Hollingsworth v. St. Ann, City of et al

Filing 75

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Motion for Summary Judgment (ECF No. 33) is GRANTED, and Plaintiffs Complaint is DISMISSED with prejudice. An appropriate Judgment will accompany this Memorandum and Order. 33 Signed by District Judge Jean C. Hamilton on 2/26/14. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DANELLE HOLLINGSWORTH,
Plaintiff,
v.
CITY OF ST. ANN, et al.,
Defendant.

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No. 4:12CV1198 JCH

MEMORANDUM AND ORDER
This matter is before the Court on Defendants City of St. Ann, St. Ann Police Officer
Robert McCallum, Correctional Officer Joseph Mayberry, and Correctional Officer Johnny
King‟s (collectively “Defendants”) Motion for Summary Judgment, filed November 12, 2013.
(ECF No. 33). The motion is fully briefed and ready for disposition.
BACKGROUND
On July 21, 2009, Plaintiff Danelle Hollingsworth (“Hollingsworth”), while intoxicated,
stole $7.38 worth of wine coolers from a Circle K convenience store in the City of St. Ann.
(Complaint (“Compl.”), ¶¶ 12, 13; Defendants‟ Response to Plaintiff‟s Statement of
Uncontroverted Material Facts in Support of Plaintiff‟s Motion for Summary Judgment on
Liability (“Def. Response”), ¶ 101). St. Ann police officers arrested Hollingsworth and brought
her to the St. Ann police station. (Compl., ¶¶ 15, 19). Officers brought Hollingsworth into a

1

Plaintiff filed her own Motion for Summary Judgment on Liability on November 12, 2013.
(ECF No. 37). The parties have agreed to incorporate their respective statements of
uncontroverted material facts in support of their own motions for summary judgment as facts in
opposition to the other party‟s motion. See ECF No. 52.

small video monitored processing room. (Id., ¶ 20).2 Defendant Joseph Mayberry (“Mayberry”)
brought in a tote, or plastic box, containing an orange jail jumpsuit. (Id., ¶ 21; Plaintiff‟s
Statement of Uncontroverted Material Facts in Support of Plaintiff‟s Motion for Summary
Judgment on Liability (“Plaintiff‟s Facts”), ¶ 31). Defendant Johnny King (“King”) started the
booking process, having Hollingsworth remove her personal property from her pockets and hair
and fill out paperwork. (Plaintiff‟s Facts, ¶ 32). Hollingsworth cooperated at this stage, and did
not engage in any physically threatening behavior. (Id., ¶ 33).
Hollingsworth sat on a concrete bench in the processing room. (Plaintiff‟s Facts, ¶ 34).
One of the Defendants told Hollingsworth to take her clothes off, including her bra but not
including her bottom underwear, and change into the orange jumpsuit.

(Id., ¶¶ 37, 38).3

Hollingsworth sat on the bench while the officers completed their work, and then the officers left
the room, closing the door behind them. (Id., ¶¶ 41, 42). Hollingsworth continued to sit on the
bench, not changing into the jumpsuit. (Id., ¶ 43; Def. Response, ¶ 43). A female dispatcher
monitoring the video feed informed the officers that Hollingsworth was not changing into the
jumpsuit. (Plaintiff‟s Facts, ¶ 44). Defendant Robert McCallum (“McCallum”) entered the room
with his taser out, and reiterated to Hollingsworth that she had to change into the jumpsuit. (Id.,
¶¶ 45, 47). McCallum warned Hollingsworth that if she continued to refuse to change out of her
street clothes and into the orange jumpsuit, she would be tased. (Defendants‟ Statement of Facts,
¶ 4). Hollingsworth waved or pointed her finger at McCallum, saying either something along the
lines of “you better not tase me” (Plaintiff Dep. 93:17-24), or “f--- you. I will not do -- I will not
2

