Scherer v. Roemer et al
Filing
57
MEMORANDUM AND ORDER re: 40 MOTION for Summary Judgment filed by Defendant Ste. Genevieve County Sheriff's Office, Defendant Gary Stolzer, Defendant Ste. Genevieve County, Defendant Christopher Roemer. IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment (ECF No.40) is GRANTED. A separate Judgment shall accompany this Memorandum and Order. Signed by District Judge Ronnie L. White on 7/9/18. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
GABE SCHERER,
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Plaintiff,
v.
CHRISTOPHER ROEMER, et al.,
Defendants.
No. 1:16CV236 RLW
MEMORANDUM AND ORDER
This matter is before the Court on Defendants' Motion for Summary Judgment. (ECF
No. 40) The motion is fully briefed and ready for disposition. For the foregoing reasons, the
Court will grant summary judgment in favor of Defendants Christopher Roemer ("Roemer"),
Gary Stalzer ("Stalzer"), and the County of Ste. Genevieve, Missouri ("Ste. Genevieve
County"). 1
I. Factual Background
This case stems from an injury to Plaintiffs dog during an investigation by the Ste.
Genevieve County Sheriffs Office. On August 25, 2015, Deputy Roemer was dispatched to
9705 Misplay Road in Bloomsdale, Missouri, which property was directly across the street from
Plaintiffs house. (Defs.' Statement ofUncontroverted Material Facts ["SUMF"]
~
1, ECF No.
42) Roemer was investigating an abandoned vehicle on private property. (Id.) From the vehicle
Roemer could see Plaintiffs front door and decided to attempt contact with the residents to seek
information regarding the abandoned vehicle. (Id.
1
at~
2) Roemer parked his patrol car in front
In the Complaint, Plaintiff also brought claims against the Ste. Genevieve County Sheriffs
Office. (ECF No. 1) On January 2, 2018, the Court dismissed those claims on the basis that the
St. Genevieve County Sheriffs Office was not a legal entity capable of being sued. (ECF No.
39)
of Plaintiffs residence and walked toward the front door. (Id. at ~ 3) As he approached, he
observed "No Trespassing" and "Beware of Dog" signs. (Pl.'s SUMF ~ 20, ECF No. 45) Upon
reaching the front door, Roemer knocked on the door and announced, "Sheriffs Office." (Defs.'
SUMF ~ 5) After hearing no response, Roemer knocked and announced his presence a second
time. (Id. at ~ 6) Roemer then heard a dog growl and bark. (Id. at ~ 7) When he turned a round,
Roemer observed Plaintiffs large dog, Max, charging at him from the detached garage. (Id.)
However, Plaintiff claims that Max was a gentle dog with no history of anger toward anyone.
(Pl.'s SUMF ~ 14) Roemer drew his firearm and discharged four rounds at Plaintiffs dog,
resulting in injury to the dog. (Defs.' SUMF ~ 9; Pl.'s SUMF ~ 21) Plaintiffs dog returned to
the detached garage, and Roemer went back to his patrol vehicle to wait for backup. (Defs.'
SUMF ~ 10) Roemer and his Sergeant then waited for Plaintiff to return home. (Id.
at~
11)
Upon Plaintiffs return, deputies advised Plaintiff that his dog had been shot and that they
believed he was lying dead in the garage. (Pl.' s SUMF ~ 23) Plaintiffs dog Max was still alive,
and Plaintiff drove him to Veterinary Specialty Services, where his leg was amputated. 2 (Id. at
~~
25-26)
On September 19, 2016, Plaintiff filed a Complaint under 42 U.S.C. § 1983 alleging civil
rights and constitutional violations. (ECF No. 1) Specifically, Plaintiff claims that Defendant
Roemer violated Plaintiffs Fourth Amendment rights by umeasonably shooting Plaintiffs dog,
which constituted an unlawful seizure (Count I). Plaintiff also claims that Defendants Ste.
Genevieve County and Gary Stolzer, the Ste. Genevieve County Sheriff, violated Plaintiffs
Fourteenth Amendment Rights by delegating authority to Roemer to make policy or,
Although Plaintiff claims in his opposition brief that Defendant Roemer shot and killed
Plaintiffs dog, nothing in the record supports this claim. (ECF No. 45 p. 10) Instead, Plaintiffs
affidavit indicates that Max's leg was amputated, after which his quality of life declined.
(Scherer Aff. ~~ 9-10, ECF No. 45-5)
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alternatively by failing to properly train, supervise, and control Roemer (Count II). Finally,
Plaintiff asserts that Ste. Genevieve County is liable for Roemer's alleged constitutional
violations under a theory of respondeat superior (Count III).
