Mitchell v. Albright et al

Filing 67

MEMORANDUM AND ORDER re: 59 MOTION to Strike the Plaintiff's Attorney's Affidavit filed by Defendant Sikeston, Missouri, City of, 31 MOTION for Summary Judgment filed by Defendant Zach Albright, 48 MOTION for Summary Judgment filed by Defendant Sikeston, Missouri, City of. IT IS HEREBY ORDERED that defendant City of Sikeston's motion for summary judgment (#48) is GRANTED. IT IS FURTHER ORDERED that defendant Zach Albright's motion for summary judgment (#31) is DENIED in part and GRANTED in part, as described herein. IT IS FINALLY ORDERED that defendant City of Sikeston's motion to strike (#59) is DENIED as moot. Signed by District Judge Stephen N. Limbaugh, Jr on 8/29/16. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
TRAVON DAMARCO MITCHELL,
Plaintiff,
vs.

ZACH ALBRIGHT, et al.,
Defendants.

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Case No. 1:15-cv-78 SNLJ

MEMORANDUM AND ORDER
Plaintiff Travon Mitchell brought this action against the City of Sikeston, Missouri,
and two Sikeston police officers, defendants Zach Albright and Franklin Adams. This
matter is before the Court on the City of Sikeston and Albright’s motions for summary
judgment (#48, #31). The matter has been fully briefed and is now ripe for disposition.
I.

Factual Background1
On April 19, 2014, at 12:05 a.m., Sikeston police officer and nonparty Justin James

received a call about suspicious activity reported by an individual who stated he observed
three people in a red car with Missouri license plate number DL9A8U. Officer James
drove to the location of the reported suspicious activity and observed a red Cobalt with
Missouri license plate DL9A8U turning and heading north at high speed. James was at

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The following facts are undisputed unless otherwise indicated.

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the time heading southbound, so he made a U-turn and turned on his lights and sirens.
Plaintiff was one of two passengers in the red Cobalt with Missouri plate DL9A8U, which
was being driven by Aaron Allen. Upon seeing Officer James’s police vehicle lights,
Allen started driving faster, fleeing Officer James’s vehicle. Allen took the officer on a
high speed chase through a neighborhood, running stop signs and eventually hitting the
brakes to avoid another police vehicle that was blocking the road. That other police
vehicle was being driven by defendant Sikeston Police Officer Zach Albright. All three
occupants of the red Cobalt took off running from the vehicle. Officer James ran after an
individual who ran toward apartment buildings nearby; defendant Officer Franklin Adams
drove toward the apartments and stopped where Officer James was located near the
apartments. Officer James lost sight of the individual among the apartment buildings.
Defendant Adams deployed his police dog, Levi, to try to track the individual whom
Officer James had been pursuing.
Levi tracked for about 100 to 150 feet and stopped at the door of one of the
buildings, but defendant Adams and Levi had to leave that location to assist the search for
the individual defendant Albright had been pursuing. Officer James stayed at the location
where Levi had led him, but he later returned to the red Cobalt, where he located a .40
caliber handgun loaded with .40 caliber hollow point ammunition.
Meanwhile, defendant Albright pursued plaintiff, who was wearing black jeans and
a black hoodie, through yards and fields and then through an alleyway. At some point
plaintiff decided to turn around. He was in the backyard at 202 West Gladys and headed

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toward the street when he saw several police officers on West Gladys, so he slid between
the house and a bush that was located in the side yard.

Albright lost sight of plaintiff and

called for Adams and Levi.
Defendant Adams deployed Levi from the patrol car. At that time, Adams had
heard that a handgun had been found in the red Cobalt. Adams, Albright, and Levi
proceeded towards the residence next to which plaintiff was hiding. At the rear of the
residence, Levi started to track one of the individuals who had fled from the Cobalt. Levi
tracked the individual through several backyards before doubling back to the residence at
202 West Gladys where plaintiff was hiding. Adams and Levi walked past plaintiff
behind his bush twice. The dog went toward the bush, sniffed, and stood straight up.
Adams said “we got them. We found them.” Plaintiff says that he rolled over onto his
stomach beside the bush and that he heard Adams say something to the dog and that the
dog started growling. Plaintiff says Adams commanded “Packen,” which is the German
language command for the dog to bite. Levi bit plaintiff on his upper right thigh and
dragged him two or three feet to the middle of the sideyard.
The parties dispute what happened next. Plaintiff says that Levi bit him for four to
five minutes while the police officers watched and did nothing to stop it. Defendants say
that plaintiff hit Levi on the nose, that Adams ordered Levi to stop, and that the dog
released plaintiff after 10-15 seconds.
Officers helped plaintiff get up and had paramedics examine the plaintiff’s injuries.
Paramedics told the officers that plaintiff needed to go to the hospital, and an ambulance