The parties dispute whether Hollingsworth was “cussing and belligerent” during the arrest,
and/or yelling during the escort to the processing room. (Def. Response, ¶¶ 13, 18, 23).
3
Hollingsworth maintains she was “leery and scared” at this point, and would have liked a
female officer to be present. (Plaintiff‟s Facts, ¶ 39). Defendants counter she was using profane
language, and that at no time did she request that a woman be present. (Def. Response, ¶¶ 39,
40).
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change out” (McCallum Dep. 54:14-19). McCallum then left the room, and some time thereafter
the dispatcher monitoring the video feed again alerted the officers that Hollingsworth was not
changing. (Plaintiff‟s Facts, ¶¶ 52, 54). McCallum immediately re-entered the processing room
and employed his taser, shooting one barb into Hollingsworth‟s upper chest and one into her
shoulder. (Id., ¶¶ 55, 56). McCallum gave Hollingsworth a full five second application of
energy through the taser, waited five seconds, and then another five second application of
energy, during which Hollingsworth received the full effect of the stun gun. (Id., ¶¶ 58, 62).4
McCallum testified that between the two tasings he told Hollingsworth to change, and
Hollingsworth said “f--- you”. (McCallum Dep. 73:24-25).
McCallum testified that he had no fear for his physical safety and health (McCallum Dep.
84:23-25), and in his report said that he deployed his taser because of Hollingsworth‟s
noncompliance.

(Defendants‟ Exh. D).

McCallum also testified that he believed it was

important that people change into jumpsuits, “[t]o insure safety of themselves and other people
in the facility. To search for contraband of any type.” (McCallum Dep. 89:14-18).
Hollingsworth filed her original Complaint in this matter on July 3, 2012. (ECF No. 1).
In her Third Amended Complaint, filed August 12, 2013, she asserts the following causes of
action: a Fourth Amendment violation for excessive force against McCallum, in connection with
the tasing (Count I); a Fourth Amendment violation for failure to intervene against King and
Mayberry (Count II)5; and a Monell6 violation against the City of St. Ann (Count IV).7 As stated

4

McCallum touched the end of the taser onto Hollingsworth‟s inner right thigh during the first
taser application, and onto her outer right thigh during the second application. (Plaintiff‟s Facts,
¶¶ 60, 63).
5
Defendants King and Mayberry were outside the processing room while McCallum went in and
out with the taser, and admittedly did nothing to prevent him from tasing Hollingsworth.
(Plaintiff‟s Facts, ¶¶ 70, 75).
6
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
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above, Defendants filed the instant Motion for Summary Judgment on November 12, 2013,
asserting there are no issues of material fact in dispute and Defendants are entitled to judgment
as a matter of law. (ECF No. 33.)
SUMMARY JUDGMENT STANDARD
The Court may grant a motion for summary judgment if, “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The substantive law determines which facts are critical and which are irrelevant. Only disputes
over facts that might affect the outcome will properly preclude summary judgment. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is not proper if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party. Id.
A moving party always bears the burden of informing the Court of the basis of its motion.
Celotex, 477 U.S. at 323. Once the moving party discharges this burden, the nonmoving party
must set forth specific facts demonstrating that there is a dispute as to a genuine issue of material
fact, not the “mere existence of some alleged factual dispute.” Fed. R. Civ. P. 56(e); Anderson,
477 U.S. at 247. The nonmoving party may not rest upon mere allegations or denials of its
pleadings. Anderson, 477 U.S. at 256.
In passing on a motion for summary judgment, the Court must view the facts in the light
most favorable to the nonmoving party, and all justifiable inferences are to be drawn in its favor.
Anderson, 477 U.S. at 255. The Court‟s function is not to weigh the evidence, but to determine
whether there is a genuine issue for trial. Id. at 249.
7

Hollingsworth abandoned her claim for substantive due process violations, as lodged in Count
III. (See Plaintiff‟s Memorandum in Support of Plaintiff‟s Motion for Summary Judgment on
Liability (“Plaintiff‟s Memo in Support”), PP. 5-6).
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DISCUSSION
I.

Count I - 42 U.S.C. § 1983 Excessive Force Claim Against McCallum
In their Motion for Summary Judgment, Defendants claim Hollingsworth‟s 42 U.S.C. §

1983 claim against Officer McCallum is barred by qualified immunity.
Memorandum in Support of their Motion for Summary Judgment, PP. 7-11).

