Brooks v. The City of St. Louis et al

Filing 148

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Motion for Summary Judgment filed by Defendant Kent Menning (ECF No. 84 ) is DENIED. IT IS FURTHER ORDERED that the Motion for Summary Judgment filed by Defendants City of Jennings and Demetrius S taples (ECF No. 87 ) is GRANTED in part and DENIED in part. The Court grants summary judgment in favor of Staples on Counts VII and XIII and the City of Jennings on Count XI and with respect to Plaintiffs claim for punitive damages as to Counts V III and X. A separate Order of Partial Dismissal accompanies this Memorandum and Order. IT IS FURTHER ORDERED that the Motion for Summary Judgment filed by Defendants City of St. Louis and Jermanda Adams (ECF No. 92 ) is DENIED. The following claim s remain pending: Count I against Menning and Adams; Count IV against the City of St. Louis; Count VI against Adams; Count VIII against the City of Jennings; and Count X against the City of Jennings. IT IS FURTHER ORDERED that Plaintiffs Motion to E xclude Affidavit of Fred Barker (ECF No. 102 ) is DENIED. Plaintiff shall be permitted to depose Barker prior to trial with the City of St. Louis to cover associated costs. IT IS FURTHER ORDERED that the City of St. Louis and Adams's Motion to Compel (ECF No. 116 ) is DENIED as moot. IT IS FURTHER ORDERED that a status teleconference shall be conducted on July 18, 2019 at 1 :00 p.m. during which time counsel for all parties shall participate and the Court will reset the trial date. (Status Conference set for 7/18/2019 01:00 PM in Telephone before District Judge Ronnie L. White., Status Report due by 7/15/2019.) Signed by District Judge Ronnie L. White on 7/1/2019. (AFC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CECILIA PERRY, as Plaintiff Ad Litem for
Christina Brooks, and D.B., D.B., D.B., and D.B.,
by and through their Next Friend,
CECILIA PERRY, on behalf of all
beneficiaries pursuant to Section 537.080,
Mo. Rev. Stat.,
Plaintiff,
v.
THE CITY OF ST. LOUIS, et al.,
Defendants.

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No. 4:17CV981 RLW

MEMORANDUM AND ORDER
This matter is before the Court on the separate Motions for Summary Judgment filed by
Defendants Kent Menning and Kevin Stevener (ECF No. 84), Defendants City of Jennings, City
of Jennings Detention Center, Eugene Neal, Rick Crim, Demetrius Staples, Aykan Acikgoz,
Kellye Still, Kyle Bashaw, and Yvette Harris (ECF No. 87), and Defendants City of St. Louis,
Dale Glass, Lynn Page, Jermanda Adams, and Josh Hill (ECF No. 92). This Court previously
issued an Order of Partial Dismissal in favor of Defendants Acikgoz, Bashaw, Crim, Glass,
Harris, Hill, Neal, Page, Stevener, and Still after Plaintiff Cecelia Perry 1 conceded she was not
opposed to summary judgment in favor of those specific defendants. (ECF No. 143) The claims
against Defendants City of St. Louis, Adams, Menning, City of Jennings, and Staples remained
pending. After careful consideration, the Court now addresses the remaining claims.

1 After the original plaintiff in this case, Christina Brooks, died, the Court granted motions concerning the
substitution of Cecilia Perry as Plaintiff ad !item for Brooks and the decedent's minor children on behalf of all
beneficiaries pursuant to section 537.080, Mo. Rev. Stat. (ECF No. 142)

BACKGROUND
On October 1, 2014, DeJuan Brison was arrested and booked into the St. Louis City
Justice Center. (Pl.'s Statement of Additional Undisputed Material Facts ("SAUMF") in Opp'n
to St. Louis City Defs.' Mot. for Summ. J.

~

2, ECF No. 105) At the time ofBrison's

confinement, the St. Louis City Justice Center had a "Suicide Prevention/Intervention" policy in
effect (the "Suicide Prevention Policy"). (Id.

at~

3) The Suicide Prevention Policy included two

"Crisis Watch Status" designations: full suicide watch and close observation. (Id.

at~

4) An

inmate designated for full suicide watch required, among other things,"[ o]bservation of the
inmate in staggered intervals, not to exceed 10 minutes in high risk situations" to include
"recorded observation within each 10 minute interval." (ECF No. 105-4, at 2) An inmate
designated for close observation required, among other things, "[ o]bservation of the inmate in
staggered intervals, not to exceed 15 minutes, in moderate risk situations" to include "recorded
observation within each 15 minute interval." (Id.)
Both full suicide watch and close observation are defined as "[ c]risis levels that identify
the status of inmates, who have been identified by the mental health staff as being at risk of selfharm, emotionally disturbed or mentally ill and not stabilized on medication." (Id.) The Suicide
Prevention Policy further provides that an inmate "shall remain on Full Suicide Watch until a
Mental Health Professional determines that the crisis has been resolved or that the inmate can be
placed in a less restrictive watch status." (Id. at 9) Even after a medical health professional has
determined an inmate should be removed from full suicide watch status, such an inmate shall be
placed on modified suicide watch/close observation status for at least 24 hours. 2 (Id.)

2 The forms used to record the cell check observations do not refer to "close observation." Rather, the forms have
two options after "Suicide Watch Level": "Full" or "Modified." (ECF No. 105-7) Deposition testimony from
Jermanda Adams further suggests "close observation" and "modified suicide watch" are used interchangeably.
(ECF No. 105-5, at 13) Consequently, the Court will use the terms interchangeably.

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St. Louis City Justice Center's Suicide Prevention Policy also establishes procedures for
transferring inmates who are on crisis watch status. (Pl.'s SAUMF in Opp'n to St. Louis City
Defs.' Mot. for Summ. J., 13, ECF Nos. 105) Specifically, "When an inmate on Crisis Watch
Status is being released to another law enforcement agency, the Admissions/Processing Staff
document in the Admissions/Processing Log Book that the receiving law enforcement agents
were informed that the inmate is on a Crisis Watch Status." (ECF No. 105-4, at 12)
When Brison was initially processed at the St. Louis City Justice Center on October 1,
2014, he told the intake officer that he suffered from major depression and had a history of
mental health problems. (Pl.'s SAUMF in Opp'n to St. Louis City Defs.' Mot. for Summ. J.,
13, ECF No. 105) He also denied any history of psychiatric hospitalization, denied any history
of suicide attempts, denied any recent significant loss, denied feeling hopeless, and denied
having current suicidal thoughts. 3 (St. Louis City Defs.' Statement of Undisputed Material Facts
("SUMF"), 2, ECF No. 93-1)
On October 2, 2014, Brison told a correctional officer that he was feeling suicidal. (Id. at
, 3) Pursuant to the Suicide Prevention Policy, he was placed on full suicide watch status. (Id.
at, 5) The following day, a licensed professional counselor, Fred Barker, conducted a mental
health assessment of Brison. (St. Louis City Defs.' SUMF, 6, ECF No. 93-1) Barker attests
that Brison denied having suicidal thoughts and denied previously indicating he was suicidal.
(Id. at, 7) After Barker's assessment, Brison was downgraded to close observation. (Pl.'s
SAUMF in Opp'n to St. Louis City Defs.' Mot. for Summ. J., 20, ECF No. 105)

3

During a previous confinement at the St. Louis City Justice Center in July 2014, Brison was placed on full suicide
watch and modified suicide watch/close observation for a period of eleven days. (Pl.'s SAUMF in Opp'n to St.
Louis City Defs.' Mot. for Summ. J. ~ 22, ECF No. 105)