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took him to the hospital, where plaintiff received stitches and other treatment for his
wounds.
Plaintiff was charged with resisting arrest and assaulting a police dog. He pleaded
guilty to resisting arrest but the assault on the police dog charge was dismissed.
Plaintiff filed this action under 42 U.S.C. Section 1983 claiming in Count I that
defendants Albright and Adams violated his Fourth Amendment rights by using excessive
force and failing to intervene to prevent the use of excessive force against him, and in
Count II that the City of Sikeston showed deliberate indifference to the rights of others in
adopting unlawful customs or policies and failing to train its officers adequately.
Defendants Albright and the City of Sikeston have moved for summary judgment
on the Counts against them.
II.

Legal Standard
Pursuant to Federal Rule of Civil Procedure 56(c), a district court may grant a

motion for summary judgment if all of the information before the court demonstrates that
“there is no genuine issue as to material fact and the moving party is entitled to judgment as
a matter of law.” Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467
(1962). The burden is on the moving party. City of Mt. Pleasant, Iowa v. Assoc. Elec.
Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). After the moving party discharges this
burden, the nonmoving party must do more than show that there is some doubt as to the
facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Instead, the nonmoving party bears the burden of setting forth specific facts showing that
there is sufficient evidence in its favor to allow a jury to return a verdict for it. Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986).
In ruling on a motion for summary judgment, the court must review the facts in a
light most favorable to the party opposing the motion and give that party the benefit of any
inferences that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d 844,
846 (8th Cir. 1983). The court is required to resolve all conflicts of evidence in favor of
the nonmoving party. Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207,
210 (8th Cir. 1976).
III.

Discussion
A.

Defendant Zach Albright

Plaintiff claims that defendant Albright used excessive force against plaintiff and
that he failed to intervene to prevent the use of excessive force against plaintiff.
1.

Excessive Force

Section 1983 is a remedial statute allowing for a person acting under color of state
law to be held liable for the “deprivation of any rights, privileges, or immunities secured by
the Constitution and its laws.” 42 U.S.C. § 1983. The Fourth Amendment to the
United States Constitution prohibits the use of excessive force during the seizure of a free
citizen. Graham v. Connor, 490 U.S. 386, 388 (1989); Guite v. Wright, 147 F.3d 747, 750
(8th Cir. 1998). Plaintiff here claims that defendant Albright used excessive force through
the use of the police canine Levi in apprehending plaintiff.

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It appears undisputed that defendant Albright --- as opposed to defendant Adams --had no control over police canine Levi and was therefore not responsible for Levi’s biting
and dragging plaintiff. Plaintiff does not address this matter in his response
memorandum, and thus summary judgment will be granted to defendant Albright on this
aspect of Count I.
2.

Failure to Intervene

It is “clearly established that an officer who fails to intervene to prevent the
unconstitutional use of excessive force by another officer may be held liable for violating
the Fourth Amendment.” Nance v. Sammis, 586 F.3d 604, 612 (8th Cir. 2009). An
officer can be liable for failing to act “where the officer is aware of the abuse and the
duration of the episode is sufficient to permit an inference of tacit collaboration.” Krout v.
Goemmer, 583 F.3d 557, 565 (8th Cir. 2009). However, the plaintiff must show that the
“officer observed or had reason to know that excessive force would be or was being used.”
Hollingsworth v. City of St. Ann, 800 F.3d 985, 991 (8th Cir. 2015); see also Grider v.
Bowling, 785 F.3d 1248, 1253 (8th Cir. 2015).
Defendant Albright argues that he was providing cover for defendant Adams, and
that Adams was solely in charge of his dog, Levi. He states that it was dark and plaintiff
was behind a bush, so he argues that he could not have known that excessive force was
being used. Although it is true Albright did not give the order for Levi to attack plaintiff,
the facts regarding what Albright knew or how much time he had to act are disputed.
Plaintiff says there was light from houses and street lamps and police flashlights;

