Wess v. Dunn

Filing 59

OPINION, MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that Plaintiff's Motions to Compel, [Doc. No.'s 44 , 46 , 53 , and 54 , are denied. Signed by District Judge Henry Edward Autrey on 11/21/22. (EAB)

Case: 4:21-cv-01281-HEA Doc. #: 59 Filed: 11/21/22 Page: 1 of 5 PageID #: 236

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KOREY MAURICE WESS,

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) Case No. 4:21CV1281 HEA
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Plaintiff,
v.
SCOTT DUNN, et al.,

Defendants.

OPINION, MEMORANDUM AND ORDER
This matter is before the Court Plaintiff’s Motions to Compel, [Doc. No.’s
44, 46, 53, and 54]. Defendants oppose the motions. For the reasons set forth
below, the Motions will be denied.
Facts and Background
Plaintiff’s amended complaint is brought pursuant to 42 U.S.C. § 1983, and
names the Richmond Heights Police Department, Sergeant Scot Dunn, and Officer
Andrew Heimberger as defendants. Sergeant Dunn and Officer Heimberger are
sued in their individual capacities only. (Docket No. 16 at 2-3). The amended
complaint raises Fourth Amendment claims of excessive force and failure to
intervene.
In the “Statement of Claim,” plaintiff asserts that on September 2, 2021,
Sergeant Dunn kicked in the door of the residence at 176 Plum, and “pointed his

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service weapon at” plaintiff. Sergeant Dunn “advised [plaintiff] to lay on the
floor,” but plaintiff refused due to “broken glass on the floor” in the area where he
was standing. Immediately after plaintiff’s refusal, Officer Heimberger appeared in
the door to back up Sergeant Dunn. (Docket No. 16 at 4). Sergeant Dunn again
advised plaintiff to get on the floor. Plaintiff “put [his] hands up in surrender with
[his] palms facing the two officers, turned [his] back on the two officers, and [lay]
on the kitchen floor.”
According to plaintiff, Sergeant Dunn “acted as if he were handcuffing
[plaintiff] and placed [plaintiff’s] right arm behind [his] back until it crossed the
back of [his] body and forced the right side of [his] upper body to turn and face
[Dunn].” Sergeant Dunn then allegedly “punched [plaintiff] three times in the
face,” which knocked out two upper teeth, loosened two more, and split his upper
lip, requiring stitches. Next, Sergeant Dunn tried “to slam [plaintiff’s] face into the
concrete floor,” though plaintiff “used [his] neck muscles as long as [he] could to
prevent [his] face from hitting the floor.” Eventually, plaintiff was able to move his
left arm under his forehead, allowing Sergeant Dunn to slam his “forehead into
[his] forearm instead of the concrete floor.”
While plaintiff was being punched by Sergeant Dunn, he alleges that Officer
Heimberger stood about two feet away and watched. Plaintiff claims that Officer
Heimberger did not make any oral or physical attempts to prevent Sergeant Dunn
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from punching him. When Sergeant Dunn began trying to slam plaintiff’s head into
the floor, Officer Heimberger “again stood by and did nothing,” even though he
“was very well aware that excessive force was being used.”
As a result of this incident, plaintiff states that he sustained the loss of two
upper front teeth, that two of his upper teeth were loosened, and that his lip was
split, requiring two stitches.
Discussion
Plaintiff seeks body-cam footage worn by both Dunn and Heimberger during
the incident which occurred on September 2, 2021; Dunn’s medical records; all
civilian complaints, disciplinary actions, and summaries of both for Sgt. Dunn and
Officer Heimberger; all photographs take of Plaintiff Korey M. Wess on
September 2, 2021; the Maryland Heights Police Department policies and
procedures of body-worn camera devices.
Defendants have advised the Court that they have mailed Plaintiff a certified
letter with a USB flash drive providing him the requested body-cam footage of
both defendants for the date requested. They have also sent the police report for
September 2, 2021 and any photographs Defendants have of Plaintiff from that
date.
With regard to Plaintiff’s other requests, Defendants object. Initially, it
should be noted that Plaintiff has failed to send defendants any requests, rather, he
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sends his requests to the Clerk of the Court. Rule 33(a)(1) requires Plaintiff to
serve written interrogatories on the other party in the suit. Rule 34(a) requires
Plaintiff to serve a request for production of documents on the other party. The
Court will not be responsible for implementing Plaintiff’s discovery requests
and advises Plaintiff to serve defendants any requests in the future.
Plaintiff is seeking information that is not within the purview of the
discovery rules with respect to this action. Dunn’s medical records are not relevant
to this litigation. Furthermore, Plaintiff is requesting privileged physician-patient
information that is not in issue in this matter.
The Court agrees with Defendants that Plaintiff’s request for disciplinary
records to show defendants were not properly trained is not relevant to this specific
case. There is no pending claim against the City of Maryland Heights, therefore
there can be no failure to train cause of action which may entitle Plaintiff to access
the requested records.
The Court also agrees with Defendants that Plaintiff is not entitled to bodycam footage policies and procedures from non-party Maryland Heights Police
Department. Defendants have produced the body-cam footage from defendants.
Body-cam policies and procedures have no bearing on Plaintiff’s excessive force
claims.
Conclusion
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Plaintiff seeks discovery from defendants without requesting same from
defendants. Under the Federal Rules of Civil Procedure, Plaintiff is required to
serve his discovery requests on defendants to allow them the opportunity to either
provide the requested discovery or object thereto.
Furthermore, as discussed, certain of Plaintiff’s requests are not proper
under the Federal Rules of Civil Procedure.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motions to Compel, [Doc.
No.’s 44, 46, 53, and 54], are denied.
Dated this 21st day of November 2022.

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HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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