Hazlett v. Pine Lawn, City of, et al

Filing 61

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment 52 is GRANTED. An appropriate Judgment will accompany this Memorandum and Order.IT IS FURTHER ORDERED that Plaintiff's Motion to Compel 48 , Plainti ff's Request for Subpoenas of Officer Lowmans Disciplinary and Complaint Files from Various Police Departments 55 , and Plaintiff's Motion to Quash Defendants Motion for Summary Judgment 56 are DENIED.IT IS FURTHER ORDERED that Plaintiff's Motion for Additional Time 59 is DENIED as moot. IT IS FINALLY ORDERED that Defendants' Second Motion to Dismiss 45 is DENIED as moot. Signed by District Judge John A. Ross on 5/30/14. (JWD)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

GREGORY HAZLETT,
Plaintiff,
v.
CITY OF PINE LAWN and
OFFICER STEVE LOWMAN,
Defendants.

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No. 4:12-CV-1715 JAR

MEMORANDUM AND ORDER
This matter is before the court on Defendants’ Motion for Summary Judgment (ECF No.
52), Plaintiff’s Motion to Compel (ECF No. 48), Plaintiff’s Request for Subpoenas of Officer
Lowman’s Disciplinary and Complaint Files from Various Police Departments (ECF No. 55),
Plaintiff’s Motion to Quash Defendants’ Motion for Summary Judgment (ECF No. 56), and
Plaintiff’s Motion for Additional Time (ECF No. 59). These matters are ready for disposition.
BACKGROUND
On May 16, 2010, Officer Steve Lowman, while on patrol in the City of Pine Lawn,
observed Plaintiff Gregory Hazlett (“Hazlett”) arguing with Pine Lawn resident Shawn Williams
(“Williams”).

(Defendants’ Statement of Uncontroverted Material Facts in Support of the

Motion for Summary Judgment (“DSUMF”), ECF No. 54, ¶1). The argument between Hazlett
and Williams involved name calling, profane language, and became heated. (DSUMF, ¶2).
While Plaintiff and Williams were arguing, Officer Lowman observed Hazlett raise his shirt to
reveal two handguns in the waist band of his pants. (DSUMF, ¶3). During the argument, Officer
Lowman heard Hazlett make several threats against Williams. (DSUMF, ¶4). Following the

argument, Officer Lowman arrested Hazlett on charges of First Degree Assault, Armed Criminal
Action, and Unlawful Use of a Weapon. (DSUMF, ¶5). The probable cause statement that
Officer Lowman drafted on May 17, 2010 stated: “Defendant[,] during argument with a
neighbor[,] pulls up shirt[,] displaying two loaded handguns and threatens to shoot the neighbor.”
(DSUMF, ¶6). Based upon the probable cause statement, the St. Louis County Prosecutor’s
Office prepared a criminal complaint against Hazlett on December 26, 2010 for two counts of
Unlawful Use of a Weapon. (DSUMF, ¶7). St. Louis County Circuit Court Judge Joseph L.
Walsh III found probable cause to arrest Hazlett on two counts of Unlawful Use of a Weapon
and issued an arrest warrant for Hazlett on December 28, 2010. (DSUMF, ¶8).1 On January 26,
2011, both Officer Lowman and Williams testified to a grand jury, which found probable cause
to indict Hazlett on two counts of Unlawful Use of a Weapon. (DSUMF, ¶9). The criminal case
against Hazlett ultimately was dismissed by the prosecution on March 19, 2012 due to Williams’
failure to appear at trial. (DSUMF, ¶10).
On August 23, 2012, Hazlett filed a Petition in the Circuit Court of St. Louis County
alleging a claim against the City of Pine Lawn under §1983 for the alleged failure to train and
supervise Officer Lowman (Count I), a claim against Officer Lowman under §1983 for allegedly
violating Hazlett’s Fourth Amendment rights in arresting him without probable cause (Count II),
a claim against all defendants for false arrest (Count III), and a claim against all defendants for
malicious prosecution (Count IV). (ECF No. 1). This action was removed to federal court on
September 24, 2012. (ECF No. 1). After the Court allowed Hazlett to replead, he filed an
Amended Complaint on November 5, 2013. (ECF No. 43).

