Aaron v. Phelps County et al

Filing 110

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants Phelps County, Missouri, Phelps County Sheriffs Department, Phelps County Sheriff Donald Blankenship, and Phelps County Sheriffs Deputy Mark Wynns Joint Motion For Summary Judgment ( Docket No. 57) is granted in part and denied in part. IT IS FURTHER ORDERED that Defendants Phelps County, Missouri, Phelps County Sheriffs Department, Phelps County Sheriff Donald Blankenship, and Phelps County Sheriffs Deputy Mark Wynns J oint Motion For Summary Judgment (Docket No. 57) is granted as to Count I of plaintiffs First Amended Complaint to the extent Count I alleges claims of denial of medical care in violation of the Eighth and Fourteenth Amendments, violation of Fourte enth Amendment Substantive Due Process, violation of § 57.015(1) of the Revised Statutes of Missouri, municipal liability under § 1983, unconstitutional policy and custom, and failure to instruct, supervise, control, discipline and train. IT IS FURTHER ORDERED that Defendants Phelps County, Missouri, Phelps County Sheriffs Department, Phelps County Sheriff Donald Blankenship, and Phelps County Sheriffs Deputy Mark Wynns Joint Motion For Summary Judgment (Docket No. 57) is de nied in all other respects. IT IS FURTHER ORDERED that Defendants Phelps County, Missouri, Phelps County Sheriffs Department, Phelps County Sheriff Donald Blankenship, and Phelps County Sheriffs Deputy Mark Wynns Motion To Strike Affidavits Of Plaintiff And Ladonna Simmons (Docket No. 78) is denied without prejudice. Signed by Magistrate Judge Frederick R. Buckles on 1/18/2013. (KSM)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
THOMAS J. AARON,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
PHELPS COUNTY, MISSOURI,
et al.,
Defendants.

Case No. 4:09CV2091 FRB

MEMORANDUM AND ORDER
Presently before the Court is Defendants Phelps County,
Missouri, Phelps County Sheriff’s Department, Phelps County Sheriff
Donald Blankenship, and Phelps County Sheriff’s Deputy Mark Wynn’s
Joint Motion For Summary Judgment.

(Docket No. 57).

All matters

are pending before the undersigned United States Magistrate Judge,
with consent of the parties, pursuant to 28 U.S.C. § 636(c).
I.

Background
Plaintiff opposes much of the instant motion for summary

judgment.
statement

In
of

support

of

his

uncontroverted

opposition,
material

plaintiff

facts,

an

filed

a

opposition

memorandum, and the affidavits of himself and of LaDonna Simmons.
Defendants

responded

with

a

reply

memorandum

and

a

reply

to

plaintiff’s statement of uncontroverted facts in which they advance
several arguments seeking to prohibit plaintiff from referring to
or relying upon certain facts.

Also, on December 12, 2012,

defendants filed a separate motion seeking a Court order striking

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certain portions of the affidavits of plaintiff and Ms. Simmons.
(Docket No. 78).
The undersigned notes that both parties have included
facts that are irrelevant to the determination of summary judgment
in this matter.

While some issues are addressed herein, rather

than address each objection individually, the undersigned will
summarize the facts relied upon in determining the instant motion
for summary judgment.
noted.

Such facts are undisputed unless otherwise

Defendants’ Motion To Strike (Docket No. 78) will be denied

without prejudice.
At approximately 9:12 p.m. on the night of November 12,
2006, defendant Mark Wynn, a sheriff’s deputy with the Phelps
County Sheriff’s Department (also “Deputy Wynn”) drove his marked
patrol vehicle to the home of Ms. LaDonna Simmons for the purpose
of serving her with a summons to appear in a civil case.

Ms.

Simmons’s residence was located on a private gravel road off State
Route E.

The gravel road came to a fork more than 100 yards, but

less than one quarter mile, off State Road E, and circled Ms.
Simmons’s house.

As Deputy Wynn was driving to the residence, he

turned left at the fork and parked his patrol vehicle on the
southeast corner of Ms. Simmons’s house.

