Pitts et al v. City of Cuba et al

Filing 208

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that Defendants Jay Coleman and Randy Martin's Motion for Summary Judgment [ECF No. 177 ] is GRANTED. Counts I, II, and III of Plaintiffs' Amended Complaint, against Defendants Martin and Coleman, are dismissed with prejudice. Signed by District Judge E. Richard Webber on 11/16/2012. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

SHARON PITTS, et al.,
Plaintiff(s),
vs.
CITY OF CUBA, et al.,
Defendant(s).

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Case No. 4:10CV00274 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Defendants Randy Martin and Jay Coleman’s
Motion for Summary Judgment [ECF No. 177]. For the reasons set forth below, their Motion is
granted.
I.

BACKGROUND
On February 16, 2010, Plaintiffs Sharon Pitts (“Plaintiff Pitts”), Lisa King (“Plaintiff

King”), Marilyn Copling (“Plaintiff Copling”), and Daniel Pitts, (collectively, “Plaintiffs”),
acting pro se, filed a complaint against twenty-two individuals and eight public entities [ECF No.
1]. Plaintiffs alleged thirteen counts against Defendant Jay Coleman (“Defendant Coleman”) and
twelve counts against Defendant Randy Martin (“Defendant Martin”). Pursuant to a Motion to
Dismiss [ECF No. 43], six counts, including three conspiracy claims under 42 U.S.C. § 1985,
against Defendants Martin and Coleman were dismissed for failure to state a claim [ECF No.
87]. Plaintiffs filed an Amended Complaint on January 31, 2011 [ECF No. 89], setting forth
twenty-four counts of alleged constitutional and civil rights violations.1 In their Amended

1

Daniel Pitts is no longer a party to this action. He was terminated from the lawsuit on
August 30, 2012.

Complaint, Plaintiffs set forth three claims (under Counts I, II, and III) against Defendants Martin
and Coleman for violation of their rights pursuant to the First, Fourth, Fifth, Eighth, and
Fourteenth Amendments, under 42 U.S.C. § 1983.2 On September 24, 2012, Defendants Martin
and Coleman filed a Motion for Summary Judgment [ECF No. 177]. Plaintiffs filed their
Response in Opposition to Defendant Randy Martin and Jay Coleman’s Motion for Summary
Judgment (“Response in Opposition”) on October 18, 2012 [ECF No. 192].3 Defendants filed
their Reply on October 26, 2012 [ECF No. 196].
In compliance with E.D. Mo. 7 - 4.01(E), Defendants Martin and Coleman filed a
Statement of Uncontroverted Material Facts [ECF No. 179] in support of their Motion for
Summary Judgment. Plaintiffs’ Response in Opposition includes a separate Statement of
Uncontroverted Facts for each Plaintiff. Plaintiffs do not make reference to the facts set forth by
Defendants in their Statement of Uncontroverted Material Facts, nor do they note the paragraph
number from the Defendants’ listing, as required by this Court’s Local Rules. The Statements of
Uncontroverted Facts submitted by Plaintiffs contain many factual assertions that are wholly
irrelevant for purposes of evaluating Defendants’ Motion. Because Plaintiffs fail to controvert
the matters set forth by Defendants in their Statement of Uncontroverted Material Facts, the
assertions are deemed admitted.4 See Jones v. United Parcel Serv., Inc. 461 F.3d 982, 991 (8th

2

In the Amended Complaint, Plaintiffs drop Counts XXI, XXII, XXIII against both
Defendants Martin and Coleman, and Count XXXI against Defendant Coleman.
3

In their Response in Opposition, Plaintiffs assert claims against Defendants Martin and
Coleman under Counts XI, XII, XV, XVI, XIX, and XX. Upon review of the Amended
Complaint, this assertion is erroneous as these counts do not set forth allegations against
Defendants Martin and Coleman. As such, they will be disregarded.
4

All matters set forth in the statement of the movant shall be deemed admitted for
purposes of summary judgment unless specifically controverted by the opposing party. E.D.
Mo. 7 - 4.01(E).
2

Cir. 2006) (concluding that the district court did not abuse its discretion in deeming defendants’
statements admitted, as plaintiffs’statement of controverted facts and response to defendants’
uncontroverted facts violated local rules).
The following facts are those deemed admitted as Plaintiffs failed to controvert them.5
An altercation occurred on February 28, 2008, between Plaintiffs Pitts and King and their father,
Leroy Copling. Plaintiffs allege they were assaulted by their father. As a result of the
altercation, a report was made to the City of Cuba police on behalf of Leroy Copling, stating that
he was assaulted/abused by his daughters, Plaintiffs Pitts and King.6 Charges of adult abuse were
filed against Plaintiffs Pitts and King. Warrants were issued by the Crawford County Circuit
Court for the arrest of Pitts and King for elder abuse on March 7, 2008.
On March 7, 2008, then Sargent (now Chief) Defendant Paul Crow, of the Cuba,
Missouri Police Department placed Lisa King under arrest pursuant to the outstanding warrant
for elder abuse. Prior to executing the arrest warrant, Defendant Crow verified that the warrant
was active and valid. The arrest occurred at the residence of Plaintiffs Pitts and King’s parents,
Leroy and Marilyn Copling. Defendant Jay Coleman, a Deputy of the Crawford County Sheriff’s
Department, was present for the arrest of Lisa King as back-up. Deputy Coleman did not place
Plaintiff Lisa King under arrest, nor did he touch Plaintiff Marilyn Copling during the arrest of