(Defendants‟
“Qualified

immunity shields government officials from liability in a § 1983 action unless the official‟s
conduct violates a clearly established constitutional or statutory right of which a reasonable
person would have known.” Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th Cir. 2009)
(citing Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 153 L.Ed.2d 666 (2002); Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Henderson v. Munn, 439
F.3d 497, 501 (8th Cir. 2006)). Determining the question of qualified immunity thus involves a
two-part inquiry: first, whether the facts shown by Plaintiff demonstrate the deprivation of a
constitutional or statutory right, and second, whether that right was clearly established at the time
of the deprivation. LaCross v. City of Duluth, 713 F.3d 1155, 1157-58 (8th Cir. 2013). “A court
may use its discretion as to which of these inquiries it first chooses to address in light of the
particular circumstances of the case at hand.” Wommack v. Brown, 2012 WL 5948922, at *10
(E.D. Mo. Nov. 28, 2012) (citing Pearson v. Callahan, 555 U.S. 223, 242, 129 S.Ct. 808, 172
L.Ed.2d 565 (2009)). Here, the Court finds it appropriate to begin by addressing the latter
question. LaCross, 713 F.3d at 1158.
In Chambers v. Pennycook, 641 F.3d 898 (8th Cir. 2011), the Eighth Circuit Court of
Appeals “considered whether a plaintiff‟s showing of „only de minimis injury necessarily
forecloses a claim of excessive force under the Fourth Amendment[,]‟ and concluded that it did

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not.” LaCross, 713 F.3d at 1158 (quoting Chambers, 641 F.3d at 906).8 Instead, the Court
determined that the appropriate inquiry was whether the force used to effect a particular seizure
was reasonable. Chambers, 641 F.3d at 906. Chambers thus held that, “the excessive-force
inquiry must focus on the force applied and not its end result, that is, the level of injury.”
Robinson v. City of Minneapolis, 2013 WL 3929043, at *3 (D. Minn. Jul. 30, 2013) (citation
omitted); see also Chambers, 641 F.3d at 906 (“[I]t is logically possible to prove an excessive
use of force that caused only a minor injury, and a rule that forecloses a constitutional claim in
that circumstance focuses on the wrong question.”).
Viewing the facts in the light most favorable to the plaintiff, the Chambers court found
that he had “presented sufficient evidence, if believed, to establish a violation of the Fourth
Amendment.” Chambers, 641 F.3d at 908. In other words, the Court held that the alleged use of
“gratuitous” force, which included kicking and choking Chambers while he was restrained in a
car on the way to the hospital, “was not reasonable under the circumstances.” Id.
The Eighth Circuit did not end its inquiry there, however. Instead, it continued to
consider whether, “the right that was violated was „clearly established‟ at the time of the
defendant‟s alleged misconduct.” Chambers, 641 F.3d at 908 (citing Pearson, 129 S.Ct. at 816).
“For a right to be clearly established, „[t]he contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right.‟” Id. (quoting
Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).
Generally speaking, of course, it was clearly established [at the time of the alleged use of
excessive force] that an arrestee had a right to be free from the use of excessive force. It
8

Plaintiff concedes in her briefing that the tasing at issue here caused only de minimis injury.
(See Plaintiff‟s Amended Memorandum in Opposition to Defendant‟s Motion for Summary
Judgment, P. 12). See also Wommack, 2012 WL 5948922, at *16 (collecting cases) (“As of
2009, the Eighth Circuit Court of Appeals had held that in the absence of evidence of long-term
effects, the use of a Taser does „not inflict any serious injury‟…”).
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was not clearly established, however, that an officer violated the rights of an arrestee by
applying force that caused only de minimis injury9….Given the state of the law [at the
time of the incident], a reasonable officer could have believed that as long as he did not
cause more than de minimis injury to an arrestee, his actions would not run afoul of the
Fourth Amendment. A reasonable officer was permitted to assume that legal conclusion
when determining how to proceed, and he is entitled to have his conduct judged
according to that standard for purposes of qualified immunity.
Id. (internal citations omitted). See also Wommack, 2012 WL 5948922, at *15 (“As of [the date
of the incident, pre-Chambers], it was clearly established that excessive force may not be used
against nonviolent misdemeanants who do not flee or actively resist arrest and pose little or no
threat to the security of the officers or the public….However, what was not clearly established as
of [the date of the incident] was whether force was considered excessive when it involved a
tasing resulting in a de minimis injury.”).
In the instant case, Hollingsworth does not dispute that Defendants had the right to detain
her for allegedly stealing the wine coolers.