II. Legal Standard
"Summary judgment is proper 'if the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law."' Torgerson v. City of Rochester, 643
F.3d 1031, 1042 (8th Cir. 2011) (quoting Fed. R. Civ. P. 56(c)(2)). "At the summary judgment
stage, facts must be viewed in the light most favorable to the nonmoving party only if there is
a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380 (2007) (citation
omitted).
The moving party has the initial burden to establish the non-existence of any genuine
issue of fact that is material to a judgment in its favor. City of Mt. Pleasant, Iowa v.
Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988); see also Torgerson, 643 F.3d
at 1042. To meet this burden, the movant must inform the district court of the basis for the
motion "and must identify 'those portions of [the record] ... which it believes demonstrate the
absence of a genuine issue of material fact."' Torgerson, 643 F.3d at 1042 (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986)). When the movant meets this burden, "the
nonmovant must respond by submitting evidentiary materials that set out 'specific facts
showing that there is a genuine issue for trial."' Id. (quoting Celotex, 477 U.S. at 324).
The nonmoving party "must do more than simply show that there is some metaphysical doubt as
to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). "'Where the record taken as a whole could not lead a rational trier of fact to find for the
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nonmoving party, there is no genuine issue for trial.'" Ricci v. DeStefano, 557 U.S. 557, 586
(2009) (quoting Matsushita Elec., 475 U.S. at 587). Conclusory allegations are insufficient to
establish a material question of fact required to defeat summary judgment. Boude v. City of
Raymore, Missouri, 855 F.3d 930, 935 (8th Cir. 2017); Quinn v. St. Louis Cty., 653 F.3d 745,
752 (8th Cir. 2011).
III. Discussion
A. Fourth Amendment Violation
"To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of a
constitutional right committed by a person acting under color of state law." Andrews v. City of
W Branch, Iowa, 454 F .3d 914, 918 (8th Cir. 2006) (citations omitted). Plaintiff contends that
Roemer' s action in shooting Plaintiffs dog violated Plaintiffs right to be free from umeasonable
seizures under the Fourth Amendment. "The Fourth Amendment protects 'persons, houses,
papers, and effects, against umeasonable searches and seizures."' Hansen v. Black, 872 F .3d
554, 558 (8th Cir. 2017) (quoting U.S. Const. amend. IV). '"A seizure of property occurs when
there is some meaningful interference with an individual's possessory interests in that property."'
Id. (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984) (internal quotations omitted)).
"A dog is considered property for Fourth Amendment purposes." Andrews, 454 F.3d at 918.
Defendant, however, claims that Roemer is entitled to qualified immunity on Plaintiffs
Fourth Amendment violation claim in Count I. "Qualified immunity protects governmental
officials from liability for civil damages if they have not violated 'clearly established statutory or
constitutional rights of which a reasonable person would have known."' Akins v. Epperly, 588
F.3d 1178, 1183 (8th Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). This
immunity permits '"officers to make reasonable errors,' Habiger v. City of Fargo et al., 80 F.3d
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289, 295 (8th Cir. 1996), and provides 'ample room for mistaken judgments.' Malley v. Briggs,
475 U.S. 335, 343, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986)." Borgman v. Kedley, 646 F.3d
518, 522 (8th Cir. 2011 ). In addition, "[t]he defense protects public officials unless they are
'plainly incompetent' or 'knowingly violate the law."' Id. (quoting Hunter v. Bryant, 502 U.S.
224, 229 (1991)).
To determine whether government officials are entitled to qualified immunity, courts
consider two factors: "(l) whether the facts alleged, construed in the light most favorable to [the
plaintiff], establish a violation of a constitutional or statutory right, and (2) whether that right
was clearly established at the time of the alleged violation, such that a reasonable official would
have known that her actions were unlawful." Keil v. Triveline, 661 F.3d 981, 985 (8th Cir.
2011 ). The courts have discretion to decide which of the two prongs should be addressed first.
Pearson v. Callahan, 555 U.S. 223, 236 (2009). '"If either question is answered in the negative,
the public official is entitled to qualified immunity."' Norris v. Engles, 494 F.3d 634, 637 (8th
Cir. 2007) (quoting Vaughn v. Ruoff, 253 F.3d 1124, 1128 (8th Cir. 2001)). "Although qualified
immunity is an affirmative defense, the burden is on the plaintiff to plead, and, if presented with
a properly supported motion for summary judgment, to present evidence from which a
reasonable jury could find that the defendant officer has violated the plaintiffs constitutional
rights." Moore v. Indehar, 514 F.3d 756, 764 (8th Cir. 2008) (citations omitted).
Here, Plaintiff claims that Defendant Roemer' s use of force against Plaintiffs dog was
unreasonable. "The 'reasonableness' of a particular use of force must be judged from the
perspective of a reasonable officer; it does not tum on the subjective intent of the officer."
