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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.

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Cause No.: 14-4062-CV-NKL JURY TRIAL DEMANDED

DEFENDANT  BOONE  COUNTY’S  SUGGESTIONS IN SUPPORT OF ITS MOTION TO DISMISS COMES NOW Defendant Boone County, 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 its Suggestions in Support of its Motion to Dismiss, states as follows: I. PRELIMINARY STATEMENT On   April   4,   2014,   Plaintiff   Ryan   Ferguson   (“Plaintiff”)   filed   his   First   Amended   Complaint, asserting, inter alia, a claim against Boone County pursuant to Monell v. Department of Social Services of City of New York, (ECF Doc. No. 35, ¶¶ 263-274 (Count VI)), in which the Supreme Court first recognized a means of imposing Section 1983 liability on municipalities for constitutional violations perpetrated by municipal employees pursuant to a policy, practice, or custom established by the municipality. 436 U.S. 658 (1978).

In order to properly plead

municipal liability under Monell, Plaintiff must allege Boone County adopted the policies, practices, or customs which he contends caused the violation of his constitutional rights. See id. at 695.

Plaintiff attempts to do just that by alleging Boone County adopted the policies,

practices, and customs of which   he   complains   “through”   separate   Defendant   Kevin   Crane,   the  

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Boone County prosecuting attorney. (ECF Doc. No. 35, ¶ 267). Thus, by dint of his title as Boone County prosecuting attorney, Plaintiff (erroneously) identifies Defendant Crane as a policymaker for Boone County. Id. at ¶ 266. Quite simply, Plaintiff makes an incorrect, albeit understandable, assumption—that the Boone County prosecuting   attorney   acts   “for   Boone   County”  in  adopting  policies  and  practices  relating  to  criminal  prosecutions.  (ECF Doc. No. 35, ¶ 266). However, this Court should not, like Plaintiff, conflate title with legal status. Although he bears the title of Boone County prosecuting attorney, Defendant Crane is unquestionably an agent of the state, not Boone County, under Missouri law. Missouri Prosecuting Attorneys v. Barton County, 311 S.W.3d 737, 748 (Mo. 2010) (Wolff, J., concurring); State v. Harrington, 534 S.W.2d 44, 49 (Mo. 1976); Williams v. State, 730 S.W.2d 284, 288 (Mo. App. E.D. 1987); State v. Goree, 546 S.W.2d 785, 788 (Mo. App. 1977). As such, he has no authority to adopt policies, practices, or customs for Boone County, and he adopted   none   of   the   policies,   practices,   or   customs   alleged   in   Plaintiff’s   First   Amended   Complaint for Boone County. See id. As none of the policies, practices, or customs alleged is attributable  to   Boone  County,  Count  VI  of  Plaintiff’s  First  Amended  Complaint fails to state a claim against Boone County upon which relief can be granted and must be dismissed. FED. R. CIV. P. 12(b)(6). Irrespective of his inability to impute to Boone County any of the policies, practices, or customs of which he complains, Plaintiff also fails to state a Monell claim against Boone County by failing to factually support his conclusory allegations of the policies and practices allegedly adopted. He neither specifically identifies those policies or practices nor alleges any pattern of misconduct or constitutional violations based on them. (ECF Doc. No. 35, ¶¶ 263-274). This type of conclusory pleading has consistently been held insufficient to state a Monell claim, by

