Wright v. United States of America et al

Filing 76

ORDER - ORDERED that the Motion of the Individual Capacity Defendants to Dismiss Count IV ofPlaintiffs First Amended Complaint or, in the Alternative, for Summary Judgment (doc #49) isgranted in part and denied in part. That portion of the motion see king a dismissal of claims againstdefendants John Clark and Walter Bradley is granted. That portion of the motion seeking summaryjudgment as to plaintiffs claims against defendants Sean Franklin and Christopher Wallace isdenied. It is furtherORDERED that Plaintiffs Alternative Motion (doc #56) is granted in part and denied in part.That portion of the motion seeking a denial of defendants motion to dismiss/summary judgment is granted to the extent that the Court has found that defendants Franklin and Wallace are not entitledto summary judgment on plaintiffs Bivens claims of false arrest, improper search and seizure andexcessive force. The remainder of the motion is denied. Signed on 9/6/2012 by Magistrate Judge Sarah W. Hays. (Gicinto, JoRita)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

STUART WRIGHT,
Plaintiff,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.

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Case No. 10-01220-CV-W-SWH

ORDER
Pending before the Court is the Motion of the Individual Capacity Defendants to Dismiss
Count IV of Plaintiff’s First Amended Complaint or, in the Alternative, for Summary Judgment (doc
#49).1 First, defendants argue that any claims other than “an unreasonable search and seizure, an
illegal and unconstitutional use of excessive force and also a deprivation of liberty without due
process [false arrest]” must be dismissed for failing to state a claim upon which relief may be
granted as these are the only claims that are supported by sufficient factual allegations. (Id. at 10)
Next, defendants John Clark, the former Director of the U.S. Marshals Service, and Walter Bradley,
the U.S. Marshal for the District of Kansas, argue that they must be dismissed because there is no
respondeat superior liability under Bivens2 and because Clark and Bradley had no direct

1

In response, plaintiff filed Plaintiff’s Suggestions in Opposition to Motion of the
Individual Capacity Defendants to Dismiss Count IV of Plaintiff’s First Amended Complaint or,
in the Alternative, for Summary Judgment [Doc. #49] and Plaintiff’s Alternative Motion to (a)
overrule and deny the Motion without prejudice, or (b) defer considering the Motion, or (c)
allow time for discovery, or (d) issue any other appropriate order (doc #56).
2

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971), “the Supreme Court created a private right of action for damages against federal officers
alleged to have violated an individual’s constitutional rights. Such actions are identical to

participation in the incident at issue. (Motion ... to Dismiss Count IV ... (doc #49) at 12) Finally,
defendant Deputy Marshals Sean Franklin and Christopher Wallace argue that they are entitled to
summary judgment on the claims of false arrest, improper search and seizure and excessive force.
(Id. at 15-25)
I. THE COMPLAINT
Count IV of the First Amended Complaint provides in part:
Count IV – Bivens Claims
***
58.
The Bivens claims are not made against defendants United States,
Hylton, Bradley, Franklin and Wallace in their official capacities.
59.
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 ... (1971) provided liability in factual situations which do
exist herein:
•

“... damages may be obtained for injuries consequent upon a violation
of the Fourth Amendment by federal officials ....”

•

“Historically, damages have been regarded as the ordinary remedy
for an invasion of personal interests and liberty.”

•

“‘... where legal rights have been invaded, ... federal courts may use
any available remedy to make good the wrong done.’”

•

“[P]etitioner, if he can demonstrate an injury consequent upon the
violation by federal agents of his Fourth Amendment rights, is
entitled to redress his injury through a particular remedial mechanism
normally available in the federal courts.”

•

“... petitioner is entitled to recover money damages for any injuries
he has suffered as a result of the agents’ violation of the [Fourth]

actions under 42 U.S.C. § 1983, except for the replacement with a federal actor under Bivens for
a state actor under § 1983.” Panagacos v. Towery, 782 F.Supp.2d 1183, 1189 (W.D. Wash.
2011).
2

Amendment.”
60.
The actions and omissions of defendants denied plaintiff his rights
under the Fourth Amendment, Fifth Amendment, Eighth Amendment and Fourteenth
Amendment (due process and equal protection) to the United States Constitution, all
as set forth throughout this document.
***
(First Amended Complaint (doc #38) at 25-26)
II. DISCUSSION
The Court will first discuss the dismissal arguments relating to supervisory liability brought
by defendants Clark and Bradley and then the arguments seeking summary judgment on the claims
for false arrest, improper search and seizure and excessive force brought by defendants Franklin and
Wallace.
A.

Dismissal

When ruling on a motion to dismiss, “the court must accept the allegations contained in the
complaint as true and draw all reasonable inferences in favor of the nonmoving party.” Coons v.
Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005)(citation omitted). In Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007), the Supreme Court issued the following standard to apply when considering
motions to dismiss:
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do. Factual allegations must
be enough to raise a right to relief above the speculative level on the assumption that
all the allegations in the complaint are true (even if doubtful in fact).
Id. at 555 (internal citations and quotations omitted). The plaintiff must plead a claim that moves
“across the line from conceivable to plausible.” Id. at 570. “[T]he tenet that a court must accept as

3

true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citing Twombly, 550 U.S. at 555).
As set forth above, defendants claim that all theories of tort liability set out in Count IV of
the First Amended Complaint other than “an unreasonable search and seizure, an illegal and
unconstitutional use of excessive force and also a deprivation of liberty without due process [false
arrest]” are barred in that there are insufficient factual allegations to support any additional
constitutional claims. (Motion ... to Dismiss Count IV ... (doc #49) at 10) Further, defendants Clark
and Bradley argue that they must be dismissed because there is no respondeat superior liability
under Bivens and because Clark and Bradley had no direct participation in the incident at issue. (Id.
at 12)
Plaintiff responds that he does not rely upon simple respondeat superior against defendants
Clark and Bradley, but rather upon multiple allegations regarding issues such as supervision and
training in paragraphs 15, 16, 17,3 all of which refer in detail to matters including “Government

3

Paragraphs 15, 16 and 17 of the First Amended Complaint, which are incorporated into
Count IV, provide in part:
15.

