Busby v. Lohmar et al

Filing 43

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that defendants Chris Golet and Nicole Maynard's Joint Motion for Summary Judgment [ECF # 24 ] is GRANTED to the extent they seek qualified immunity on the claims raised in Counts I, II, and III of plaintiffs complaint. IT IS FURTHER ORDERED that the claims raised against defendants Golet and Maynard in Counts I, II, and III of plaintiffs complaint are dismissed with prejudice. IT IS FURTHER ORDERED that the remaining state law claims raised against defendants Golet and Maynard are dismissed without prejudice pursuant to 28 U.S.C. § 1367(c)(3). Judgment is entered accordingly. Signed by District Judge Catherine D. Perry on 1/12/2016. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PEGGY SUE BUSBY,
Plaintiff,
v.
TIMOTHY A. LOHMAR, et al.,
Defendants.

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No. 4:14CV1365 CDP

MEMORANDUM AND ORDER
Plaintiff Peggy Busby brought this suit under 42 U.S.C. § 1983 after state
prosecutors dismissed sexual assault charges they had previously brought against
her. Busby claims that the detectives on the case, defendants Chris Golet and
Nicole Maynard, violated her constitutional rights by recklessly or intentionally
failing to conduct a proper investigation, by maliciously causing the
commencement and/or continuation of a baseless prosecution, and by failing to
intervene to prevent unconstitutional conduct perpetuated by other defendants. 1
I conclude that defendants Golet and Maynard are entitled to qualified
immunity on these § 1983 claims, so I will grant their motion for summary
judgment. I decline to exercise supplemental jurisdiction over Busby’s remaining

1

Busby originally named St. Charles County, St. Charles County Prosecuting Attorney Timothy
A. Lohmar, and Assistant Prosecuting Attorney Rebecca Shaffer as defendants in the case. In
November 2015, Busby dismissed her claims against these defendants without prejudice.

state law claims of false arrest and indemnification. The action will therefore be
dismissed.
Summary Judgment Standard
When considering a motion for summary judgment, I must view the facts
and inferences from the facts in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
As the moving parties, defendants must establish that there is no genuine issue of
material fact and that they are entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). Once the moving parties have met this
burden, the nonmoving party may not rest on the allegations in her pleadings, but
by affidavit or other evidence must set forth specific facts showing that a genuine
issue of material fact exists. Fed. R. Civ. P. 56(e).
Evidence Before the Court on the Motion2
During the relevant period, defendants Golet and Maynard were detectives
with the St. Peters, Missouri, Police Department. On August 17, 2012, Golet and
Maynard were contacted by an officer of the St. Charles City Police Department
with information that a woman wanted to make a report about alleged sexual abuse
that occurred at her home in St. Peters. Golet and Maynard thereafter met with the

2

Busby admits all of the facts asserted in defendants’ Statement of Uncontroverted Facts. See
ECF #33. They are included in this summary of undisputed facts.
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woman who reported that she had recently hired Busby to care for her severely
disabled twenty-seven-year-old daughter, S.P. S.P. needed twenty-four-hour care,
and Busby had thus far worked eleven shifts with S.P. Busby was alone with S.P.
during five of those shifts. The mother reported that she had recently noticed S.P.
to become combative with Busby, which was uncharacteristic behavior for S.P.
The mother became suspicious because of this and reviewed video footage of
instances when Busby was caring for S.P. alone.3 The mother reported to Golet
and Maynard that she observed three instances of conduct on the video footage that
she suspected were sexual in nature, and she provided details to Golet and
Maynard of what she observed on the video. 4 The dates on which these instances
are alleged to have occurred are August 13, August 14, and August 16, 2012.
Golet asked the mother if she was willing to submit a written statement, and she
agreed to do so.
After speaking with the mother, Golet and Maynard went to the home and
viewed video footage depicting the incidents as referenced by the mother. The
mother also provided Golet with a copy of Busby’s employment application.
While Golet and Maynard were at the residence, another of S.P.’s caregivers,
Karen Arnold, was present and told Golet that she had been a caregiver for S.P. for

