Gebregziabher v. Slay et al

Filing 92

MEMORANDUM AND ORDER For the reasons stated in Defendants' motion, and because Plaintiff does not contest Defendants' assertion that they are entitled to judgment as a matter of law on Counts I, III, IV, and V, Defendants' motion wil l be granted. Accordingly, IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment on Counts I, III, IV, and V of Plaintiffs First Amended Complaint (Doc. 58) is GRANTED. IT IS FURTHER ORDERED that the Court will hold a scheduling co nference on Tuesday, June 15, 2021, at 10:30 a.m., by Zoom, to set a trial date. Counsel will receive an email in advance of the conference with instructions for attending. ( Status/Scheduling Conference set for 6/15/2021 10:30 AM in Zoom Video Conference before Magistrate Judge Shirley Padmore Mensah.) Signed by Magistrate Judge Shirley Padmore Mensah on June 4, 2021. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SIMON GEBREGZIABHER,
Plaintiff,
v.
MARCUS BUSH, et al.,
Defendants.

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Case No. 4:19-CV-00470-SPM

MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion for Summary Judgment on Counts
I, III, IV, and V of Plaintiff’s First Amended Complaint. (Doc. 58). The parties have consented to
the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
(Doc. 30).
I.

LEGAL STANDARD
Summary judgment shall be granted “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); Hill v. Walker, 737 F.3d 1209, 1216 (8th Cir. 2013). The movant “bears the initial
responsibility of informing the district court of the basis for its motion” and must identify “those
portions of [the record] . . . which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant does so, then the
burden shifts to the nonmovant to submit evidentiary materials that “designate specific facts
showing that there is a genuine issue for trial.” Id. at 324. An issue of fact is genuine, making
summary judgment inappropriate, when “a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “In ruling on a
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summary judgment motion, a court must view the facts in the light most favorable to the nonmoving party.” Leonetti's Frozen Foods, Inc. v. Rew Mktg., Inc., 887 F.3d 438, 442 (8th Cir. 2018).
II.

DISCUSSION
In the First Amended Complaint, filed pro se, Plaintiff Simon Gebregziabher alleges that