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moreover, it is undisputed that the dog dragged plaintiff from behind the bush. Defendant
Albright suggests this case is like that in Grider, in which the plaintiff claims a police
officer failed to intervene when another officer kicked an arrestee in the head. See 785
F.3d at 1252. In that case, there was no evidence that the arresting officer was aware of
the kick before it occurred or that he had opportunity to “take action to deescalate the
situation.” Id. Defendant Albright says that, likewise, even if plaintiff could establish
that use of the dog constituted excessive force, he did not have the ability to intervene in
time to prevent any misconduct.
Plaintiff submits, however, that he was bitten by the dog for four to five minutes.
Defendants dispute that number and say that the episode went on for perhaps 10-15
seconds. Viewing the facts in a light most favorable to the nonmovant plaintiff, if indeed
the attack went on for four to five minutes while plaintiff did nothing, then defendant
Albright would have had ample time to tell defendant Adams to call off his dog and
“deescalate the situation.” Id. A question of fact exists, then, as to this matter, and
summary judgment must be denied.

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B.

Defendant City of Sikeston

Plaintiff’s claims against the City of Sikeston in Count II include the following:
 Sikeston had a custom or policy of arresting, stopping, and using excessive
force against young male African Americans without probable cause.
 Sikeston used inadequate hiring and training practices and policies that
resulted in the above-described problems.
 Sikeston failed to train officers to treat young male African Americans the
same as others, and it used inadequate hiring policies and practices to hire
officers who would treat young male African Americans the same as others.
A “municipality may be held liable for the unconstitutional acts of its officials or
employees when those acts implement or execute an unconstitutional municipal policy or
custom.” Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999). A “policy” is a
“deliberate choice of a guiding principle or procedure made by the municipal official who
has final authority regarding such matters.” Id. A “custom” is an unofficial practice
characterized by a “continuing, widespread, persistent pattern of unconstitutional
misconduct by the governmental entity’s employees.” Id. To prevail on his § 1983
claims, in addition to identifying an unconstitutional policy or custom, plaintiff must also
show that the policy or custom was the “moving force” that caused the alleged injury. Id.;
see also Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 404 (1997).
“That is, a plaintiff must show that the municipal action was taken with the requisite degree
of culpability and must demonstrate a direct causal link between the municipal action and

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the deprivation of federal rights.” Brown, 520 U.S. at 404. In addition, “in order for
municipal liability to attach, individual liability first must be found on an underlying
substantive claim.” McCoy v. City of Monticello, 411 F.3d 920, 922 (8th Cir. 2005).
Sikeston has moved for summary judgment on each of the claims against it.
1.

Policy or Custom of Stopping Individuals Based on Race

The “seizure” of a person occurs when an officer restrains the liberty of an
individual through “physical force or show of authority.” Terry v. Ohio, 392 U.S. 1, 19
n.16 (1968). Under the Fourth Amendment, “both investigative stops and arrests are
‘seizures,’ but an investigative stop must be supported by reasonable, articulable suspicion
that criminal activity may be afoot, whereas an arrest must be supported by probable
cause.” United States v. Miller, 974 F.2d 953, 956 (8th Cir. 1992). “Where a police
officer has reasonable suspicion that criminal activity may be afoot, the officer may briefly
stop an individual and make reasonable inquiries aimed at confirming or dispelling the
suspicion.” United States v. Hughes, 517 F.3d 1013, 1016 (8th Cir. 2008).
Here, plaintiff claims that the City of Sikeston had a custom of stopping individuals
based on their race and without reasonable suspicion. The Court must look to the
circumstances of the “stop” in this case.

When Officer James saw the red Cobalt

matching the description provided in the call, he made a U-Turn. Plaintiff testified that
the police car turned its lights on as well. Assuming that Officer James’s act of performing
a U-Turn on a public street after seeing the Cobalt constituted a stop, Sikeston contends
that James had reasonable suspicion to do so. The red Cobalt matched the description

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(including license plate number) of the vehicle that reportedly contained individuals
wearing masks. Officer James testified that he knows individuals frequently wear masks
or other head coverings to conceal their identities when they commit a crime, and the fact
that it was after midnight added to his suspicions. Officer James believed that the
individuals in the Cobalt may have been engaging in criminal activity or were about to do
so based on the information he had and his own training and experiences.
The defendant also contends that Officer James had reasonable suspicion to conduct
an investigative stop after the driver of the Cobalt attempted to flee upon seeing Officer
James turn around and (perhaps) turn on his light.
Plaintiff does not appear to dispute that Officer James received a call about
individuals wearing masks inside the Cobalt. Although plaintiff does dispute that the
plaintiff and his companions were actually wearing masks, plaintiff does not dispute that
Officer James believed (based on the report) they were wearing masks.
As a result, any attempt by Officer James to perform an investigative stop on the
Cobalt did not violate plaintiff’s Fourth Amendment rights; to the extent an investigative
stop occurred, it was based on reasonable suspicion and not on the race of the individuals in
the vehicle. In fact, Officer James did not even know the race of the individuals in the car.
Plaintiff suggests that a question of fact exists by noting that Sikeston stops black