3

The mother had a video surveillance system inside her home.
The allegations involved an instance where Busby placed her hand inside the victim’s diaper
(which Busby says was to determine whether it was wet) and two incidents involving diaper
changes, one of which took 45 minutes.
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three years. Arnold told Golet that she had also watched the video footage and
thought Busby’s behavior was suspicious and believed that Busby had assaulted
S.P. Arnold provided a written statement to Golet.
On August 20, Golet and Maynard met Busby prior to her shift that day with
S.P. Busby accompanied Golet and Maynard to the police station for questioning.
Upon being advised of her constitutional rights under Miranda,5 Busby responded
to Golet’s questions regarding the three instances in question and denied having
had any type of sexual contact with S.P. Busby and Golet viewed the video
footage together, and Busby provided non-sexual reasons for her conduct in each
instance. Busby also provided a written statement to Golet. Golet then returned
Busby to her vehicle.
Thereafter, Golet interviewed another of S.P.’s caregivers, Elly Strait, who
provided a written statement regarding what she thought were suspicious
statements made by Busby regarding the method by which she checked S.P.’s
diaper. Golet also contacted two of Busby’s prior employers, who reported no
previous incidents involving Busby.
Golet re-contacted S.P.’s mother and advised her of Busby’s explanations
for the alleged incidents. S.P.’s mother disputed these explanations. She also told
Golet that she had viewed additional video footage showing Busby not to engage
in suspicious behavior when she (the mother) was known to be in the house and

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that additional video footage showed other caregivers not to engage in the same
type of conduct when in similar circumstances, i.e., changing and cleaning S.P.
after bowel movements. S.P.’s mother gave the additional video footage to Golet
and provided another written statement. S.P.’s mother also gave Golet copies of
daily logs completed by S.P.’s caregivers as well as photographs showing where
the video security cameras were placed in the home and the labeled washcloth
drawer in S.P.’s room.
Golet thereafter prepared and finalized a police report in which he described
the conversations he had with Busby, S.P.’s mother, Arnold, and Strait and also
described personal observations he made while viewing the video footage. With
his Report, Golet also included the written statements made by Busby, S.P.’s
mother, Arnold, and Strait; the advice of rights form initialed and signed by Busby;
daily caregiver logs; and photographs depicting the placement of the security
cameras and the labeled washcloth drawer. The report also included a
supplemental narrative report made by Maynard describing the initial conversation
with S.P.’s mother on August 17, as well as Maynard’s personal observations made
while viewing the video footage.
On or about September 19, 2012, Golet submitted the report to the St.
Charles County Prosecuting Attorney’s Office as part of a warrant application.
The video footage was also provided to the Prosecuting Attorney’s Office. On or
5

Miranda v. Arizona, 384 U.S. 436 (1966).

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about February 15, 2013, a grand jury returned an indictment charging Busby with
three counts of deviate sexual assault and one alternate count of forcible sodomy.
Busby was arrested on May 2, 2013, by an officer of the St. Peters Police
Department. Golet was not the arresting officer but was present when Busby was
placed under arrest. On October 2, 2013, the State entered a memorandum of
Nolle Prosequi on all charges.
Discussion
42 U.S.C. § 1983 creates a remedy to redress a deprivation of a federally
protected right by a person acting under color of state law. Jones v. United States,
16 F.3d 979, 981 (8th Cir. 1994). Qualified immunity protects a government
official from liability in a § 1983 action unless the official's conduct violated a
clearly established constitutional or statutory right of which a reasonable person
would have known. Morris v. Zefferi, 601 F.3d 805, 809 (8th Cir. 2010). In
determining whether a government official is entitled to qualified immunity, I must
ask (1) whether the facts alleged establish a violation of a constitutional or
statutory right, and (2) whether that right was clearly established at the time of the
alleged violation, such that a reasonable official would have known that his actions
were unlawful. Pearson v. Callahan, 555 U.S. 223, 232 (2009). “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.” Winslow v.
Smith, 696 F.3d 716, 738 (8th Cir. 2012) (internal quotation marks and citation
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omitted).
Here, Busby claims that Golet and Maynard violated her Fourteenth
Amendment right to substantive due process when they recklessly or intentionally
failed to conduct a proper investigation, which would have revealed information to
exonerate her. Busby also claims that she was subjected to malicious prosecution,
in violation of her Fourth, Sixth, and Fourteenth Amendment rights. Finally,
Busby claims that Golet and Maynard were aware that she was being subjected to
unconstitutional conduct but failed to intervene to prevent such conduct,
demonstrating deliberate indifference to her constitutional rights. For the
following reasons, Golet and Maynard are entitled to qualified immunity on
Busby’s constitutional claims.
A.

Reckless or Intentional Failure to Investigate
“A faulty investigation by a state police officer which leads to the