5

The facts contained in this section are the same facts set forth in Defendants' Statement
of Uncontroverted Material Facts [ECF No. 179]. The Statement of Uncontroverted Material
Facts contains citations to the record, in support of each fact, which are not repeated here.
6

In Defendants Statement of Uncontroverted Material Facts [ECF No. 179, ¶ 2], they
allege that Leroy Copling was assaulted/abused by Sharon Pitts and Leroy Copling. This appears
to be an error, and their Memorandum in Support of their Motion for Summary Judgment [ECF
No. 178] identifies Lisa King instead of Leroy Copling as the party assaulting Leroy Copling.
3

Lisa King. He did not threaten or display inappropriate behavior towards Plaintiff Marilyn
Copling.
On March 7, 2008, Defendant Rhonda Shanika, a Trooper with the Missouri State
Highway Patrol, placed Sharon Pitts under arrest pursuant to the outstanding warrant for elder
abuse. Prior to executing the warrant, Defendant Shanika verified that the warrant was active
and valid. Deputy Coleman was present for the arrest of Sharon Pitts as back-up. He did not
place Sharon Pitts under arrest.
All deputies and officers of the Crawford County Sheriff’s Department have graduated
from a POST accredited law enforcement academy with at least 470 hours of basic training, and
are POST certified by the Missouri Department of Public Safety. All deputies and officers of the
Crawford County Sheriff’s Department complete at least 48 hours of continuing education every
three years and maintain their POST certification. Defendant Coleman is POST (Peace Officer
Standards in Training) certified by the Missouri Department of Public Safety. He has completed
at least 48 hours of continuing education every three years since 1998, and has over 50 hours of
training in arrest techniques and serving arrest warrants.
Based upon complaints made by Lisa King and Sharon Pitts, on July 25, 2011, Defendant
Martin wrote to the Crawford County Prosecuting Attorney, William Seay, asking Mr. Seay to
direct a request for an investigation of alleged corruption on the part of the Crawford County
Sheriff’s Department and the City of Cuba Police Department to the DDCC (Division of Drug
and Crime Control of the Missouri State Highway Patrol).
II.

LEGAL STANDARD
As an initial matter, the Court notes that plaintiff is a pro se litigant, and as such, her

pleadings are held “to less stringent standards than formal pleadings drafted by lawyers.” Ellis v.

4

Butler, 890 F.2d 1001, 1003 (8th Cir. 1989) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)). Nevertheless, plaintiff must comply with substantive and procedural law. See Am.
Inmate Paralegal Ass'n v. Cline, 859 F.2d 59, 61 (8th Cir. 1988).
A court shall grant a motion for summary judgment only if the evidence, viewed in the
light most favorable to the nonmoving party, demonstrates that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law. Lynn v.
Deaconess Medical Center, 160 F.3d 484, 486 (8th Cir. 1998) (citing Fed. R. Civ. P. 56(c)).
Material facts are those “that might affect the outcome of the suit under the governing law,” and
a genuine dispute is one “such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). There is no genuine issue as
to any material fact if the nonmoving party has failed to “make a showing sufficient to establish
the existence of an element essential to that party's case....” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
The party seeking summary judgment bears the initial responsibility of informing the
court of the basis of its motion and identifying those portions of the affidavits, pleadings,
depositions, answers to interrogatories, and admissions on file which it believes demonstrates the
absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. When such a motion is
made and supported by the movant, the nonmoving party may not rest on her pleadings but must
produce sufficient evidence to support the existence of the essential elements of her case on
which she bears the burden of proof. Id. at 324. In resisting a properly supported motion for
summary judgment, the plaintiff has an affirmative burden to designate specific facts creating a
triable controversy. Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1113 (8th Cir. 2004).
The non-moving party must “substantiate [their] allegations with sufficient probative evidence

5

that would permit a finding in [their] favor based on more than mere speculation, conjecture, or
fantasy.” Wilson v. Int'l. Bus. Mach. Corp., 62 F.3d 237, 241 (8th Cir. 1995).
Further, the Court notes that it is “not required to speculate on which portion of the record
the nonmoving party relies, nor is it obligated to wade through and search the entire record for
some specific facts that might support the nonmoving party's claim.” White v. McDonnell
Douglas Corp., 904 F.2d 456, 458 (8th Cir. 1990) (quoting InterRoyal Corp. v. Sponseller, 889
F.2d 108, 111 (6th Cir. 1989)).
III.

