Mick vs. Raines, et al.,
Filing
168
ORDER granting 126 and 142 : Defendants Woolsey, Keough, and Lacy's Motions for Summary Judgment and Supplemental Motion for Summary Judgment are GRANTED. This case is CLOSED. Signed on 2/23/17 by District Judge Beth Phillips. (Cordell, Annette)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
ST. JOSEPH DIVISION
KERRIE GENE MICK,
Plaintiff,
v.
WES RAINES, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
Case No. 14-6037-CV-SJ-BP
ORDER AND OPINION GRANTING MOTION AND SUPPLEMENTAL MOTION FOR
SUMMARY JUDGMENT FILED BY SAMUEL WOOLSEY, JASON KEOUSH, AND
DEVIN LACEY
Plaintiff has sued, among others, three officers working for the Daviess/DeKalb County
Regional Jail (“the Regional Jail”), alleging violations of his civil rights. The three officers1
have collectively filed a motion for summary judgment, (Doc. 126), and (at the Court’s
direction) a supplemental motion for summary judgment.
(Doc. 142.)
Both motions are
GRANTED.
I. BACKGROUND
None of the three Defendants is named in his individual capacity; thus, they are all
deemed to be sued in their official capacities only. See Baker v. Chisom, 501 F.3d 920, 923 (8th
Cir. 2007). Plaintiff concedes this point: he does not dispute that he has not sued the named
defendants individually and he characterizes his claims as “official-capacity claims.” (E.g., Doc.
Doc. 136, pp. 4, 10.) “[T]he real party in interest in an official-capacity suit is the governmental
1
Officer Samuel Woolsey, Officer Samuel Keough, and Lieutenant Devin Lacy.
entity and not the named official.” Baker, 501 F.3d at 925 (quotations omitted). Therefore, the
actual defendant is the Regional Jail.2
Except in one context, the Regional Jail does not contend that it is entitled to summary
judgment because Plaintiff’s civil rights were not violated. Instead, the Regional Jail primarily
contends it is entitled to summary judgment because the Record establishes that the additional
requirements for imposing liability on a municipality for its employees’ constitutional violations
are not present. In light of the issues raised and the manner in which they have been discussed, 3
an understanding of the Record (both what it reveals and what it does not) is more important than
the legal analysis.
Therefore, in discussing the facts the Court will address the parties’
competing views as to what is (and is not) contained in the Record. In doing so, the Court will
focus on the facts related to the Regional Jail; matters related to other Defendants will be
discussed only as necessary.
A. Plaintiff’s Allegations
On February 24, 2012, deputies from Clinton County arrested Plaintiff and took him to
the Clinton County Jail. Plaintiff alleges he was beaten by approximately five law enforcement
officers and that he “believes” that at least one officer from the Regional Jail (who was there to
transport Plaintiff to the Regional Jail) was among the assailants. (Doc. 80, ¶¶ 22-23.) “The
injuries were so severe, that Plaintiff’s arm was broken during the attack. Plaintiff screamed for
2
The Regional Jail is alleged to be a “joint venture between Daviess [County] and DeKalb County.” (Doc. 80, ¶
26.) Defendants agree with this allegation. (Doc. 84, ¶ 26; Doc. 85, ¶ 26.)
3
The Regional Jail argues that Plaintiff’s responses to the proffered uncontroverted facts do not comply with Local
Rule 56.1(b) for a variety of reasons, including because they are argumentative, not responsive, and not always
supported by citations to the record. While the Regional Jail may be correct in contending that the Court is
permitted to deem its uncontroverted facts as admitted, see Jones v. United Parcel Serv., Inc., 461 F.3d 982, 990
(8th Cir. 2006), the Court elects not to follow that course.
2
help because the Jailers were attempting to remove a ring from his finger that he did not want to
release.” (Doc. 80, ¶ 25.)
Plaintiff was transferred to the Regional Jail later that same evening, arriving at
approximately 2:36 a.m. (Doc. 80, ¶ 44.) Plaintiff “was thrown on the cement floor on his left
shoulder by one of the named Deputies from the Regional Jail.” (Doc. 80, ¶ 26.) He then
complained of pain in his left shoulder. The Second Amended Complaint also alleges that he
was sprayed with mace, (Doc. 80, ¶ 26), but in his deposition he admitted that he was not
sprayed with mace by anyone at the Regional Jail. (Doc. 163-1.)
Lieutenant Lacy “instructed the officers to contact the ‘on call doctor’, Defendant Dr.
Glynn.” (Doc. 80, ¶ 45.) Dr. Glynn “instructed the officer that ‘as long as there were no
protruding bones or bleeding, that he could wait to be seen by Nurse Gaunt on Monday.” (Doc.
80, ¶ 45.)4 Dr. Glynn’s instructions notwithstanding, Plaintiff was taken to Cameron Hospital,
and later in the day he was released from custody. (Doc. 80, ¶¶ 27-28, 48.)