Deputy Wynn saw light

illuminating the inside of the house, and saw a porch on the front
of the house.
residence.

Deputy Wynn walked across the front yard of the

Ms. Simmons was sitting in a chair watching television

when she saw light in the front of the residence.

She woke

plaintiff Thomas Aaron, who also lived at the residence and who
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until then had been asleep in a chair next to Ms. Simmons.

Mr.

Aaron then went outside onto a deck that attached to the north side
of the house.
As Deputy Wynn walked across the front yard, he saw a
woman inside the residence looking through a window, and he saw Mr.
Aaron standing on the deck.

Deputy Wynn approached the deck.

Aaron did not see Deputy Wynn’s marked vehicle.
near the deck was off.1

Mr.

The exterior light

Deputy Wynn was wearing a black jacket,

khaki pants, a full duty belt, and a department-approved green polo
shirt that was embroidered with a gold star badge and with the
words “Phelps County Sheriff Dept. Canine Unit.” Mr. Aaron noticed
the black jacket and khaki pants.

Deputy Wynn told Mr. Aaron that

he had parked his vehicle around the back of the house.

Mr. Aaron

illuminated Deputy Wynn with a spotlight and asked him to identify
himself.

Deputy Wynn stated that he was a deputy, and illuminated

himself with his flashlight.

Mr. Aaron remained on the deck, and

he and Deputy Wynn conversed.
The parties dispute much of what was said during the
conversation. In his deposition, Mr. Aaron testified that he asked
Deputy Wynn three times to identify himself, but that Deputy Wynn
responded only the second time.

Deputy Wynn contends that his

black jacket was unzipped, and that when Mr. Aaron asked him for

1

Defendants argue that plaintiff’s citations do not support
that there is an exterior light near the deck. (Docket No. 79 at
page 3). However, in plaintiff’s deposition, he testified that
there was an exterior light near the deck, and that the light had
not been turned on. (Docket No. 58, Attachment 8, pages 87-88).
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identification, he pushed it aside to reveal the embroidery.

Mr.

Aaron contends that the jacket had been zipped, and that when asked
to identify himself Deputy Wynn unzipped the jacket to briefly
reveal what is now understood to be the embroidery, but then
quickly zipped the jacket closed.

Mr. Aaron testified that at the

time he did not recognize the embroidery for what it was and
thought it looked like a yellow stain.
According to Mr. Aaron, Deputy Wynn asked him if he was
LaDonna Simmons, and in response, Mr. Aaron asked Deputy Wynn
whether he looked like LaDonna Simmons.

According to Mr. Aaron,

Deputy Wynn also asked whether LaDonna Simmons was “out here,” and
Mr. Aaron replied in the negative because Ms. Simmons was not
outside on the deck.

Deputy Wynn contends that Mr. Aaron refused

to acknowledge that Ms. Simmons was inside the house, but Mr. Aaron
explains that he did not tell Deputy Wynn that Ms. Simmons was
inside the house because Deputy Wynn never asked whether Ms.
Simmons was inside the house.

Deputy Wynn’s suspicion was aroused

that the woman he observed standing in the window was in fact Ms.
Simmons, and he continued to approach the house.
The

parties

do

not

dispute

that,

as

Deputy

Wynn

approached the house, Mr. Aaron stated his intent to go back
inside, and grasped the handle of a sliding glass door and slid it
open.

Mr. Aaron contends that Deputy Wynn then stepped onto the

deck, hit and grabbed his left arm, applied an arm bar, and threw
Mr. Aaron to the deck floor.

Deputy Wynn concedes doing so, but

states that the force he used was justified because Mr. Aaron had
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threatened to get a gun, and Deputy Wynn believed that Mr. Aaron
was attempting to reenter the residence to do so.

Mr. Aaron

contends that he did not realize that Deputy Wynn was a deputy
sheriff, and that he never mentioned a gun before Deputy Wynn
stepped onto the deck and hit and grabbed him.