DISCUSSION
The three Counts alleged against both Defendant Martin and Defendant Coleman are:
1. Count I: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th,
5th, 8th, 14th Amendments), asserted by Plaintiff Pitts;
2. Count II: Retaliation for exercising free speech rights (42 U .S.C. § 1983 and 1st, 4th,
5th, 8th, 14th Amendments), asserted by Plaintiff King; and
3. Count III: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th,
14th Amendments), asserted by Plaintiff M. Copling.7
Based on the Amended Complaint [ECF No. 89, ¶¶ 246-254], these Counts appear to

allege a First Amendment retaliation claim under 42 U.S.C. § 1983. In addition, the Counts
claim violations of the Plaintiffs' 4th, 5th, 8th, and 14th Amendments, as well as stating that
Plaintiffs' rights were violated by “treating similarly situated citizens more favorably” Id. at ¶¶
247, 250, 253. Also, although not separately acknowledged in a particular count, Plaintiffs make

7

Plaintiffs did not list the 5th Amendment in Count III, as they did in Counts I and II.
Whether this was done in error or not, need not be considered as Plaintiffs have conceded the 5th
Amendment does not apply to these counts.
6

allegations in the “Facts” section preceding the counts, that Defendant Martin failed to train,
supervise, or protect Plaintiffs. Id. at ¶ 233.
Plaintiffs concede in their Response in Opposition, that the Fifth and Eighth Amendments
do not apply to their § 1983 claims [ECF No. 192, ¶ 8]. As such, only allegations of the
violation of Plaintiffs’ 1st, 4th, and 14th amendment rights by both Defendants, as well as claims
of inadequate supervision, failure to train, and failure to protect by Defendant Martin will be
discussed. Furthermore, Plaintiffs’ § 1983 claims will be considered against Defendants Martin
and Coleman in both their individual and official capacities, as the "Introduction" of the
Amended Complaint indicates Plaintiffs’ intent to sue Defendants under both theories [ECF No.
89, ¶ 1].
As noted, Plaintiffs allege that their Constitutional rights were violated, however, they do
not support this broad assertion by offering how the conduct of Defendants transgressed a
particular right. In the Amended Complaint, Counts I, II, and III alone do not offer any factual
support of the allegations, but, instead, incorporate by reference a lengthy factual narrative
consisting of the 245 preceding paragraphs. Additionally, in their Response in Opposition,
Plaintiffs do not respond to Defendants' legal arguments, nor do they support the elements of
their claims by citing to specific facts in the record. Instead, Plaintiffs recite the elements of §
1983, claim the elements have been met, giving rise to a genuine issue of material fact, and then
cite to every exhibit attached to their Response in Opposition [ECF No.192-5, Exhibits A-Y].
On a motion for summary judgment, Plaintiffs are required to “point to specific facts in the
record that create a genuine issue for trial” Anderson, 477 U.S. at 256. However, this Court will
consider Plaintiffs’ pro se status in construing their Amended Complaint, Response in
Opposition, Statement of Uncontroverted Facts, and Exhibits to determine if there are adequate

7

facts alleged to provide a genuine issue of material fact, taking into consideration those facts that
have been deemed admitted. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed
pro se is to be liberally construed”).
A.

Claims Against Defendants Martin and Coleman in Their Individual

Capacity
In their Amended Complaint, Plaintiff allege actions by Defendant Coleman revolving
around the March 7, 2008 arrests of Plaintiffs Pitts and King. Plaintiffs claim that King, arrested
by Defendant Paul Crow, was not told the reason for her arrest, although Plaintiff Copling asked
Defendant Paul Crow why Plaintiff King was being arrested [ECF No. 89, ¶ 58]. Plaintiffs also
allege that Defendant Coleman’s behavior caused Plaintiff King to fear for Plaintiff Copling’s
well-being. Id. at ¶ 62. In their Statements of Uncontroverted Facts [ECF Nos. 192-2, 192-3],
Plaintiffs refer to deposition testimony (taken by Defendants) that Defendant Coleman lunged at
Plaintiff Copling, but did not touch her.8 As to the arrest of Plaintiff Pitts, Plaintiffs state that
Defendant Coleman and other Defendants went to Plaintiff Pitts’ house, forced their way in,
drew a gun on her husband, threatened him with bodily harm, demanded to speak to her, and then
arrested her, without revealing the reason for her arrest, and without letting her take her diabetes
medication [ECF No. 89, ¶ ¶ 66, 68-76].

8

Regardless of allegations made by Plaintiffs of a lunge, Defendants’ Statement of
Uncontroverted Material Facts notes that “Deputy Coleman did not threaten or display
inappropriate behavior toward Plaintiff Marilyn Copling.” [ECF No. 179, ¶ 9]. This statement is
supported by sworn affidavits from Defendant Coleman and arrresting officer, Paul Crow [ECF
Nos. 179-6, 179-8]. As this statement is deemed admitted, there is no genuine issue of material
fact with regard to Defendant Coleman’s behavior toward Plaintiff Copling. Furthermore, while
Plaintiffs King and Copling offer (as exhibits) voluntary statements, allegedly made on Cuba
Police Department forms, recounting a lunge, these statements are not authenticated in any way
[ECF No. 192-5, Exhibits I, J].
8