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The City of St. Louis learned that the City of Jennings had an outstanding warrant for
Brison and, on the morning of October 4, 2014, St. Louis County Prisoner Conveyance Officer
Kent Menning arrived at the St. Louis City Justice Center to transport Brison to the Jennings
Detention Center. (Id. at, 23) Correctional Officer Jermanda Adams was on duty at the time of
Brison's transfer and was responsible for ensuring all policies were followed, which included
informing transporting officers if an inmate was on full suicide watch of close observation. (Id.
at,, 24-27) While Adams does not recall her interaction with Brison on October 4, 2014, she
has testified that she reviews the files of inmates who are about to be transferred and informs the
transporting officer ifthe inmate is on full suicide watch or close observation. 4 (Pl.'s SAUMF in
Opp'n to Def. Menning's Mot. for Summ. J., 16, ECF No. 108) Accordingly, Adams claims
she would have orally informed Menning that Brison was on close observation. (Id.) Menning,
who maintains he recalls specifically his interactions regarding Brison, denies that Adams
informed him that Brison was on close observation at the time of his transfer or had recently
been on full suicide watch. 5 (Pl.'s SAUMF in Opp'n to St. Louis City Defs.' Mot. for Summ. J.
, 33, ECF No. 105) (Statement of Material Facts ("SMF") of Def. Kent Menning and Kevin
Stevener in Support of Their Separate Mot. for Summ. J., 29, ECF No. 85)
St. Louis County conveyance policy required officers confirm that transferees did not
suffer from any mental or medical conditions prior to transporting. (Pl.'s SAUMF in Opp'n to
Def. Menning's Mot. for Summ. J., 19, ECF No. 108) St. Louis County conveyance officers

4

According to officials at the St. Louis City Justice Center, every inmate on either full suicide watch or close
observation is given a purple armband. (St. Louis City Defs.' SUMF if 34 ECF No. 93-1) Occasionally, inmates
may remove their armbands and a correctional officer is to immediately provide a replacement armband. (Id. at iii!
35-36) Menning has stated Brison was not wearing a purple armband when he was transferred on October 4, 2014.
(Id. at if 38)
5 There is also a dispute whether Adams told Menning that Brison was suffering from other medical conditions: he
was detoxing at the time and suffered from chronic asthma. (Pl.'s SAUMF in Opp'n to Def. Menning's Mot. for
Summ. J. if 16, ECF No. 108)

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were further required to confirm the mental or medical condition of a transferee before reporting
the inmate's status to the receiving jurisdiction. (Id. at if 20) Menning testified that, when he
arrived to transport Brison and three other inmates to Jennings, he asked a St. Louis City Justice
Center correctional officer if any transferee had a condition he needed to know about, and the
correctional officer responded "I don't know." (SMF of Def. Kent Menning and Kevin Stevener
in Support of Their Separate Mot. for Summ. J.

if 30, ECF No. 85) According to Menning, he

then asked.the group of transferees whether there were any problems that he should know about
and no one spoke up about any medical or mental condition. 6 (Id. at iii! 31-3 3)
In 2013, the City of Jennings Detention Center implemented a policy that provides
"[i]nmates cannot be accepted into the Jennings Department of Corrections and have to remain in
the custody of the arresting or transporting officers" if the inmate, among other conditions, "is in
need of medical attention," "is in need of psychiatric evaluation or observation," or "requires
other special needs that the facility cannot reasonably provide." (ECF No. 89-20, at 2) An

additional "Mental Disability & Suicide Intake" form included a "Questionnaire for Detainee" 7
and "Observation Questions." 8 (Id. at 6)
During the booking process on October 4, 2014, Demetrius Staples asked Brison and the
other transferees if they were having any mental issues. (City of Jennings Defs.'s Statement of
Uncontroverted Material Facts ("SUMF") in Support of Their Mot. for Summ. J.

if 19, ECF No.

89) During this group questioning, Brison did not verbally indicate he was experiencing any
mental health issue. (Id. at if 20) Later, Brison indicated that he believed he was having an

6

Menning testified Brison was not wearing a purple armband indicating he was on full suicide watch or close
observation and that he checked each transferee's pockets and did not find any removed purple armbands. (SMF of
Def. Kent Menning and Kevin Stevener in Support of Their Separate Mot. for Summ. J. iii! 34-40, ECF No. 85)
7 These questions for the inmate to answer included "Have you ever received MHMR Services or other mental
health services?" and "Do you know where you are?" (ECF No. 89-20, at 6)
8 These questions for a staff member to answer included "Does the individual act or talk in a strange manner?" and
"Does the individual seem usually confused or preoccupied?" (ECF No. 89-20, at 6)

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asthma attack, and staff called emergency medical services. (Id.

at~

21) Personnel from a local

hospital responded and attended to Brison for more than ten minutes and left the detention center
after measuring Brison's oxygen levels as between 99% and 100%. (Id.

at~

23) Brison was

then placed in a holding cell separate from other inmates after some became upset at being
forced to vacate the booking area while he received medical attention. (Id.

at~~

25-27)

Approximately forty-one minutes after Brison was placed in a single cell, he was found
unconscious and hanging from the bars of his cell with a blanket wrapped around his neck. (Id.
at~

28) Brison was transported to a hospital and placed on life support. He died on October 21,

2014, without regaining consciousness.
Brison's mother, Christina Brooks, initially filed suit in state court against (1) the City of
St. Louis, the St. Louis Justice Center, St. Louis Corrections Commissioner Dale Glass, and
corrections officers Joshua Hill, Carl Myers, Lynn Page, and Jermanda Adams (referred to
collectively as "the St. Louis Defendants"); (2) St. Louis County police officer Kent Menning;
and (3) the City of Jennings, the Jennings Detention Center, Jennings Department of Corrections
official Eugene Neal, and corrections officers Rick Crim, Demetrius Staples, Aykan Acikgoz,
Kellye Still, Kyle Bashaw, Yvette Harris, and Kevin Stevener (referred to collectively as "the
Jennings Defendants"). In her Petition (ECF No. 3), Brooks asserted the following claims: statelaw negligence claims against the St. Louis City Justice Center Correctional Officers and
Menning (Count I), the City of St. Louis (Count II), St. Louis City Justice Center (Count III),
Jennings Detention Center Correctional Officers (Count VII), the City of Jennings (VIII), and the
City of Jennings Detention Center (Count IX); claims brought pursuant to 42 U.S.C. § 1983
alleging deliberate indifference against the City of St. Louis (Count IV), St. Louis City Justice
Center (Count V), St. Louis City Justice Center Correctional Officers (Count VI), the City of

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Jennings (Count X), the City of Jennings Detention Center (Count XII), and the Jennings
Detention Center Correctional Officers (Count XIII); and a claim against the City of Jennings
alleging it operates a "debtors' prison" in violation of§ 1983 and the First, Fourth, Sixth,
Thirteenth, and Fourteenth Amendments to the United States Constitution (Count XI). Brooks
seeks compensatory damages in excess of $2,000,000.00, punitive damages in excess of
$5,000,000.00, and attorneys' fees and costs incurred in this action.
The Jennings Defendants removed the case to this Court, invoking federal question
jurisdiction pursuant 28 U.S.C. § 1331. See 28 U.S.C. § 144l(a). This Court has previously
dismissed Counts II, III, V, IX, and XII as well as the official-capacity claims in Count XIII
against Acikgoz, Bashaw, Crim, Harris, Neal, Staples, and Still. (ECF Nos. 33, 34, 63, 64)
Further, this Court granted partial summary judgment in favor of Defendants Acikgoz, Bashaw,
Crim, Glass, Harris, Hill, Neal, Page, Stevener, and Still after Plaintiff conceded she was not
opposed to such an order. (ECF No. 143) The separate motions for summary judgment related
to the remaining claims against Defendants City of St. Louis, Adams, Menning, City of Jennings,
and Staples will now be addressed.

LEGAL 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 oflaw." 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

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preclude summary judgment. Id. Summary judgment is not proper ifthe 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. Id.
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
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 (2000)).