Defendants’ Responsibilities

At all times pertinent to this Complaint, defendants USA, Clark, and Bradley had
responsibility for the United States Marshals Service as well as for the deputies who are
employed by that agency in the District of Kansas. Furthermore, the individual
defendants had respective responsibility for performing functions as supervisors and/or
duly sworn law enforcement officers.
16.

Law Enforcement Management

At all times pertinent to this Complaint, defendants USA, Clark, and Bradley had
the full responsibility for managing the United States Marshals Service and its agents,
4

and more specifically for hiring, promoting, training, supervising, disciplining, and firing
employees of said Service in the District of Kansas.
17.

Bases of Liability, Including Government Custom and Government
Deliberate Indifference as to Hiring, Promotions, Training, Supervision,
Discipline, and Termination

All of the actions and/or omissions of defendants took place pursuant to, and
acting upon, the policies, practices, procedures, patterns, decisions, instructions, orders,
and customs of defendant USA and all defendants. Plaintiff alleges that defendants are
liable for damages caused by defendants’ intentional and/or wrongful and/or reckless
and/or negligent acts/omissions while the individual defendants were acting within the
course and scope of their employment. This all took place under circumstances where
defendant USA and individual officers are liable. Defendants’ liability is based upon
allegations including the following things, all of which demonstrate patterns of behavior
and deliberate indifference to the issues raised and to the rights of citizens and
particularly the rights of plaintiff Stuart Wright.
***
(e)

Inadequate provision, implementation, and execution of the authority and
obligation to hire, promote, train, supervise, discipline, and terminate
personnel;

(f)

Improper implementation and execution of law enforcement
powers, arrest warrant processing, arrest powers, and the use of
force;
***

(h)

Acquiescence in, and/or ratification of, the actions and omissions
described throughout this pleading;
***

(j)

Failure to avoid abusive treatment and excessive force used upon
citizens (including plaintiff), and (thereafter) failure to investigate
abusive treatment and excessive force used upon citizens
(including plaintiff);

(k)

Failure to take remedial action against a known pattern of
misconduct by officers;
5

Custom and Government Deliberate Indifference as to Hiring, Promotions, Training, Supervision,
Discipline, and Termination.” (Plaintiff’s Suggestions in Opposition ... (doc #56) at 22-23)
Therefore, plaintiff argues that his claims consist of inadequate hiring, promotions, training,
supervision, discipline and termination, in addition to unreasonable search and seizure, excessive
force and false arrest.
Defendants are correct in arguing, and plaintiff does not appear to disagree, that supervisory
officials may not be held liable for the unconstitutional conduct of their subordinates under a theory
of respondeat superior. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Therefore, plaintiff Wright

(l)

Failure to take significant steps to prevent a known risk of
wrongful arrest, assault/battery, and excessive force on citizens
(including plaintiff);
***

(n)

Tolerance of misconduct regarding physical abuse and excessive
force toward citizens;

(o)

Deliberate indifference and conscious disregard for a high risk that
the officers would use excessive force and/or fail to protect against
such use in violation of citizens’ federally and state protected
rights (particularly here as relates to plaintiff Stuart Wright);
***

These all constituted, and/or led to, deprivations of rights, privileges, and immunities
secured by the federal and state constitutions as well as federal and state laws, including
but not limited to violations of plaintiff’s rights under the Fourth, Fifth, Eighth and
Fourteenth Amendments to the United States Constitution. The said actions, omissions,
policies, practices, procedures, patterns, decisions, instructions, orders, and customs of
defendants were the moving forces behind the constitutional and other violations
described in this pleading. Those things are established, in part, by proof of knowledge
and/or acquiescence and/or ratification. Defendants acted together in a joint venture,
were joint tortfeasors, and are jointly and severally liable to plaintiff.
(First Amended Complaint (doc #38) at 8-11)
6

does not base his claims against defendants Clark and Bradley on respondeat superior, but instead
on allegations involving inadequate hiring, promotions, training, supervision, discipline and
termination. However, while the First Amended Complaint contains these general allegations, the
factual bases for such allegations are not provided.
As set forth in Coley v. Baca,4 2012 WL 1340373 (C.D. Cal. Mar. 8, 2012), lack of factual
support in the complaint is cause for dismissal as “‘the tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to legal conclusions.’ Iqbal, 129 S.Ct. at
1949. ‘[M]ere conclusory statements[ ] do not suffice.’ Iqbal, 129 S.Ct. at 1949 (citing Twombly,
550 U.S. at 555).” The Coley case provides:
... [S]upervisory officials “may not be held liable for the unconstitutional conduct of
their subordinates under a theory of respondeat superior. ... Because vicarious
liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has
violated the Constitution.” Iqbal, 129 S.Ct. at 1948. ... A supervisor may be held
“individually liable in § 1983 suits when culpable action, or inaction, is directly
attributed to them.” Starr [v. Baca],5 652 F.3d [1202], 1206 [9th Cir. 2011]. To be

4

The Coley case highlights both facts sufficient to withstand a motion to dismiss (with
respect to Los Angeles County Sheriff Baca) as well as allegations which are insufficient to
withstand a motion to dismiss (with respect to the Los Angeles County Board of Supervisors and
individual supervisors). 2012 WL 1340373 at *6-7.
5