1

Defendants’ Statement of Uncontroverted Material Facts states that Judge Walsh issued the
warrant on December 27, 2011, but the criminal case record at Exhibit B shows that the warrant
was issued by Judge Walsh on December 28, 2010. (ECF No. 54-2 at 50).
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MOTION FOR SUMMARY JUDGMENT
I.

Motion for 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. Citrate, 477 U.S. 317, 322 (1986);
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011). The substantive law
determines which facts are critical and which are irrelevant. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). Only disputes over facts that might affect the outcome will properly
preclude summary judgment. Id. 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 Corp., 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 248.
The nonmoving party may not rest upon mere allegations or denials of his pleading. Anderson,
477 U.S. at 258.
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 his favor.
Celotex Corp., 477 U.S. at 331. The Court’s function is not to weigh the evidence but to
determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. “‘Credibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences from the

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facts are jury functions, not those of a judge.’” Torgerson, 643 F.3d at 1042 (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000)).
Defendants’ Statement of Uncontroverted Material Facts Deemed Admitted

II.

Hazlett failed to include a statement of material facts as to which he contends a genuine issue
exists, as required under E.D.Mo. L.R. 4.01.

Although Hazlett filed a Motion to Quash

Defendants’ Motion for Summary Judgment (ECF No. 56), that document failed to satisfy the
requirements of E.D.Mo. L.R. 4.01(E). Hazlett did not “set forth with specific references to
portions of the record, where available, upon which the opposing party relies.” E.D.Mo. L.R.
4.01(E).
Even if the Court were to consider Hazlett’s Motion to Quash as an adequate response to
the Defendants’ Motion for Summary Judgment, Hazlett’s Motion to Quash still fails to
controvert any of Defendants’ Statement of Uncontroverted Material Facts. In the Motion to
Quash, Hazlett refers to his allegations in his Amended Complaint that the grand jury and the
circuit court judge, Judge Joseph L. Walsh III, were given “false and misleading documents,
maliciously prepared by Officer Lowman” and were given “false testimony.” (ECF No. 56 at 12) (citing Amended Complaint, ECF No. 43, at page 10, paragraph 2). The full text of paragraph
2 on page 10 of the Amended Complaint is:
He lied and falsely prepared official documents in order to jail and maliciously
prosecute Gregory Hazlett. He deprived Gregory Hazlett of his right to legally
bear arms.
First, Hazlett cannot rest upon the allegations in his Amended Complaint in response to
Defendants’ Motion for Summary Judgment. See Anderson, 477 U.S. at 258. Further, Hazlett
points to no specific facts to support this conclusory allegation that there were false documents
and testimony. Hazlett does not even describe what “false testimony” was given, what “falsely

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prepared official documents” were provided, nor does he detail what his version of these events
was. Thus, Hazlett’s conclusory statement that Officer Lowman provided “false documents” and
“false testimony” fails to controvert Defendants’ Statement of Uncontroverted Material Facts.
In addition, Hazlett also asserts in the Motion to Quash that the claims against Officer
Lowman are not barred by sovereign immunity; rather, he is only protected by official immunity.
(ECT No. 16 at 2-3). This is a legal argument that fails to controvert Defendants’ Statement of
Uncontroverted Material Facts. Therefore, all matters set forth in Defendants’ Statement of
Uncontroverted Material Facts shall be deemed admitted for purposes of summary judgment.
III.

Counts I and II

As previously stated, Plaintiff alleges a claim against the City of Pine Lawn under §1983 for
the alleged failure to train and supervise Officer Lowman in Count I, and a claim against Officer
Lowman under §1983 for allegedly violating Hazlett’s Fourth Amendment rights in arresting
him without probable cause in Count II. These claims fail as a matter of law for several reasons.
A. Probable Cause Existed as to Count II
Whether a police officer had probable cause at the time of an arrest is a question of law
for a court to decide. Fisher v. Wal-mart Stores, Inc., 619 F.3d 811, 816 (8th Cir. 2010); see also
Kurtz v. City of Shrewsbury, 245 F.3d 753, 758 (8th Cir. 2001) (“a false arrest claim under §
1983 fails as a matter of law where the officer had probable cause to make the arrest”). “Probable
cause exists if ‘the totality of facts based on reasonably trustworthy information would justify a
prudent person in believing the individual arrested had committed ... an offense’ at the time of
the arrest.” Smithson v. Aldrich, 235 F.3d 1058, 1062 (8th Cir. 2000)(quoting Hannah v. City of
Overland, Mo, 795 F.2d 1385, 1389 (8th Cir. 1986)). “[T]he probability, and not a prima facie
showing, of criminal activity is the standard of probable cause.” Id. “Probable cause is to be