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this Court as well as others. Andrews v. Fowler, 98 F.3d 1069, 1075 (8th Cir. 1996); Gash v. Lafayette County, Mo., 2013 WL 3092861, *3 (W.D. Mo. 2013). Therefore, even if this Court concludes Boone County adopted any of the policies or practices of which Plaintiff complains— a conclusion wholly unsupported by the facts pleaded—Plaintiff nonetheless fails to state a claim against Boone County upon which relief can be granted. Count VI must be dismissed. FED. R. CIV. P. 12(b)(6). As Count VI is the only count addressed to it, Boone County must be dismissed from this action. Id. II. LAW AND ARGUMENT Legal Standard for Motion to Dismiss Although federal notice pleading does not require “detailed   factual   allegations…it [nonetheless] demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”   Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotation marks omitted). The Supreme Court has further  cautioned  that  “a formulaic recitation of the elements of a cause of action will not do.”  Id. Instead, Plaintiff  “must  assert  facts  that  affirmatively  and  plausibly  suggest  that  [he] has the right he  claims…rather  than  facts  that  are  merely  consistent  with  such  a  right.” Gregory v. Dillard’s,   Inc., 565 F.3d 464, 473 (8th Cir. 2009) (internal citations and quotations omitted); see also Papasan v. Allain, 478 U.S. 265, 286 (1986)   (“Although for the purposes of [a] motion to dismiss we must take all the factual allegations in the complaint as true, we are not bound to accept as true a legal conclusion couched as a factual allegation.”)  (citations  omitted). In   order   for   Plaintiff’s   First   Amended   Complaint   against   Boone   County to meet that standard,  this  Court  must  be  convinced  of  a  “reasonable  inference  that  the  defendant  is  liable  for   the  misconduct  alleged.”  Iqbal, 556 U.S. at 678. Plaintiff has unquestionably failed to meet this

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standard, as he has not pleaded facts which affirmatively suggest that he is entitled to maintain a Monell claim against Boone County. A. Defendant Crane has no policymaking authority for Boone County, such that any policies he adopted are not attributable to, and cannot support a Monell claim against, Boone County. As the Missouri Supreme Court has observed, “Every   business   day,   in   courtrooms   throughout  the  state,  prosecutors  announce  that  they  represent  ‘the  State  of  Missouri.’”  Missouri Prosecuting Attorneys v. Barton County, 311 S.W.3d 737, 748 (Mo. 2010) (Wolff, J., concurring). And although   “for   reasons   more   historical   than   rational”   prosecutors   are   paid   by   the counties, they are, without question, agents of the state. Id.; see also State v. Harrington, 534 S.W.2d 44, 49 (Mo. 1976)   (“[The   prosecutor]   is   an   officer   of   the   state.”)   (citation   omitted);;   Williams v. State, 730 S.W.2d 284, 288 (Mo. App. E.D. 1987)  (“The  Callaway  county  prosecutor   is   an   agent   of   the   state.”);;   State v. Goree, 546 S.W.2d 785, 788 (Mo. App. 1977)   (“The   prosecutor  represents  the  state…because  he  is  retained  by  the  state  for  the  prosecution  of  persons   accused of crimes.”)  (citations  omitted). The Supreme Court has concluded “whether  a  particular  official  has  ‘final  policymaking   authority’”  so  as  to  bind  the  municipality  for purposes of Section 1983 liability “is  a  question  of   state law.” City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)) (plurality opinion) (emphasis deleted). It is thus beyond dispute that when prosecuting state criminal cases, such as Plaintiff’s,  Defendant  Crane  is acting on behalf of the state of Missouri, not Boone County1—and, it follows, any policymaking 1

Missouri is divided into 114 counties, including Boone County. MO. REV. STAT. § 46.040. Those counties are formally  recognized  as  “legal  subdivisions  of  the  state.”  MO. CONST. Art. 6, § 1. The judicial power of the state is vested in, among other state courts, the circuit courts. Id. at Art. 5, § 1. Thus, although the Boone County Circuit Court   bears   the   name   of   the   county,   it   is,   of   course,   a   “state   instrumentalit[y]”—and as such, it is not subject to Monell claims. Harris v. Missouri Court of Appeals, Western Dist., 787 F.2d 427, 429 (8th Cir. 1986) (citing Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980)) (holding county immune from suit where suit derived from actions of immune county judge, as judge was state actor); see also Cady v. Arenac County, 574 F.3d