In the Starr case, plaintiff Starr, an inmate of the Los Angeles County Jail, brought a
claim of supervisory liability for deliberate indifference against Los Angeles County Sheriff
Baca. The Ninth Circuit held that “Starr’s allegations that the actions or inactions of the person
‘answerable for the prisoner’s safe-keeping’ caused his injury are therefore sufficient to state a
claim of supervisory liability for deliberate indifference.” Coley, 2012 WL 1340373 at *5
(quoting Starr, 652 F.3d at 1208). Plaintiff Starr had alleged that:
(1) in September 1997, Baca received an investigative report from the United States
Department of Justice (“DOJ”) of a continued and serious pattern and practice of
constitutional violations including abuse of inmates by his deputies and inmate on inmate
violence; (2) Baca received weekly reports from subordinates of death and injuries in the
jails, as well as reports of his Special Counsel and the Office of Independent Review; (3)
7

held liable, the supervisor need not be “physically present when the injury occurred,”
nor “‘directly and personally involved in the same way as are the individual officers
who are on the scene inflicting constitutional injury.’ Rather, the supervisor’s
participation could include his ‘own culpable action or inaction in the training,
supervision, or control of his subordinates,’ ‘his acquiescence in the constitutional
deprivations of which the complaint is made,’ or ‘conduct that showed a reckless or
callous indifference to the rights of others.’” Starr, 652 F.3d at 1205-06 ....
2012 WL 1340373 at *4.
The court found that plaintiff Coley had alleged sufficient facts to withstand a motion to
dismiss by Los Angeles County Sheriff Baca as follows:
... Like the plaintiff in Starr, plaintiff alleges that he was the victim of an
unwarranted physical attack by a deputy that resulted in a serious physical injury.
In Starr, the alleged incident of deputy-on-inmate violence occurred in January 2006.
In this case, the alleged incident occurred in October 2007, approximately twenty
months later. Like the plaintiff in Starr, plaintiff alleges that Baca received reports
form the DOJ and the Special Counsel of “a continuing and serious pattern and
practice of constitutional violations, including abuse of inmates by deputes,” as well
as “notice of increasing levels of inmate violence, lax security and discipline, and
other serious defects in Sheriff’s Department practices and procedures. ...” [FAC 6].
See Starr, 652 F.3d at 1209-12. ...
Plaintiff’s first amended complaint contains facts plausibly suggesting that
Baca is “liable in his individual capacity for his own culpable action or inaction in
the training, supervision, or control of his subordinates.” See Starr, 652 F.3d at
1208-09 (emphasis in original). Therefore, Baca’s motion to dismiss the first
amended complaint should be denied.

in 1999, Baca signed a document indicating he was aware of problems identified by the
DOJ, but “after years of monitoring the County Jail system ... in 2006 the DOJ experts
issued a report which still found noncompliance with many of its recommendations
regarding the abuse of inmates ...”; (4) Baca was aware of specific incidents, described in
the complaint, of attacks on inmates by deputies and deaths during each of the four years
preceding the attack on the plaintiff in 2006; and (5) in 2004 and 2005, Baca received
reports of increasing levels of inmate violence, lax security and discipline, and other
serious defects in Sheriff’s Department practices and procedures form the Special
Counsel to the Los Angeles County Sheriff’s Department.
Coley, 2012 WL 1340373 at *5 (citing Starr, 652 F.3d at 1209-12).
8

Coley, 2012 WL 1340373 at *6. The court went on to find that plaintiff Coley had failed to allege
sufficient facts6 to withstand a motion to dismiss by the Los Angeles County Board of Supervisors
and individual supervisors as follows:
Unlike his allegations against Baca, which contain specific facts plausibly
suggesting deliberate indifference, plaintiff’s allegations against the Board of
Supervisors and individual supervisors are no more than “raw legal conclusions with
insufficient facts to support them.” Starr, 652 F.3d at 1208. Plaintiff does not
identify any policy or custom of the Board of Supervisors that caused a violation of
his rights. He alleges no facts plausibly suggesting that the Board of Supervisors or
individual supervisors knew or should have known of the specific unlawful
conditions of confinement that plaintiff alleges posed a substantial risk of serious
harm. He does not allege the nature of the “deliberate conduct” by the Board of
Supervisors or how it caused the violation of plaintiff’s rights.
A plaintiff must plead “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do. Factual allegations must
be enough to raise a right to relief above the speculative level, on the assumption that
all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550
U.S. at 555 (internal citations and footnote omitted). Plaintiff’s allegations against
the Board of Supervisors and its members are formulaic and do not rise above the
speculative level. Accordingly, plaintiff’s claims against the Board of Supervisors
and individual supervisors should be dismissed.
Coley, 2012 WL 1340373 at *7.
In Aguilar v. Immigration and Customs Enforcement Division of the United States
Department of Homeland Security, 811 F.Supp.2d 803, 806 (S.D.N.Y. 2011), the plaintiffs,
individuals whose homes were searched by agents of the Immigration and Customs Enforcement
Division of the Department of Homeland Security (“ICE”), brought suit against various entities and

6

Plaintiff Coley alleged that: “(1) a policy or custom of the Board of Supervisors caused
the alleged violation of his rights; (2) defendants had a ‘statutory duty to report abuse and take
corrective action yet failed to do so’; (3) defendants knew that mentally ill inmates in particular
faced a substantial risk of serious harm if jail officials failed to take steps to protect them; and (4)
deliberate conduct by the Board of Supervisors was the moving force behind the violation of
plaintiff’s rights.” Coley, 2012 WL 1340373 at *6.
9