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individuals for traffic offenses two times more frequently than whites,2 but general racial
profiling data cannot create an issue of fact regarding whether plaintiff’s constitutional
rights were violated. See Ballard v. Heineman, 548 F.3d 1132, 1136 (8th Cir. 2008).
Because there is no individual liability on the underlying substantive claim,
Sikeston is entitled to summary judgment on plaintiff’s claim regarding an unconstitutional
policy or custom of stopping individuals based on race and without reasonable suspicion.
See McCoy, 411 F.3d at 922.
2.

Policy or Custom of Arresting Individuals Based on Race

The Fourth Amendment protects an individual’s “right to be free from arrest
without probable cause.” Lambert v. City of Dumas, 187 F.3d 931, 935 (8th Cir. 1999).
“Probable cause . . . means facts and circumstances within the officer’s knowledge that are
sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the
circumstances shown, that the suspect has committed, is committing, or is about to commit
an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). As with plaintiff’s claim
regarding an investigatory stop, Sikeston cannot be held liable on plaintiff’s claim that it
had an unconstitutional policy or custom of arresting individuals without probable cause
based on race unless plaintiff himself was subjected to an unconstitutional arrest. See
McCoy, 411 F.3d at 922-23. The officers had probable cause to support that plaintiff had
committed the crime of resisting a lawful stop and/or an arrest by fleeing the police --- in

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The data cited by plaintiff is from plaintiff’s counsel’s affidavit filed in support of plaintiff’s opposition

memorandum. The affidavit is the subject of a motion to strike, addressed below.

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fact, plaintiff pleaded guilty to that very offense. Plaintiff appears to refute that plaintiff
was lawfully arrested by noting that Sikeston arrests black individuals for non-vehicular
offenses 3.2 times more frequently than whites,3 but, again, general racial profiling data
cannot create an issue of fact regarding whether plaintiff’s constitutional rights were
violated. See Ballard, 548 F.3d at 1136. As a result, Sikeston is entitled to summary
judgment on this aspect of plaintiff’s claim.
3.

Policy or Custom of Using Excessive Force on African Americans

The focus on plaintiff’s case is his claim that excessive force was used on him
during his apprehension through the use of the police dog Levi. Plaintiff claims that
Sikeston faces municipal liability for that claim because it had a policy or custom of using
excessive force on African Americans. Sikeston’s policies on use of force, including the
use of police canines during apprehension and arrests of individuals, are racially neutral
and facially constitutional. Plaintiff does not dispute this fact in his response, nor does
plaintiff set forth evidence demonstrating that Sikeston had an unconstitutional policy
regarding the use of canine units or the use of force in general.
As for whether Sikeston had an unwritten “custom” of using excessive force on
minorities, plaintiff appears to argue that because the officers violated Sikeston’s written
policies regarding use of force and were not reprimanded as a result of those violations,
that there exists an issue of fact regarding whether such a custom exists. The “policy” at
issue here involves the requirement that the canine officer issue a warning before turning a

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The data cited by plaintiff is from plaintiff’s counsel’s affidavit filed in support of plaintiff’s opposition

memorandum. The affidavit is the subject of a motion to strike, addressed below.

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dog loose on a suspect. It is undisputed that no warning was offered in this case. It is not
clear whether there was a violation of Sikeston’s written policies, but it is clear that the
officers were not reprimanded for doing so if it was indeed a violation. Regardless, in order
to prove a municipal custom exists, plaintiff must show (1) the “existence of a continuing,
widespread, persistent pattern of unconstitutional misconduct by” Sikeston employees, (2)
deliberate indifference to or tacit authorization of such conduct by Sikeston’s
policymaking officials after notice to the officials of that misconduct; (3) that the custom
was the moving force behind the constitutional violation. Mettler, 165 F.3d at 1204.
Here, plaintiff shows only one arguable instance of potentially unconstitutional
misconduct. Although plaintiff notes that defendant Albright was terminated from his
position for using excessive force while arresting a white suspect, plaintiff does not
provide any evidence of a widespread, persistent pattern of using excessive force on black
individuals. Plaintiff’s suggestion that the department was willing to look the other way
when excessive force was used on black arrestees could be probative in the face of other
similar evidence, see id. at 1205, but a “single incident normally does not suffice to prove
the existence of a municipal custom.” Id.; see also Andrews v. Fowler, 98 F.3d 1069,
1077 (8th Cir. 1996).
As a result, summary judgment must be granted to Sikeston on this claim. See,
e.g., id. (granting summary judgment to county where plaintiff failed to show a pattern of
unconstitutional conduct).
4.

