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Respectfully submitted,

/s/ David S. Baker David S. Baker, dbaker@fisherpatterson.com #30347 Fisher, Patterson, Sayler & Smith, LLP 51 Corporate Woods, Suite 300 9393 W. 110th Street Overland Park, KS 66210 (913) 339-6757; Fax (913) 339-6187 Attorneys for Defendants The City of Columbia, Missouri, Boehm and Monticelli

/s/ Robert J. Buckley Robert J. Buckley, BBuckley@owwlaw.com Oliver Walker Wilson LLC 401 Locust Street, Suite 406 P.O. Box 977 Columbia, MO 65205 (573) 443-3134; Fax (573) 442-6323

/s/ Bruce Farmer Bruce Farmer, BFarmer@owwlaw.com Oliver Walker Wilson, LLC 401 Locust, Suite 406 P.O. Box 977 Columbia, MO 65205-0977 (573) 443-3134; Fax (573) 442-6323 Attorneys for Defendant Boehm

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#44884

#31407


CERTIFICATE OF SERVICE I hereby certify that on May 29, 2014, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notice of electronic filing to the following: Samuel Henderson 2015 Bredell Avenue St. Louis, MO 63143 and Kathleen T. Zellner Douglas H. Johnson Kathleen T. Zellner & Associates, P.C. 1901 Butterfield Road, Suite 650 Downers Grove, IL 60515 Attorneys for Plaintiff Russell F. Watters Michael B. Maguire Cynthia M. Juedemann Jonathan C. Pleban Brown & James, P.C. 800 Market Street, 11th Floor St. Louis, MO 63101-2501 Attorneys for Defendants Boone County and Ben White Michael G. Berry Marshall V. Wilson Berry Wilson, L.L.C. 200 East High Street, Suite 300 P.O. Box 1606 Jefferson City, MO 65102 Attorneys for Defendant Haws Christopher P. Rackers Brad C. Letterman Schreimann, Rackers, Francka & Blunt, LLC 931 Wildwood Drive, Suite 201 Jefferson City, MO 65109 Attorneys for Defendants Short, Nichols, Westbrook, Liebhart, Stroer and Simons

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B. Daniel Simon R. Caleb Colbert Marjorie M. Lewis Brown, Willbrand, Simon, Powell & Lewis, PC 601 E. Broadway, Suite 203 P.O. Box 1304 Columbia, MO 65205-1304 Attorneys for Defendant Crane

/s/ Bruce Farmer BRUCE FARMER

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Reply suggestions in support of boehm and monticelli's partial motion to dismiss