individuals including Michael Chertoff, the former Secretary of the Department of Homeland
Security and Julie Myers, the former Assistant Secretary of ICE. The court dismissed the claims
against Chertoff and Myers stating:
In support of their Fourth Amendment claims against defendants Chertoff and
Myers, the plaintiffs make a number of allegations that are either conclusory or
unsupportably vague. They allege that defendant Chertoff was the “ultimate decision
maker” for the Department of Homeland Security (“DHS”), including ICE; that he
“created, approved, and implemented official policies and strategies,” including the
Secure Border Initiative, the comprehensive immigration policy for the United
States; and that as the Secretary of DHS, he was “involved in the planning and/or
investigation of ICE agents’ conduct during raids.” Compl. ¶ 73. They allege,
moreover, that both defendants Chertoff and Myers “intended to violate
constitutional rights by ... implementing [ICE] policies,” Compl. ¶¶ 73, 80, and
“encouraged, endorsed, and thus intended the unconstitutional conduct by ICE
during home raids,” Compl. ¶¶ 75, 80, 81. These allegations are similar to the
conclusory allegations found insufficient in Iqbal, and under Iqbal, they are not
entitled to any weight.
Aguilar, 811 F.Supp.2d at 816.
Here, plaintiff Wright has alleged no specific nonconclusory facts sufficient to raise a claim
of inadequate hiring, promotions, training, supervision, discipline or termination. Therefore,
plaintiff Wright’s claims for supervisory liability against defendants Clark and Bradley in Count IV
of the First Amended Complaint must be dismissed.
B.

Summary Judgment

With the dismissal of the claims for supervisory liability against defendants Clark and
Bradley, the claims remaining in Count IV of the First Amended Complaint consist of unreasonable
search and seizure, excessive force and false arrest against defendants Franklin and Wallace.
Defendants Franklin and Wallace contend that summary judgment7 must be entered on these Bivens

7

Pursuant to Federal Rule of Civil Procedure 56, summary judgment is granted when the
pleadings and evidence show that there is no genuine issue of material fact and the moving party
10

claims asserted against them because they are protected by qualified immunity. Specifically,
defendants argue:
Franklin and Wallace are ... entitled to qualified immunity in this case.
Although Wright’s First Amended Complaint does not identify any particular actions
taken by Franklin and Wallace, it is conceded that Franklin and Wallace had direct
participation in the activities that form the basis of Wright’s Bivens claims.
Nonetheless, Franklin and Wallace are entitled to qualified immunity because the
actions undertaken by them on April 15, 2009, did not violate Wright’s constitutional
rights – the first requirement that Wright must establish to avoid the application of
qualified immunity.
(Motion ... to Dismiss Count IV ... (doc #49) at 15)
Both plaintiff and defendants agree that the proper test used to determine whether the
doctrine of qualified immunity applies was set forth by the Eighth Circuit Court of Appeals in
Howard v. Kansas City Police Department, 570 F.3d 984 (8th Cir. 2009). (See Motion ... to Dismiss
Count IV ... (doc #49) at 11; Plaintiff’s Suggestions in Opposition to Motion ... to Dismiss Count
IV ... (doc #56) at 19) The Howard court wrote:
“Qualified immunity protects a government official from liability in a section 1983
action unless the official’s conduct violated a clearly established constitutional or
statutory right of which a reasonable person would have known.” ... To overcome the
defense of qualified immunity, a plaintiff must show: (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.
Howard, 570 F.3d at 987-88 (citations omitted). Accord Baribeau v. City of Minneapolis, 596 F.3d

is entitled to judgment as a matter of law. The burden is on the moving party to show the
absence of evidence to support the nonmoving party’s case. See Celotex Corp. v. Catrett, 477
U.S. 317 (1986). The nonmoving party may not rest upon allegations or general denials, but
must come forward with specific facts to prove that a genuine issue for trial exists. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The Court must review the facts in the
light most favorable to the party opposing the motion for summary judgment and give that party
the benefit of any inferences that logically can be drawn from those facts. See Adickes v. S.H.
Kress & Co., 398 U.S. 144 (1970).
11

465, 473-74 (8th Cir. 2010).
Defendants Franklin and Wallace advise that they are only arguing that the facts do not
demonstrate the deprivation of a constitutional right. They are not arguing that the right was not
clearly established at the time of the alleged deprivation. (See Motion ... to Dismiss Count IV ...
(doc #49) at 11 n.3) Defendants organized their summary judgment argument into three subcategories: (1) false arrest; (2) improper search and seizure; and (3) excessive force. (Id. at 15-25)
The Court will address the claims of false arrest along with improper search and seizure and then
the claim of excessive force.
1.

False Arrest/Improper Search and Seizure

According to defendants, defendant Franklin properly arrested and detained plaintiff Wright
for resisting arrest as “Franklin had sufficient grounds to arrest Wright after he refused to comply
with a directive to get down on the ground, when Wright evaded Franklin by backing away, and
when Wright threatened to use physical violence against Franklin.” (Motion ... to Dismiss Count
IV ... (doc #49) at 15) Therefore, there was no constitutional violation by defendant Franklin. (Id.)
In the alternative, defendants argue that “Franklin’s actions in arresting Wright based on mistaken
identity ... did not violate the Constitution” under the Supreme Court decision in Hill v. California,
401 U.S. 797 (1971). (Id. at 16) Next, defendants argue “[i]nasmuch as Wright’s arrest was
constitutional, [the] post-arrest conduct [of handcuffing Wright, taking him outside the gym,
checking his identification, running a search for outstanding warrants and then releasing Wright
from custody after approximately 15 to 20 minutes] likewise did not violate the Fourth
Amendment.” (Id. at 20) Finally, as for defendant Wallace, defendants assert “Wallace did not
arrest Wright and, thus, is entitled to qualified immunity on any false arrest constitutional claim

12

because he did not directly participate in the alleged violation.” (Id. at 16 n.5) Defendants repeat
this argument with respect to plaintiff’s claim of improper search and seizure as to defendant
Wallace. (Id. at 20 n.7)
First, the premise underlying defendants’ argument with respect to defendant Wallace is
simply wrong. As set forth by the Missouri Supreme Court, “all persons who directly procure, aid,
abet, or assist in an unlawful imprisonment are liable as principals.” Rustici v. Weidemeyer, 673
S.W.2d 762, 768 (Mo. 1984)(quoting Parrish v. Herron, 225 S.W.2d 391, 399 (Mo. Ct. App. 1949)).
As set forth in the Declaration of Christopher Wallace, Wallace participated in the arrest team and
deployed his taser, bringing plaintiff Wright to the ground where Wright was then handcuffed. (See
Ex. B to Motion ... to Dismiss Count IV ... (doc #49-2) at ¶¶ 4, 18 and 19) The Court finds that
defendant Wallace aided, abetted and assisted in the arrest/search and seizure of plaintiff. Contrary
to defendants’ argument, defendant Wallace directly participated in the alleged violation.
The “facts”8 which form the core of defendants’ argument that defendant Franklin had