Failure to Train

Plaintiff contends that Sikeston is liable for failing to properly train its police
officers. However, plaintiff has offered no evidence to support this claim. Because

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Sikeston is entitled to summary judgment on plaintiff’s claims regarding investigative
stops and arrests, Sikeston is likewise entitled to summary judgment on plaintiff’s claim
that it failed to adequately train its officers with respect to those matters. See Moore v. City
of Desloge, Mo., 647 F.3d 841, 849 (8th Cir. 2011) (noting that, to maintain an action or
training liability, plaintiff must show underlying constitutional violations).
With respect to plaintiff’s claim that Sikeston failed to train its officers properly
with respect to use of force, plaintiff states that the
Police Chief terminated Officer Albright for using excessive force when
arresting a white suspect, but failed to reprimand him for his role in using
excessive force by permitting the police dog to bite and maul plaintiff
repeatedly. There is evidence from which a jury could find that Sikeston’s
hiring and training policies resulted in these contrasting decisions made by a
policymaking officer, Police Chief Juden, who ratified and condoned the use
of excess force against plaintiff.
(#56 at 6.) Plaintiff fails to articulate what this “evidence” is, and it is undisputed that
Sikeston requires its officers to undergo extensive training and that additional, continuous
training is required of Sikeston’s canine officers. Summary judgment will be granted to
Sikeston on this claim.
5.

Inadequate Hiring Practices

Finally, plaintiff suggests that Sikeston’s inadequate hiring practices “resulted in
the contrasting decisions” described above and also that the city’s “hiring policies were a
cause of plaintiff’s dog bite injuries, which resulted from the use of excessive force in
violation of Sikeston’s written policies.” (#56 at 6.) Plaintiff goes on to observe that
only 6.7 % of Sikeston’s police force is black. Plaintiff fails to connect this information to

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hiring practices resulting in constitutional violations. Demographical information alone
does not substitute for legal argument. It is undisputed that the pre-employment
investigations into the backgrounds of officers involved in this matter did not find any prior
claims or complaints relevant to this case. Plaintiff also has not produced evidence
supporting that any prior claims or complaints against these officers existed. Because no
issue of fact exists regarding defendant’s hiring practices, summary judgment will be
granted to Sikeston on this claim as well.
IV.

Motion to Strike
Finally, defendant City of Sikeston moves to strike the affidavit of plaintiff’s

attorney David Duree (#59). The affidavit was filed in support of plaintiff’s response to
Sikeston’s motion for summary judgment and contains mathematical calculations
performed on racial profiling statistics and interpretations of the results of those
calculations. Having already determined that the statistical data conveyed in the affidavit
is irrelevant, there is no need to address defendant’s motion to strike.

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Accordingly,
IT IS HEREBY ORDERED that defendant City of Sikeston’s motion for
summary judgment (#48) is GRANTED.
IT IS FURTHER ORDERED that defendant Zach Albright’s motion for summary
judgment (#31) is DENIED in part and GRANTED in part, as described herein.
IT IS FINALLY ORDERED that defendant City of Sikeston’s motion to strike
(#59) is DENIED as moot.

Dated this

29th

day of August, 2016.

____________________________________
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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To the extent that Sikeston officers are violating policies regarding the use of force,
and in particular the use of police canines as force, against minorities without consequence,
then a question of fact exists regarding whether Sikeston officers have a custom of using
excessive force against minorities.
Defendants try to establish that any “custom” of using excessive force against
minorities cannot be the “moving force” behind any constitutional violation because they
did not know plaintiff’s race until after the dog dragged him from behind the bush.
However, once the plaintiff was out in the open, plaintiff claims the officers allowed the
dog to bite him for four to five minutes. They would have done so with full knowledge of
plaintiff’s race.
However,
Did juden say had to alert if outside building too?

Plaintiff basically says that they didn’t follow their policy and that that not
reprimanded for their actions despite the fact that they were in violation of policy.

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