NEGLIGENCE CLAIMS

(a) Adams
Missouri courts have long-applied the doctrine of official immunity to tort claims against
public officials. Southers v. City of Farmington, 263 S.W.3d 603, 610 (Mo. 2008) (en bane), as

modified on denial of reh 'g (Sept. 30, 2008); Letterman v. Does, 859 F.3d 1120, 1125 (8th Cir.
2017). "This judicially-created doctrine protects public employees from liability for alleged acts
of negligence committed during the course of their official duties for the performance of
discretionary acts. The official immunity doctrine, however, does not provide public employees

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immunity for torts committed when acting in a ministerial capacity." Southers, 263 S.W.3d at
610 (citation omitted).
Whether an act can be characterized as discretionary depends on the degree of
reason and judgment required. [Kanagawa v. State, 685 S.W.2d 831, 835 (Mo.
1985) (en bane), overruled on other grounds by Alexander v. State, 756 S. W.2d 539
(Mo. 1988) (en bane).] A discretionary act requires the exercise of reason in the
adaptation of means to an end and discretion in determining how or whether an act
should be done or course pursued. Id. A ministerial function, in contrast, is one
"of a clerical nature which a public officer is required to perform upon a given state
of facts, in a prescribed manner, in obedience to the mandate of legal authority,
without regard to his own judgment or opinion concerning the propriety of the act
to be performed." Id. (internal citations omitted). The determination of whether
an act is discretionary or ministerial is made on a case-by-case basis, considering:
(1) the nature of the public employee's duties; (2) the extent to which the act
involves policymaking or exercise of professional judgment; and (3) the
consequences of not applying official immunity. Id. Even a discretionary act,
however, will not be protected by official immunity if the conduct is willfully
wrong or done with malice or corruption. Schooler v. Arrington, 106 Mo. App.
607, 81 S.W. 468, 469 (1904).
Id. at 610-11; see also Brown v. City of Golden Valley, 574 F.3d 491, 500 (8th Cir. 2009)

("When an official is exercising such discretionary functions, official immunity applies unless a
willful or malicious wrong is committed.") (internal quotation marks omitted).
Adams argues the Court should grant summary judgment on Count I in her favor because
she is protected from any liability for Brison's death based on the doctrine of official immunity.
Plaintiff asserts Adams is liable under a theory of negligence notwithstanding her status as a
public official because she failed to perform a ministerial duty: inform Menning or the City of
Jennings that Brison was on close observation. Because St. Louis City Justice Center's Suicide
Prevention Policy required staff to inform receiving law enforcement agents that a transferee was
on a crisis watch status, Plaintiff claims Adams did not have the discretion necessary to avail
herself to the protection of official immunity.

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In Letterman v. Does, 859 F.3d 1120 (8th Cir. 2017), parents of a deceased state prisoner
sued correctional officers for the wrongful death of their son after he died while on suicide
watch. The prison facility had in place a close observation policy, which required officers to
check on a subject prisoner every fifteen minutes, record their observations in a close
observation log, and report a medical emergency if, during a check, the officers "could not
observe movement, obtain a verbal response, or see breathing." Id. at 1123. The plaintiffs' son
hit his head on the doorjamb while he was under close observation, which caused a noise loud
enough to prompt an officer to check on him. Id. Lying on the ground, the prisoner waived his
hand in response to the officer's question and the log noted the prisoner was "good." Id.
Subsequent checks yielded some physical movements but never a verbal response. Id. After
some time, a nurse determined he needed immediate medical attention. Id. The prisoner was
taken to a hospital, where he later died of subdural bleeding caused by a head injury. Id.
The correctional officers in Letterman argued they were protected from liability by
official immunity because compliance with the prison facility's policies required exercise of
discretion to determine if a prisoner's non-responsiveness was due to sleep or a medical
emergency. Id. at 1126. The Eighth Circuit disagreed and held that the correctional officers
were not entitled to official immunity because their failure to follow the institution's close
observation policies constituted a ministerial duty. Id. at 1126-27.
The close-observation policy requires officers to check on the inmate every fifteen
minutes and report as a medical emergency any instance when they cannot observe
movement or obtain a verbal response or when it appears that the inmate is not
breathing. Whether the inmate is asleep is irrelevant, because the movement
requirement may be satisfied by the rise and fall of the inmate's chest as he breathes.
The duty to report a medical emergency when one of these criteria is met is
mandatory and does not depend on the officer's assessment of whether a medical
emergency actually exists.
Id. (emphasis added).

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As in Letterman, the St. Louis City Justice Center's Suicide Prevention Policy did not
provide Adams with the discretion in this situation. The Suicide Prevention Policy mandated
Adams inform Menning that Brison was on close observation without regard to her own
determination as to Brison's mental health or suicide risk. There exists, however, a genuine
dispute in the record before this Court whether she did so. 9 Further, Barker's lowering of
Brison's crisis watch status does not have a talismanic effect on Adams's potential liability. As
the Missouri Supreme Court has made clear, "A ministerial function ... is one 'of a clerical
nature which a public officer is required to perform upon a given state of facts, in a prescribed
manner, in obedience to the mandate of legal authority, without regard to his [or her] own

judgment or opinion concerning the propriety of the act to be performed.'" Southers, 263
S.W.3d at 610-11 (emphasis added) (quoting Kanagawa, 685 S.W.2d at 835). The fact that
Barker evaluated Brison and made a determination that Brison should no longer be on full
suicide watch nevertheless resulted in Brison remaining on modified suicide watch/close
observation at the time of his transfer to the Jennings Detention Center via Menning.
Adams also argues the Court should grant summary judgment in her favor on Count I
because Brison's suicide was a new and independent intervening act that broke the causal
connection between any alleged negligent act on her part and Brison's death. See Harden ex rel.

Estate a/Travis v. St. Louis Cty., No. 404CV602(CEJ), 2005 WL 1661505, at *3 (E.D. Mo. July
5, 2005) (citing Eidson v. Reproductive Health Servs., 863 S. W. 2d 621, 627 (Mo. Ct. App.

9

In her joint memorandum along with the City of St. Louis, Adams asserts that there is no evidence she was aware
Brison was on close observation and, therefore, there was no requisite "state of facts" mandating her performance of
a purely "ministerial" duty. (St. Louis City Defs.' Mem. of Law in Support of Mot. for Summ. J., ECF No. 93, at
14) See Southers, 263 S.W.3d at 610-11. At her deposition, Adams testified she did not specifically recall her
interactions with Brison; however, she stated she would have orally informed Menning that Brison was on close
observation if Brison was on a crisis watch status at the time of his transfer. (Adams Dep. 7: 18-8: l; 45:22-48: 16)
Menning, meanwhile, maintains he specifically recalls Brison and has testified no one communicated Brison was on
a crisis watch status at the time of transfer. (Menning Dep. 68: 17-69:6; 71: 19-72:24)

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1993)). Plaintiff, on the other hand, asserts that Brison's death was foreseeable because St.
Louis City Justice Center's purpose in maintaining a Suicide Prevention Policy, which included
specific procedures for informing receiving law enforcement agencies if a transferee was on a
crisis watch status, was to ameliorate the risk of an inmate who has been determined to have a
substantial risk of suicide from harming himself or herself.
The Court has already rejected Adams's argument. In denying the St. Louis defendants'
motion to dismiss, the Court 10 explained that Brison's suicide does not cut off the potential
causal link from the defendant's actions.
Once it is established a defendant's conduct "has in fact been one of the causes of
the plaintiffs injury, there remains the question whether the defendant should be
legally responsible for the injury." [Conn v. City ofReno, 591 F.3d 1081, 1100 (9th
Cir. 20 I 0), cert. granted, judgment vacated sub nom. City of Reno, Nev. v. Conn,
563 U.S. 915 (2011), and opinion reinstated, 658 F.3d 897 (9th Cir. 2011)]
(citations omitted). The defendants' conduct is not the proximate cause of the
alleged injuries "if another cause intervenes and supersedes [their] liability for the
subsequent events." Id. at 1101 (citations omitted). However, "foreseeable
intervening causes ... will not supersede the defendant's responsibility." Id.
(emphasis added). If "reasonable persons could differ" over the question of
foreseeability, "summary judgment is inappropriate and the question should be left
to the jury." Id.
(ECF No. 33, at 9-10) The Court holds that a reasonable jury could find that Brison's suicide
was a natural and probable consequence of Adams's alleged failure to inform Menning about
Brison's crisis watch status at the time of his transfer. Consequently, Adams's motion for
summary judgment with respect to Count I is denied.
(b) Menning
"Qualified immunity protects governmental officials from liability for civil damages if
they have not violated 'clearly established statutory or constitutional rights of which a reasonable

10 This case was originally assigned to the Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri, now retired.

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person would have known."' Akins v. Epperly, 588 F.3d 1178, 1183 (8th Cir. 2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). "To defeat qualified immunity, the plaintiff
has the burden to prove: '(1) the facts, viewed in the light most favorable to the plaintiff,
demonstrate the deprivation of a constitutional or statutory right; and (2) the right was clearly
established at the time of the deprivation."' Wilson v. Lamp, 901F.3d981, 986 (8th Cir. 2018)
(quoting Howard v. Kan. City Police Dep 't, 570 F .3d 984, 988 (8th Cir. 2009)). "In the jail
suicide context, qualified immunity is appropriate when a plaintiff 'has failed to show ... that
his jailers have acted in deliberate indifference to the risk of his suicide."' Luckert v. Dodge

Cty., 684 F.3d 808, 817 (8th Cir. 2012) (quoting Rellergert v. Cape Girardeau Cty., Mo., 924
F.2d 794, 796 (8th Cir. 1991)).
Prisoners and pretrial detainees have a "clearly established constitutional right to be
protected from the known risks of suicide and to have [their] serious medical needs attended to."