8

Defendants set forth the following in support of their argument that plaintiff was
resisting arrest:
25.
Franklin drew his service weapon and began yelling “Police–U.S.
Marshal, get on the ground Vinol.” The man refused to get down and kept backing away
from Franklin. Franklin kept yelling and the man said “I’m not the one you want.”
Franklin again yelled for the man to get down, but he kept backing away. Franklin
reached out with his arm and tried to grab the man, but he pushed Franklin’s arm away,
took a stance, and cocked his arm like he was about to throw a punch at Franklin.
Franklin Declaration ¶ 29; Wallace Declaration ¶¶ 15-16.
***
31.
After pushing away Franklin’s arm, the man in the “23" jersey cocked his
arm to a fighting position. Franklin Declaration ¶ 30; Wallace Declaration ¶ 12.
32.

Wallace, at that point standing behind the player, was concerned that the
13

sufficient grounds to arrest plaintiff (regardless of the mistaken identity) are anything but
undisputed. Plaintiff Wright has provided the following evidence which creates a genuine issue of
material fact for trial as to whether Wright was, as argued by defendants, resisting arrest:
Declaration of Stuart Wright:
2.
On April 15, 2009, I was playing basketball with 9 other
people in a full-court game at the Grandview Community Center in
Grandview, Jackson County, Missouri.
3.
Very suddenly, a man wearing a Kansas City Royals shirt
came rushing toward me holding a gun in his right hand pointed at me. I did
not see where he originally came from. The first thing I saw was him being
directly in front of me, rushing toward me with the gun pulled and out in his
right hand and pointed at me.
4.
The man was not wearing a uniform of any type that I was
able to recognize. I mainly remember his wearing a Kansas City Royals
shirt. I did not see anything identifying him as a law enforcement officer.
5.
The man was yelling things as he came toward me, but I could
not understand what he was saying.
6.

He just kept advancing toward me.

7.
At some point, I do remember hearing the name Vinol
mentioned and my saying that my name is Stuart Wright and that I had
identification there in the gym.
8.
I remember the man in the Royals shirt [defendant Franklin]
grabbing my shirt and kicking at my legs.
9.

I never threatened him by any words I said or anything I did.

10.
I never cocked my fist in any way at all or did anything else
at all that looked like I was going to punch him. I had seen the gun pointed

man was disobeying direct orders to get on the ground and appeared to be preparing to
strike Franklin. Wallace Declaration ¶ 17.
(Motion ... to Dismiss Count IV ... (doc #49) at 5 and 7)
14

in my direction, and I was very scared about all of that.
11.
any way.
12.

I made no indication that I would try to hurt or injure him in

I never challenged or provoked him in any way.

13.
I did not use or threaten the use of violence or physical force
on anyone. I did not flee. I never tried to run away from the man in any
way.
(doc #33-1)
Declaration of Brandon Rashad Jones:
3.
I remember seeing a man in a Kansas City Royals jersey
running at my teammate Stuart Wright. The man had a gun in his right hand,
and the gun was pointed at Stuart.
4.
I did not see anything indicating that the man was a law
enforcement officer.
5.

I did not see Stuart Wright threaten the man in any way.

6.
Stuart did back up a few steps when the man with the gun kept
coming toward him. However, Stuart never ran away from him.
7.
Stuart did not draw back his fist in any way at all or try to
knock away the man’s hand.
(doc #33-2)
Declaration of Stephen Leonard Wright:
2.
On April 15, 2009, I was sitting on the sidelines of the game
being played in the Grandview Community Center in Grandview, Jackson
County, Missouri.
3.
Very suddenly, a man wearing a Kansas City Royals shirt
came rushing toward my brother, Stuart Wright, holding a gun in his right
hand pointed at Stuart.
4.
The man was not wearing a uniform of any type that I was
able to recognize. I did not see anything identifying him as a law
15

enforcement officer.
5.

I never saw Stuart threaten the man by anything he said or did.

6.
Stuart did not run away from the man. All I saw was Stuart
backing up a few steps from the man with the gun as the man continued to go
toward Stuart.
7.
I never saw Stuart cock his fist in any way at all or try to
knock away the man’s hand.
(doc #33-3)
Declaration of Walter Kenneth Bethea:
3.
[O]n April 15, 2009, I saw ... men rush onto the basketball
court in the middle of a game that we were playing.
4.
It all happened very fast. One of the men ran toward Stuart
Wright with a gun in his right hand pointed at Stuart. Stuart did back up a
few steps as the man continued to run at him. However, I never saw or heard
Stuart do anything threatening toward the man in any way. Stuart did not
seek to run away from the man. I did not see Stuart cock his fist in any way
or push the man away from him in any way.
(doc #33-4)
Defendants’ argument that “Franklin’s actions in arresting Wright based on mistaken identity
... did not violate the Constitution” under the Supreme Court decision in Hill v. California, 401 U.S.
797 (1971), must also fail. The Hill case was not a civil case brought by the victim of a mistaken
identity arrest, but was instead a suppression issue brought by the criminal defendant when his
apartment was searched and evidence was seized after the arrest of a person who matched the
defendant’s physical description and who was found in the defendant’s apartment. The Hill court
found that the officers reasonably believed the person they arrested was defendant Hill, the person
for whom they had probable cause to arrest, and that the actions the officers took after the arrest
were, likewise, reasonable. Id. at 803-05. Some courts, as cited by defendants, have expanded the
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analysis in Hill to include civil suits for mistaken identity. In these cases, the issue to be decided
was whether a reasonable officer could have believed that the plaintiff was the person named in the
warrant. See Moore v. McMullen, 1998 WL 416105, *1 (9th Cir. June 17, 1998)(“In addition, the
officer must prove that he exercised due diligence to ascertain that the right person is being
arrested.”); Sumpter v. United States, 2008 WL 5378232, *3 (D.S.C. Dec. 19, 2008); Schultz v.
Braga, 290 F.Supp.2d 637, 649 (D. Md. 2003)(“the relevant factor in determining whether a
mistaken arrest is valid is ... whether the officers’ mistake of identity was a reasonable one”).
Here, plaintiff Wright has provided the following facts to dispute defendants’ arguments9 that