deprivation of a suspect’s liberty only violates the Fourteenth Amendment’s due
process clause where the suspect shows the officers ‘intentionally or recklessly
failed to investigate, thereby shocking the conscience.’” Hawkins v. Gage Cnty.,
Neb., 759 F.3d 951, 956 (8th Cir. 2014) (quoting Amrine v. Brooks, 522 F.3d 823,
834 (8th Cir. 2008)). Allegations of negligent or grossly negligent conduct do not
meet this standard. Id. (citing Amrine, 522 F.3d at 833; Akins v. Epperly, 588 F.3d
1178, 1184 (8th Cir. 2009)).
The undisputed evidence before the Court shows that Golet and Maynard
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received a report of suspected sexual abuse whereupon they interviewed the
reporting party – the victim’s mother – and obtained a written statement from her.
They then viewed video footage of the conduct that gave rise to the suspicions of
abuse and interviewed an additional caregiver who had trained and worked with
Busby. This caregiver in turn reported to Golet and Maynard that Busby’s
behavior as depicted in the video footage appeared suspicious. This caregiver
likewise provided a written statement to the detectives. As part of this
investigation, Golet reviewed the video footage on multiple occasions and
interviewed Busby, which included her viewing the video footage with Golet and
explaining the conduct depicted. Busby likewise provided a written statement to
Golet. Golet continued in the investigation of the matter by interviewing an
additional caregiver who worked with Busby, from whom he obtained a written
statement; contacting Busby’s previous employers; conducting an additional
interview with the victim’s mother regarding Busby’s explanations; obtaining and
reviewing additional video footage of Busby’s care of the victim as well as care
given by other providers; obtaining photographs depicting the placement of
security cameras in the victim’s home; obtaining a photograph of the washcloth
drawer in the victim’s bedroom; and obtaining copies of daily logs completed by
the victim’s caregivers. Golet completed the investigation and filed his report one
month after first receiving the report of suspected abuse.
This undisputed record shows an extensive investigation during which Golet
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and Maynard obtained and reviewed video and documentary evidence, as well as
statements from individuals relevant to the investigation. Busby was able to
present her side of the story, albeit tempered by incriminating statements made by
others regarding her conduct. Cf. Amrine, 522 F.3d at 833 (officers entitled to
qualified immunity on claim of unlawful arrest given inculpatory physical
evidence and incriminating statements, despite exculpatory statement given by
independent witness). Busby admits there were no other witnesses who could have
provided any direct information regarding the alleged contact she had with S.P.
during the incidents in question. (Busby Depo. at 61-64.) Although Busby
contends that an investigation into the background of S.P.’s mother would have
shown the mother to have previously accused other agencies and individuals of
misconduct toward S.P., nothing in the record shows that Busby would have been
exonerated if either Golet or Maynard had knowledge of any of these previous
complaints. Indeed, none of the previous complaints involved alleged sexual
misconduct. (Id. at 33-34, 36-41.) The failure to investigate unrelated matters
does not shock the conscience. In any event, “the due process clause does not
require a perfect investigation.” Hawkins, 759 F.3d at 958.
Busby contends that the videos show her to simply be doing her job instead
of abusing S.P. and that Golet’s and Maynard’s characterization of the conduct
depicted in the video footage was inaccurate, thereby evincing their
constitutionally deficient investigation. The videos, the police report written by
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Golet, including the supplemental narrative by Maynard, and Busby’s statements
about what she was doing are all part of the summary judgment record. The videos
are not inconsistent with the police report and the officers’ statements, although
they could also be interpreted to be consistent with Busby’s explanations. The
police report explains that some of the actions reported are out of the view of the
cameras, and the report used equivocating language such as “appears” and “I
believed that she may have been placing fingers inside of [S.P’s] vagina.” (Deft.
Exh. A at p. 4). Maynard’s narrative says: “However, the video was unclear and I
could not determine for sure” whether Busby was placing her fingers in S.P.’s
vagina. (Id. at p. 8). Even viewing the video and the other evidence in the light
most favorable to Busby, there is nothing indicating that either Golet or Maynard
purposely ignored evidence suggesting that Busby was innocent or purposely
sought to implicate Busby in the face of evidence to the contrary. See Hawkins,
759 F.3d at 958; Amrine, 522 F.3d at 835. In addition to the video evidence that
they themselves viewed, Golet and Maynard obtained statements and opinions
from S.P.’s mother and from a trained, long term caregiver that the conduct
depicted in the videos was suspicious and assaultive in nature. Even if Golet and
Maynard were mistaken in their belief that the videos showed conduct consistent
with sexual abuse, qualified immunity protects officers from mistaken judgment.
Brockinton v. City of Sherwood, Ark., 503 F.3d 667, 672 (8th Cir. 2007). It is not
the function of the police to establish guilt. Hawkins, 759 F.3d at 957. Instead,
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“the responsibility of sorting out conflicting testimony and assessing the credibility
of putative victims and witnesses lies with the courts.” Id. at 957-58 (internal
quotation marks and citation omitted).
Golet’s and Maynard’s investigation of Busby’s conduct in relation to the
alleged sexual abuse of S.P. was thorough and prompt and focused on sources most
capable of providing information relevant to the investigation, including
exculpatory information provided by Busby herself. The course of this
investigation was neither reckless nor shocked the conscience and, as such, did not
violate Busby’s Fourteenth Amendment right to due process. Because the
undisputed facts fail to show a violation of a clearly established constitutional
right, Golet and Maynard are entitled to qualified immunity on Busby’s claim of
reckless or intentional failure to investigate.
B.