Whitney v. City of St. Louis, Mo., 887 F.3d 857, 860 (8th Cir. 2018) (alteration in original)
(quoting Yellow Horse v. Pennington Cty., 225 F.3d 923, 927 (8th Cir. 2000)); Coleman v.

Parkman, 349 F.3d 534, 538 (8th Cir. 2003). "The Eighth Amendment prohibits jail officials
from acting with deliberate indifference towards risks of suicide." Whitney, 887 F.3d at 860
(citing Coleman, 349 F.3d at 538). The Eighth Circuit has established that a determination of an
official's deliberate indifference requires an objective and subjective analysis. Id. (citing

Jackson v. Buckman, 756 F.3d 1060, 1065 (8th Cir. 2014)). Consequently, Plaintiff must show
that (1) the specific defendant had actual knowledge that Brison posed a substantial risk of
suicide and (2) the defendant failed to take reasonable steps to abate that risk. Id. (citing

Coleman, 349 F.3d at 538).

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The Eighth Circuit has made clear that an inmate's suicide itself is not probative of the
question whether correctional officials' measures taken "were so inadequate as to be deliberately
indifferent to the risk" of suicide because
"tying the suicide to proof of deliberate indifference is tantamount to requiring
jailers to provide suicide-proof institutions," and to ensure against suicide ever
happening. [Rellergert, 924 F.2d at 796.] This is not the constitutional test.
Instead, we must objectively "consider[] the measures taken in light of the practical
limitations on jailers to prevent inmate suicides." Id. "Simply laying blame or fault
and pointing out what might have been done is insufficient. The question is not
whether the jailers did all they could have, but whether they did all the Constitution
requires." Id. at 797. "In evaluating an official's response to a known suicide risk,
we should be cognizant of how serious the official knows the risk to be." [Gregoire
v. Class, 236 F.3d 413, 418 (8th Cir. 2000)].
Luckert, 684 F.3d at 818 (second alteration in original, footnote omitted).

Menning argues he was not deliberately indifferent to Brison's risk of suicide. Contrary
to Adams's deposition testimony, Menning maintains he was not informed Brison was on close
observation at the time of his transfer. In addition to reviewing the booking sheet that would
have contained relevant information related to transferees' medical conditions, Menning testified
he asked a correctional officer at St. Louis City Justice Center and the group of transferees if he
needed to know anything about their conditions. He also said he makes his own determinations
of inmates' conditions and received crisis intervention training in addition to in-service training
for mental health screening. Based on his training, experience, observation, and judgment,
Menning claims he made a judgment that Brison was not exhibiting suicidal ideation and was not
1Il CflSlS.

Plaintiff, on the other hand, argues Menning is not entitled to qualified immunity because
he has admitted to not following St. Louis County policies and procedures related to transferring
inmates. During Menning's deposition, Plaintiffs counsel asked: "What you should have done
under the policy of protocol, procedure and training and practice of St. Louis County is get an

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affirmative regarding DeJuan Brison's medical condition before you ever relayed that
information to Jennings; correct?" (Menning Dep. 88:22-89:1) Menning answered, "Correct."
(Id. at 89:2) He further confirmed that St. Louis County's policies are "nondiscretionary." (Id.

at 100:12-101:3)
This Court previously denied Defendants Adams, Glass, and Page's motion to dismiss
based on qualified immunity. In that Memorandum and Order, the Court relied in part on an
opinion from the Seventh Circuit.
In Cavalieri v. Shepard, 321 F.3d 616 (7th Cir. 2003), cited by plaintiff, the
defendant police officer was told in some detail by Cavalieri' s mother that he had
suicidal tendencies. After Cavalieri was transferred to a county jail, the defendant
checked on him by telephone but never informed jail officials that he presented a
risk of suicide. Cavalieri attempted to hang himself in the booking area and was in
a permanent vegetative state. The defendant argued that there was not a clearly
established obligation to communicate information regarding a detainee's suicide
risk upon transfer to another custodian. The Seventh Circuit disagreed. First,
Cavalieri's "right to be free from deliberate indifference to suicide" was "clearly
established." Id. at 623. It was also clearly established that the defendant had an
obligation to pass along information regarding a detainee's medical condition. Id.
(citing Egebergh v. Nicholson, 272 F.3d 925, 927-28 (7th Cir. 2001) (denying a
qualified immunity defense where police officers knew that the arrestee was an
insulin-dependent diabetic, knew that such people need regular insulin injections,
knew that the failure to give injections was potentially fatal, and nonetheless failed
to make sure the injections were given, with fatal consequences)). By analogy, it
was clearly established that the police officer had an obligation to inform the county
jail that Cavalieri posed a risk of suicide.
(ECF No. 33, at 6-7). See also Conn, 591 F.3d at 1102 ("When a detainee attempts or threatens
suicide en route to jail, it is obvious that the transporting officers must report the incident to
those who will next be responsible for her custody and safety. Thus, the constitutional right at
issue here has been clearly established.").
While the Seventh Circuit's opinion in Cavalieri is not binding authority in this district,
this Court nevertheless finds it persuasive in the absence of contradictory Eighth Circuit
precedent. If a transferring law enforcement agency fails to notify a receiving law enforcement

- 15 -

agency that an inmate posed a substantial suicide risk, such conduct would violate the clearly
established constitutional principal that inmates have a right to be free from deliberate
indifference to suicide risk. 11 Here, there exists a genuine dispute as to whether Adams in fact
informed Menning that Brison was on a crisis watch status at the time of his transfer. Further,
Menning's alleged failures to follow St. Louis County policy do not automatically constitute
deliberate indifference. An official's actions that may "constitute poor judgment, negligence, or
possibly even gross negligence" will not establish deliberate indifference if the official also took
"affirmative, deliberative steps" to prevent an inmate's suicide. Luckert, 684 F.3d at 818-19.
While Menning has presented testimony that could support his argument that he did not show
deliberate indifference towards a potential suicide risk, a reasonable jury could find otherwise if
it believes Adams informed him that Brison was on close observation at the time of his transfer
and he failed to take appropriate steps. Accordingly, the Court holds that Menning is not entitled
to qualified immunity.
Menning also argues he is protected from liability by the doctrine of official immunity.
He claims he made a judgment call concerning Brison's possible suicide risk and asserts Plaintiff

11

The St. Louis Defendants attempt to distinguish Cavalieri by noting the defendant police
officer in that case remained personally involved with the decedent and continued to participate
in interviews with both the decedent and the decedent's ex-girlfriend after the decedent's
transfer. 321 F .3d at 619. Here, there is no evidence that the individual defendants, including
Adams, remained personally involved with Brison after releasing him to Menning. This
difference is immaterial. Even if this Court found this factual difference significant, it would be
against the defendants' favor. The dissenting circuit judge in Cavalieri noted the defendant
police officer's "rather intensive involvement with [the decedent] should reduce rather than
increase his liability for deliberate indifference." Id. at 625 (Manion, J ., dissenting) (citing
Hudson v. McHugh, 148 F.3d 859, 863 (7th Cir. 1998)). Here, the St. Louis Defendants did not
continue their involvement with Brison after his transfer that might have demonstrated a lack of
deliberate indifference. Regardless, the majority in Cavalieri held that the defendant police
officer's prolonged involvement presented him with multiple opportunities to inform the
receiving facility that the inmate presented a suicide risk. Id. at 622 (majority). As explained
above, this Court finds the majority's holding persuasive.
- 16 -

has not offered evidence that he committed a willful or malicious wrong. See Southers, 263
S.W.3d at 610-11; Brown, 574 F.3d at 500. The Court, however, finds that Menning's obligation
to inform Jennings if Brison was on close observation was a ministerial duty. As with Adams,
Menning had no discretion to deviate from the mechanical procedures outlined in St. Louis
County's conveyance policies: ifMenning was informed that Brison was on close observation,
he was obligated to inform Jennings. Because there is genuine question whether Adams told
Menning that Brison was on close observation, Menning is not entitled to official immunity at
the summary judgment stage. Menning's motion for summary judgment with respect to Count I
is denied.
(c) City of Jennings

"Under Mo. Rev. Stat. § 537.600, public entities enjoy sovereign immunity ... unless
immunity is waived, abrogated, or modified by statute." Richardson v. City ofSt. Louis, 293
S.W.3d 133, 136 (Mo. Ct. App. 2009) (citation omitted). "A municipality has sovereign
immunity from actions at common law tort in all but four cases." Bennartz v. City of Columbia,
300 S.W.3d 251, 259 (Mo. Ct. App. 2009). These four exceptions include:
(1) where a plaintiffs 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. bane 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).
Id. at 259. "When bringing claims against a public entity, a plaintiff 'bears the burden of

pleading with specificity facts giving rise to an exception to the rule of sovereign immunity[.]'"