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assessed in terms of the circumstances confronting a reasonably cautious police officer at the
time of the arrest, and the arresting officer is entitled to consider the circumstances, including
arguably innocent conduct, in light of his training and experience.” Hannah, 795 F.2d at 1389
(quoting United States v. Wallraff, 705 F.2d 980, 990 (8th Cir. 1983)).
Hazlett alleges that he was arrested by Officer Lowman on May 16, 2010 without a
warrant and without probable cause.
Officer Lowman asserts that he had probable cause based upon the totality of the
circumstances.

Officer Lowman observed Hazlett and City of Pine Lawn resident Shawn

Williams engaging in a heated argument, which included threats. (DSUMF, ¶¶1, 2). During the
argument, Officer Lowman observed Hazlett raise his shirt to reveal two handguns in the waist
band of his pants. (Id., ¶3). After Hazlett displayed the weapons, Officer Lowman arrested
Hazlett on charges of First Degree Assault, Armed Criminal Action, and Unlawful Use of a
Weapon. (Id., ¶5).
The Court finds that Officer Lowman had probable cause to arrest Hazlett based upon his
observation of Hazlett displaying guns during an altercation. (DSUMF, ¶¶2-3). “An officer may
effect a warrantless arrest, even if there is no lawful basis for the actual charges brought, as long
as there is probable cause to believe some criminal offense had been committed.” Freeman v.
Adams, 1:12CV86 SNLJ, 2014 WL 1056760, at *10 (E.D. Mo. Mar. 19, 2014)(citing McCabe v.
Parker, et al., 608 F.3d 1068, 1077–78 (8th Cir.2010)).

Based upon the viewpoint of an

objectively reasonable officer, Officer Lowman had probable cause to believe that a criminal
offense, such as unlawful display of a weapon, was being committed based upon the altercation,
threats, and weapons displayed. Therefore, the Court finds that Officer Lowman did not violate
the Fourth Amendment by arresting Hazlett. Ulrich v. Pope Cnty., 715 F.3d 1054, 1059 (8th Cir.

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2013); Borgman v. Kedley, 646 F.3d 518, 523 (8th Cir.2011)(“Arguable probable cause exists
even where an officer mistakenly arrests a suspect believing it is based in probable cause if the
mistake is ‘objectively reasonable.’”).
As an additional basis, Officer Lowman contends that Hazlett’s arrest must be supported
by probable cause because it was validated by both a St. Louis County Circuit Court Judge and a
grand jury.

The St. Louis County Prosecutor’s Office prepared a criminal complaint on

December 26, 2010, and Officer Lowman prepared a probable cause statement on May 17, 2010
for two counts of Unlawful Use of a Weapon. (DSUMF, ¶¶6, 7). St. Louis County Circuit Court
Judge Joseph L. Walsh, III found probable cause to arrest Hazlett on the charges and issued an
arrest warrant for Hazlett on December 28, 2010. (Id., ¶8). On January 26, 2011, a St. Louis
County grand jury returned an indictment on the two counts of Unlawful Use of a Weapon after
listening to the testimony of Officer Lowman and Shawn Williams. (Id., ¶9). The indictment of
Hazlett by the grand jury validates the existence of probable cause. As the Supreme Court has
held, “an indictment, ‘fair upon its face,’ returned by a ‘properly constituted grand jury,’
conclusively determines the existence of probable cause.” Durham v. Horner, 690 F.3d 183, 189
(4th Cir. 2012)(citing Gerstein v. Pugh, 420 U.S. 103, 117 n. 19, 95 S.Ct. 854, 43 L.Ed.2d 54
(1975)).

Even though the prosecution of Hazlett terminated in his favor, the grand jury

determination of probable cause to arrest him was conclusively established by his fair
indictment. See Durham, 690 F.3d at 189 (even though the “underlying criminal proceedings
were terminated in his favor, the prosecution was plainly supported by probable cause, as
conclusively established by the three indictments”). Because Officer Lowman had probable
cause to arrest Hazlett, the Court finds that there was no Fourth Amendment violation and
Hazlett’s §1983 claim against Officer Lowman fails as a matter of law.