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authority he wields as to how to perform that function, he wields for the state. See id.; see also Baez v. Hennessy, 853 F.2d 73, (2nd Cir. 1988) (holding prosecutor represents the state, not the county,  and   further  stating,  “A county has no right to establish a policy concerning how [the prosecutor] should prosecute violations of State penal laws. Indeed, it would be a violation of [the   prosecutor’s]   ethical   obligations   as   counsel   for   the   State   in   a   criminal   proceeding   to   permit himself to be influenced in the performance of his duties by so-called policies of a county.”) (internal citations omitted); Haybarger v. Lawrence County Adult Probation and Parole, 551 F.3d 193, 198 (3rd Cir. 2008)  (“As  an  arm  of  the  State,  an  individual judicial district and   its   probation   and   parole   department   are   entitled   to   Eleventh   Amendment   immunity.”);; D’Ambrosio v. Marino, 2014 WL 1243792, *5 (6th Cir. 2014)  (“Because he was acting as an agent of the state when prosecuting [the plaintiff], [the prosecutor’s]   conduct   cannot   have   established a county policy, unconstitutional or otherwise… Municipal liability attaches only where   the   policy   or   practice   in   question   is   attributable   to   the   municipality,   but   [the   plaintiff’s]   complaint contains no allegations that the practice at issue here was acquiesced to or informed by municipal actors rather than by prosecutors who had adopted the strategy…”)   (citation   omitted) (emphasis added).

In pleading that Defendant Crane implemented the policies,

334, 345 (6th Cir. 2009) (holding county prosecutor acted on behalf of the state such that any actions, even if they violated  the  plaintiff’s  constitutional  rights,  could  not  be  attributed  to  the  county  for  purposes  of   Monell liability); Panowicz v. Hancock, 2012 WL 4049358, *7 (D. Md. 2012) (holding circuit court clerk a state official); Dolan v. City of Ann Arbor, 666 F.Supp.2d 754, 757-65 (E.D. Mich. 2009) (conducting extensive analysis of the issue and concluding both state trial courts and federal district courts sitting in the state entitled to Eleventh Amendment immunity, even where court depends in large part on the municipality for funding). Indeed, although the Missouri Constitution also establishes county courts, MO. CONST. Art. 6, § 7, the Missouri Supreme Court has long held even those courts are not county entities. Reardon v. St. Louis County, 1865 WL 2605, *4 (Mo. 1865)  (“The powers of the county court, and what precise relation it bears to the county, we are to ascertain from the numerous acts which have been passed from time to time by the Legislature, conferring jurisdiction upon it. It is nowhere declared that the county court is the general agent or representative of the county; it is a part of the State government with specific powers, duties and functions, generally local to the county, it is true, but derived from the State and not from the county, and subject to be altered or changed at the will of the Legislature, without regard to the will of the county. It acts independently of the county in obedience to State laws. Duties imposed upon the county court by the Legislature, it performs as acts of obedience to the Legislature directly, as a State functionary, and not as an agent of the county.”)  (emphasis  added).

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practices, and customs of which he complains (ECF Doc. No. 35, ¶ 267), Plaintiff is, therefore, hoisted by his own petard. Defendant Crane does not and cannot act for Boone County in setting policy, practice, or custom for   the   Boone   County   Prosecuting   Attorney’s   Office, as neither Missouri statutes nor the Missouri Constitution vest him with the right or authority to do so and, in fact, Missouri law defines him as a state actor in this regard. See MO. CONST. Arts. 5-6, § 1; MO. REV. STAT. § 46.040; Harris, 787 F.2d at 429; Missouri Prosecuting Attorneys, 311 S.W.3d at 748; Harrington, 534 S.W.2d at 49; Williams, 730 S.W.2d at 288; Goree, 546 S.W.2d at 788.