- 17 -

Wann v. St. Francois Cty., Mo., No. 4:15CV895 CDP, 2016 WL 866089, at *7 (E.D. Mo. Mar. 7,
2016) (quoting Richardson, 293 S.W.3d at 136-37).
The City of Jennings argues the Court should grant summary judgment in its favor on
Count VIII because it is entitled to sovereign immunity and Plaintiff has failed to adequately
plead or produce evidence that it has waived such immunity as a result of any dangerous
condition. Plaintiff, on the other hand, argues the City of Jennings has waived sovereign
immunity by purchasing liability insurance that provides coverage for these claims.
In State ex rel. City of Grandview v. Grate, 490 S.W.3d 368, 369 (Mo. 2016) (en bane),
plaintiffs brought common law tort claims against the city for wrongful arrest, battery, malicious
prosecution and negligence arising out of the actions of four police officers. The city sought
summary judgment based on sovereign immunity. Id. The plaintiffs argued the city had waived
sovereign immunity by procuring insurance that provided coverage for the claims. Id.
The Supreme Court of Missouri concluded that the central issue was "whether that
policy waived the grant of sovereign immunity provided for under§ 537.600 or whether
there were terms of that policy preserving the grant of sovereign immunity." Id. at 37172. Section 71.185.1, Mo. Rev. Stat., provides the following:
Any municipality engaged in the exercise of governmental functions may carry
liability insurance and pay the premiums therefor to insure such municipality and
their employees against claims or causes of action for property damage or personal
injuries, including death, caused while in the exercise of the governmental
functions, and shall be liable as in other cases of torts for property damage and
personal injuries including death suffered by third persons while the municipality
is engaged in the exercise of the governmental functions to the extent of the
insurance so carried.
(Emphasis added). Additionally, section 537.610.1, Mo. Rev. Stat., provides:
Sovereign immunity for the state of Missouri and its political subdivisions is
waived only to the maximum amount of and only for the purposes covered by such
policy of insurance purchased pursuant to the provisions of this section and in such

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amount and for such purposes provided in any self-insurance plan duly adopted by
the governing body of any political subdivision of the state.
(Emphasis added). The policy at issue in City of Grandview "expressly disclaims a waiver
of sovereign immunity, and provides coverage to the City only for those claims for which
sovereign immunity has been statutorily waived." 490 S.W.3d at 372. Consequently, the
Supreme Court of Missouri held "the City did not waive sovereign immunity when it
purchased an insurance policy that disclaimed coverage for any actions that would be
prohibited by sovereign immunity." Id.
Here, the City of Jennings has purchased an insurance policy that covers "all damages
resulting from a wrongful act(s) which arise out oflaw enforcement activities" so long as the
"wrongful act(s) ... occur during the policy period and within the policy territory." (ECF No.
111-10, at 3) The term "wrongful act" is defined to include "an actual or alleged error or
omission, negligent act, neglect or breach of duty by an insured while conducting law
enforcement activities, which result in ... bodily injury,'' which is defined to include "physical
injury to a person including death." (Id. at 6-7) The insurance policy explicitly provides the
following with respect to the potential use of sovereign immunity as a defense to covered claims
against the City of Jennings:
It is agreed that the Company will not avail itself of the defense of sovereign
immunity to which the named insured may be entitled by reason of its being a public
and/or governmental entity, unless the named insured requests the Company to
raise such defense by written notice to the Company. It is further agreed that the
named insured hereby releases the Company from all liability because of the failure
on the part of the Company to raise such defense, except in cases where the named
insured specifically requests the Company to do so in a manner provided herein.

(Id. at 10-11) (emphasis added)

Plaintiff has offered evidence that the City of Jennings has procured liability insurance
that would apply to Count VIII. Because the City of Jennings has failed to respond to this

- 19 -

argument or offer evidence that it complied with the insurance policy by requesting the provider
specifically raise sovereign immunity as a defense to these claims, the Court denies the City of
Jennings's request for summary judgment on Count VIII.
The City of Jennings also argues Plaintiff is not entitled to punitive damages for her
negligence claim as a matter oflaw. See Mo. Rev. Stat. 538.610.3; City ofNewport v. Fact

Concerts, Inc., 453 U.S. 247, 263, 271 (1981). Plaintiff does not oppose summary judgment as to
her request for punitive damages based on the actions of Defendant City of Jennings (Count Vlll 12
and Count X), but she does oppose summary judgment as to her request for punitive damages based
on the actions of Defendant Staples (Count VII). (Pl.'s Mem. in Opp. to Defs. City of Jennings and
Demetrius Staples's Mot. for Summ. J., ECF No. 110, at 1) Accordingly, the Court grants
summary judgment in favor of the City of Jennings with respect to Plaintiffs claim for punitive
damages as to Counts VIII and X.

(d) Staples
The Court need not address the subjective analysis for determining whether a jail official
acted with deliberate indifference towards risks of suicide - i.e., whether the official failed to
take reasonable steps to abate the inmate's suicide risk- if the plaintiff has not satisfied the

objective analysis. See Whitney, 887 F.3d at 860. Because Plaintiff has not offered evidence that
Staples actually knew Brison posed a substantial risk of suicide, 13 the Court does not need to
evaluate the reasonableness of the steps taken during the booking process to reach a conclusion
on Staples' s right to summary judgment with regard to Plaintiffs negligence claim. See

12

The first page of Plaintiffs Memorandum in Opposition to the City of Jennings and Staples's Motion for
Summary Judgment says, "Plaintiff does not oppose summary judgment as to her request for punitive damages
based on the actions of Defendant City of Jennings (Count VII and Count X)." (ECF No. 110, at I) (emphasis
added) The Court presumes this is a typographical error as Count VIII is the negligence claim against the City of
Jennings and Count VII is the negligence claim against Staples.
13 Regardless of whether the jury finds that Adams told Menning that Brison was on close observation at the time of
his transfer, Plaintiff has offered no evidence to suggest Staples actually knew Brison was a suicide risk.

