
    Paul O’GRADY, et al., Plaintiffs, v. CITY OF BALLWIN, et al., Defendants.
    Case No. 4:10CV01707 AGF.
    United States District Court, E.D. Missouri, Eastern Division.
    March 31, 2012.
    Order Denying Reconsideration July 27, 2012.
    
      Kevin J. Dolley, Law Offices of Kevin J. Dolley, LLC, Richard B. Hein, Law Office of Richard B. Hein, St. Louis, MO, for Plaintiffs.
    Peter J. Dunne, Pitzer Snodgrass, P.C., Brian R. Plegge, Justin A. Hardin, Moser and Marsalek, P.C., St. Louis, MO, for Defendants.
   MEMORANDUM AND ORDER

AUDREY G. FLEISSIG, District Judge.

Plaintiffs Paul O’Grady, Robin Herr, A. H. , a minor, by next friend, Amber Picard, and D. H., a minor, by next friend, Lisa Gann, bring this action for wrongful death, various violations of state tort law, and, pursuant to 42 U.S.C. § 1983, for violation of the constitutional rights of decedent Josh Herr’s (“Herr”), arising from Defendants’ actions and responses to the events leading up to Herr’s death by suicide. Now before the Court are the motion of Defendant Metro West Fire Protection District (“Metro West”) to dismiss Counts II, IV, VI, VII and IX of Plaintiffs’ complaint; the motion of Defendant, the City of Ballwin (“the City”), to dismiss Counts I and III through VIII of Plaintiffs’ complaint; and the motion of Defendants Todd Noltkamper, Mark Moore, Jim Moss, Christopher Zang, and Gregory Dahm (“the EMT Defendants”) to dismiss Counts II, IV, VII and IX of Plaintiffs’ complaint.

BACKGROUND

Plaintiffs filed their first amended complaint on August 15, 2011, asserting claims against the City of Ballwin, five Ballwin police officers, Metro West, and five Metro West emergency medical technicians. Plaintiffs assert claims for wrongful death, negligent failure to protect, negligent failure to render assistance, negligent supervision and direction, negligent entrustment and assignment, negligent and intentional infliction of emotional distress, and violation of 42 U.S.C. § 1983.

Plaintiffs allege that on September 21, 2009, Herr, the decedent, made threats of suicide in the presence of his mother, Robyn Herr, and Amber Picard. Robyn Herr and Picard called 911 and Defendants Steve Morrison and Curt Saitta, police officers for the City, responded to the call and accompanied Robyn Herr and Pi-card to Herr’s residence. After questioning Herr, Morrison and Saitta left the premises. After the officers departed, Herr ingested a large number of sleeping pills in the presence of Robyn Herr and Picard, and then Herr, too, left the premises.

Robyn Herr and Picard again called 911 and Morrison and Saitta returned to the residence, accompanied by two other Ball-win police officers, David Wangrow and Derek Loeffel. Also with them were the EMT Defendants, employed as emergency medical technicians. Robyn Herr and Pi-card informed the responding officers and the EMT Defendants of both the type and quantity of pills Herr had ingested. The responding officers and EMT Defendants stated that the dosage would not be fatal, and left the residence without locating Herr. Herr did not return to the residence that evening or thereafter. On October 22, 2009, his severely decomposed body was found in a stream a few hundred feet away from his residence.

On the basis of these allegations Plaintiffs assert claims for wrongful death and state-law torts for negligent and intentional misconduct. Plaintiffs also assert that Defendants were deliberately indifferent to Plaintiffs’ constitutional rights under the Equal Protection and the Due Process clauses of the Fourteenth Amendment as a result of Defendants’ policies and customs for handling potential suicides; their failure to train officers, employees, and subordinates to render medical assistance to individuals attempting suicide; and their failure to follow City of Ballwin Police Department General Orders 68-09 and 36-07. Plaintiffs further assert that the danger to Herr was foreseeable and that Defendants were deliberately indifferent to that danger by failing to locate Herr and render medical assistance. Finally, Plaintiffs assert that Defendants took affirmative acts which increased the danger to Herr by representing to Robyn Herr and Picard that the pills Herr ingested would not cause his death, thereby convincing Herr’s family and friends-that he was not in immediate danger and that it was not necessary to locate him.