As such, while Plaintiff has pleaded a Monell claim against

Defendant Crane in his official capacity as the Boone County prosecuting attorney, legally, this is a claim against the state, not Boone County. Id. And the state is, of course, entitled to Eleventh Amendment sovereign immunity. See Monell v. Department of Social Services of City of New York, 436 U.S. 658, 691, n.54 (1978).2 It is well-settled that Boone County cannot be held liable in a Section 1983 action under a respondeat superior theory. Id. at 694. Rather, in order to impose liability on a municipality under  Section  1983,  Plaintiff  must  identify,  at  a  minimum,  “a  municipal  ‘policy’  or  ‘custom’  that   caused  [his]  injury.”  Maguire v. Franklin County, Mo., 2009 WL 2849583, *3 (E.D. Mo. 2009) (citations omitted); see also McMillian v. Monroe County, Ala., 520 U.S. 781, 796 (1997) (affirming dismissal of Monell claim against county on finding that sheriff is not final policymaker for county); McGautha v. Jackson County, Mo., Collections Dept., 36 F.3d 53, 56 (8th Cir. 1994)  (“[M]unicipal  liability  [under  Section  1983]  is  limited  to  conduct  for  which  the   municipality  is  itself  actually  responsible.”)  (citations  omitted); Mangold v. Lincoln County, Mo.,

2

Indeed, this, if not simple confusion, most likely explains why Plaintiff has chosen to attempt to state a claim against Boone County—there can be no argument against the precept that the state is immune. Yet by pleading Defendant Crane adopted the policies and practices complained of, Plaintiff unwittingly pleads a claim not against Boone County, but against the state.

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2012 WL 6216787, *3 (E.D. Mo. 2012) (declining to grant summary judgment to the plaintiffs on a Monell claim against a county where   they   “ha[d]   not   established   that   [the county] [was] responsible  for  the  challenged  policy”)  (emphasis  in  original). However, as the Supreme Court in Monell expressly  acknowledged,  “Our holding today is, of course, limited to local government units which are not considered part of the State for Eleventh Amendment purposes.”  436  U.S. at 690, n.54 (emphasis added). While Boone County expresses no opinion as to whether Defendant Crane actually had policymaking   authority   for   the   Boone   County   Prosecuting   Attorney’s   Office,   it can unequivocally assert he had no policymaking authority for Boone County. While Plaintiff has baldly pleaded Defendant Crane acted for Boone County, this Court can take judicial notice of the laws of the state of Missouri which unequivocally establish he does not. See MO. CONST. Arts. 5-6, § 1; MO. REV. STAT. § 46.040; Harris, 787 F.2d at 429; Missouri Prosecuting Attorneys, 311 S.W.3d at 748; Harrington, 534 S.W.2d at 49; Williams, 730 S.W.2d at 288; Goree, 546 S.W.2d at 788. In alleging to the contrary, Plaintiff positions the cart before the horse. If Defendant Crane does not act for Boone County in adopting policies and practices relating to the prosecution of criminal cases, then any such policies or practices adopted by him cannot be attributed to Boone County. Any action allegedly taken by Defendant Crane as set forth  in  Plaintiff’s  First  Amended  Complaint was not, therefore, undertaken  “for  Boone  County,”   as Plaintiff alleges, Id. at ¶ 266, but for the state.

Boone   County   does   not   act   “through  

Defendant[]…Crane.”  Id. at ¶¶ 267, 271. Thus, while Count VI is purportedly directed to Boone County, Plaintiff has failed to allege any policies, practices, or customs which could be attributable to Boone County. Count VI unquestionably fails to state a claim against Boone County and must be dismissed. FED. R. CIV. P. 12(b)(6).

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B. Even if the policies adopted by Defendant Crane were attributable to Boone County, Plaintiff has failed to sufficiently state a claim under Monell. Quite apart from the fact that Plaintiff has not pleaded—and cannot plead—a policy, practice, or custom attributable to Boone County, he has likewise failed to generally plead such a policy, practice, or custom sufficient to survive a motion to dismiss. As this Court recently acknowledged in considering a Monell claim,   “[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”  Gash v. Lafayette County, Mo., 2013 WL 3092861, *3 (W.D. Mo. 2013) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)) (emphasis added). In Gash, the Court acknowledged that inadequacy of police training could serve as a basis for a Monell claim,  but  dismissed  the  plaintiff’s  complaint  for  “fail[ing]  to  allege   any  facts  that  would  satisfy  the  requirements”  of  a  Monell claim. Id. at *5 (citing Ulrich v. Pope County, 715 F.3d 1054, 1061 (8th Cir. 2013),  for  the  proposition  that  “Monell requirements are not just matters of proof, but that facts supporting imposition of municipal liability must be alleged”) (emphasis added). To establish a policy, practice, or custom capable of giving rise to municipal liability, Plaintiff must establish “a prior pattern of unconstitutional conduct that is so persistent and widespread as to have the effect and force of law.”  Andrews v. Fowler, 98 F.3d 1069, 1075 (8th Cir. 1996) (citing Monell, 436 U.S. at 692) (internal quotation marks omitted); see also Maguire v. Franklin County, Mo., 2009 WL 2849583, *3 (E.D. Mo. 2009) (citations omitted). And to establish such   a   pattern,   Plaintiff   must   demonstrate   Boone   County   “had   knowledge   of   prior incidents of…misconduct  and  deliberately  failed  to  take  remedial  action.”  Id. (citations omitted).