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B. Qualified Immunity as to Count II
“Qualified immunity shields public 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). When the defense of qualified immunity has been asserted, the Court evaluates (1)
whether defendants violated plaintiff's constitutional rights and (2) whether those rights were
clearly established. Chambers v. Pennycook, 641 F.3d 898, 904 (8th Cir. 2011). If no
constitutional violation occurred, the evaluation ends there. See Crumley v. City of St. Paul, 324
F.3d 1003, 1008 (8th Cir. 2003). “Without the requisite showing of a constitutional violation,
summary judgment is proper because [plaintiff] has failed to establish the existence of an
essential element of [his] case.” Id.
As previously discussed, the Court found that probable cause existed and, therefore, there
was no Fourth Amendment violation. Without a constitutional violation, Officer Lowman is
entitled to qualified immunity and summary judgment in his favor. The Court also grants
summary judgment in favor of Officer Lowman because he has qualified immunity from suit due
to no Fourth Amendment violation.
C. No Respondeat Superior Liability for City of Pine Lawn in Count I
Hazlett has alleged a § 1983 claim against the City of Pine Lawn for its hiring, training and
supervision of Officer Lowman. (Complaint, ¶29; Amended Complaint, ECF No. 43, ¶29).
In general, “a local government may not be sued under § 1983 for an injury inflicted solely
by its employees or agents” on a respondeat superior theory of liability. Monnell v. New York
Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). But, a local
government may be subject to § 1983 liability for “inadequate training of its employees,” City of

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Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), “where (1) the
city’s hiring and training practices are inadequate; (2) the city was deliberately indifferent to the
rights of others in adopting them, such that the ‘failure to train reflects a deliberate or conscious
choice by a municipality’; and (3) an alleged deficiency in the city’s hiring or training
procedures actually caused the plaintiff’s injury.” Andrews v. Fowler, 98 F.3d 1069, 1076 (8th
Cir.1996)(quoting City of Canton, 489 U.S. at 389, 389 (1989)).
Under the undisputed facts, Hazlett’s § 1983 claim against the City of Pine Lawn fails as a
matter of law. To the extent that Hazlett’s § 1983 claim against the City of Pine Lawn is based
upon the actions of Officer Lowman, such claim fails because the City of Pine Lawn cannot be
held liable based upon respondeat superior liability. See Monnell, 436 U.S. at 694; Parrish v.
Ball, 594 F.3d 993, 997 (8th Cir. 2010). That is, Count I for respondeat superior liability
automatically fails because the Court finds no underlying constitutional violation in Count II. Id.
In addition, the City of Pine Lawn cannot be held liable for hiring Officer Lowman or for its
failure to train and supervise Officer Lowman because Hazlett has failed to demonstrate that the
City of Pine Lawn “‘had notice that its procedures were inadequate and likely to result in a
violation of constitutional rights.’” Andrews, 98 F.3d at 1076 (quoting Thelma D. v. Bd. of
Educ., 934 F.2d 929, 934 (8th Cir.1991)). Hazlett has failed to provide any factual support for
his allegation that the City of Pine Lawn’s procedures were inadequate or that they resulted in
the violation of Hazlett’s constitutional rights. See Bd. of County Comm’rs v. Brown, 520 U.S.
397, 411, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)(noting that to succeed on a claim for
municipal liability the “plaintiff must demonstrate that a municipal decision reflects deliberate
indifference to the risk that a violation of a particular constitutional or statutory right will follow
the decision” (emphasis added)). Because there is no evidence that any failure on the part of the

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City of Pine Lawn resulted in any deprivation of Hazlett’s rights, the Court grants summary
judgment in favor of the City of Pine Lawn on Count I.
IV.