Andrews, 454 F.3d at 918 (citing Graham v. Connor, 490 U.S. 386, 395 (1989)). Courts have
held that a police officer performs an unreasonable seizure when he shoots and kills a family pet
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when that pet presented no danger and non-lethal means of capture would have been effective.
Id. (citing Brown v. Muhlenberg Twp., 269 F.3d 205, 210-11 (3rd Cir. 2001); Fuller v. Vines, 36
F.3d 65, 68 (9th Cir. 1994)). For a defense of qualified immunity from such liability, Roemer
must show that "a reasonable officer with the information he possessed at the time of the
shooting could have believed that his conduct was lawful in light of the law that was clearly
established on the date of the incident." Id. at 919.
Here, the Court finds that Defendant Roemer is entitled to qualified immunity. First,
Roemer did not violate Plaintiff's established Fourth Amendment rights. While Defendant
concedes that shooting Plaintiff's dog constitutes a seizure, to state a Fourth Amendment
violation, the seizure must be unreasonable. In determining whether a seizure is reasonable,
courts balance "'the nature and quality of the intrusion on the individual's Fourth Amendment
interests against the governmental interests alleged to justify the intrusion."' Powell v. Johnson,
855 F. Supp. 2d 871, 875 (D. Minn. 2012) (quoting United States v. Place, 462 U.S. 696, 703
(1983)). The government has a strong interest in allowing law enforcement officers to protect
themselves from animal attacks, and therefore "courts have recognized that 'no unreasonable
seizure may be found where an officer has killed a dog that posed an imminent threat."' Id.
(quoting Dziekan v. Gaynor, 376 F. Supp. 2d 267, 271 (D. Conn. 2005)).
In Powell, police officers were searching the plaintiffs' yard for a person involved in a
shooting. Id. at 872. As the defendant officer was leaving the yard, plaintiffs' large dog began
"jogging" toward the officer with his mouth open, teeth glaring, and looking aggressive. Id. at
873. The dog ignored his owner's commands to return. Id. The officer then grabbed his gun,
and shot and killed the dog. Id. The district court found that the officer was entitled to qualified
immunity because the officer acted reasonably in shooting the plaintiffs' dog. Id. at 876. The
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plaintiffs argued that a genuine issue of material fact existed as to whether the dog posed a threat
to the officer, as plaintiffs contended that "it was a docile dog, had never bitten anyone, and was
pregnant and could not move rapidly on the day in question." Id. at 875.
However, the Powell court noted, that all dogs "'contain a latent threat to human safety ...
and can be unpredictable both in their actions and in the signals they send."' Id. at 875-76
(quoting P.M ex rel. Whitworth v. Bolinger, No. 2:10-CV-04208, 2011 WL 5838406, at *7
(W.D. Mo. Nov. 21, 2011)). Although the plaintiffs stated that the dog was "not in attack
mode," the court noted that record was devoid of any evidence to support that claim. Id. at 876.
Instead, the court credited the officer's testimony that the dog charged at him with teeth glaring,
which the owner was unable to view from his vantage point, and the officer had nowhere to run
for cover. Id. Even if the officer misperceived the threat posed by the dog, the court reasoned
that "police officers 'are not liable for bad guesses in gray areas; they are liable for transgressing
bright lines."' Id. (quoting Davis v. Hall, 375 F.3d 703, 712 (8th Cir. 2004)). Thus, the Powell
court concluded that "it was not unreasonable for [the officer] to perceive a threat to his safety
from a large, unleashed pit bull "jogging" up behind him with its teeth bared." Id.
The Court finds the facts of the present case to be similar to those of Powell. Defendant
Roemer stated that Plaintiffs large dog growled, barked, and charged at him and that Roemer
had nowhere to escape from the charging dog. Plaintiff contends that Max was a gentle dog with
no history of aggression and that the locations of the bullet holes in the garage door indicate that
the dog was far away from Roemer, thus not a threat, when the dog was shot. However, these
"facts" are merely speculation. Plaintiff did not witness the event and cannot speak to how the
dog behaved on that day. Additionally, the "Beware of Dog" sign indicated that the dog could
be vicious. As in Powell, while Roemer "perhaps could have reacted differently ... 'the Fourth
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Amendment does not allow this type of Monday morning quarterback approach because it only
requires that the seizure fall within a range of objective reasonableness."' Powell, 855 F. Supp.
2d at 876 (quoting Hatch v. Grosinger, Civ. No. 01-1906, 2003 WL 1610778, at *5 (D. Minn.