The only specific acts Plaintiffs attribute to Defendant Martin, surround his investigation
of a complaint Plaintiff Pitts made against an officer with the Cuba Police Department,
Defendant Tim Bailey. Plaintiffs claim that Pitts made a voluntary statement with the Crawford
County Sheriff Department regarding a February 4, 2008 incident with Defendant Bailey. Id. at ¶
124. Several days after allegedly filing the statement, Plaintiffs claim Defendant Coleman stated
to them that Sheriff Martin determined it would be a conflict of interest to investigate, and had
forwarded the complaint to the Crawford County prosecutor. Id. at ¶ 125.
Defendants argue that, based on the undisputed material facts, the affirmative defense of
qualified immunity shields Defendants Martin and Coleman from liability under § 1983 in their
individual capacities. Under the doctrine of qualified immunity, officials performing
discretionary functions should be shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Likewise, in the Eighth Circuit, a determination of whether an official is entitled to qualified
immunity in a civil rights action requires an examination of whether his or her conduct violated a
constitutional right and whether that right was clearly established. Hutson v. Walker, 688 F.3d
477, 483 (8th Cir. 2012) (internal citation omitted). For the purposes of qualified immunity
analysis, “clearly established” means the contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right. Jones v. McNeese,
675 F.3d 1158, 1161 (8th Cir. 2012). This inquiry turns on the objective legal reasonableness of
the action, assessed in light of the legal rules that were clearly established at the time it was
taken. Pearson v. Callahan, 555 U.S. 223, 244 (2009) (internal citation omitted).
1.

Plaintiffs’ First Amendment Claims Against Defendant Coleman

9

Counts I, II, and III specifically allege that Plaintiffs rights were violated as a result of
Defendants’ retaliation for Plaintiffs exercising their rights to freedom of speech. However,
Plaintiffs do not explain the nature of any First Amendment right they sought to exercise, nor
how the actions of Defendant Coleman interfered with the exercise of those rights. By the most
favorable view of Plaintiffs’ recitation of facts, Defendant Coleman’s purported retaliation under
Counts I and II (relating to Plaintiffs Pitts and King, respectively) appears to arise from his
participation in the March 7, 2008 arrests of Pitts and King. Assuming Plaintiffs are alleging a
First Amendment retaliatory arrest claim, to show a violation of their rights, Plaintiffs must
establish a causal connection between a defendant's retaliatory animus and [plaintiffs']
subsequent injury. Baribeau v. City of Minneapolis, 596 F.3d 465, 481 (8th Cir. 2010).
Plaintiffs must offer evidence that they were “singled out” because of their exercise of
constitutional rights, and that the arrests caused [them] to suffer an injury that would ‘chill a
person of ordinary firmness' from continuing in the protected activity. Id. Futhermore, as
Defendants have noted, in the context of a First Amendment retaliatory arrest claim, lack of
probable cause is a necessary element. McCabe v. Parker, 608 F.3d 1068, 1075 (8th Cir. 2010).
It is firmly established that “an arrest executed pursuant to a facially valid warrant generally does
not give rise to a cause of action under 42 U.S.C. § 1983 against the arresting officer.” Fair v.
Fulbright, 844 F.2d 567, 569 (8th Cir. 1988) (citation omitted). When a plaintiff, in an action
brought under 42 U.S.C. § 1983, contends that an officer acted without probable cause, the
officer is entitled to qualified immunity unless the “warrant application is so lacking in indicia of
probable cause as to render official belief in its existence unreasonable.” George v. City of St.
Louis, 26 F.3d 55, 57 (8th Cir. 1994). The Supreme Court stated, in Whiteley v. Warden, that
officers called upon to aid other officers in executing arrest warrants, are entitled to assume that

10

the officers requesting aid offered the magistrate the information requisite to support an
independent judicial assessment of probable cause. 401 U.S. 560, 568 (1971).
Here, Defendants argue that Coleman's role in the arrests of Plaintiffs Pitts and King do
not meet the elements of a retaliatory arrest claim. This Court agrees. Defendants maintain
Plaintiffs offer no evidence of a retaliatory animus on behalf of Defendant Coleman which led to
the arrests. Defendants argue that the arrests did not chill Plaintiffs from engaging in a protected
activity. It is undisputed that Plaintiffs filed complaints after the arrests took place.9 It is further
uncontroverted that Coleman did not personally arrest either Plaintiff. Defendants Crow and
Shanika arrested King and Pitts, respectively, after verifying that the warrants pertaining to their
arrests were active and valid. Even if Plaintiffs had set forth facts that challenged the validity of
the warrants, which they did not, Defendant Coleman’s reliance upon them is objectively
reasonable. Under Whiteley v. Warden, Defendant Coleman was entitled to assume that other
officers provided information which supported the issuance of warrants based on probable cause.
As the arrests of Pitts and King were executed pursuant to facially valid warrants, Plaintiffs
cannot establish the lack of probable cause, a necessary element in a retaliatory arrest claim, and
therefore, fail to establish the existence of a dispute of a material fact to support an underlying
constitutional violation in the arrests.
Defendants also argue that Defendant Coleman is entitled to qualified immunity. As just
discussed, there is no underlying constitutional violation by Defendant Coleman based on a
retaliatory arrest claim. Even if a violation could have been established, Plaintiffs would have to

