Smalley v. Gamache et al

Filing 108

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that defendants' motion for summary judgment [#98] is denied. Signed by District Judge Rodney W. Sippel on 3/19/13. (LAH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JAMES SMALLEY,
Plaintiff,
vs.
MICHAEL GAMACHE, et al.,
Defendants.

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Case No. 4:10CV319 RWS

MEMORANDUM AND ORDER
James Smalley alleges that defendants used excessive force against him in violation of 42
U.S.C. § 1983 while he was a pretrial detainee in the custody of the Sheriff’s Department of the
City of St. Louis on February 28, 2007. Defendants move for summary judgment on the ground
that they are qualifiedly immune from suit. Smalley, who is proceeding pro se, opposes summary
judgment, and the issues have been fully briefed. Because genuine issues of material fact remain
as to whether defendants violated Smalley’s constitutional rights, the motion for summary
judgment will be denied.
Standards Governing Summary Judgment
“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)). The movant “bears the initial
responsibility of informing the district court of the basis for its motion,” and must identify “those
portions of [the record] ... which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “If the movant does so, the

nonmovant must respond by submitting evidentiary materials that set out specific facts showing
that there is a genuine issue for trial.” Torgerson, 643 F.3d at 1042 (internal quotation marks and
citations omitted). “On a motion for summary judgment, facts must be viewed in the light most
favorable to the nonmoving party only if there is a genuine dispute as to those facts.” Id.
(internal quotation marks and citations omitted). “Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of
a judge.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000), (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). The nonmovant “must do more
than simply show that there is some metaphysical doubt as to the material facts,” and must come
forward with “specific facts showing that there is a genuine issue for trial.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). “Where the record taken as a
whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine
issue for trial.” Torgerson, 643 F.3d at 1042 (internal quotation marks and citations omitted) .
Background Facts1
On February 28, 2007, Smalley was arrested and booked by the St. Louis Metropolitan
Police Department and being housed in the St. Louis City Justice Center awaiting his first
appearance in front of a judge. Defendants Michael Gamache, Joseph Pree, and Chris Cavana
were employed by the Sheriff’s Department for the City of St. Louis and assigned to prisoner
processing at the Justice Center. They were responsible for searching and escorting pretrial
detainees to the Carnahan Courthouse for initial appearance. During his search of Smalley,

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I am finding these facts purposes of deciding this motion only, and neither party may rely
on this Order to establish any facts or defenses at trial.
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Cavana ordered Smalley to hand over his shoes. Smalley refused, so he was taken to a cell and
placed inside “so that Pree and Cavana could peaceably search the remaining individuals and
search [Smalley] last.” (Doc. # 98-1 at 2). From here, Smalley’s version of events differs from
defendants’. According to Smalley, he “exchanged words” with Gamache before being placed in
the cell because Gamache was “browbeating him” and “treating him harshly,” but claims that
“they were nothing but words.” Smalley testified that, after he was placed in the cell, Gamache
jumped up from his seat in the control room for no reason and bolted toward the cell while
removing his can of mace. Smalley then claims that Gamache opened his cell door and maced
him “directly in the face without warning or provocation.” Smalley alleges that Gamache and
Cavana then began beating and kicking him and that Pree arrived and maced him again. Smalley
claims that, as a result of defendants’ unprovoked attack, he sustained chemical burns, a fractured
left rib, and knots on his chest and leg.
According to defendants, Smalley began “mule-kicking” the cell door after he was placed
inside. Because Gamache believed Smalley might injure himself or the cell door, Gamache
opened the cell door to tell him to stop kicking the door. Defendants claim that Smalley then
rushed Gamache and struck him in the face with a closed fist, so Gamache tried to restrain
Smalley by taking him down to the ground. Defendants testified that Smalley actively resisted
and continued attempting to strike Gamache, so Cavana ran to assist Gamache. Gamache and
Cavana were able to wrestle Smalley to the ground, but Smalley continued to resist despite their
verbal commands to the contrary. Pree then came to assist and administered “one or two bursts
of oleoresin capsicum aerosol restraint spray to Smalley’s face.” Defendants claim that Smalley
stopped resisting after being maced, so he was placed back in his cell. Defendants claim that
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Smalley told St. Louis Metropolitan police officers that he was not injured as a result of this
incident. Smalley denies mule-kicking his cell door, denies being an aggressor or striking
Gamache, denies resisting any command (other than to take off his shoes), and denies telling
anyone he was not injured as a result of the attack. There is no videotape of the incident.
Smalley was charged with Assault 3rd Degree after an investigation of the incident by the St.
Louis Police Department. However, defendants have provided me with no information regarding
the disposition of this charge and do not argue for any preclusive effect arising from it.
Discussion
Qualified immunity protects a government official from liability “unless the official’s
conduct violated a clearly established constitutional or statutory right of which a reasonable
person would have known.” Henderson v. Munn, 439 F.3d 497, 501 (8th Cir. 2006) (citing
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The standard “gives ample room for mistaken
judgments by protecting all but the plainly incompetent or those who knowingly violate the law.”
Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir . 2005) (quoting Hunter v. Bryant, 502
U.S. 224, 229 (1991)).
To determine whether an official is entitled to qualified immunity, the Court asks the
following two-part question: (1) whether the facts alleged, viewed in the light most favorable to
the plaintiff, show that the defendant violated a constitutional or statutory right, and (2) whether
the right at issue was clearly established at the time of the offending conduct. Brown v. City of
Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009) (citing Saucier v. Katz, 533 U.S. 194, 201
(2001)). The Court may decide which determination to make first, Pearson v. Callahan, 555 U.S.
223, 235–36 (2009), and “the defendants are entitled to qualified immunity unless the answer to
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both of these questions is yes.” McCaster v. Clausen, 684 F.3d 740, 746 (8th Cir. 2012).
“A right is clearly established when the contours of the right are sufficiently clear that a
reasonable official would understand that what he is doing violates that right.” Mathers v.
Wright, 636 F.3d 396, 399 (8th Cir. 2011) (internal quotation marks and citation omitted). “A
general constitutional rule already identified in the decisional law may apply with obvious clarity
to the specific conduct in question, even though the very action in question has not previously
been held unlawful.”