9

Defendants set forth various facts to show the steps officers took to locate Vinol Wilson,
the person for whom they had an arrest warrant. (See Facts Nos. 5 through 19 of Motion ... to
Dismiss Count IV ... (doc #49) at 2-4) The most significant facts used to justify the seizure of
plaintiff Wright are the following:
13.
Franklin showed the CS the 2005 Kansas driver’s license photo of Wilson
and CS stated that he had seen the person pictured, but did not know his name. CS stated
that he had seen Wilson wearing an orange-colored jersey with the number “23" on the
back. CS also said that Wilson had been seen with his hair in braids (or “corn-rows”),
sporting a goatee, and with gold-colored teeth. ...
***
19.
... CS called Franklin ... and informed Franklin that Wilson was on the
gym basketball floor, shooting baskets before the start of his game, was wearing an
orange-colored jersey with the number “23,” and had his hair braided. ...
(Motion ... to Dismiss Count IV ... (doc #49) at 3 and 4) The officers then seized a black male
with braided hair, wearing an orange-colored jersey with the number “23" on it (plaintiff
Wright). (See Fact No. 24 of Motion ... to Dismiss Count IV ... (doc #49) at 5)
As for the post-arrest conduct of the officers, defendants set forth the following facts:
27.
Franklin placed the man in handcuffs, sat him up, helped him to his feet,
and escorted him out of the gym (and away from the large crowd in the gym). On the
way out of the gym, the man told Franklin “I’m not Vinol, you shot the wrong guy.” The
man told Franklin his name was Stu Wright, a name that Franklin recognized from the
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the officers reasonably believed that Wright was the person named in the warrant, that the officers
exercised due diligence to ascertain that the right person was being arrested and that the post-arrest
conduct of the officers was appropriate:
Declaration of Stuart Wright:
7.
At some point, I do remember hearing the name Vinol
mentioned and my saying that my name is Stuart Wright and that I had
identification there in the gym.
***
15.
I remember the man in the Royals shirt leaning over to say in
my ear something to the effect of “What’s your name?” I told him my name
is Stuart Wright. He said, “Don’t lie to me.” I told him again that my name
is Stuart Wright. ...
16.
My brother Stephen Wright got them my driver’s license from
my gym bag and gave the license to one of the men who was there along with
the man in the Royals shirt. My understanding is that this happened during
the time that I was in their custody, shortly after they stood me up and were
taking me out of the Grandview Community Center.
17.
As I was being taken out of the Community Center, I saw a
Grandview Police Officer named Officer Clausing. I recognized him as a
Grandview High School graduate. I said something to the effect of, “My

team roster for the 2008 Sunflower State games. ...
28.
Another individual brought out Wright’s gym bag and his identification
was checked. It was discovered that Wright had two non-moving warrants out of Kansas
City, Missouri. ...
29.
Wright was asked if he needed any medical care, but he said that he did
not. Wright was then permitted to leave with the advice that he resolve the two nonmoving warrants. ...
30.
The entire encounter from the time Franklin walked out on the basketball
court until Wright left took approximately 15-20 minutes. ...
(Motion ... to Dismiss Count IV ... (doc #49) at 7-8)
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name is Stuart Wright. I graduated from Grandview High School in 1996.
You know me.” Officer Clausing then said something to the general effect
of, “That’s not the guy. I know him.” Nevertheless, I was taken out of the
Grandview Community Center in handcuffs and put in the back of a car that
was outside of the Community Center.
18.
When they put me in the back seat of the car, they put me in
there in such a way that my head was toward the passenger side and my feet
were near the driver’s side. By that time, many people had told them that I
was Stuart Wright, they had my driver’s license, and the Grandview Police
Officer had told them that I was Stuart Wright and that he knew me. Still,
they kept me handcuffed and in their custody.
19.
While I was in their custody, they asked me questions about
whether I played basketball with the man named Vinol, where the man
named Vinol was, and how I could help them find the man named Vinol. I
told them I did not know where he was or how to find him.
20.
I remember hearing some of the men talking about taking a
vacation day the next day, about how everything had happened so fast, about
how hearing the “pop-pop” sounds, about how they had gotten the wrong
guy.
21.

I remember them laughing about it all.

22.
At one point, my brother Stephen Wright was allowed to come
over to the car and speak to me briefly.
23.
Eventually, after 15 minutes or so in the car, the men pulled
me out of the car. They told me that they were now going to pull the probes
out of me. One of the men asked if I needed an ambulance. My brother told
them that he was going to take me to the hospital (which he did). The man
then said that he did not think I needed to go to the hospital because it was
probably only a flesh wound. One of the men also told me that they were
going to un-cuff me. He then said, “Now, you’re not going to go all ape-shit
on me, are you?” ...
***
26.
They did not return my driver’s license to me. I made several
calls trying to get it back. They kept telling me that they had in fact given it
to me. I told them that the license had never been returned to me. I left them
cell phone numbers for my mother and my wife. Eventually, they did call my
mother’s phone and left a message that I could come and get my driver’s
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license back from them. I did get the license back at the United States
Courthouse in Kansas City, Kansas from the man who had been in the Royals
shirt.
(doc #33-1)
Declaration of Brandon Rashad Jones:
8.
Stuart did say that he was Stuart Wright and not Vinol. All
of us nearby were telling them that Stuart was not Vinol.
9.
I saw Stuart get pulled into a position between the man in the
Royals shirt and the man with the taser. Then, I saw him get tasered and fall
to the floor.
10.