- 20 -

Whitney, 887 F.3d at 860; Hott v. Hennepin Cty., Minn., 260 F.3d 901, 906 (8th Cir. 2001)
("[T]here is no evidence to indicate that [jail] or its employees had actual knowledge that [the
decedent] posed a serious risk of harm to himself. In the absence of such evidence, the plaintiff
cannot show that [jail] personnel were subjectively deliberately indifferent to his need for
medical care."). Accordingly, the Court holds that Staples is entitled to qualified immunity and
grants summary judgment in favor of Staples on Count VII.
CONSTITUTIONAL CLAIMS UNDER§ 1983
42 U.S.C. § 1983 was designed to provide a "broad remedy for violations of federally
protected civil rights." Monell v. Dep 't ofSoc. Servs., 436 U.S. 658, 685 (1978). Section 1983
provides no substantive rights; it merely provides a remedy for violations of all "rights,
privileges, or immunities secured by the Constitution and laws [of the United States]." 42 U.S.C.
§ 1983; see also Albright v. Oliver, 510 U.S. 266, 271 (1994) (section 1983 "merely provides a
method for vindicating federal rights elsewhere conferred"). To state a claim under § 1983, a
plaintiff must establish: ( 1) the violation of a right secured by the Constitution or laws of the
United States, and (2) that the alleged deprivation of that right was committed by a person acting
under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
1. Municipal Liability

"In an action under § 1983, a municipality ... cannot be liable on a respondeat superior
theory, but can be held liable if a constitutional viOlation resulted from a municipal policy or
custom." A.H v. St. Louis Cty., Mo., 891 F.3d 721, 728 (8th Cir. 2018). "Only where a
municipality's failure to train its employees in a relevant respect evidences a 'deliberate
indifference' to the rights of its inhabitants can such a shortcoming be properly thought of as a
city 'policy or custom' that is actionable under§ 1983." City of Canton, Ohio v. Harris, 489

- 21 -

U.S. 378, 389 (1989). Therefore, municipal liability will apply in two situations: "where a
municipal policy is itself unconstitutional, and where the municipality's deliberate indifference
to the need to train and supervise its employees causes an employee to violate a third party's
constitutional rights." A.H, 891 F.3d at 728. "A pattern of similar constitutional violations by
untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes
of failure to train." S.M v. Lincoln Cty., 874 F.3d 581, 585 (8th Cir. 2017) (quoting Connick v.

Thompson, 563 U.S. 51, 62 (2011)).

(a) City of St. Louis
The City of St. Louis argues it is entitled to summary judgment on Count IV because
Plaintiff cannot establish that it was deliberately indifferent by failing to train its correctional
officers to properly care for and supervise inmates. According to the City of St. Louis, every one
of its correctional officers received annual training on the Suicide Prevention Policy in addition
to being trained in the Corrections Academy on suicide prevention, which includes identifying
suicidal indicators and knowing to whom they should report the appearance of such suicidal
indicators.
Plaintiff counters that, despite the existence of a Suicide Prevention Policy, deposition
testimony demonstrates the City of St. Louis has systematically failed to train its employees on
the policy. Adams testified that she had never actually seen the Suicide Prevention Policy before
her deposition and had never received training on the policy. (Adams Dep. 84:12-17) Further,
Menning testified that he had never been informed of a transferee's Crisis Watch Status in the
course of his many instances conveying inmates from the St. Louis City Justice Center.
(Menning Dep. 71: 19-74:2) Plaintiff cites to additional testimony from St. Louis City officials

- 22 -

that suggest employees were unaware of the Suicide Prevention Policy. (Pl.'s SAUMF in Opp'n
to St. Louis City Defs.' Mot. for Summ. J. if 40, ECF No. 105)
The City of St. Louis is correct that the existence of a Suicide Prevention Policy weighs
in its favor. "A municipal policy 'cannot be both an effort to prevent suicides and, at the same
time, deliberately indifferent to suicides."' A.H, 891 F.3d at 728-29 ((quoting Liebe v. Norton,
157 F.3d 574, 579 (8th Cir. 1998)); see Rellergert, 924 F.2d at 797 ("Indifference is apathy or
unconcern. The policy demonstrates the opposite ... concern that inmates not commit
suicide."). However, the existence of a policy itself will not prevent municipal liability "where
the municipality's deliberate indifference to the need to train and supervise its employees causes
an employee to violate a third party's constitutional rights." A.H, 891 F.3d at 728.
In Woodward v. Correctional Medical Services of Illinois, Inc., 368 F.3d 917, 925-26
(7th Cir. 2004), the plaintiff sued the jail's medical provider under§ 1983 for failing to train and
enforce its suicide prevention policies, which the plaintiff claimed ultimately resulted in the
death of her grandson while he was a pretrial detainee. The plaintiffs own expert testified at
trial that he had "no quarrel with [the facility's] suicide prevention procedures" and noted such
polices were "based on some very good research." Id. at 926. "The problem ... was that [the
medical provider] systematically ignored its own suicide prevention procedures." Id.
Ultimately, the jury found that the jail's medical provider acted with deliberate indifference to
the decedent's suicide risk. Id. at 919-20.
The Seventh Circuit held that there was sufficient evidence for the jury to conclude that
the medical provider's "actual practice (as opposed to its written policy) towards the treatment of
its mentally ill inmates was so inadequate" that the facility was on notice that the decedent posed
a substantial suicide risk. Id. at 927. The plaintiff presented evidence that one official had

- 23 -

neither completed an orientation program nor reviewed relevant instructions and another official
only received a copy of the manual after asking for one. Id. Further, the medical provider
"condoned the practice of its employees not completing its mental health intake forms." Id.
According to the Seventh Circuit, "a reasonable jury could find that [the medical provider's]
custom ofrepeatedly failing to follow proper procedures led to [the decedent's] successful
suicide attempt." Id. at 928.
While Woodward is a Seventh Circuit opinion and, therefore, nonbinding on this Court, it
is nevertheless persuasive in the absence of contradictory Eighth Circuit precedent. 14 Here, the
Court holds that Plaintiff has offered sufficient evidence that a reasonable jury could find that the
City of St. Louis's alleged failure to train its employees on the Suicide Prevention Policy
contributed to a continuing, widespread, persistent pattern of constitutional misconduct sufficient

14

The Seventh Circuit follows the essentially the same analysis regarding liability for inmate suicide as the Eighth
Circuit:
We have said that deliberate indifference requires a showing of more than mere negligence (or even
gross negligence) but less than purposeful infliction of harm. A detainee establishes a§ 1983 claim
by demonstrating that the defendants were aware of a substantial risk of serious injury to the detainee
but nevertheless failed to take appropriate steps to protect him from a known danger. Although this
is a high hurdle for a plaintiff, he need not show that a prison official acted or failed to act believing
that harm actually would befall an inmate; it is enough that the official acted or failed to act despite
his knowledge of a substantial risk of serious harm.
Woodward, 368 F.3d at 926-27 (emphasis added) (citations and internal quotation marks omitted). With regard to
municipal liability, Woodward explained:
In [Estate of Novack ex rel. v. County of Wood, 226 F.3d 525, 531 (7th Cir. 2000)] we noted that
there are two routes a plaintiff may take to establish municipal liability. First, a constitutional injury
caused by a municipality may be "shown directly by demonstrating that the policy itself is
unconstitutional." Id. More specific for this case, municipal liability can also be demonstrated
indirectly "by showing a series of bad acts and inviting the court to infer from them that the
policymaking level of government was bound to have noticed what was going on and by failing to
do anything must have encouraged or at least condoned, thus in either event adopting, the
misconduct of subordinate officers." Id. (quoting Jackson v. Marion County, 66 F.3d 151, 152 (7th
Cir. 1995)).
Id. at927.

- 24 -

to be deliberately indifferent to inmates' suicide risks. 15 Accordingly, the City of St. Louis's
motion for summary judgment with respect to Count IV is denied.

(b) City of Jennings
The City of Jennings argues the Court should grant summary judgment in its favor on
Count X because Plaintiff cannot establish that it was deliberately indifferent by failing to train
its correctional officers to properly care for and supervise inmates. Specifically, the City of
Jennings cites to its policy whereby it refuses to admit detainees with medical or mental health
conditions and instead immediately transfers any such detainee to a different facility better
equipped to handle such individuals. The policy was enacted in response to a March 2013
incident in which another inmate committed suicide while in custody at the Jennings Detention
Center. The City of Jennings argues that this policy implemented approximately one and onehalf years prior Brison's suicide and as a direct effort to ameliorate suicide risks proves it was
not deliberately indifferent to Brison's suicide risk.
As with the City of St. Louis, the City of Jennings is correct that the existence of a
relevant policy designed to prevent inmates who pose a suicide risk from remaining at the
Jennings Detention Center weighs in its favor. However, as explained above, the existence of
such a policy will not itself absolve a municipality of liability if it was deliberately indifferent to
the need to train and supervise its employees in order to prevent constitutional violations. A.H,
891 F.3d at 728. Plaintiff has offered evidence that the City of Jennings does not train its

15

It is worth noting that Plaintiff need not necessarily show a history of suicides or suicide attempts of inmates at the
St. Louis City Justice Center to establish a pattern of constitutional violations. See Woodward, 368 F.3d at 929
(citing Bd. of Cty. Comm 'rs of Bryan Cty., Oki. v. Brown, 520 U.S. 397, 409 (1997) ("The Supreme Court has
expressly acknowledged that evidence of a single violation of federal rights can trigger municipal liability if the
violation was a 'highly predictable consequence' of the municipality's failure to act. ... That no one in the past
committed suicide simply shows that [the jail] was fortunate, not that it wasn't deliberately indifferent."). The
alleged repeated failure of staff members to follow the Suicide Prevention Policy can itself be a violation of the
constitution.