9

Plaintiffs themselves offer, as exhibits, unsworn voluntary statements allegedly filed
with the Cuba Police Department regarding their March 7, 2008 arrests, as well as a complaint
allegedly filed in July, 2011, with the Crawford County Sheriff’s Department [ECF Nos. 192-5,
Exhibits H, I, J, and W]. Plaintiffs also reference numerous complaints filed after the March 7,
2008 arrests in their Amended Complaint.
11

show that the right was clearly established to bar the affirmative defense of qualified immunity.
The Supreme Court, in Reichle v. Howards,, observed that it was not clearly established that an
arrest supported by probable cause could violate the First Amendment. ––– U.S. ––––, 132 S.Ct.
2088, 2093, 182 L.Ed.2d 985 (2012). Defendant Coleman is entitled to qualified immunity on
Counts I and II for claims pertaining to the First Amendment as his conduct did not violate
clearly established Constitutional rights of which a reasonable officer would have known.
In Count III, Plaintiff Copling also alleges that her rights were violated in retaliation for
the exercise of her First Amendment rights. However, there are no facts alleged by Plaintiffs that
could be construed as a deprivation of her First Amendment rights under § 1983. Copling was
not subject to arrest. The only facts set forth involving Plaintiff Copling and Defendant
Coleman, relate to his presence during the arrest of Plaintiff Lisa King, which occurred at
Plaintiff Copling’s home. The Amended Complaint states that Defendant Coleman refused to
tell Plaintiff Copling the reason for Lisa King’s arrest and that his behavior toward Copling made
Lisa King fear for Copling’s well-being. Neither of these two allegations are sufficient to
implicate Defendant Copling's constitutional rights. Additionally, the Plaintiffs’ unsworn
statements allege that Coleman lunged at Copling. As noted previously, however, Plaintiff did
not specifically controvert facts offered by Defendants that Coleman did not touch, threaten, or
behave inappropriately toward Copling.10 As those statements were deemed admitted, there is no
other behavior by Defendant Coleman that could be construed as giving rise to a violation of
Plaintiff Copling's rights under § 1983.
2.

10

Plaintiffs’ Fourth Amendment Claims Against Defendant Coleman

See Footnote 8, supra.
12

Plaintiffs, although claiming a Fourth Amendment violation under § 1983 in Counts I, II,
and III, do not set forth any facts indicating specific acts of Defendant Coleman constituting an
unreasonable search and seizure. Defendants argue that Defendant Coleman is entitled to
qualified immunity, as his participation in the arrests of Pitts and King does not give rise to an
Constitutional violation under the Fourth Amendment. This Court agrees. As the
uncontroverted facts establish, Defendant Coleman was not the arresting officer, nor did he
search or seize anything.11
Defendants further maintain that Coleman’s actions during the arrests do not constitute
excessive force under the Fourth Amendment. The right to be free from excessive force is a
clearly established right under the Fourth Amendment's prohibition against unreasonable seizures
of the person. See Guite v. Wright, 147 F.3d 747, 750 (8th Cir. 1998). “The violation of this
right will, of course, support a § 1983 action.” Crumley v. City of St. Paul, 324 F.3d 1003, 1007
(8th Cir. 2003). Nevertheless, an officer is entitled to qualified immunity when any force used is
‘objectively reasonable’ in light of the facts and circumstances confronting the officer. Guite,
147 F.3d at 750 (internal quotations and citation omitted). “Once the predicate facts are
established, the reasonableness of the official's conduct under the circumstances is a question of
law.” Tlamka v. Serrell, 244 F.3d 628, 632 (8th Cir. 2001) (internal citation omitted). Also,
“the lack, or minor degree, of any injury sustained during an arrest is relevant in considering the
reasonableness of the force used.” Cook v. City of Bella Villa, 582 F.3d 840, 850 (8th Cir. 2009)
(internal citation omitted); see also Wertish v. Krueger, 433 F.3d 1062, 1067 (8th Cir. 2006)
(concluding “relatively minor scrapes and bruises” combined with a “less-than-permanent

11

Plaintiffs do allege that arresting officer (and Defendant), Paul Crow, seized Plaintiff
King's phone, but do not allege any personal involvement of Defendant Coleman regarding the
phone [ECF No. 89, ¶ 60].
13

aggravation of a prior shoulder condition were de minimis injuries” which did not support a
finding of excessive force).
Here, it is uncontroverted that Defendant Coleman did not arrest either Plaintiff and was
present only as back-up. The only facts that could give rise to an allegation of excessive force
would be Plaintiff Copling’s claim that Defendant Coleman lunged in her direction. However, as
discussed above, it is uncontroverted that he did not touch, threaten or behave inappropriately
toward Plaintiff Copling. Even if this statement was not deemed admitted, a threatening lunge
without any bodily contact, and no resulting injury, is objectively reasonable during an arrest.12
Furthermore, Defendant Coleman is entitled to qualified immunity as a reasonable official would
not understand that a lunge in someone’s direction during an arrest clearly violated an established
constitutional right. As Defendant Coleman’s conduct toward Plaintiffs was objectively
reasonable under the circumstances of the arrests, and not in violation of a clearly established
right, he is entitled to qualified immunity under § 1983 and the Fourth Amendment.
3.