In Count I, Plaintiffs assert a claim for wrongful death against the City and police officers Morrison, Saitta, Wangrow and Loeffel (the “Responding Officers”). In Count II, Plaintiffs assert a claim for wrongful death against Metro West and the EMT Defendants. In Count III, Plaintiffs allege a claim of negligent failure to protect against the City and the Responding Officers, and in Count IV, Plaintiffs allege a claim based on negligent failure to render assistance against all Defendants other than Defendant Mark Lang. In Counts V and VI, Plaintiffs allege claims against the City and Metro West for negligent supervision and direction (Count V) and negligent entrustment and assignment (Count VI). In Count VII, Plaintiffs allege claims against all Defendants, other than Lang, for negligent and intentional infliction of emotional distress. In Count VIII, Plaintiffs allege a claim of intentional infliction of emotional distress against the City and Lang, related to statements made by Lang during the course of the investigation into the cause of Herr’s death. In Count IX, Plaintiffs assert a claim for violation of 42 U.S.C. § 1983 against all Defendants, other than Lang. The claims against the individual Defendants are asserted against them in their individual and official capacities.

Metro West moves to dismiss counts II, IV, VI, VII and IX on the grounds of sovereign immunity. The City moves to dismiss all counts asserted against it, other than the § 1983 claim, on the basis of sovereign immunity, and also moves to strike all allegations of punitive damages. The EMT Defendants have also moved to dismiss the claims against them, contending that they are protected under the public duty doctrine, which shields government or municipal employees from liability if their actions are taken as part of the duties of their employment owed to the general public, and the doctrine of official immunity, which shields government or municipal employees from liability if their actions are taken as part of the duties of their employment owed to the general public, and not to particular individuals such as Plaintiffs or the decedent. Finally, Metro West and the EMT Defendants argue that the allegations of Plaintiffs’ complaint fail to state a claim for a constitutional violation under 42 U.S.C. § 1983.

DISCUSSION

Motion to Dismiss Standard

A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.Civ.P. 8(a). To survive a Rule 12(b)(6) motion to dismiss, a complaint “does not need detailed factual allegations,” but the allegations must nonetheless “be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). This requires more than mere “labels and conclusions,” id., and must state a claim that is “plausible on its face.” Id. at 570, 127 S.Ct. 1955. “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short ... of entitlement to relief.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)(quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Because the § 1983 Claim in Count IX provides the source for this Court’s jurisdiction,- the Court shall address that claim first. ' '

Plaintiffs’ § 1983 Claim

“A § 1983 plaintiff must allege ‘that the defendants (1) acted under color of state law and (2) that the alleged wrongful conduct deprived plaintiff of a constitutionally protected federal right.’ ” Zutz v. Nelson, 601 F.3d 842, 848 (8th Cir.2010) (quoting Hart v. City of Little Rock, 432 F.3d 801, 804 (8th Cir.2005)). Here, Plaintiffs fail to assert a § 1983 violation because the allegations in the amended complaint do not allege a constitutional claim, under either the Due Process Clause or the Equal Protection Clause.

The Due Process Clause of the Fourteenth Amendment provides that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. To establish a substantive due process violation, a plaintiff must first show a deprivation of life, liberty, or property. DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 196, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). The Due Process Clause “imposes no duty on the State to provide members of the general public with adequate protective services. The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security----” Id. The State’s knowledge of a person’s danger and its expressions of willingness to protect him against that danger do not establish a “special relationship” giving rise to an affirmative constitutional duty to protect. Id. An affirmative duty on the part of a state actor “to protect” arises not from knowledge of an individual’s predicament or from expressions of intent to help him, but from the limitations such as “imprisonment, institutionalization, or other similar restraint of personal liberty” imposed by the State which prevent an individual from acting on his own behalf. Id.

A substantive due process right to protection can arise under two theories. Under the first theory, the state may owe a duty to protect individuals in its custody. Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir.1992). Under the second, the state may owe a duty to protect individuals if it created the danger to which they become subject. Id.; see also Burton v. Richmond, 370 F.3d 723 (8th Cir.2004). “[T]he test ... employed to ascertain a valid substantive due process violation is ‘whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.’ ” Hart, 432 F.3d at 805 (8th Cir.2005) (quoting Hawkins v. Holloway, 316 F.3d 777, 780 (8th Cir.2003)).

Plaintiffs have pled no facts or allegations to suggest that Herr was taken into custody, institutionalized, imprisoned, or had his liberty restrained in any way. Rather, Plaintiffs argue that the Defendants placed Herr in a position of danger that he might not have otherwise faced by stating that the type and quantity of pills Herr ingested would not be fatal. The Court does not agree that a special relationship giving rise to a duty to protect Herr arose as a result of Defendants’ response to the 911 call or their subsequent statements regarding the pills Herr ingested. Sadly, the danger Herr faced came about as the result of his own unfortunate action; Defendants in no way created it. See, e.g., Martin v. City of League City, 23 F.Supp.2d 720, 721-22 (S.D.Tex. 1998) (no due process violation arising from decedent’s suicide where EMS personnel who responded to a call regarding an obviously intoxicated man, suffering from severe mood swings, directed his family to leave the home, and subsequently left him alone at which time he committed suicide). For this reason, the Court concludes that Plaintiffs have failed to state a claim for violation of the Due Process Clause.