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Plaintiff certainly has not pleaded facts supporting the existence of a pattern of unconstitutional conduct. Apart from three vague references to those “similarly situated” to Plaintiff, (ECF Doc. No. 35, ¶¶ 268, 270, 273), the only allegation that could be read to assert such a prior pattern notes,  in  passing,  “the  pattern  of  constitutional  violations  arising”  from  the  policies  and  customs   allegedly adopted by Boone County, through Defendant Crane. Id. at ¶ 272. Putting aside that any policies or customs adopted by Defendant Crane are not attributable to Boone County, this surficial allegation of a pattern is insufficient to state a Monell claim. Indeed, Plaintiff does not once allege that any other individual has suffered a violation of his constitutional rights as a result of the alleged policies, practices, and customs set forth in the Complaint. (ECF Doc. No. 35, ¶¶ 263-274).3 This is insufficient to state a Monell claim. And the courts—including this Court—have backed that conclusion en masse. See, e.g., Ulrich, 715 F.3d at 1061; Gash, 2013 WL 3092861 at *5; Taylor ex rel. Taylor v. Isom, 2013 WL 2447602, *4 (E.D. Mo. 2013). In Isom, the court, after reviewing   the   plaintiff’s   petition,   concluded: Plaintiff’s allegations concerning official policy and custom are mere labels and conclusions, which are inadequate to state a claim. Although plaintiff need not identify the specific unconstitutional policy to survive a motion for judgment on the pleadings, 3

On information and belief, neither Boone County nor Defendant Crane has been held liable in the past for any constitutional violations pursuant to Section 1983. While Boone County acknowledges the myriad search terms which might be used, its search of Missouri state and federal case law for cases alleging constitutional violations against either Boone County or Defendant Crane produced no results, apart from Ferguson v. State, 325 S.W.3d 400 (Mo. App. W.D. 2010); Ferguson v. Dormire, 413 S.W.3d 40 (Mo. App. W.D. 2013); and one unrelated case in which the constitutional violations alleged were materially different. Johnston v. Brisco, 2007 WL 1576026 (W.D. Ark. 2007) (relating to allegedly unconstitutional conditions of confinement in the Boone County Jail). Regardless, even if that case had been directly on point, one case does not a pattern make. In reality, Plaintiff has not—and cannot—point to any other cases in which Boone County has been held liable for constitutional violations of the same type as he alleges in the instant case. And given that Defendant Crane was apparently unaware of the allegedly improper conduct by Defendants White and Haws, as set forth infra, even assuming Defendant Crane was acting for Boone County, Boone County would have been afforded little opportunity to correct a problem if one did, indeed, exist. This is not the type of pervasive prior pattern required by the Eighth Circuit to state a Monell claim. Andrews, 98 F.3d at 1076  (declining  to  find  a  pattern  where  there  existed  “two  specific  prior  complaints”  and   “various  rumors”  and  stating  such  complaints  “pale  in  comparison  to  the  type  of  prior  complaints  that  we  have   previously  held  supported”  municipal  liability).