Plaintiffs’ Fourteenth Amendment Claims Against Defendant

Coleman
Plaintiffs have alleged in Counts I, II, and III of the Amended Complaint that their rights
were violated under the Fourteenth Amendment. As with the First and Fourth Amendments,
Plaintiffs do not indicate the manner in which those rights were violated, relying instead on the
incorporation of the 245 preceding paragraphs.
In the Amended Complaint, Plaintiffs allege a Due Process and Equal Rights of the Law
violation [ECF No. 89, ¶ 2]. Defendants argue that, to the extent that Plaintiffs are claiming a

12

Further, an excessive force claim cannot be sustained under Plaintiffs' allegations of acts
that occurred during Pitts' arrest. Plaintiffs claim Pitts' husband, Jerry was threatened when the
officers forced their way in and drew a gun. Jerry Pitts is no longer a party to the action.
14

violation of the equal protection clause of the Fourteenth Amendment, it does not apply as
Plaintiffs are not, and have not alleged that they are members of a protected class. “To state a
claim under the Equal Protection Clause, a § 1983 plaintiff must allege that a state actor
intentionally discriminated against the plaintiff because of membership in a protected class.”
Henry v. Metro. Sewer Dist., 922 F.2d 332, 341 (8th Cir. 1990) (citing Johnson v. Morel, 876
F.2d 477, 479 (5th Cir. 1989) (en banc)). If Plaintiffs do not assert that they are members of a
protected class, they must prove that they were “treated differently from others similarly situated
and that there is no rational basis for the difference in treatment.” See Village of Willowbrook v.
Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, (2000) (stating that, to allege a “class-of-one” equal
protection claim, the plaintiff must assert that “he had been intentionally treated differently than
others similarly situated and that there is no rational basis for the difference in treatment”); see
also Nolan v. Thompson, 521 F.3d 983, 989 –990 (8th Cir. 2008). Here, Plaintiffs do not claim
membership in a protected class. Furthermore, beyond a broad allegation, Plaintiffs do not offer
any evidence that they were treated differently by Defendants than others similarly situated, or
that an equal protection "class-of-one" claim under these alleged facts, is an actionable claim.
Therefore, the equal protection clause of the Fourteenth Amendment cannot form a valid basis
for their § 1983 claims.
Similarly, Defendants also maintain that the undisputed facts do not support a due process
violation under the Fourteenth Amendment. Defendants correctly note that, even if Defendant
Coleman was the arresting officer, an arrest executed pursuant to a facially valid warrant does not
constitute a due process violation under § 1983. See Fair, 844 F.2d at 569 (citation omitted)
(explaining that “an arrest executed pursuant to a facially valid warrant generally does not give
rise to a cause of action under 42 U.S.C. § 1983").

15

4.

Plaintiffs’ Claims Against Defendant Martin in his Individual

Capacity
In Counts I, II, and III, Plaintiffs also claim Defendant Martin violated Plaintiffs First
Amendment rights in retaliation for exercising their right to freedom of speech, as well as their
Fourth and Fourteenth Amendment rights. As noted with Defendant Coleman, Plaintiffs do not
specify any act by Defendant Martin in violation of Plaintiffs’ First, Fourth, or Fourteenth
Amendment rights. (Plaintiffs also make broad allegations of inadequate training, and failure to
supervise and protect by Defendant Martin, which are discussed separately, infra.) The only
conduct cited by Plaintiffs pertaining to Defendant Martin, is the allegation in the Amended
Complaint surrounding Martin's investigation of Plaintiff Pitts’ complaint against officerTim
Bailey. Defendants, however, offer evidence that on July 25, 2011, Sheriff Martin requested the
Crawford County prosecutor to investigate Pitts allegations of corruption.13 Plaintiffs do not
contravert this evidence or offer evidence of other complaints filed against Officer Bailey for
which there was no response by Defendant Martin. As such, there is no genuine issue of material
fact as to Defendant Martin’s alleged failure to investigate Plaintiff Pitts’ complaint.
Furthermore, Defendant Martin was not personally involved in Plaintiffs’ arrests, and 42
U.S.C. § 1983 does not permit suit based on a respondeat superior theory of liability.14 See
Martin v. Sargent, 780 F.2d 1334, 1335 (8th Cir. 1985). Thus, Defendant Martin is entitled to
summary judgment on the First and Fourth Amendment claims against him in his individual

13

Defendant Martin, in his sworn affidavit offers a July 25, 2011 letter requesting an
investigation of Pitts complaints [ECF 179-12, Exhibit J-1]. Plaintiffs offer a complaint dated
June 8, 2011 alleging corruption, and, seemingly, the impetus of Martin’s letter [ECF No. 192-5,
Exhibit W]. Plaintiffs do not submit any evidence of filed complaints describing events alleged
in the Amended Complaint concerning Defendant Tim Bailey.
14

Defendant Martin is the Sheriff of the Crawford County Sheriff's Department.
16

capacity under Counts I, II, and III. Equal protection claims and due process claims under the
Fourteenth Amendment fail as to Defendant Martin under the same rationale stated above for
Defendant Coleman, and he is also granted summary judgment on those allegations.
5.