Mr. Aaron contends

that, as he and Deputy Wynn were engaged in physical confrontation,
he (Mr. Aaron) yelled to Ms. Simmons to get a gun because, not
realizing that Deputy Wynn was in fact a sheriff’s deputy, he
believed he and Ms. Simmons were being robbed and/or attacked, and
he wanted Ms. Simmons to get the gun to protect herself inside the
house.

The parties do not dispute that, during the physical

confrontation, Deputy Wynn grabbed Mr. Aaron, applied an arm bar,
knocked him to the floor of the deck, punched him, and sprayed his
face with pepper spray.

As a result of his encounter with Deputy

Wynn, Mr. Aaron suffered injuries.
Deputy Wynn concedes that he punched Mr. Aaron, but that
he did so because Mr. Aaron had grabbed his index finger and was
bending it back.

Deputy Wynn also concedes that he sprayed Mr.

Aaron with pepper spray, but did so only because Mr. Aaron had
again grabbed his index finger and was bending it back, and also
because he needed to gain control of Mr. Aaron’s right wrist.

Mr.

Aaron, on the other hand, denies ever grabbing Deputy Wynn’s index
finger, and states that the reason Deputy Wynn could not gain
control over his right wrist was because Deputy Wynn was on top of
him, pinning his right arm beneath him.
According to Mr. Aaron, Deputy Wynn also “raked” the
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teeth of the handcuffs over his arm and sprayed him with a long
blast of pepper spray after both of his wrists were secured in
handcuffs.

Deputy Wynn, however, denies raking Mr. Aaron’s arm

with the handcuff teeth and denies using pepper spray after Mr.
Aaron was fully handcuffed.
II.

Legal Standard
Rule 56(c)

of the Federal Rules of Civil Procedure

provides that summary judgment shall be entered if the moving party
“shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”

In ruling

on a motion for summary judgment, this Court is required to view
the facts in the light most favorable to the non-moving party, and
to give that party the benefit of all reasonable inferences to be
drawn from the underlying facts.
F.2d 732, 734 (8th Cir. 1987).

Agristor Leasing v. Farrow, 826

The moving party bears the burden

of showing both the absence of a genuine issue of material fact and
its entitlement to judgment as a matter of law.

Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
III.

Discussion
A.

Abandoned Claims
Defendants now move for summary judgment on all of the

claims plaintiff asserts in Counts I and II of plaintiff’s First
Amended Complaint.2

In their Memorandum in support of the instant

2

Plaintiff’s two-count First Amended Complaint at times
fails to specify exactly which claims are alleged against which
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motion, defendants note that, in addition to excessive use of force
in violation of the Fourth Amendment, Count I of plaintiff’s First
Amended Complaint appears to raise claims of denial of medical care
in violation of the Eighth and Fourteenth Amendments, violation of
Fourteenth

Amendment

Substantive

Due

Process,

violation

of

§

57.015(1) of the Revised Statutes of Missouri, municipal liability
under § 1983, a claim of unconstitutional policy and custom, and
claims of failure to instruct, supervise, control, discipline and
train.
In response to defendants’ Motion For Summary Judgment,
plaintiff filed both an “Answer” (Docket No. 70) and an opposition
memorandum (Docket No. 73).

In his Answer, plaintiff states that

defendants are not entitled to summary judgment on plaintiff’s
claims

of

excessive

force

under

the

Fourth

Amendment

or

his

Missouri state law claim of battery, or on the issues of qualified
immunity or official immunity.

In his opposition memorandum,

plaintiff does not discuss defendants’ arguments concerning an
alleged violation of plaintiff’s Substantive Due Process rights
under the Fourteenth Amendment, or for wrongful denial of medical
care in violation of the Eighth and Fourteenth Amendment, and
instead argues only that Deputy Wynn used excessive force in
violation

of

memorandum,

the

Fourth

plaintiff

Amendment.

explicitly

Also

states

in

that

his
he

opposition

concedes

the

defendants’ position regarding his claims for violation of Mo. Rev.