Counts III and IV
A. Claims against Officer Lowman in his Official Capacity and against the City of Pine
Lawn
Hazlett alleges claims against Officer Lowman and the City of Pine Lawn for false

imprisonment (Count III) and malicious prosecution (Count IV). These claims against the City
of Pine Lawn and Officer Lowman (in his official capacity) fail because Hazlett has not pleaded
an exception to the City of Pine Lawn’s sovereign immunity.
“A municipality has sovereign immunity from actions at common law tort in all but four
cases: (1) where a plaintiff’s injury arises from a public employee’s negligent operation of a
motor vehicle in the course of his employment (section 537.600.1(1)); (2) where the injury is
caused by the dangerous condition of the municipality’s property (section 537.600.1(2)); (3)
where the injury is caused by the municipality performing a proprietary function as opposed to a
governmental function (State ex rel. Board of Trustees of the City of North Kansas City
Memorial Hospital, 843 S.W.2d 353, 358 (Mo. banc 1993)); and (4) to the extent the
municipality has procured insurance, thereby waiving sovereign immunity up to but not beyond
the policy limit and only for acts covered by the policy (section 537.610).” Bennartz v. City of
Columbia, 300 S.W.3d 251, 259 (Mo. Ct. App. 2009).2 None of these exceptions have been pled
here.

2

“A proprietary function is an act performed for the special benefit or profit of the municipality
as a corporate entity, while a governmental function is an act performed by the municipality as
an agent of the state, for the common good of all.” Oliver v. Swon, 2:05CV38 JCH, 2006 WL
2505994, at *5, n.9 (E.D. Mo. Aug. 29, 2006)

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This Court previously gave Hazlett an opportunity to re-plead and allege one of these
exceptions to sovereign immunity. In his Amended Complaint, Hazlett’s only new allegations
are that Defendants violated his “clearly established right” and that Officer Lowman “lied and
falsely prepared official documents in order to jail and maliciously prosecute Gregory Hazlett.”
(ECF No. 43 at 14).

The Court finds that Hazlett has not pleaded an exception to sovereign

immunity and his state law claims against the City of Pine Lawn are barred by sovereign
immunity.
For this same reason, Hazlett’s state law claims against Officer Lowman in his official
capacity are also barred. “Sovereign immunity, if not waived, bars suits against employees in
their official capacity, as such suits are essentially direct claims against the state.” Betts-Lucas v.
Hartmann, 87 S.W.3d 310, 327 (Mo. Ct. App. 2002)(citing Edwards v. McNeill, 894 S.W.2d
678, 682 (Mo.App.1995)). The record contains no evidence of a waiver and no exception from
Bennartz v. City of Columbia has been pleaded; therefore, Hazlett’s state law claims against
Officer Lowman in his official capacity also are barred by sovereign immunity.
B. Claims against Officer Lowman in his Individual Capacity
1. False Arrest/Imprisonment (Count III)
In

the

Motion

for

Summary

Judgment,

Defendants

assert

that

the

false

arrest/imprisonment claim against Officer Lowman in his individual capacity is barred by the
statute of limitations. Under Mo.Rev.Stat. §516.140, an action for false imprisonment/false
arrest must be brought within two years of the accrual of that cause of action. “[A] cause of
action for false imprisonment accrues on the discharge from imprisonment.” Stafford v. Muster,
582 S.W.2d 670, 680 (Mo. 1979).

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Hazlett’s lawsuit was filed in the Circuit Court of St. Louis County on August 23, 2012.
Hazlett’s Complaint alleges that his false arrest by Officer Lowman occurred on May 16, 2010.
Hazlett also contends that he was held in the Pine Lawn City Jail for two days and, thereafter, in
the St. Louis County Jail for approximately one week.

(Complaint, ¶¶21, 22; Amended

Complaint, ¶¶21, 22). In other words, Hazlett alleges that he was imprisoned for approximately
nine days, beginning on May 16, 2010. Based upon these allegations, the Court finds that
Hazlett’s Complaint was time-barred because it was filed in St. Louis County on August 23,
2012, more than 2 years after his discharge from imprisonment. The Court grants summary
judgment in favor of Officer Lowman.
2. Malicious Prosecution (Count IV) against Officer Lowman in his Individual
Capacity
The essential elements of a malicious prosecution claim in Missouri “are: (1) the
commencement of a judicial proceeding against the plaintiff; (2) the instigation of the suit by the
defendant; (3) the termination of the proceeding in plaintiff's favor; (4) the absence of probable
cause for the suit; (5) malice by the defendant in instituting the suit; and (6) resulting damage to
the plaintiff.” Joseph H. Held & Associates, Inc. v. Wolff, 39 S.W.3d 59, 62-63 (Mo. Ct. App.
2001)(citing Stafford v. Muster, 582 S.W.2d 670, 675 (Mo. banc 1979); MAI 23.07 (1980
Revision)); Diehl v. Fred Weber, Inc., 309 S.W.3d 309, 318 (Mo. Ct. App. 2010). “The plaintiff
must prove all six elements to make a submissible case of malicious prosecution.” Diehl, 309
S.W.3d at 318 (citing Crow v. Crawford, 259 S.W.3d 104, 114 (Mo. Ct. App. 2008)). “The
nature of malicious prosecution actions has led courts to require ‘strict proof’ of each element of
the tort.” Crow, 259 S.W.3d at 114.
Defendants contend that Officer Lowman is entitled to summary judgment on Count IV
in his individual capacity because Hazlett’s arrest was supported by probable cause. (ECF No.