Because Defendants had the right to detain

Hollingsworth, they had the right to use some degree of force. See Graham v. Connor, 490 U.S.
386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (citation omitted) (“[T]he right to make an
arrest or investigatory stop necessarily carries with it the right to use some degree of physical
coercion or threat thereof to effect it.”). This right sets Hollingsworth‟s case apart from “cases in
which, under the plaintiff‟s version of the facts, the officer did not have the right to make an
arrest or otherwise detain the plaintiff.” See Mussa v. Abdulkadir, 2013 WL 4780955, at *3 (D.
Minn. Sep. 5, 2013) (distinguishing Nguyen v. Lokke, No. 11-CV-3225, slip. op. at 7 (D. Minn.
Sept. 4, 2013) (“When there is no right to seize a citizen—that is, when there is no right to detain
a citizen even momentarily—then there is also no right to use force against that citizen.”), and
9

Rather, as the Eighth Circuit noted in Chambers, “over the course of more than fifteen
years,…[i]t…remain[ed] an open question in this circuit whether an excessive force claim
require[d] some minimum level of injury.” Chambers, 641 F.3d at 904 (internal quotation marks
and citations omitted).
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Smith v. Appledorn, No. 11-CV-2966, 2013 WL 451320, at *3 (D. Minn. Feb. 6, 2013) (“before
a police officer can use physical force, the arrest or investigatory stop itself must be justified”)).
It further distinguishes Hollingsworth‟s case from Hemphill v. Hale, in which the Eighth Circuit
held that because no use of force would have been reasonable in the officer‟s attempt to coerce
Hemphill‟s consent to a warrantless search of his home, the force Hale allegedly used was
objectively unreasonable. See Hemphill v. Hill, 667 F.3d 799, 801 (8th Cir. 2012) (“While in
Chambers we stated that „[p]olice officers undoubtedly have a right to use some degree of
physical force, or threat thereof, to effect a lawful seizure,‟ see id. at 907, we agree with the
district court that officers do not have the right to use any degree of physical force or threatened
force to coerce an individual to consent to a warrantless search of his home.”).
Having established that McCallum had the right to use some degree of force or threat
thereof in the course of effecting the lawful seizure of Hollingsworth, the Court finds this case is
squarely controlled by Chambers. In other words, although in both cases officers allegedly
utilized excessive force at a time when the detainees were secured and not resisting, the Eighth
Circuit in Chambers held that the officers there were entitled to qualified immunity due to the
uncertainty in the law regarding de minimis injuries, and the same holds true for McCallum here.
See Wommack, 2012 WL 5948922, at *16 (holding the officer‟s actions did not run afoul of the
Fourth Amendment, as “pre-Chambers, it was not clearly established that an officer violated an
arrestee‟s rights, no matter how much force was used, if he caused only de minimis injuries.”).
See also Bishop v. Glazier, 723 F.3d 957, 961-62 (8th Cir. 2013) (holding the distinction between
de minimis force and de minimis injury was not clear until Chambers was decided, and that in
fact some precedents in place at the time of the incident (pre-Chambers) suggested that, “the
presence of only de minimis injuries may preclude a claim for excessive force.”). Defendants‟

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Motion for Summary Judgment on Hollingsworth‟s § 1983 claim of excessive force against
McCallum must therefore be granted. Id.
II.