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she must, at the least, allege facts that would support the drawing of an inference that the conduct complained of resulted from the existence of an unconstitutional policy or custom. Plaintiff does not plead any facts that would support the existence of an unconstitutional policy or custom. Rather, all the facts alleged relate to the actions of the police officer defendants themselves. Generally, an isolated incident of alleged police misconduct, such as [plaintiff] alleges occurred here, cannot, as a matter of law, establish a municipal policy or custom creating liability under [Section] 1983. 2013 WL 2447602 at *4 (emphasis added) (first alteration in original, second alteration added) (internal citations and quotation marks omitted).4 Furthermore, Plaintiff explicitly alleges that both Defendants White and Haws were acting without prompting from, and unbeknownst to, Defendant Crane at the time of their conduct allegedly giving rise to the constitutional violations at issue. (ECF Doc. No. 35, ¶¶ 160, 172, 182). Even  if  Defendant  Crane’s  conduct  is  attributable  to  Boone  County,  he  clearly  had  no   knowledge of their alleged misconduct in order that he could take remedial action. See Andrews, 98 F.3d at 1075. In Andrews, even in the face of two specific prior instances of misconduct and “various  rumors,”  the  Eighth  Circuit  held,  “These  two  instances  of  misconduct  indicate  that  [the chief  of  police]  was  aware  that  some  problem  existed…but  they  do  not  indicate  a  ‘persistent  and   widespread’  pattern  of  misconduct  that  amounts  to  a  city  custom or policy of overlooking police misconduct.”   Id. at   1076.     In   fact,   the   Eighth   Circuit   stated   such   prior   instances   “pale[d]   in   comparison   to   the  type   of  prior  complaints  that   we  have  previously  held  supported”  municipal   liability. Id. On the face of the Complaint, the allegations of previous misconduct by Boone County are not simply pale—they are translucent. There  is  nothing  in  Plaintiff’s  Complaint  to   suggest either Boone County or Defendant Crane was aware of any prior misconduct, let alone a 4

While Boone County acknowledges there is some case law suggesting an isolated act may be sufficient to state a Monell claim, that law is inapposite on the facts of the instant case, as it is specifically predicated on the existence of an official policy. See, e.g., Jenkins v. County of Hennepin, Minn., 557 F.3d 628, 633 (8th Cir. 2009)  (“We  have   observed an important distinction between claims based on official policies and claims based on customs. Because an official policy speaks for itself about the intent of public officials, proof of a single act by a policymaker may be sufficient  to  support  liability.”)  (citation  omitted). Plaintiff has alleged no official policy in the instant case. (ECF Doc. No. 35, ¶¶ 263-274). Under these circumstances, factual allegations supporting a conclusory allegation of the existence of a pattern is a necessary requisite of a Monell claim. Andrews, 98 F.3d at 1076.

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“persistent   and   widespread   pattern   of   misconduct”   See id. As such, Count VI fails to state a claim against Boone County upon which relief can be granted and must be dismissed. FED. R. CIV. P. 12(b)(6). III. CONCLUSION Based on the foregoing, Plaintiff has not stated a Monell claim as against Boone County in Count VI, as he specifically pleads the policies, practices, and customs of which he complains were adopted by Defendant Crane, who does not act for Boone County in establishing policies for the prosecution of state criminal matters, but for the state. Regardless, even if the policies, practices, and customs identified were attributable to Boone County, Plaintiff does not identify a prior pattern of unconstitutional conduct that is persistent and widespread—rather, he identifies no pattern whatsoever. Under these circumstances, Count VI fails to state a claim against Boone County upon which relief can be granted and must be dismissed. WHEREFORE, Defendant Boone County respectfully requests this Court issue an Order granting its Motion to Dismiss and awarding such other and further relief as the Court deems just and proper under the circumstances. REQUEST FOR ORAL ARGUMENT Pursuant to Local Rule 7.0(g), Defendant Boone County requests oral argument on its Motion to Dismiss.

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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 21st 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 9393 West 110th Street Overland Park, KS 66210 dbaker@fisherpatterson.com Attorneys for The City of Columbia, Stephen Monticelli and Randy Boehm

Marshall V. Wilson Michael G. Berry Berry Wilson, LLC 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

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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

11641556

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Supporting documentation for april 21 motion to dismiss