Winslow v. Smith, 696 F.3d 716, 738 (8th Cir. 2012) (internal quotation

marks and citation omitted). “The unlawfulness must merely be apparent in light of preexisting
law, and officials can still be on notice that their conduct violates established law even in novel
factual circumstances.” Nelson v. Correctional Medical Services, 583 F.3d 522, 531 (8th Cir.
2009) (internal quotation marks and citation omitted).
“To defeat a claim of qualified immunity, a plaintiff alleging excessive use of force must
present sufficient facts to show that the officer’s conduct violated a constitutional right, and he
also must establish that the constitutional right was clearly established.” Chambers v.
Pennycook, 641 F.3d 898, 904 (8th Cir. 2011). Turning first to the question of whether a
constitutional right was violated, as a pretrial detainee Smalley’s excessive force claim invokes
the protections of the Fourth Amendment. Id. at 905.2 “An officer’s use of force violates the
Fourth Amendment when it is objectively unreasonable, given the facts and circumstances of the
particular case, as judged from the perspective of a reasonable officer on the scene.” Id. at 906
(internal quotation marks and citation omitted). To determine whether the force used was

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This standard also applies to § 1983 excessive force claims brought against sheriff
deputies. Mettler v. Whitledge, 165 F.3d 1197, 1202-03 (8th Cir. 1999).
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reasonable requires a balancing of “the nature and quality of the intrusion on the individual’s
Fourth Amendment interests against the countervailing governmental interests at stake.” Id.
(internal quotation marks and citation omitted). An officer’s use of force against a detainee who
is not threatening, resisting orders, or disturbing the safety and security of the institution is not
objectively reasonable. See, Atkinson v. City of Mountain View, Missouri, 2013 WL 462381, at
*6 (8th Cir. Feb. 8, 2013); Shannon v. Koehler, 616 F.3d 855, 864-65 (8th Cir. 2010).
Viewing the facts most favorably to Smalley and giving him the benefit of all reasonable
inferences, a reasonable jury could conclude that Smalley was in compliance with defendants’
orders and posed no threat to the safety and security of the institution when he was maced and
beaten. If Smalley’s version of events is to be believed, the only order he refused to comply with
was the one to remove his shoes. However, any disruption or potential security threat caused by
that lack of compliance was over by the time he was placed in the cell. According to Smalley, he
was compliant when placed in the cell, did not kick his cell door, and did not rush out of the cell
and strike Gamache when Gamache opened the door and maced him without provocation.
Smalley insists that he did not refuse any orders after he was maced, that he was not fighting with
Gamache and Cavana, and that he was not resisting when Pree repeatedly maced him. Accepting
this version of facts, which is not blatantly contradicted by the record, Scott v. Harris, 550 U.S.
372, 380 (2007), then any use of force against Smalley would be gratuitous and a violation of the
Fourth Amendment. See, Graham v. Connor, 490 U.S. 386, 396 (1989) (officer’s use of force
violates Fourth Amendment when it is objectively unreasonable given facts and circumstances of
particular case); Hemphill v. Hale, 677 F.3d 799, 801 (8th Cir. 2012); Henderson, 439 F.3d at
502-03 (qualified immunity denied because officer’s use of pepper spray on arrestee who had
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already been subdued and restrained may have been gratuitous and completely unnecessary act of
violence that violated Fourth Amendment). Because Smalley has raised a genuine issue of
material fact about whether defendants violated a constitutional right, defendants’ motion for
summary judgment on the basis of qualified immunity must be denied.