defendants.
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Stat. § 57.015(1), municipal liability for violation of § 1983,
unconstitutional policy and

unconstitutional custom, and failure

to supervise, control, discipline and train. Defendants then filed
a reply memorandum in which they noted that plaintiff had abandoned
his claims of violation of his Substantive Due Process rights under
the

Fourteenth

Amendment

and

for

denial

of

medical

care

in

violation of the Eighth and Fourteenth Amendment, and had conceded
all of defendants’ arguments on his claims for violation of Mo.
Rev. Stat. § 57.015(1), municipal liability for violation of §
1983, unconstitutional policy and

unconstitutional custom, and

failure to supervise, control, discipline and train.
renewed

their

motion

for

summary

judgment

on

Defendants

those

claims.

Plaintiff filed nothing in response.
The undersigned agrees that plaintiff has abandoned his
claims of violation of his Substantive Due Process rights under the
Fourteenth Amendment and for denial of medical care in violation of
the Eighth and Fourteenth Amendments, and has also abandoned his
claims of violation of Mo. Rev. Stat. § 57.015(1), municipal
liability for violation of § 1983, unconstitutional policy and
unconstitutional

custom,

and

failure

to

supervise,

control,

discipline and train. Plaintiff’s opposition to the instant motion
presents neither argument nor evidence to support any of the
foregoing claims.

A party opposing summary judgment “may not rest

upon mere allegations or denials . . . but must set forth specific
facts showing there is a genuine issue for trial.”

Satcher v.

University of Ark. at Pine Bluff Bd. of Tr., 558 F.3d 731, 734-35
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(8th Cir. 2009) (quoting Anderson, 477 U.S. at 256).

“It [is] not

the District Court’s responsibility to sift through the record to
see if, perhaps, there [is] an issue of fact.”

Id. at 735.

Consequently, the “failure to oppose a basis for summary judgment
constitutes waiver of that argument.”

Id.

Therefore, defendants

are entitled to summary judgment in their favor on plaintiff’s
claims in Count I of violation of his Substantive Due Process
rights under the Fourteenth Amendment, denial of medical care in
violation of the Eighth and Fourteenth Amendments, violation of Mo.
Rev. Stat. § 57.015(1), municipal liability for violation of §
1983, unconstitutional policy and

unconstitutional custom, and

failure to supervise, control, discipline and train.
B.

Excessive Use of Force
In Count I of the First Amended Petition, plaintiff

alleges that Deputy Wynn used excessive force in violation of his
Fourth Amendment rights. Defendants contend that they are entitled
to summary judgment on this claim because Deputy Wynn’s use of
force was objectively reasonable under the facts and circumstances.
Defendants also argue that Deputy Wynn is protected by the doctrine
of qualified immunity.
Courts analyze a claim that police used excessive force
during

an

arrest

under

the

“objective reasonableness.”
1066 (8th Cir. 2006).

Fourth

Amendment’s

standard

of

Wertish v. Krueger, 433 F.3d 1062,

“The reasonableness of a particular use of

force depends on the circumstances of each case, including the
‘severity of the crime at issue, whether the suspect poses an
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immediate threat to the safety of the officer or others, and
whether he is actively resisting arrest or attempting to evade
Id. (quoting Graham v. Connor, 490 U.S. 386,

arrest by flight.”
396 (1989)).

“The ‘reasonableness’ of a particular use of force

must be judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.”
490 U.S. at 396.

Graham,

The Court must consider “the fact that police

officers are often forced to make split-second judgments - in
circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular
situation.”

Id. at 396-97.

Plaintiff

has

demonstrated

that

there

exist

genuine

disputes of material fact as to his claim of excessive force in
violation of the Fourth Amendment, including: (1) whether Deputy
Wynn properly identified himself as a sheriff’s deputy to Mr. Aaron
such that Mr. Aaron could be expected to have understood that
Deputy Wynn was in fact a sheriff’s deputy; (2) when and in what
context Mr. Aaron mentioned a gun; (3) whether Mr. Aaron grabbed
Deputy Wynn’s index finger and pulled it back; (4) how many times
Deputy Wynn struck Mr. Aaron; (5) whether Deputy Wynn raked the
teeth of the handcuffs over Mr. Aaron’s arm; and (6) whether Deputy
Wynn sprayed Mr. Aaron with pepper spray after Mr. Aaron was fully
secured in handcuffs.3