I saw Stuart getting hand-cuffed and taken outside.
***

12.
I do know a man named Vinol Wilson. At that time, Vinol
was about 5'11" ... tall and weighed about 200 pounds. He has gold caps on
all of his teeth. Stuart Wright was about 6'5" tall and weighed 280 pounds.
(doc #33-2)
Declaration of Stephen Leonard Wright:
8.
I did hear Stuart tell the men that he was not Vinol. Almost
everyone there was telling the men who Stuart Wright was and that he was
not Vinol.
9.
I saw the man with the gun pull Stuart to a position in front of
the man with a taser weapon. I then heard the pop-pop of the taser, and I saw
Stuart go down on the floor.
10.
I remember Stuart being taken outside and put into the back
seat of a car.
11.
I went and got my brother Stuart’s driver’s license as soon as
I could after I saw him get tasered and heard the name Vinol mentioned. I
took my brother Stuart’s driver’s license to the man in the Royals shirt. This
was very shortly after my brother had been taken out of the gym on the way
to the car where they put him.

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12.
The man in the Royals shirt told me that he knew my brother
was not Vinol, but he said that my brother had information about Vinol. The
man in the Royals shirt and one other man told me to speak to my brother
and tell him to tell them what they want to hear. I went to the car and did say
that to my brother. They continued to keep Stuart in custody.
13.
Stuart Wright was much bigger than Vinol Wilson – about 6
inches taller and about 75 to 80 pounds heavier. Also, Vinol Wilson is much
darker in complexion that Stuart is. Vinol Wilson has some gold on most all,
if not all, of the teeth in his mouth. Stuart does not have any gold on his
teeth.
(doc #33-3)
Declaration of Walter Kenneth Bethea:
6.
I heard the name Vinol being mentioned. Basically everyone
present was telling the men that the man they tasered and handcuffed was
Stuart Wright, not Vinol Wilson.
7.
I recognized some of these men as the same ones who had
come to my home earlier on April 15, 2010. However, none of them came
to me for verification of identification regarding the man they had tasered,
handcuffed, taken out of the gym, and put into a car.
(doc #33-4)
The facts provided by plaintiff and defendants bring into question whether the officers
reasonably believed that plaintiff Wright was the person named in the warrant and whether the
officers exercised due diligence to ascertain that the right person was being arrested. The seizure
of plaintiff Wright appears to be based on a confidential source’s review of a photograph of Vinol
Wilson. This photograph of Vinol Wilson was obviously also available to the officers, yet they
mistakenly seized plaintiff. While this photograph has not been made available to the Court to
ascertain whether a reasonable person would mistake plaintiff Wright for Vinol Wilson, information
which has been made available to the Court indicates that the height and weight differences between
plaintiff and Vinol Wilson were significant, that Vinol Wilson was much darker in complexion than
21

plaintiff and that plaintiff had no gold on his teeth, while Vinol Wilson had “gold-colored teeth.”
In addition, the facts provided by plaintiff bring into question whether the officers reasonably
believed that plaintiff was Vinol Wilson given that plaintiff and others present were stating, as the
officers approached plaintiff, that plaintiff was not Vinol Wilson. The facts provided by plaintiff
also bring into question whether the post-arrest conduct of the officers was appropriate as they
allegedly continued to hold plaintiff in custody and question him even after they knew he was not
Vinol Wilson.
As the application of qualified immunity often turns on the facts known by the officers at the
time of the challenged conduct, the question of qualified immunity often cannot be resolved
adequately until the dispositive facts have been presented at trial. See Brown v. Stewart, 910 F.
Supp. 1064, 1071 (W.D. Pa. 1996). The Court finds that there is a genuine issue of material fact as
to whether the arresting agents acted reasonably in arresting plaintiff and in their post-arrest conduct
in continuing to hold and question plaintiff after they knew they had arrested the wrong man.
Defendants Franklin and Wallace are not entitled to summary judgment on plaintiff’s Bivens claim
of false arrest and improper search and seizure.
2.

Excessive Force

The Supreme Court has held that claims against law enforcement officers for the alleged use
of excessive force during an arrest or other seizure should be analyzed under the Fourth
Amendment’s objective reasonableness standard and judged from the perspective of a reasonable
officer on the scene of the incident. See Graham v. Connor, 490 U.S. 386, 395-96 (1989). The
Eighth Circuit Court of Appeals provided further guidance in Howard v. Kansas City Police
Department, 570 F.3d 984 (8th Cir. 2009), where the Court wrote:

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In assessing the reasonableness of the Officers’ conduct, we look at the totality of the
circumstances and focus on factors such as “the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or others,
and whether [the suspect] is actively resisting arrest or attempting to evade arrest by
flight.” [Graham, 490 U.S. at 396.] ... Additionally, we must judge the
reasonableness of the Officers’ conduct from the “perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight,” and with “allowance for
the fact that police officers are often forced to make split-second judgments–in
circumstances that are tense, uncertain, and rapidly evolving–about the amount of
force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97 ....
570 F.3d at 989.
Defendants first argue that because defendant Wallace was the officer who tasered plaintiff,
rather than defendant Franklin, defendant Franklin could only be held liable for his failure to
intervene and not as a direct participant in the use of excessive force. (Motion ... to Dismiss Count
IV ... (doc #49) at 21) Defendant Franklin states that he did not even notice that defendant Wallace
had positioned himself behind plaintiff and drawn his taser. (See Fact No. 26 of Motion ... to
Dismiss Count IV ... (doc #49) at 6)
The following facts have been provided by plaintiff with respect to defendant Franklin’s
participation in the alleged use of excessive force:
Declaration of Stuart Wright:
3.
Very suddenly, a man wearing a Kansas City Royals shirt
came rushing toward me holding a gun in his right hand pointed at me. ... The
first thing I saw was him being directly in front of me, rushing toward me
with the gun pulled and out in his right hand and pointed at me.
***
8.
I remember the man in the Royals shirt grabbing my shirt and
kicking at my legs.
***
14.