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53 at 12-15).3 Defendants contend that a return of an indictment by a grand jury creates the
presumption of probable cause. (ECF No. 53 at 14 (citing Harper v. St. Joseph Lead Co., 233
S.W.2d 835, 839-40 (Mo. 1950)). “The return of an indictment by a grand jury is prima facie
evidence of probable cause in an action for malicious prosecution; and to prevail plaintiff must
rebut, briefly stated, the presumption by proof that the indictment was obtained by false or
fraudulent testimony or by other improper means, or that defendant procured the indictment
believing plaintiff to be innocent.”

Harper, 233 S.W.2d at 839-40 (citing Kvasnicka v.

Montgomery Ward & Co., 350 Mo. 360, 166 S.W.2d 503, 505[2], 515[13]; Wilkinson v.
McGhee, 265 Mo. 574, 178 S.W. 471, 474; Sharpe v. Johnston, 76 Mo. 660, 670). Further, a
dismissal of the underlying criminal action does not rebut the presumption of probable cause that
arises from proof of the indictment. Moad v. Pioneer Fin. Co., 496 S.W.2d 794, 799 (Mo. 1973);
Harper, 233 S.W.2d at 840.
Hazlett has alleged in his Amended Complaint that the indictment was procured by fraud
in that Officer Lowman allegedly “lied and falsely prepared official documents in order to jail
and maliciously prosecute Gregory Hazlett.” (ECF No. 43 at 14).

Hazlett’s allegations,

however are not sufficient to rebut the presumption of probable cause at the summary judgment
stage. Allegations in a complaint cannot be used to rebut uncontroverted material facts during
summary judgment. See Anderson, 477 U.S. at 258 (The nonmoving party may not rest upon
mere allegations or denials of his pleading.). Hazlett failed to controvert Defendants’ Statement
of Uncontroverted Material Facts and, therefore, they are deemed admitted. Freeman v. Adams,
1:12CV86 SNLJ, 2014 WL 1056760, at *5, n.4 (E.D. Mo. Mar. 19, 2014)(“The movant's

3

Defendants also contend that they are entitled to summary judgment because there is no
evidence of malice. Because the Court finds probable cause, it does not address the issue of
malice.
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statement of facts are deemed admitted if not specifically controverted by the party opposing the
motion with specific references to portions of the record as required by Local Rule 4.01(E) and
Federal Rule of Civil Procedure 56(c)(1).”).
The following facts, therefore, are deemed admitted for purposes of summary judgment:
The argument between Hazlett and Williams involved name calling, profane language, and
became heated. (DSUMF, ¶2). While Plaintiff and Williams were arguing, Officer Lowman
observed Hazlett raise his shirt to reveal two handguns in the waist band of his pants. (DSUMF,
¶3). During the argument, Officer Lowman heard Hazlett make several threats against Williams.
(DSUMF, ¶4). Hazlett was indicted by the grand jury in St. Louis County on two counts of
unlawful use of a weapon on January 26, 2011. (DSUMF, ¶9). These facts provide probable
cause for the arrest of Hazlett. The finding of probable cause negates Hazlett’s malicious
prosecution claim. See Diehl, 309 S.W.3d at 318; Crow, 259 S.W.3d at 114.
The Court finds that Hazlett’s malicious prosecution claim against Officer Lowman in his
individual capacity fails as a matter of law because his arrest and prosecution were supported by
probable cause, and the Court grants summary judgment in favor of Officer Lowman on the
malicious prosecution claim.
PLAINTIFF’S MOTIONS
I.