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employees on the relevant policies and that the city knew its officials did not follow the
screening procedures. (Pl.'s SAUMF in Opp'n to the Jennings Defs.' Mot. for Summ. J.

iii! 14-

17, ECF No. 111) Consequently, the Court denies the City of Jennings's motion for summary
judgment with regard to Count X
2. Individual Liability
As explained above, the Constitution prohibits jail officials from acting with deliberate
indifference towards risks of inmate suicide. Whitney, 887 F .3d at 860 ("The Eighth
Amendment prohibits jail officials from acting with deliberate indifference towards risks of
suicide .... The Fourteenth Amendment extends this protection to pretrial detainees.") (citations
omitted). The Eighth Circuit has established that a determination of an official's deliberate
indifference requires an objective and subjective analysis. Id. (citing Jackson, 756 F.3d at 1065).
"Deliberate indifference is 'akin to criminal recklessness,' something more than mere
negligence; a plaintiff must show that a prison official 'actually knew that the inmate faced a
substantial risk of serious harm' and did not respond reasonably to that risk." A.H, 891 F.3d at
726 (quoting Drake ex rel. Cotton v. Koss, 445 F.3d 1038, 1042 (8th Cir. 2006)). As with the
negligence claims, Plaintiff must show that ( 1) the specific defendant had actual knowledge that
Brison posed a substantial risk of suicide and (2) the defendant failed to take reasonable steps to
abate that risk. Id. (citing Coleman, 349 F.3d at 538).

(a) Adams
There is no question that Adams and the other individual named defendants in this case
were acting under color of state law during their interactions with Brison. See West, 487 U.S. at
48. The Court must, therefore, determine whether each official violated a right secured by the
Constitution or law of the United States. Id. As explained above, there is a genuine dispute as to

- 26 -

whether Adams actually knew Brison was on close observation and whether she informed
Menning of such fact. Accordingly, the Court denies Adams's motion for summary judgment
with respect to Count VI.

(b) Staples
While Plaintiff cites to testimony from Staples and others that demonstrate his repeated
failure to follow proper polices related to screening inmates, Plaintiff nevertheless fails to present
any evidence that Staples actually knew Brison posed a substantial suicide risk to satisfy the
objective analysis. See Whitney, 887 F.3d at 860. As with the negligence claim against Staples,
the Court does not need to evaluate the subjective reasonableness of the steps taken during the
booking process to reach a conclusion on Staples's right to summary judgment with regard to
Plaintiffs claim under§ 1983. Hott, 260 F.3d at 906. Consequently, the Court holds that
Staples is entitled to qualified immunity and grants summary judgment in favor of Staples on
Count XIII.
CLAIM ALLEGING UNCONSTITUTOINAL DEBTORS' PRISON
Plaintiffs Petition also asserted a claim against the City of Jennings pursuant to § 1983
alleging the city operates an unconstitutional "modem debtors' prison scheme." (ECF No. 3, ~
205) The City of Jennings argues it is entitled to judgment as a matter oflaw because it did not
detain Brison for his indigency; rather, the City of Jennings Municipal Court had imposed an
alternative sentence that required attendance at a financial responsibility seminar and Brison's
failure to complete that seminar and subsequent warrant for failure to appear were the predicate
for his his ultimate detention by the City of Jennings.
The City of Jennings notes in its Reply Memorandum in Support of Their Motion for
Summary Judgment that Plaintiff does not contest summary judgment in favor of the city on

- 27 -

Count XL (ECF No. 125, at 3) In Plaintiffs Surreply, she clarifies the counts against the City of
Jennings and Staples to which she remains opposed to summary judgment: Counts VII, VIII, and
X. (ECF No. 132, at 3) Based on this assertion and the Court's reading of Plaintiffs

memoranda, the Court finds that Plaintiff has conceded summary judgment with regard to Count
XL Therefore, the Court grants summary judgment in favor of the City of Jennings with regard

to Count XI.
OTHER MOTIONS
1. Plaintiff's Motion to Exclude Affidavit of Fred Barker

When the City of St. Louis defendants filed their Motion for Summary Judgment, they
included an affidavit of Fred Barker as an attachment (ECF No. 93-5). On the same day Plaintiff
filed her Memorandum in Opposition, she also filed a Motion to Exclude Affidavit of Fred
Barker (ECF No. 102). Specifically, Plaintiff argues the City of St. Louis never disclosed Barker
pursuant to Federal Rule of Civil Procedure 26(a)(l)(A)(i) or 26(a)(2)(A), nor did it disclose
Barker's name in written discovery prior to the discovery cutoff.
The City of St. Louis argues it, in fact, disclosed Barker as a potential witness in its initial
discloses. Specifically, the city provided the flowing language concerning additional individuals
likely to have discoverable information:
Each of the medical professionals identified in Dejuan Brison's medical records,
bates labeled "CITYSTL 00425" through "CITYSTL 00442," are likely to have
discoverable information regarding Dejuan Brison's medical treatment. These
individuals are not employees of the City of St. Louis, and are instead employees
ofCorizon, LLC ("Corizon"). The address ofCorizon's local office is 12647 Olive
Boulevard, St. Louis MO 63141.
(ECF No. 103-1, at 2) Along with Barker's affidavit, the City of St. Louis included the "Suicide
Watch Progress Note - Initial Visit" (ECF No. 93-5) and "Crisis Watch Status Form" (ECF No.
105-10), which Barker completed after evaluating Brison on October 3, 2014. These forms were

- 28 -

part ofBrison's medical record and were bates labeled CITYSTL 00438-39 and CITYSTL
00440, respectively. Because both documents fell within the range of documents indicated in the
city's initial disclosure, the City of St. Louis contends it satisfied the disclosure requirement
because "[ e]ven a cursory review of these 18 pages reveals that 'Fred P. Barker, LPC' signed the
'Suicide Watch Progress Note - Initial Visit' ... and the corresponding 'Crisis Watch Status
Form' downgrading Brison to 'close observation."' 16 (ECF No. 115, at 3)
Rule 26(a)(l)(A)(i) requires that a party's initial disclosures include "the name and, if
known, the address and telephone number of each individual likely to have discoverable
information--along with the subjects of that information--that the disclosing party may use to
support its claims or defenses, unless the use would be solely for impeachment." Additionally,
Rule 26(a)(2)(A) provides that "a party must disclose to the other parties the identity of any
witness it may use at trial to present" expert testimony. Such an expert witness generally must
provide a written report if the expert was "retained or specially employed to provide expert
testimony in the case." Fed. R. Civ. P. 26(a)(2)(B). While the disclosure rule for non-retained
experts who are not specifically retained for litigation - such as treating physicians - parties
must nonetheless identify any non-retained expert and disclose "the subject matter on which the
witness is expected to present" expert opinion testimony and "a summary of the facts and
opinions to which the witness is expected to testify." Fed. R. Civ. P. 26(a)(2)(C). Rule 37
allows a district court to impose sanctions on a party who fails to provide information or identify
a witness as required by Rule 26(a), which may include ordering "the party is not allowed to use

16

The City of St. Louis and Adams further argue both documents signed by Barker were exhibits that were
discussed during depositions. Based on a review of the sections of deposition testimony cited by the parties, St.
Louis City Justice Center's Chief of Security, Shirley Van Treece, was never asked about the signatures on "Suicide
Watch Progress Note - Initial Visit" and "Crisis Watch Status Form." She did, however, disclaim knowledge of
other signatures on separate records presented during her deposition.