When he had hold of my shirt, he pulled me toward him. At
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that same time, he kicked at least one of my legs out from under me. The
video shows that the man with the taser had been right there to the left of the
man in the Royals shirt and the pulling of my shirt (and me) toward the
ground and the kicking of my leg brought me directly in between the two
men. It was right at that time that I then heard two shot-like sounds. I was
tasered and injured for no reason in that I was doing nothing to injure anyone
or to threaten anyone. The tasering was very painful. It felt like I was
holding onto a power line. I fell to the floor.
(doc #33-1)
Declaration of Brandon Rashad Jones:
3.
I remember seeing a man in a Kansas City Royals jersey
running at my teammate Stuart Wright. The man had a gun in his right hand,
and the gun was pointed at Stuart.
***
9.
I saw Stuart get pulled into a position between the man in the
Royals shirt and the man with the taser. Then, I saw him get tasered and fall
to the floor.
(doc #33-2)
Declaration of Stephen Leonard Wright:
3.
Very suddenly, a man wearing a Kansas City Royals shirt
came rushing toward my brother, Stuart Wright, holding a gun in his right
hand pointed at Stuart.
***
9.
I saw the man with the gun pull Stuart to a position in front of
the man with a taser weapon. I then heard the pop-pop of the taser, and I saw
Stuart go down on the floor.
(doc #33-3)
Declaration of Walter Kenneth Bethea:
4.
... One of the men ran toward Stuart Wright with a gun in his
right hand pointed at Stuart. ...

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5.
I saw two men get Stuart in between them and than I heard
and saw Stuart get tasered by the men. Stuart then fell hard to the floor.
(doc #33-4)
As alleged by plaintiff, defendant Franklin had a gun pointed at plaintiff, pulled plaintiff
between himself and defendant Wallace and held onto plaintiff as he was tasered. These facts
present a genuine issue of material fact that defendant Franklin directly participated in the use of
excessive force.
Defendants next argue that it was objectively reasonable for defendant Wallace to deploy
his taser gun for the following reasons:
Wallace reasonable believed that Wright in fact was Vinol Wilson who had a history
of drug violence and crimes involving weapons and had an outstanding felon arrest
warrant for drug trafficking. Wilson was also believed to be a body builder who
used steroids. At the scene, Wright repeatedly refused to comply with Franklin’s
directive to get down on the floor and when Franklin reached out to grab Wright,
[Wright] pushed his arm away. Finally, just before the taser gun was deployed, it
appeared that Franklin was cocking his arm to strike Franklin.
(Motion ... to Dismiss Count IV ... (doc #49) at 23)
As set forth above, the Court has determined that there are genuine issues of material fact
as to whether the arresting agents could have reasonably believed that plaintiff Wright was Vinol
Wilson and that plaintiff Wright was aggressive toward or resisting the officers. Defendants
Franklin and Wallace are not entitled to summary judgment on plaintiff’s Bivens claim of excessive
force.
III. PLAINTIFF’S ALTERNATIVE MOTION
In response to the Motion of the Individual Capacity Defendants to Dismiss Count IV of
Plaintiff’s First Amended Complaint or, in the Alternative, for Summary Judgment (doc #49),
plaintiff filed Plaintiff’s Suggestions in Opposition to Motion of the Individual Capacity Defendants
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to Dismiss Count IV of Plaintiff’s First Amended Complaint or, in the Alternative, for Summary
Judgment [Doc. #49] and Plaintiff’s Alternative Motion to (a) overrule and deny the Motion without
prejudice, or (b) defer considering the Motion, or (c) allow time for discovery, or (d) issue any other
appropriate order (doc #56).
As set forth above, the Court is denying in part defendants’ motion to dismiss/summary
judgment in that it has found that defendants Franklin and Wallace are not entitled to summary
judgment on plaintiff’s Bivens claims of false arrest, improper search and seizure and excessive
force. Therefore, plaintiff’s alternative motion is in effect granted in part with respect to defendants
Franklin and Wallace. The Court is granting in part defendants’ motion to dismiss/summary
judgment in that defendants Clark and Bradley are entitled to a dismissal of plaintiff’s Bivens claims
of inadequate hiring, promotions, training, supervision, discipline and termination. The Court
declines to grant plaintiff’s alternative motion as it relates to these claims.
IV. CONCLUSION
Based on the foregoing, it is
ORDERED that the Motion of the Individual Capacity Defendants to Dismiss Count IV of
Plaintiff’s First Amended Complaint or, in the Alternative, for Summary Judgment (doc #49) is
granted in part and denied in part. That portion of the motion seeking a dismissal of claims against
defendants John Clark and Walter Bradley is granted. That portion of the motion seeking summary
judgment as to plaintiff’s claims against defendants Sean Franklin and Christopher Wallace is
denied. It is further
ORDERED that Plaintiff’s Alternative Motion (doc #56) is granted in part and denied in part.
That portion of the motion seeking a denial of defendants’ motion to dismiss/summary judgment is

26

granted to the extent that the Court has found that defendants Franklin and Wallace are not entitled
to summary judgment on plaintiff’s Bivens claims of false arrest, improper search and seizure and
excessive force. The remainder of the motion is denied.

/s/ Sarah W. Hays
SARAH W. HAYS
UNITED STATES MAGISTRATE JUDGE

27