Plaintiff’s Request for Subpoenas of Officer Lowman’s Disciplinary and
Complaint Files from Various Police Departments, Plaintiff’s Motion to
Compel, and Plaintiff’s Motion for Additional Time

In his Request for Subpoenas of Officer Lowman’s Disciplinary Complaint Files from
Various Police Departments (ECF No. 55), Hazlett requests Officer Steven Lowman’s “Badge
393 [d]isciplinary and complaint files to be subpoenaed from various police [departments].”
(ECF No. 55). Hazlett contends that these files will show Officer Lowman’s “conduct and

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character as a police officer and his tendency to break rules.” Hazlett further states, without
referring to any constitutional provision, that he has a constitutional right to inspect these
records. Id. (citing Lee v. State, 573 S.W.2d 131, 132 (Mo. Ct. App. 1978)). Similarly, in the
Motion to Compel, Plaintiff asks the Court to compel Officer Lowman’s personnel file from
various police departments, as well as Officer Lowman’s arrests and convictions. (ECF No. 48).
Finally, in Plaintiff’s Motion for Additional Time, Plaintiff appears to request a continuance of
the trial date because his witness, Ms. Ruby Holman, will be out of town until after May 5, 2014.
(ECF No. 59).4 In addition, Plaintiff notes that he has not received any discovery regarding
Officer Lowman’s “police records.”
The Court denies these motions because they seek irrelevant information that is not
reasonably calculated to lead to the discovery of admissible evidence.

First, “given the

confidential nature of the information contained in a police officer's personnel file” Donald v.
Rast, 927 F.2d 379, 381 (8th Cir. 1991), the Court is reluctant to order the production of such
information, particularly to pro se party.5 “[T]he privacy interests of police officers in personnel
records ‘should be especially limited in view of the role played by the police officer as a public
servant who must be accountable to public review.’” Mason v. Stock, 869 F. Supp. 828, 833 (D.
Kan. 1994)(quoting King v. Conde, 121 F.R.D. 180, 191 (E.D.N.Y. 1988)).
Further, Hazlett has not provided any showing, beyond mere speculation, that Officer
Lowman’s personnel records will contain information that is helpful to his case. While Hazlett
contends that Officer Lowman’s personnel files will show his “conduct and character as a police
4

The Court mailed to Plaintiff a copy of its Order stating that the May 5, 2014 trial date was
continued. (ECF No. 58). From the Motion for Additional Time, it appears that the Order was
not received by Plaintiff at the St. Louis County Jail, where this correspondence was sent.
5
The Court notes that in Donald v. Rast, 927 F.2d 379, 381 (8th Cir. 1991) the district court
ordered in camera inspection of the police officer’s personnel file. For the reasons stated in this
Order, the Court believes that an in camera inspection to be unnecessary in this particular case.
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officer and his tendency to break rules” (ECF No. 55), “[e]vidence of a person’s character or
character trait is not admissible to prove that on a particular occasion the person acted in
accordance with the character or trait.” Fed.R.Evid. 404. Moreover, the undisputed material
facts demonstrate that Hazlett’s arrest was supported by probable cause. Any information
responsive to Hazlett’s requests would not negate that probable cause finding. As a result, the
Court finds that the information requested by Hazlett is irrelevant and is not reasonably
calculated to lead to the discovery of admissible evidence. The Court denies his Request for
Subpoenas and Motion to Compel on those grounds. The Motion for Additional Time is denied
as moot.
II.

Plaintiff’s Motion to Quash Defendants’ Motion for Summary Judgment

As previously discussed, Plaintiff’s Motion to Quash Defendants’ Motion for Summary
Judgment (ECF No. 56) is basically Hazlett’s opposition to Defendants’ Motion for Summary
Judgment. To the extent, if any, that Plaintiff’s Motion is seeking any independent relief, the
Court denies this motion.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment [52] is
GRANTED. An appropriate Judgment will accompany this Memorandum and Order.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Compel [48], Plaintiff’s
Request for Subpoenas of Officer Lowman’s Disciplinary and Complaint Files from Various
Police Departments [55], and Plaintiff’s Motion to Quash Defendants’ Motion for Summary
Judgment [56] are DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Additional Time [59] is
DENIED as moot.

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IT IS FINALLY ORDERED that Defendants’ Second Motion to Dismiss [45] is
DENIED as moot.
Dated this 30th day of May, 2014.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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