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that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(l).
In Vanderberg v. Petco Animal Supplies Stores, Inc., 906 F.3d 698, 700 (8th Cir. 2018),
the plaintiff disclosed the names of several medical professionals and provided 573 pages of
medical records as part of his initial disclosures. Despite not disclosing any expert witnesses, the
plaintiff produced two expert reports days after the defendant moved for summary judgment. Id.
at 701. On a motion by the defendant, the district court found that the plaintiff had violated the
disclosure requirements of Rule 26(a)(2) and excluded the reports pursuant to Rule 37. Id.
The Eighth Circuit held that the district court did not abuse its discretion in excluding the
expert statements. Id. at 708. Specifically, the Eighth Circuit rejected the plaintiff's argument
that he had complied with the disclosure requirements by disclosing the names of several
medical professional, including one designated as his treating physician, and producing his
voluminous medical records. Id. at 703. "The expert witness disclosure requirements would be
rendered meaningless if a party could ignore them and then claim that the nondisclosure was
harmless because the other party should have read between the lines." Id. at 704.
The City of St. Louis attempts to distinguish Vanderberg from this case by noting Barker
would not offer expert testimony on causation. The Court is not persuaded to disregard this
Eighth Circuit precedent. The expert in Vanderberg, like Barker, was a treating physician rather
than a retained expert specifically employed for litigation. 17 Even if Barker's affidavit and
possible testimony would not be used to offer expert opinion on causation related to Brison's
suicide, Barker's evaluation of Brison was seemingly based on knowledge, skill, experience,

17

The City of St. Louis also tries to distinguish this case from Vanderberg by noting the range of documents it
described in its initial disclosures was 18 pages compared to 573 in Vanderberg. The Court finds this is a distinction
without a difference because the operative fact remains that the city failed to disclose Barker's name until it filed its
motion for summary judgment.

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training, or education that would qualify him as an expert witness pursuant to Federal Rule of
Evidence 702.
Given how much of the City of St. Louis and Adams's argument in support of their
Motion for Summary Judgment is based on the fact that a medical professional downgraded
Brison from full suicide watch to close observation, it is reasonable to expect those defendants
knew that the medical professional was likely to have discoverable information. Accordingly,
the Court finds that the city should have provided Barker's name in its initial disclosure or
supplemented its initial disclosure once it learned Barker was the medical provider who
evaluated Brison on October 3, 2014. See Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1008 (8th
Cir. 1998) ("[F]ailure to disclose in a timely manner is equivalent to failure to disclose.").
Because the Court finds that Barker's evaluation of Brison and subsequent lowering of
his status does not preclude liability against the City of St. Louis, the Court declines to utilize the
extreme remedy of excluding his affidavit or testimony at trial. Notwithstanding the impact
Barker's evaluation has on the merits of the claims at issue in the motions for summary
judgment, the City of St. Louis should have disclosed Barker's name prior to submitting its
Motion for Summary Judgment with Barker's affidavit as an attachment. Further, while the
Court agrees with Plaintiff that Barker's signature on the "Suicide Watch Progress Note - Initial
Visit" is indecipherable, Barker's printed name appears typed on the "Crisis Watch Status Form"
above his signature. Nevertheless, Rules 26(a)(l)(A)(i) and 26(a)(2)(A) required the city to
provide Barker's name and information. The Court, accordingly, denies Plaintiffs Motion to

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Exclude Affidavit of Fred Barker. Plaintiff, however, shall be permitted to depose Barker prior
to trial 18 with the City of St. Louis to cover associated costs.

2. Motions to Compel
(a) Answers to Interrogatories
The City of St. Louis and Adams have filed a Motion to Compel (ECF No. 116) seeking
answers to their separate amended interrogatories directed to Brooks on September 27, 2018.
The interrogatories requested sworn answers from Brooks concerning her knowledge of facts
related to her allegations against individual defendants employed by the City of St. Louis and
Menning. (ECF No. 116-1) Plaintiff suggests in her Memorandum in Opposition that the Court
should deny this motion to compel as moot because the original plaintiff to whom the
interrogatories were directed has died and, therefore, cannot provide sworn answers to the
interrogatories at issue. (ECF No. 117) Because the City of St. Louis and Adams did not file
any reply to rebut Plaintiffs mootness argument and in light of the Court's ruling on the motions
for summary judgment, the City of St. Louis and Adams's Motion to Compel is denied as moot.

(b) Financial Documents
The City of Jennings has also filed a Motion to Compel Production of Financial Records
(ECF No. 98) seeking documents related to Christina Brooks's business. In her Petition, Brooks
indicated she was seeking to recover, in part, for her "pecuniary losses" sustained as a result of
Brison's death. (ECF No. 3, ~ 142) During Brooks's deposition, she revealed that Brison had
worked for her company from 2009 until his death in 2014. However, the City of Jennings
argues none of the financial documents Brooks produced show information verifying Brison's

18 The City of St. Louis and Adams note that, if the Court finds that Barker should have been disclosed previously as
a non-retained expert, they would have no objection to Plaintiff deposing Barker prior to trial. (ECF No. 115, at 4
n.2)

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employment or earnings. In their motion to compel, the City of St. Louis and Adams ask the
Court to order Brooks to produce all documentation generated by PNC Bank and Regions Bank
regarding Brooks's company in response to their previously issued subpoena.
In Brooks' s Response Memorandum, she argues the subpoenas issued to the two
referenced banks sought irrelevant information. Specifically, the subpoenas requested the banks
produce documents regarding not only accounts held by Brooks' s company and related loans,
lines of credit, and monthly statements but also documents regarding accounts held by Brooks
and Brison personally and related loans, lines of credit, and monthly statements. (ECF No. 99, at
3) Brooks further characterizes the request for financial documents as "amount[ing] to a
financial audit of Ms. Brook's [sic] personal and business finances, without even the most
remote connection to the pecuniary loss suffered by DeJuan Brison's children because of his
death." (ECF No. 99, at 2)
When Cecilia Perry sought substitution as Plaintiff ad litem for Christina Brooks and the
decedent's minor children on behalf of all beneficiaries pursuant to section 537.080, Mo. Rev.
Stat., she also sought leave to file a First Amended Complaint. (ECF No. 140-1) The Court
denied leave without prejudice. It is worth noting, however, that the Amended Compliant
suggests Perry still seeks to recover for damages after "Plaintiffs sustained loss because of
Brison's death in the nature of pecuniary losses, as well as the loss of Brison's companionship,
comfort, counsel, support, guidance, and instruction." (Id. at iii! 56, 97, 114)
Based on the record before the Court, it is unclear whether Brooks' s financial records at
issue in the City of Jennings's Motion to Compel are available and/or relevant in light of
Brooks's death. Consequently, the parties are ordered to submit a joint status report concerning
the impact ofBrooks's death on the motion to compel financial documents.

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Accordingly,

IT IS HEREBY ORDERED that the Motion for Summary Judgment filed by Defendant
Kent Menning (ECF No. 84) is DENIED.

IT IS FURTHER ORDERED that the Motion for Summary Judgment filed by
Defendants City of Jennings and Demetrius Staples (ECF No. 87) is GRANTED in part and

DENIED in part. The Court grants summary judgment in favor of Staples on Counts VII and
XIII and the City of Jennings on Count XI and with respect to Plaintiffs claim for punitive
damages as to Counts VIII and X. A separate Order of Partial Dismissal accompanies this
Memorandum and Order.

IT IS FURTHER ORDERED that the Motion for Summary Judgment filed by
Defendants City of St. Louis and Jermanda Adams (ECF No. 92) is DENIED.

The following claims remain pending: Count I against Menning and Adams; Count
IV against the City of St. Louis; Count VI against Adams; Count VIII against the City of
Jennings; and Count X against the City of Jennings.
IT IS FURTHER ORDERED that Plaintiffs Motion to Exclude Affidavit of Fred
Barker (ECF No. 102) is DENIED. Plaintiff shall be permitted to depose Barker prior to trial
with the City of St. Louis to cover associated costs.

IT IS FURTHER ORDERED that the City of St. Louis and Adams's Motion to Compel
(ECF No. 116) is DENIED as moot.

IT IS FURTHER ORDERED that a status teleconference shall be conducted on July
18, 2019 at 1:00 p.m. during which time counsel for all parties shall participate and the Court
will reset the trial date.

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IT IS FINALLY ORDERED that the parties shall submit a joint status report no later
than July 15, 2019 explaining the impact of Brooks's death on the City of Jennings's Motion to
Compel Production of Financial Records (ECF No. 98) and prospective trial dates to be
discussed during the status conference.

I

::!'

Dated this _ _ day of July, 2019.

~LJ#o

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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