3

In determining that there remain disputed issues of
material fact on this claim, the undersigned did not consider
paragraph 21 of the Affidavit of Thomas Aaron in which Mr. Aaron
averred that Deputy Wynn sprayed him twice and that he was in
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Deputy

Wynn

visited

the

residence

on

the

night

in

question to serve a civil summons upon Ms. Simmons, not in response
to a severe crime.

Also, there is a genuine dispute surrounding

the issue of whether plaintiff could have reasonably been perceived
as a threat to Deputy Wynn or others.

Deputy Wynn admits that he

stepped onto the deck, grabbed plaintiff, applied an arm bar, and
pushed him to the ground, but claims that doing so was objectively
reasonable because plaintiff had threatened to get a gun and tried
to re-enter the residence.

Plaintiff, however, denies mentioning

a gun before Deputy Wynn stepped onto the deck and hit and grabbed
him.

There are also genuine disputes of material fact concerning

the objective reasonableness of Deputy Wynn’s action of punching
plaintiff and using pepper spray.

While Deputy Wynn contends that

such force was objectively reasonable because Mr. Aaron grabbed his
index finger and was bending it back, Mr. Aaron denies doing so and
supports such denial with his deposition testimony and affidavit.
Mr.

Aaron

further

claims

that

Deputy

Wynn

used

objectively

unreasonable force in pepper spraying him while he was fully
handcuffed, while Deputy Wynn denies doing so.4
handcuffs both times.
4

Defendants argue, inter alia, that there can be no disputed
fact on this point given Ms. Simmons’s deposition, which
defendants argue contradicts Mr. Aaron’s testimony that he was
sprayed with pepper spray a second time, citing pages 79, 224 and
225 of Ms. Simmons’s deposition. (Docket No. 58, Attachment 3,
pages 79, 224, and 225). In the deposition testimony defendants
cite, Ms. Simmons testified that Deputy Wynn sprayed plaintiff
with pepper spray before both of his wrists were secured in
handcuffs, but did not affirmatively testify that Deputy Wynn did
not spray plaintiff with pepper spray after he was fully
handcuffed. Whether the testimony of plaintiff and Ms. Simmons
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The undersigned is mindful of the obligation to view the
evidence from the perspective of a reasonable officer on the scene,
and

also

that

police

officers

must

often

make

split-second

judgments in tense, rapidly evolving situations about the amount of
force necessary.

However, the undersigned must also keep in mind

the summary judgment standard, which requires viewing the facts in
the light most favorable to plaintiff, the non-moving party, and
giving plaintiff the benefit of any inferences that logically can
be drawn from those facts.

Agristor Leasing, 826 F.2d at 734.

Here, having considered the parties’ arguments in light of the
record, the undersigned cannot say as a matter of law that Deputy
Wynn’s use of force was objectively reasonable.

As a result,

summary judgment will be denied on plaintiff’s claim of excessive
use of force in violation of the Fourth Amendment.
C.

Qualified Immunity
Defendants next argue that they are entitled to summary

judgment because Deputy Wynn is shielded from liability by the
doctrine

of

qualified

immunity,

which

“shields

a

government

official from liability and the burdens of litigation unless his
conduct violates ‘clearly established statutory or constitutional
rights of which a reasonable person would have known.’”

Loch v.

City of Litchfield, 689 F.3d 961, 965 (8th Cir. 2012) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

“On summary

judgment, government officials possess qualified immunity unless

testimony is contradictory on this point is a question of fact to
be determined by a jury.
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(1) the facts plaintiff has shown amount to a violation of a
constitutional

right, and (2) the right violated was clearly

established when the alleged misconduct occurred.” Williams v.
Herron, 687 F.3d 971, 974 (8th Cir. 2012) (internal citation
omitted).