Claims Against Defendant Martin in His Individual Capacity for

Failure to Supervise and Train and Failure to Protect
In the “Facts” section of their Amended Complaint, Plaintiffs allege that Defendant
Martin violated the constitutional rights of Plaintiffs due to his lack of supervision and proper
training of officers [ECF No. 89, ¶ 233]. Plaintiffs do not specify whether these allegations are
against Defendant Martin in his individual or official capacity. Defendants argue, that to the
extent that the allegation is construed against Defendant Martin in his individual capacity, he is
entitled to qualified immunity.
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. Jones v. City of Stuttgart, No. 2:06CV00214 JLH,
2008 WL 4368909, at *3 (E.D. Ark. Sept. 23, 2008). To prove inadequate training or
supervision, the plaintiff must show that the supervisor was “deliberately indifferent” to or
“tacitly authorized” the offending acts, which requires a showing that the supervisor had notice
that the training and supervision were inadequate and likely to result in a constitutional violation.
Id. A “single incident, or a series of isolated incidents,” usually will not provide a sufficient
“basis upon which to assign supervisory liability.” Howard v. Adkison, 887 F.2d 134, 138 (8th
Cir. 1989).
Here, it is uncontroverted that Defendant Martin did not directly participate in the arrests
of Plaintiffs King and Pitts. Additionally, there is no evidence presented that Defendant Martin's

17

supervision or training of Deputy Coleman deprived Plaintiffs of their rights. Furthermore, as
the arrests were pursuant to a facially valid warrant, there is no evidence of a constitutional
violation by Defendant Coleman. Nor is there evidence presented of constitutional violations by
other officers serving arrest warrants, that would put Martin on notice that the training and
supervision were inadequate and likely to result in a constitutional infringement. Plaintiffs have
not alleged any facts to establish that Defendant Martin was “deliberately indifferent” to, or
“tacitly authorized,” unconstitutional arrests. It is undisputed that Defendant Coleman was
POST certified and has completed many hours of continuing education pursuant to POST
requirements [ECF No. 179, ¶¶ 15-22]. Furthermore, all officers in the Crawford County
Sheriff’s Department are POST certified [ECF No. 179, ¶ 23]. Plaintiffs fail to offer evidence of
any kind that Coleman, or any officer, was insufficiently trained. In light of the evidence of
training deemed admitted by the Plaintiffs, as well as the failure to establish a constitutional
violation by Deputy Coleman as to the arrests of Pitts and King, there is no basis to establish
inadequate training or supervisory liability.
Although not enumerated in a specific count, Plaintiffs also allege in the “Facts” section
of the Amended Complaint that Defendant Martin failed to protect the victims of domestic
violence [ECF No. 89, ¶ 233]. This is an apparent reference to actions of Pitts and King’s father,
Leroy Copling, against Plaintiffs.15 Plaintiffs fail to connect this allegation with any acts or
omissions by Defendant Martin. Even if Plaintiffs could somehow establish that Martin failed to

15

Plaintiffs allege several incidents that involve accusations of domestic abuse. They
claim that the incident giving rise to their elder abuse charges involved domestic abuse by their
father [ECF No. 89, ¶ 37]. They also allege that Leroy Copling hit Plaintiff King on the night of
the arrests [ECF No. 89, ¶ 56]. There are also claims of domestic abuse toward Plaintiff Copling
by her husband [ECF No. 89, ¶¶ 93-100]. Other than a conclusory accusation of failure to
protect, however, Plaintiffs do not connect these incidents in any way with Defendant Martin. In
fact, the incidents primarily represent 911 calls allegedly involving the Cuba Police Department.
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protect Plaintiffs from Leroy Copling, the Supreme Court has stated that a person generally has
no due process right to be protected by the government against violence inflicted by a private
actor, and therefore the Due Process clause will not afford a basis for an action under § 1983 for
injury due to such violence. DeShaney v. Winnebago County Dept. of Soc. Serv., 489 U.S. 189,
197, 109 S.Ct. 998 (1989). The court agrees that Plaintiffs’ allegations against Defendant Martin
based on a failure to protect do not support the existence of a material fact, and Defendant Martin
is entitled to summary judgment as a matter of law.
B.