Malicious Prosecution
In 2001, the Eighth Circuit observed that malicious prosecution, alone, is not

a constitutional injury. See Kurtz v. City of Shrewsbury, 245 F.3d 753, 758 (8th
Cir. 2001) (“Moreover, this court has uniformly held that malicious prosecution by
itself is not punishable under § 1983 because it does not allege a constitutional
injury.”); Technical Ordnance, Inc. v. United States, 244 F.3d 641, 650 (8th Cir.
2001) (“The general rule is that an action for malicious prosecution does not state a
claim of constitutional injury.”). More recently, the court expressed uncertainty as
to whether “malicious prosecution is a constitutional violation at all,” Harrington
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v. City of Council Bluffs, Iowa, 678 F.3d 676, 679 (8th Cir. 2012), and “specifically
declined to decide whether a Fourth Amendment right against malicious
prosecution exists.” Bates v. Hadden, 576 Fed. Appx. 636, 639 (8th Cir. 2014)
(citing Harrington, 678 F.3d at 680) (emphasis in Bates). Indeed, in Bates, the
court held that a police officer would be entitled to qualified immunity on a claim
of malicious prosecution because “[n]o ‘reasonable officials acting in [the
officer’s] position would . . . have understood they were violating’ [plaintiff’s]
constitutional right against malicious prosecution because no such constitutional
right had been clearly established.” Id. (quoting Harrington, 678 F.3d at 680).
The same holds true here. While Busby argues that her claim of malicious
prosecution “may be taken to argue a Fourth Amendment or procedural due
process violation,”6 the state of the law surrounding the cognizability of such a
claim under § 1983 at the time Golet and Maynard are alleged to have violated
Busby’s constitutional rights was nevertheless so uncertain that it cannot be said
that either Golet or Maynard would understand that their actions violated any
constitutional right to be free from malicious prosecution.
Golet and Maynard are therefore entitled to qualified immunity on Busby’s §
1983 claim of malicious prosecution.

6

Pltf.’s Resp. in Oppos., ECF #31 at p. 8.
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C.

Failure to Intervene
While a law enforcement officer who knows another officer is using

excessive force has a duty to intervene, the Eighth Circuit has not recognized a
“duty to intervene to prevent other constitutional violations.” Livers v. Schenck,
700 F.3d 340, 360 (8th Cir. 2012) (citing Putman v. Gerloff, 639 F.2d 415, 423
(8th Cir. 1981)). Busby does not claim that she was subjected to excessive use of
force or that any defendant failed to intervene to prevent such force. Instead,
Busby contends only that defendants failed to intervene to prevent unconstitutional
conduct perpetuated by other defendants. Because there is no clearly established
law regarding a law enforcement officer’s duty to intervene outside of the
excessive force context, Golet and Maynard are entitled to qualified immunity on
Busby’s § 1983 claim that they failed to intervene to prevent other alleged
unconstitutional conduct. Id.; see also Hess v. Ables, 714 F.3d 1048, 1052 (8th
Cir. 2013).
D.

State Law Claims
In Counts IV and V of her complaint, Busby brings state law claims of false

arrest and indemnification. 7 Because I will dismiss all claims over which this
Court has original jurisdiction, I decline to exercise supplemental jurisdiction over
these state law claims. 28 U.S.C. § 1367(c)(3). See also Anderson v. Franklin

7

Busby’s claim of indemnification appears to be brought against only St. Charles County. As
noted supra, Busby previously dismissed her claims against this defendant.
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Cnty., Mo., 192 F.3d 1125, 1131 (8th Cir. 1999); American Civil Liberties Union v.
City of Florissant, 186 F.3d 1095, 1098-99 (8th Cir. 1999) (when state and federal
claims are joined and all federal claims are dismissed on a motion for summary
judgment, state claims are ordinarily dismissed without prejudice); Willman v.
Heartland Hosp. E., 34 F.3d 605, 613-14 (8th Cir. 1994) (same).
Accordingly,
IT IS HEREBY ORDERED that defendants Chris Golet and Nicole
Maynard’s Joint Motion for Summary Judgment [ECF #24] is GRANTED to the
extent they seek qualified immunity on the claims raised in Counts I, II, and III of
plaintiff’s complaint.
IT IS FURTHER ORDERED that the claims raised against defendants
Golet and Maynard in Counts I, II, and III of plaintiff’s complaint are dismissed
with prejudice.
IT IS FURTHER ORDERED that the remaining state law claims raised
against defendants Golet and Maynard are dismissed without prejudice pursuant to
28 U.S.C. § 1367(c)(3).
Judgment is entered accordingly.

_____________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 12th day of January, 2016.
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