The Equal Protection Clause

Plaintiffs also assert that Defendants’ conduct resulted in a violation of the Equal Protection Clause. To allege a violation of Equal Protection Clause, Plaintiffs must show that Herr was treated differently than other persons who were similarly situated in all relevant respects. Flowers v. City of Minneapolis, 558 F.3d 794, 798 (8th Cir.2009). The Supreme Court also has recognized a “class of one” equal protection claim in certain situations, where a plaintiff shows that he was “intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564-65, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000).

Plaintiffs do not allege facts that satisfy either of these formulations. Here they only allege that Defendants should have responded to Herr’s situation by locating him and providing medical care, but not that he was treated differently than other persons who attempt suicide or that the Responding Officers and EMTs intentionally acted or failed to act differently than they would have in responding to other persons “similarly situated in all relevant respects.” See Kelley v. White, 458 Fed.Appx. 575, 575 (8th Cir.2012). In the absence of such allegations, the Court cannot conclude that Plaintiffs have alleged a violation of the equal protection clause.

Although the City did not move to dismiss the § 1983 claim in its motion, and the Defendant police officers have not filed any motion to dismiss, the analysis is the same, and the Court finds that the allegations in Count IX fail to state a claim as to all Defendants herein.

Supplemental Jurisdiction

Having dismissed the § 1983 claim which forms the basis for this Court’s exercise of federal jurisdiction over Plaintiffs’ claims, the Court declines to supplemental jurisdiction over the remaining state law claims. See Missouri Roundtable for Life v. Carnahan, 676 F.3d 665, 678 (8th Cir.2012). “[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine ... will point toward declining to exercise jurisdiction over the remaining state-law claims.” CarnegieMellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). Although it appears that Defendants’ arguments based on sovereign immunity, official immunity, and the public duty doctrine may be well taken, it is best if a state court resolves these issues of Missouri law. As such, the Court concludes that this is a case in which it is appropriate to decline to exercise supplemental jurisdiction.

CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that Defendants’ motions to dismiss [Doc. No. 65 and 79] are GRANTED, with respect to Count IX.

IT IS FURTHER ORDERED that the remaining state claims, Counts I through VIII, are DISMISSED without prejudice.

IT IS FURTHER ORDERED that all other pending motions are DENIED as moot.

MEMORANDUM AND ORDER

This case, related to the death of Josh Herr (“Herr”), was filed by Plaintiffs Paul O’Grady; Robin Herr; A. H., a minor, by next friend, Amber Picard; and D. H., a minor, by next friend, Lisa Gann. Plaintiffs assert claims for wrongful death, violations of state tort law, and for violation of the decedent Herr’s constitutional rights arising from Defendants’ responses to the events surrounding Herr’s suicide. In a Memorandum and Order dated March 31, 2012, (Doc. No. 109) this Court dismissed Count IX of Plaintiffs’ Amended Complaint for failure to state a claim under 42 U.S.C. § 1983. Now before the Court is Plaintiffs motion pursuant to Federal Rule of Civil Procedure 60(b) for reconsideration of the Court’s March 31, 2012 Memorandum and Order. For the reasons set forth below, Plaintiffs’ motion will be denied.

Specifically, Plaintiffs seek reconsideration of the Court’s ruling with respect to the allegations in Count IX against the City of Ballwin, Missouri, for failure to properly train police officers regarding application of the standards for involuntary commitment.

Legal Standard: Rule 60(b) Motion for Reconsideration

Whether to grant a Rule 60(b) motion for reconsideration is committed to the sound discretion of this Court. Arnold v. ADT Sec. Services, Inc., 627 F.3d 716, 721 (8th Cir.2010) (citing Arnold v. Wood, 238 F.3d 992, 998 (8th Cir.2001)). “ ‘Mo tions for reconsideration serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence.’ ” Arnold, 627 F.3d at 721 (quoting Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir.1988) (citations omitted)). A motion for reconsideration is not a vehicle for the introduction of new legal theories or “new evidence that could have been adduced during pendency of the motion at issue.” ADT Sec. Services, Inc., 627 F.3d at 721 (internal quotations omitted). In order to be considered “newly discovered” for purposes of a motion for reconsideration, the evidence in question must have been “previously unavailable.” BIS Investments, LLC v. Bank of America, N.A., No. 4:12CV 195 CDP, 2012 WL 2128032, at *1 (E.D.Mo. Jun. 12, 2012) (citing Anthony v. Runyon, 76 F.3d 210, 215 (8th Cir.1996)).