Claims Against Defendants Martin and Coleman inTheir Official Capacity

In the “Introduction” to their Amended Complaint, Plaintiffs assert claims against
Defendants in their individual and official capacities. Defendants Martin and Coleman argue that
they are entitled to summary judgment on the Plaintiffs’ First, Fourth, and Fourteenth
Amendment claims against them in their official capacity under Counts I, II, and III.
Plaintiffs’ claims against Defendants Martin and Coleman in their official capacity are
deemed to be actions against Crawford County. A suit against a public employee in his or her
official capacity is merely a suit against the public employer. Johnson v. Outboard Marine Corp.
172 F.3d 531, 535 (8th Cir. 1999). Liability under § 1983 for a governmental entity must be
based upon an official custom, policy, or practice of the city that causes the constitutional
deprivation, Monell v. New York City Dep't of Soc. Serv.s, 436 U.S. 658, 690–94 (1978);
Davison v. City of Minneapolis, Minn., 490 F.3d. 648 (8th Cir. 2007); Granda v. City of St.
Louis, 472 F.3d 565, 568 (8th Cir. 2007); Avalos v. City of Glenwood, 382 F.3d 792, 802 (8th
Cir. 2004), or is so pervasive among non-policymaking employees of the municipality so “as to
constitute a custom or usage with the force of law.” Granda, 472 F.3d at 568 (quoting Kuha v.
City of Minnetonka, 365 F.3d 590, 603 (8th Cir. 2003). Liability will not attach simply because

19

the municipality employs an alleged tort-feasor. Monell, 436 U .S. at 694. Municipalities cannot
be held liable on a respondeat superior theory under § 1983 for the acts of their employees.
Monell, 436 U.S. at 694; see, Connick v. Thompson, –––U.S. ––––, 131 S.Ct. 1350, 1359 (2011)
(citing Monell, supra.); Parrish v. Ball, 594 F.3d 993, 997 (8th Cir. 2010) (citing Monell,
supra).
Crawford County may be subject to § 1983 liability only if it had a “policy or custom” of
failing to act upon prior similar complaints of unconstitutional conduct, which caused the
constitutional injury at issue. Andrews v. Fowler, 98 F.3d 1069, 1074 -1075 (8th Cir. 1996).
There must exist a prior pattern of unconstitutional conduct that is so “persistent and
widespread” as to have the effect and force of law. Id. at 1075. “To establish a city's liability
based on its failure to prevent misconduct by employees, the plaintiff must show that city
officials had knowledge of prior incidents of police misconduct and deliberately failed to take
remedial action.” Id.
Defendants argue that Plaintiffs have produced no evidence that any custom or policy
existed in the County that authorized deputies to make retaliatory arrests, seize property
unlawfully, use excessive force, or that the County had notice of their deputies doing so. This
Court agrees. Even if a constitutional violation could be established as to the instant arrests,
Plaintiffs would still need to show a requisite degree of fault by proof of a background of events
that establish that Crawford County essentially decided to violate the Constitution. Plaintiffs
offer no such evidence that the County was deliberately indifferent to unconstitutional arrests.
Additionally, Defendants also claim that any allegation against Defendant Martin, in his
official capacity, for the failure to train and supervise, is also entitled to summary judgment. As

20

noted, a claim against Defendant Martin in his official capacity16 is a claim against Crawford
County. In Sitzes v. City of W. Memphis Ark., the district court granted summary judgment to the
defendants on plaintiffs' failure to train and failure to supervise claims, holding that such claims
could not be sustained absent an underlying constitutional violation by the officer. 606 F.3d
461, 470–71 (8th Cir. 2010). Also see, e.g., City of Los Angeles v. Heller, 475 U.S. 796, 799,
106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (per curiam); Monell, 436 U.S. at 691 (“Congress did not
intend municipalities to be held liable unless action pursuant to official municipal policy of some
nature caused a constitutional tort.”); Sanders v. City of Minneapolis, Minn., 474 F.3d 523, 527
(8th Cir. 2007) (“Without a constitutional violation by the individual officers, there can be no §
1983 or Monell failure to train municipal liability.”).
This Court has already determined that there is not a genuine issue of material fact as to
Defendant Martin and Coleman’s alleged violation of Plaintiffs' constitutional rights in their
individual capacity; therefore, Plaintiffs' failure-to-train and failure-to-supervise claims against
Defendant Martin in his official capacity cannot be sustained in the absence of an underlying
constitutional violation.
IV.

CONCLUSION
Plaintiffs have failed to meet their burden to designate specific facts creating a triable

controversy. They have not demonstrated a genuine issue of material fact as to any claim against
Defendants Martin and Coleman. Defendants Martin and Coleman, in their individual and
official capacity, are entitled to summary judgment as a matter of law on Counts I, II, and III
under 42 U.S.C. § 1983.

16

According to the Amended Complaint, Defendant Martin is the highest-ranking law
enforcement officer, and ultimate policy maker for Crawford County [ECF No. 89, ¶ 25].
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Accordingly,
IT IS HEREBY ORDERED that Defendants Jay Coleman and Randy Martin's Motion
for Summary Judgment [ECF No. 177] is GRANTED. Counts I, II, and III of Plaintiffs’
Amended Complaint, against Defendants Martin and Coleman, are dismissed with prejudice.
Dated this

16th

day of November, 2012.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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