Brenda West-Anderson v. The Missouri Gaming Company
Concurring in Part
concurring in part and dissenting in part.
I respectfully dissent from the portion of the court’s opinion reversing the district court’s dismissal of West-Anderson’s Fourth Amendment claims against Che-noweth, Kirby, and Argosy. However, I concur in the portion of the court’s opinion affirming the district court’s disposition of West-Anderson’s remaining state and federal claims as well as the district court’s decision not to recuse.
Law enforcement officers are entitled to qualified immunity even “ ‘if they arrest a suspect under the mistaken belief that
The court suggests that the reports attached to the complaint cannot be used to consider what Chenoweth knew and when he knew it. I disagree because West-Anderson’s complaint contains no contradictory allegations about what Chenoweth knew at the time he arrested her. See Jones v. City of Cincinnati, 521 F.3d 555, 561 (6th Cir. 2008) (holding that when a plaintiff attaches documents to her complaint containing statements by the defendant that conflict with the plaintiffs allegations, the plaintiff is not required to adopt every word in the documents as true); Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999) (observing that courts may consider attached exhibits that do not contradict the complaint when ruling on a motion to dismiss). Accordingly, I would consider Chenoweth’s uncontra-dicted statements in the attached report for purposes of considering a motion to dismiss. See Porous, 186 F.3d at 1079. I agree with the district court that the facts contained in the complaint and attached reports do not state a claim to relief under the Fourth Amendment against Chenow-eth.
I also agree with the district court that West-Anderson failed to plead sufficient facts demonstrating that Argosy and Kirby acted jointly with public officers under color of state law. “Private parties are only liable under 42 U.S.C. § 1983 when they have been jointly engaged with public officers in the denial of civil rights.” Young v. Harrison, 284 F.3d 863, 870 (8th Cir. 2002). West-Anderson alleges only that Kirby “instigated/started” the arrest, but we have held that a private actor “does not conspire with a state official merely by invoking an exercise of the state official’s authority.” Id. (holding that a hotel security guard was not liable under § 1983 merely because he called police and brought the police to the plaintiffs hotel room). We occasionally have found that a security guard acted jointly with police officers where the officers and the prosecutor failed to make an independent investigation before arresting and prosecuting someone. See, e.g., Murray v. Wal-Mart, Inc., 874 F.2d 555, 559 (8th Cir. 1989). However, in Murray, it was “the practice of Wal-Mart to work with the police department in prosecuting shoplifters.” Id. In particular, Wal-Mart’s security guard was “also an employee of the police department” and “ha[d] a close relationship with the prosecuting attorney, who apparently made his recommendation to prosecute based on [the security guard’s] word, not upon an independent investigation of the facts.” Id. Here, West-Anderson has not alleged a collusive relationship between Argosy, Kirby, and Chenoweth,
For these reasons, I would affirm the district court’s order in all respects.
Opinion of the Court
Brenda West-Anderson appeals the district court’s dismissal under Federal Rules of Civil Procedure 12(b) and (c) of her pro se 42 U.S.C. § 1983 action against Argosy Casino (Argosy), Argosy Security Shift Manager Scott Kirby, and Missouri State Highway Patrol (MSHP) Officer Dale Che-noweth. For the following reasons, we affirm in part, and we reverse and remand in part.
West-Anderson filed the instant suit for damages, asserting violations of her Fourth, Fifth, and Fourteenth Amendment rights, based on the following allegations. West-Anderson was a patron of Argosy and found $40 abandoned on the floor of the casino, which she picked up and kept. She was later accosted by Kirby, who claimed he had seen her on surveillance video pick up the money from the floor and accused her of stealing it. He threatened her with arrest and demanded that she return the money, which she did. West-
Upon careful de novo review, see Ashley Cnty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009) (standard of review), we conclude that the district court erred in dismissing Wesi>-Anderson’s Fourth Amendment claim against Chenoweth,
We find that the complaint allegations were sufficient to raise an inference that there was no probable cause to believe Wesfc-Anderson had committed theft at the time of her arrest. See Mo.Rev.Stat. §§ 570.030 (crime of theft under Missouri law) and 570.060 (person who appropriates lost property shall not be deemed to have stolen that property within meaning of section 570.030 unless such property is found under circumstances which gave finder knowledge of or means of inquiry as to true owner); Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (complaint states claim if it contains factual content that would allow court to draw reasonable inference of liability); Royster v. Nichols, 698 F.3d 681, 688 (8th Cir. 2012) (probable cause exists when facts and circumstances are sufficient to lead reasonable person to believe crime has been committed; in determining whether probable cause exists, court looks at totality of circumstances based on information available to officer at time of arrest).
As to Chenoweth, Wesfc-Anderson’s allegation that he released her-after she overheard Kirby’s statement that she had
With respect to Argosy and Kirby, we find that the complaint allegations also were sufficient to raise an inference that an arrangement existed whereby Chenow-eth made arrests based on Kirby’s representations, without conducting an independent investigation, and thus that Argosy and Kirby acted under the color of state law. See Sanders v. City of Minneapolis, Minn., 474 F.3d 523, 527 (8th Cir. 2007) (private actors may incur § 1983 liability only if they are willing participants in joint action with state or its agents acting under color of state law); cf. Youngblood v. Hy-Vee Food Stores, Inc., 266 F.3d 851, 855 (8th Cir. 2001) (“[a] store may be considered to be acting jointly with police when the police detain accused shoplifters without making an independent investigation or pursuant to a customary plan between the store and the police department”); Murray v. Wal-Mart, Inc., 874 F.2d 555, 558-59 (8th Cir. 1989) (finding willful, joint activity where, inter alia, Wal-Mart acted in concert with police because it had practice of working with police department in prosecuting shoplifters; store security guard was employee of police department; and police relied on guard’s incomplete version of facts without any independent investigation).
We agree with the district court’s disposition of the remaining state and federal claims asserted in the complaint, and we conclude that Judge Phillips did not abuse her discretion in refusing to recuse herself. See Dossett v. First State Bank, 399 F.3d 940, 953 (8th Cir. 2005) (district court’s denial of recusal motion reviewed for abuse of discretion; recusal is required when average person knowing all relevant facts of case might reasonably question judge’s impartiality; adverse rulings, however, almost never constitute valid basis for recu-sal).
Accordingly, we reverse the dismissal of West-Anderson’s Fourth Amendment claims against Chenoweth, Kirby, and Argosy, we affirm the dismissal of all other claims, and we remand to the district court for further proceedings.
. Because the pro se notice of appeal specifies the July 19 judgment, which recited the dismissal on July 9 as well as those on July 19, we construe the notice of appeal as challenging the July 9 order as well. See Greer v. St. Louis Reg'l Med. Ctr., 258 F.3d 843, 845-46 (8th Cir. 2001).
Reference
- Full Case Name
- Brenda WEST-ANDERSON, Plaintiff-Appellant v. the MISSOURI GAMING COMPANY, Doing Business as Argosy Casino; Scott Kirby; D.A. Chenoweth, Also Known as Dale Chenoweth, Defendants-Appellees
- Cited By
- 4 cases
- Status
- Unpublished