Analysis

In support of their motion, Plaintiffs offer extensive deposition transcripts and documentary evidence not previously submitted in opposition to the motion to dismiss. Plaintiffs do not assert that this evidence is “newly discovered” within the meaning of Rule 60(b), only that it is the product of discovery completed after the briefing on the motion to dismiss. These materials will not be considered with respect to the motion for reconsideration as they constitute matters outside the pleadings. The Court could only consider these materials if it had converted the previously denied motion to dismiss to a motion for judgment on the pleadings or for summary judgment and allowed Defendants an opportunity to respond. See Fed.R.Civ.P. 12(d); Illig v. Union Elec. Co., 652 F.3d 971, 976 (8th Cir.2011) (citation omitted). It did not do so and will not now, because the additional evidentiary offerings do not affect the Court’s conclusion that Plaintiffs failed to allege a substantive due process violation by the City of Ballwin.

Plaintiffs first assert that the Court erred as a matter of law by failing to consider their allegations that the City failed to properly train police officers (or was deliberately indifferent to the necessity for proper training) with respect to the standards for the use of hearsay statements in the involuntary commitment process and thus deprived Herr of his constitutional rights.

When a § 1983 claim is asserted against a municipality, proper analysis requires consideration of two different issues: “(1) whether plaintiffs harm was caused by a constitutional violation, and (2) if so, whether the city is responsible for that violation.” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 817, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)). Given the two part analysis applicable to claims of municipal liability under § 1983, and the Court’s determination in its March 31, 2012 Memorandum and Order that Plaintiffs failed as a matter of law adequately to allege either a substantive due process or equal protection violation arising from Herr’s suicide, the Court had no reason to further explore the allegations regarding the City’s alleged failure to properly train. In the absence of an underlying constitutional violation, allegations of municipal liability arising from such a violation must fail. Collins, 503 U.S. at 120, 112 S.Ct. 1061.

Plaintiffs further assert that the Court erred in failing to find that a substantive due process violation had been alleged. This contention is without merit. In its Memorandum and Order, the Court relied on the proposition set forth in DeShaney v. Winnebago Cnty. Dept. of Social Services, that neither the “State’s knowledge of the individual’s predicament” nor its “expressions of intent to help him” establish a “special relationship” giving rise to an affirmative constitutional duty to protect him from harm. DeShaney, 489 U.S. 189, 200, 109 S.Ct. 998 (1989). The State has no such affirmative constitutional duty unless it has imposed restrictions on the individual’s freedom to act on his own behalf, or created the danger to which the individual became subject. Id. As this Court previously stated, Plaintiffs have not pled any facts indicating that Herr was taken into custody, “had his liberty restrained in any way,” or was placed “in a position of danger that he might not have otherwise faced....” (Doc. No. 109, p. 7.)

In dismissing the substantive due process allegations, the Court recognized that the principle set forth in DeShaney is not altered where the violence at issue is self-inflicted or there is an allegation that lawful restraint would have protected the plaintiff from harm. See, e.g., Carlton v. Cleburne Cnty., Ark, 93 F.3d 505, 509 (8th Cir.1996) (holding that “mere knowledge” by government of danger to an individual does not create affirmative duty to protect); Collignon v. Milwaukee Cnty., 163 F.3d 982, 991-992 (7th Cir.1998) (holding that defendants had no obligation to stop the plaintiffs’ decedent from committing suicide once he had been released from jail); Wilson v. Formigoni, 42 F.3d 1060, 1066 (7th Cir.1994) (“stating that there is no constitutional right to be lawfully restrained or involuntarily committed”); Martin v. City of League City, 23 F.Supp.2d 720, 722-23 (S.D.Tex.1998) (holding that neither the city nor the police officers committed a constitutional violation where plaintiff was left unsupervised in his home, because they did not cause his psychological problems).

Finally, Plaintiffs cite numerous cases in support of their position that a constitutional violation was alleged. Those cases are inapposite, as they involve either violations of the Fourth or Eighth amendments; state-imposed restraints of liberty, such as arrest or pretrial detention; or allegations of excessive use of force, none of which are pertinent here.

Accordingly,

IT IS HEREBY ORDERED that Plaintiffs’ motion for reconsideration (Doc. No. Ill) is DENIED. 
      
      . (Minors' names redacted per Local Rule 5-2.17.)
     
      
      . The minors’ names are redacted per Local Rule 5-2.17.
     
      
      . Plaintiffs do not seek reconsideration of that portion of the March 31, 2012 Memorandum and Order dismissing the allegations in Count IX against the Metro West Fire Protection District, Todd Noltkamper, Jim Moss, Mark Moore, Christopher Zang, and Gregory Dahm.
     
      
      . Plaintiffs assert no basis for reconsideration of the Court’s dismissal of their equal protection claim.
     