With respect to the second prong of the qualified immunity analysis, defendants correctly
note that at the time of these events, the Eighth Circuit Court of Appeals had not yet resolved the
question of whether a plaintiff who demonstrates only a de minimis injury may nonetheless
establish a Fourth Amendment violation based upon excessive use of force. Chambers, 641 F.3d
at 906. However, this argument does not entitle defendants to qualified immunity here because
the extent of a plaintiff’s injury is not relevant if the use of force was gratuitous. Hemphill, 677
F.3d 799 at 801; Smith v. Appledorn, 2013 WL 451320, at *5 (D. Minn. Feb. 6, 2013) (any use
of force to seize an injured, compliant, non-resistant person is unreasonable). The constitutional
right to be free of gratuitous force was clearly established as of February 28, 2007. See Shannon,
616 F.3d at 864-65 (“Long before September 13, 2006, this court (among others) had announced
that the use of force against a suspect who was not threatening and not resisting may be
unlawful.”); Bauer v. Norris, 713 F.2d 408, 412 (8th Cir. 1983); Feemster v. Dehntjer, 661 F.2d
87, 89 (8th Cir. 1981) (“There is no occasion for the use of any force against a prisoner who
quietly submits.”); Agee v. Hickman, 490 F.2d 210, 212 (8th Cir. 1974) (“[T]he use of any force
by officers simply because a suspect is argumentative, contentious, or vituperative is not to be
condoned.”); cf. United States v. Harrison, 671 F.2d 1159, 1161 (8th Cir. 1982) (“Even if
[suspect’s] injuries were minor, a lack of provocation or need to use force would make any use of
force excessive.”). A reasonable officer in 2007 would have known that it would be
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unreasonable to use any amount of force on a pretrial detainee who was compliant and posed no
threat to the safety and security of the officers and the institution.
Moreover, as the Eighth Circuit held in Henderson when affirming the district court’s
denial of qualified immunity in a Fourth Amendment excessive force case:

[W]e agree with the district court that genuine issues of material fact exist as to
whether a reasonable officer . . . would have known his actions violated
[plaintiff’s] right to be free from excessive force. We need look no further than
both parties’ sharply conflicting accounts of the circumstances surrounding
[plaintiff’s] arrest to find a material factual dispute. [Plaintiff] alleged that he was
not resisting arrest when [defendant] hit [plaintiff’s] leg with a heavy object and
then sprayed [plaintiff’s] face with pepper spray. [Defendant], however, argues he
acted reasonably under the circumstances given [plaintiff’s] refusal to cooperate
with the officers and [plaintiff’s] resistance to the officers’ efforts to arrest him.
As the district court noted, the record does not conclusively establish the
reasonableness of [defendant’s] actions or beliefs. While the jury may credit
[defendant’s] testimony and disbelieve [plaintiff’s] testimony at trial, it is not our
function to remove the credibility assessment from the jury. Thus, the district
court properly denied [defendant’s] motion for summary judgment on the basis of
qualified immunity.
439 F.3d at 503-04 (internal quotation marks and citation omitted). Here, too, there are sharply
conflicting accounts of the circumstances surrounding defendants’ use of force against Smalley.
While a jury may well credit defendants’ version of events and disbelieve Smalley’s testimony at
trial, it is not my function to remove this credibility assessment from the jury. Id. at 504.
Because there are material facts that remain in dispute, I must deny defendants’ motion for
summary judgment on qualified immunity grounds.
Accordingly,

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IT IS HEREBY ORDERED that defendants’ motion for summary judgment [#98] is
denied.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

Dated this 19th day of March, 2013.

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