Mar. 3, 2003) (emphasis added) (internal quotation omitted)). Given the size of the dog, the
"Beware of Dog" sign, the dog's growling and barking, the dog's charging toward Defendant
Roemer, and the lack of ability to escape, the Court concludes that Defendant Roemer
''reasonably perceived an imminent threat to his safety and, hence, acted reasonably in shooting
[Plaintiffs dog]." Id. Accordingly, he is entitled to qualified immunity on Plaintiffs Fourth
Amendment claim. 3
B. Fourteenth Amendment Violation
Plaintiff also claims that Defendants Ste. Genevieve County and Sheriff Gary Stolzer are
liable for either delegating authority to Defendant Roemer to make policy or by failing to
properly hire, train, supervise, control, and/or discipline Roemer. Defendants assert they are
entitled to summary judgment on both claims contained in Count II.
Local governing bodies may be sued under § 1983 where "the action that is alleged to be
unconstitutional implements or executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body's officers." Monell v. Dep 't ofSoc. Servs. of
City of New York, 436 U.S. 658, 690 (1978). "' [M]unicipal liability under § 1983 attaches where
... a deliberate choice to follow a course of action is made from among various alternatives by the
official or officials responsible for establishing final policy with respect to the subject matter in
question."' Soltesz v. Rushmore Plaza Civic Ctr., 847 F.3d 941, 946 (8th Cir. 2017) (quoting
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The Court concludes that Defendant Roemer shooting Plaintiffs dog did not violate Plaintiffs
constitutional rights, and therefore the Court need not reach the issue of whether the right was
clearly established at the time of the shooting. Lykken v. Brady, 622 F.3d 925, 931 (8th Cir.
2010).
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Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)). While "a single decision by a
municipal official can constitute official policy ... 'liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered.'"
Id. (quoting Pembaur, 475 U.S. at 481 (internal citation omitted)). '"Simply going along with
discretionary decisions made by one's subordinates ... is not a delegation to them of the authority
to make policy."' Balderson v. City of Wentzville, Missouri, 840 F.3d 982, 986 (8th Cir. 2016)
(quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 130 (1988)).
Here, Plaintiff provides no factual content to create a genuine issue of material fact that
Defendants Ste. Genevieve County and Sheriff Stolzer delegated final policymaking authority
without constraints to Roemer as required to state a claim for municipal liability under§ 1983.
Indeed, Plaintiff acknowledges that the Ste. Genevieve County policy allows deputies to use
their firearms to "kill ... dangerous animals when no other disposition is reasonably practical."
(ECF No. 41 p. 11, ECF No. 45 p. 21) Defendant Roemer merely followed a policy already in
place by discharging his firearm at an animal he reasonably believed was dangerous. Thus,
Defendants are entitled to summary judgment on this claim.
Plaintiff also contends that Defendants Ste. Genevieve County and Stolzer failed to
adequately hire, train, supervise, control, and/or discipline Roemer. "[A] supervisor may be held
individually liable under§ 1983 if he directly participates in a constitutional violation or if a
failure to properly supervise and train the offending employee caused a deprivation of
constitutional rights." Andrews v. Fowler, 98 F.3d 1069, 1078 (8th Cir. 1996) (citation omitted).
Further, for municipal liability to attach, the court must first find individual liability on the
underlying substantive claim. McCoy v. City of Monticello, 411 F .3d 920, 922 (8th Cir. 2005).
In other words, "[w ]ithout a showing that the [officer] violated the Constitution, however, there
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can be no liability for failure to train." Carpenter v. Gage, 686 F.3d 644, 651 (8th Cir. 2012)
(citation omitted); see also Moore v. City of Desloge, Mo., 647 F.3d 841, 849 (8th Cir. 2011)
("Because [the plaintiff] failed to establish [defendant officer] violated [plaintiffs] constitutional
rights, [plaintiff] cannot maintain this action against [the supervisor].").
As stated above, Defendant Roemer's act of shooting Plaintiffs dog was objectively
reasonable and did constitute an unreasonable seizure in violation of the Fourth Amendment.
Therefore, Defendants Ste. Genevieve County and Stolzer cannot be held liable on a failure to
train or supervise theory. McCoy, 411 F.3d at 922. The Court finds that summary judgment in
favor of Defendants is warranted.
C. Respondeat Superior Liability Against Ste. Genevieve County
In Count III, Plaintiff alleges that Ste. Genevieve County is liable for Defendant
Roemer's actions under a theory ofrespondeat superior liability. However, a municipality
cannot be held liable solely on the basis of employing a tortfeasor, it can be held liable where
"some official policy, 'causes' an employee to violate another's constitutional rights." Monell,
436 U.S. at 691-92. As stated above, no genuine issue of material fact exists with respect to
Plaintiffs policy claims. Plaintiff appears to concede in his response that § 1983 respondeat
superior liability is not available against Defendant Ste. Genevieve County. Thus, the Court will
grant Defendant's motion for summary judgment on this count.
Accordingly,
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IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment (ECF No.
40) is GRANTED. A separate Judgment shall accompany this Memorandum and Order.
Dated this 9th day of July, 2018.
~~
RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE
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