while he was attempting to flee capture by the police on March 16, 2017, he was intentionally hit
with a police car; he was tased while handcuffed; his left foot was repeatedly kicked and injured;
and a gun was put to his head while he was handcuffed and secured in a police vehicle. Plaintiff
alleges that the six defendants—Marcus Bush, Christopher A. Tanner, Paul Piatchek, Matthew
Burle, Mickey Christ, and “John Doe #1”— either caused those acts to occur or failed to intervene
to prevent them from occurring or continuing to occur. Plaintiff asserts six claims pursuant to 42
U.S.C. § 1983: (I) an excessive force claim against Defendant Piatchek, in his individual capacity,
for striking Plaintiff with a vehicle; (II) an excessive force claim against Defendant Tanner, in his
individual capacity, for needlessly deploying a taser against Plaintiff; (III) an excessive force claim
against Defendant Piatchek, in his individual capacity, for kicking Plaintiff’s foot; (IV) failure to
intervene claims against Defendants Burle, Bush, Piatchek, and Christ, in their individual
capacities, based on their failure to intervene when Defendant Tanner deployed a taser against
Plaintiff; (V) failure to intervene claims against Defendants Burle, Bush, Tanner, and Christ, in
their individual capacities, based on their failure to intervene when Piatchek kicked and slammed
Plaintiff’s injured foot; and (VI) an excessive force claim against Defendant Doe #1, in his
individual capacity, based on Doe’s placing a firearm to Plaintiff’s head and threatening to shoot
him if Plaintiff did not answer Doe’s questions.
On November 13, 2020, Defendants Piatchek, Tanner, Burle, Bush, and Christ filed the
instant motion, seeking summary judgment on Counts I, III, IV, and V, along with Statement of
Uncontroverted Material Facts. With respect to Count I, Defendants argue that because Plaintiff
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testified in his deposition that he did not see the person driving the car that allegedly hit him and
relies solely on speculation that Piatchek was the driver, there is no genuine issue of material fact
and Piatchek is not liable under Count I. At his deposition, Plaintiff testified that the police report
indicated that Piatchek drove the car that blocked his path and that Plaintiff therefore “figured that
that may have been the person who” hit him, but that he never actually saw the driver of the vehicle
that allegedly hit him and cannot describe what the individual looked like. Defs.’ Ex. A, Dep. of
Pl., at 60-62. In addition, Defendants include in their Statement of Uncontroverted Material Facts
(“SUMF”) a statement, supported by affidavit, that Piatchek did not hit or run over Plaintiff with
a vehicle. Defs.’ SUMF ¶ 34.
With respect to Count III, Defendants argue that because Plaintiff at his deposition testified
that the individual who kicked his foot was an “African American kind of heavyset guy” and
because the undisputed record shows that Piatchek is Caucasian, there is no genuine issue of
material fact and Piatchek is not liable under Count III. Defendants also include in their Statement
of Uncontroverted Material Facts a statement, supported by affidavit, that Piatchek did not slam
or kick or attempt to put a shoe on Plaintiff’s foot. Defs.’ SUMF ¶ 28.
With respect to Count IV, Defendants argue that the undisputed evidence, viewed in the
light most favorable to Plaintiff, shows that neither Piatchek, Christ, Burle, nor Bush had a realistic
opportunity to prevent Defendant Tanner deploying a taser on Plaintiff or to stop the tasing once
it began, and thus there is no genuine issue of material fact and they cannot be liable for a failure
to intervene in the tasing. To support their argument, Defendants also include in their Statement
of Uncontroverted Material Facts statements, supported by affidavits, about the officers’ distance
from Defendant Tanner during the tasing and the duration of the tasing. Defs.’ SUMF ¶¶ 23-27.
With respect to Count V, Defendants argue that the record, viewed in the light most
favorable to Plaintiff, shows that the episode alleged in which an officer twice slammed and then
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kicked Plaintiff’s shoe on his foot was not sufficiently prolonged to permit nearby officers a
reasonable opportunity to intervene. They also argue that Plaintiff is unable to identify which
particular officers were located nearby, such that they could have possibly intervened. Thus, they
argue that there is no genuine issue of material fact and neither Bush, Burle, Christ, nor Tanner are
liable for the failure to intervene in the kicking incident. Defendants also include in their Statement
of Uncontroverted Material Facts statements, supported by affidavits, that none of the defendant
officers observed another officer kick or slam a shoe on Plaintiff’s foot. Defs.’ SUMF ¶¶ 23-27.
On December 17, 2020, Plaintiff, acting pro se, filed a response in opposition to
Defendants’ motion. Shortly thereafter, on December 22, 2020, the Court entered an order
appointing counsel for Plaintiff to assist him in this case. Following multiple status conferences
and the entry of an amended case management order to give Plaintiff’s counsel time to familiarize
himself with the case, the Court set a deadline of Friday, May 28, 2021 for Plaintiff to file, through
counsel, a response to Defendants’ summary judgment motion. On May 28, 201, Plaintiff filed his
response through counsel. In the response, Plaintiff notes that the that the Motion for Summary
Judgment did not address the allegations in Count II against Defendant Tanner. Plaintiff further
states, “Upon review of the record, counsel for Plaintiff is of the opinion that a trial against
Christopher Tanner alone is in the best interest of Plaintiff. As such, Plaintiff will not contest the
Motions for Summary Judgments regarding Counts I, III, IV, and V.” Pl.’s Resp., Doc. 91, at 2.
The Court also notes that because Defendant did not file any response to Defendants’ Statement
of Uncontroverted Material Facts, all of those facts are deemed admitted for purposes of summary
judgment. See Rule 4.01(E) of the Local Rules for the United States District Court of the Eastern
District of Missouri (“All matters set forth in the moving party’s Statement of Uncontroverted
Material Facts shall be deemed admitted for purposes of summary judgment unless specifically
controverted by the opposing party.”).
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III.

CONCLUSION
For the reasons stated in Defendants’ motion, and because Plaintiff does not contest

Defendants’ assertion that they are entitled to judgment as a matter of law on Counts I, III, IV, and
V, Defendants’ motion will be granted. Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment on Counts
I, III, IV, and V of Plaintiff’s First Amended Complaint (Doc. 58) is GRANTED.
IT IS FURTHER ORDERED that the Court will hold a scheduling conference on
Tuesday, June 15, 2021, at 10:30 a.m., by Zoom, to set a trial date. Counsel will receive an email
in advance of the conference with instructions for attending.

SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 4th day of June, 2021.

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