Count II: 42 U.S.C. § 1983 Failure To Intervene Claim Against King And
Mayberry
As noted above, Hollingsworth also brought a § 1983 claim against Defendants King and

Mayberry, claiming they are liable for failing to intervene when McCallum utilized excessive
force. If a reasonable officer in McCallum‟s position would not have known that he was using
excessive force against Hollingsworth, however, then reasonable officers in King and
Mayberry‟s positions would not have known they had a duty to intervene to protect her from that
use of force. See Mussa, 2013 WL 4780955, at *4. Defendants King and Mayberry thus are
entitled to qualified immunity as well. Id.
III.

Count IV: 42 U.S.C. § 1983 Monell Claim Against The City Of St. Ann
As noted above, in the final count of her Complaint Hollingsworth alleged the City of St.

Ann must be held liable, as its policy permitted or encouraged the misconduct at issue. (Compl.,
¶¶ 69, 70). Hollingsworth elaborated upon the nature of the allegedly unconstitutional policy at
issue in her own Motion for Summary Judgment on Liability, as follows:
In this case Officer Barrale, the taser trainer and self-described knowledgeable person
about the City‟s taser policies, told us that at the relevant time it was the policy of the
City of St. Ann to tase subjects in the jail who might become a threat but who had not
become a threat yet. That policy is not constitutional, for as stated above the court in
Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009) [held] the suspect
must pose “an immediate threat to the safety of the officers or others”, emphasis added.
Because it was the policy of the city to tase subjects who might only become a threat, and
because Officer McCallum followed that policy, Plaintiff is entitled to Summary
Judgment against the City of St. Ann. The policy caused the harm.
(Plaintiff‟s Memo in Support, P. 14).
Based on the foregoing, Hollingsworth apparently complains that an official City of St.
Ann policy permitted officers to deploy their Tasers based on what a suspect might do in the

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future. (See Plaintiff‟s Reply to Defendants‟ Memorandum in Opposition to Plaintiff‟s Motion
for Summary Judgment, P. 5). Assuming without deciding that she is correct in this10, the Court
nevertheless finds summary judgment in favor of the City to be appropriate, as there is no
indication that McCallum was acting pursuant to such policy when he tased Hollingsworth.
Instead, in his Taser Report McCallum stated he deployed the Taser not because he thought
Hollingsworth might become a threat at some point in the future, but “because of
Hollingsworth‟s noncompliance.” (See Defendants‟ Exh. D). McCallum testified consistently
with this explanation during his deposition. (See, e.g., McCallum Dep. 51:1-9, 62:1-5, 90:1591:6).11 Under these circumstances, Hollingsworth fails to demonstrate that “action pursuant to
official municipal policy of some nature caused a constitutional tort,” Monell, 436 U.S. at 691,
and so this portion of Defendants‟ Motion for Summary Judgment must be granted.

See

Atkinson v. City of Mountain View, Mo., 709 F.3d 1201 (8th Cir. 2013).
CONCLUSION
Accordingly,

10

As submitted by Hollingsworth, the only written policy in place at the time did not contain the
above directive, instead stating only as follows:
This device can be considered and utilized before the use of Pepper Spray when an
encounter is of close proximity to do so safely. The charge from the unit shall be applied
to the subject until resistance has ceased, or the subject complies with officer‟s
commands, and the subject is no longer a threat. Any further use is not necessary nor
permissible. Because a handcuffed, or restrained subject can still be non-compliant, or
even a substantial threat, the use of a Stun Device may be permissible as discretion
dictates.
(Plaintiff‟s Facts, ¶ 81; Plaintiff‟s Exh. 9).
11
Specifically, McCallum testified as follows:
Q
What was the primary purpose of your tasing?...
A
To insure safety and—or compliance of the policies for regarding safety for
herself, myself, and others in the facility.
Q
So the purpose of her complying was for safety, correct?
A
Correct.
(McCallum Dep. 90:15-22).
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IT IS HEREBY ORDERED that Defendants‟ Motion for Summary Judgment (ECF No.
33) is GRANTED, and Plaintiff‟s Complaint is DISMISSED with prejudice. An appropriate
Judgment will accompany this Memorandum and Order.

Dated this 26th Day of February, 2014.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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