A court has discretion in deciding which of the two

prongs of the qualified immunity analysis to consider first.
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
While plaintiff’s right to be free from the use of
excessive

force

was

clearly

established

at

the

time

of

his

encounter with Deputy Wynn, as discussed above, genuine issues of
fact surround the issue of whether Deputy Wynn’s use of force was
objectively reasonable and thus, whether Deputy Wynn’s conduct
amounted to a violation of a constitutional right.

Defendants are

therefore

the

not

entitled

to

summary

judgment

on

issue

of

qualified immunity.
D.

Battery and Official Immunity
Defendant next argues entitlement to summary judgment on

Count II of plaintiff’s First Amended Complaint alleging a claim of
battery against Deputy Wynn.

A police officer making an arrest is

“answerable in damages as for assault and battery only when . . .
he

uses

Helbling,

more
726

force
S.W.2d

than

is

483,

reasonably
487

(Mo.

necessary.”

App.

E.D.

Neal

1987).

v.
The

undersigned has already determined that there are genuine issues of
material fact regarding whether Deputy Wynn’s use of force was
reasonable.

However, Deputy Wynn may be protected from liability

on this claim by the doctrine of official immunity, which shields
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police officers from liability for “negligent acts that are related
to discretionary functions.”

Blue v. Harrah’s North Kansas City,

170 S.W.3d 466, 479 (Mo. App. W.D. 2005) (citing Miller v. Smith,
921 S.W.2d 39, 45 (Mo. App. W.D. 1996)).

While the decision of

whether to arrest someone is a discretionary function, official
immunity does not protect against discretionary acts done in bad
faith or with malice.

Id. (citing State ex rel. Twiehaus v. Adolf,

706 S.W.2d 443, 446 (Mo. banc 1986)).

Bad faith or malice

generally requires actual intent to cause injury.

Id. (citing

Davis v. Bd. of Educ., 963 S.W.2d 679, 689 (Mo. App. E.D. 1998)).
Based upon plaintiff’s allegations, a jury could find
that Deputy Wynn used force in the course of a discretionary act
with bad faith or with malice.

Summary judgment on plaintiff’s

claims in Count II will therefore be denied.
Therefore, for all of the foregoing reasons,
IT IS HEREBY ORDERED that Defendants Phelps County,
Missouri, Phelps County Sheriff’s Department, Phelps County Sheriff
Donald Blankenship, and Phelps County Sheriff’s Deputy Mark Wynn’s
Joint Motion For Summary Judgment (Docket No. 57) is granted in
part and denied in part.

IT IS FURTHER ORDERED that Defendants Phelps County,
Missouri, Phelps County Sheriff’s Department, Phelps County Sheriff
Donald Blankenship, and Phelps County Sheriff’s Deputy Mark Wynn’s
Joint Motion For Summary Judgment (Docket No. 57) is granted as to
Count I of plaintiff’s First Amended Complaint to the extent Count
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I alleges claims of denial of medical care in violation of the
Eighth and Fourteenth Amendments, violation of Fourteenth Amendment
Substantive Due Process, violation of § 57.015(1) of the Revised
Statutes

of

Missouri,

unconstitutional

policy

municipal
and

custom,

liability
and

under

failure

to

§

1983,

instruct,

supervise, control, discipline and train.
IT IS FURTHER ORDERED that Defendants Phelps County,
Missouri, Phelps County Sheriff’s Department, Phelps County Sheriff
Donald Blankenship, and Phelps County Sheriff’s Deputy Mark Wynn’s
Joint Motion For Summary Judgment (Docket No. 57) is denied in all
other respects.
IT IS FURTHER ORDERED that Defendants Phelps County,
Missouri, Phelps County Sheriff’s Department, Phelps County Sheriff
Donald Blankenship, and Phelps County Sheriff’s Deputy Mark Wynn’s
Motion To Strike Affidavits Of Plaintiff And Ladonna Simmons
(Docket No. 78) is denied without prejudice.

_______________________________
Frederick R. Buckles
UNITED STATES MAGISTRATE JUDGE
Dated this 18th day of January, 2013.

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