The Second Amended Complaint asserts the following claims against the Regional Jail:5
4
The Court takes judicial notice of the fact that February 25, 2012, was a Saturday.
5
The Second Amended Complaint asserts violations of Plaintiff’s rights under both the United States and Missouri
Constitutions. (Doc. 80, ¶ 1.) The Regional Jail argues that Missouri law does not provide a private right of action
for violation of rights bestowed by Article I, section 15 of the Missouri Constitution. (E.g., Doc. 127, p. 8.) The
Regional Jail’s argument is supported by decisions from Missouri courts. E.g., Collins-Camden P’ship v. County of
Jefferson, 425 S.W.3d 210, 214 (Mo. Ct. App. 2014). Plaintiff did not respond to this argument as it relates to the
Regional Jail, but in connection with the same argument raised by Clinton County, Plaintiff conceded that he cannot
recover monetary damages. He nonetheless contended that he is entitled to injunctive relief, (Doc. 148, p. 26), even
though the Second Amended Complaint does not ask for injunctive relief. However, Plaintiff cites no Missouri
permitting a cause of action seeking an injunction to enforce this provision of the Missouri Constitution, and the
case he cites, Disabled Citizens Alliance for Independence, Inc. v. Pratte, 2008 WL 4488972 (E.D. Mo. 2008), does
not really discuss the issue. Moreover, Missouri courts have precluded claims for damages because this provision of
the Missouri Constitution is not self-executing, e.g., Moody v. Hicks, 956 S.W.2d 398, 402 (Mo. Ct. App. 1997), and
this rationale would apply to claims for equitable relief just as well as to claims for damages. Regardless, Plaintiff
has not contended or demonstrated that he is likely to personally come in contact with officers from the Regional
Jail in the future, so he has no standing to pursue injunctive relief. E.g., Los Angeles v. Lyons, 461 U.S. 95, 102
(1983) (plaintiff did not have standing to enjoin police use of chokehold because the fact that he was subjected to
chokeholds in the past did not establish that one would be administered in the future).
3
Count I – Excessive Force. Count I is asserted against the Regional Jail for the incidents
at both the Clinton County Jail and the Regional Jail.
Count III – Failure to Intervene. This claim asserts that the Regional Jail violated the
Constitution when some of the officers failed to prevent other officers (both Clinton
County Deputies and officers from the Regional Jail) from using excessive force.
Count IV – Conspiracy. This claim alleges the Regional Jail conspired with Clinton
County to violate Plaintiff’s constitutional rights.
Count V – Deliberate Indifference to Substantial and Serious Medical Needs. Count V
refers to Officers Woolsey and Keough, Lieutenant Lacy, and Dr. Glynn, but focuses
almost exclusively on Dr. Glynn’s actions. (Doc. 80, ¶ 79.)6
B. Facts Related to the Regional Jail’s Arguments
The Court’s discussion of the Record will be aided by summarizing the law that governs
Plaintiff’s claims. In order for Plaintiff to prevail, there must first be a violation of the plaintiff’s
constitutional rights. E.g., McCoy v. City of Monticello, 411 F.3d 920, 922 (8th Cir. 2005). But,
even if Plaintiffs’ rights were violated by Regional Jail officers, the Regional Jail’s liability
would not be established by that fact alone because municipalities and similar governmental
entities cannot be held liable on a theory of respondeat superior. Monell v. Department of Social
Services, 436 U.S. 658, 692-95 (1978). “Section 1983 liability for a constitutional violation may
attach to a municipality if the violation resulted from (1) an official municipal policy, (2) an
unofficial custom, or (3) a deliberately indifferent failure to train or supervise.” Corwin v. City
of Independence., MO., 829 F.3d 695, 699 (8th Cir. 2016) (quotations and citations omitted). As
6
Counts II and VI are not listed because the only Defendant in those counts is Clinton County.
4
will be discussed, Plaintiff’s primary argument is that Clinton County maintained unofficial
customs that violated the Constitution. To establish a custom, Plaintiff must demonstrate:
1)
The existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the governmental entity's employees;
2)
Deliberate indifference to or tacit authorization of such conduct by the
governmental entity’s policymaking officials after notice to the officials of that
misconduct; and
3)
That plaintiff was injured by acts pursuant to the governmental entity’s
custom, i.e., that the custom was a moving force behind the constitutional
violation.
Johnson v. Douglas Cty. Med. Dep’t, 725 F.3d 825, 828 (8th Cir. 2013); see also Jane Doe A v.
Special Sch. Dist. of St. Louis County, 910 F.2d 642, 646 (8th Cir. 1990). Therefore, the Court’s
analysis of the Record will address any evidence that (1) there was a widespread, persistent
pattern of unconstitutional conduct and (2) policymakers were deliberately indifferent to any
such pattern.
The Regional Jail contends (and Plaintiff agrees) that during the relevant time period Bob
Gray had final policymaking authority for the Regional Jail. Gray is deceased, and the Regional
Jail relies on sworn declarations from Edmon Howard, who was Gray’s assistant and successor,7
to discuss its policies and practices in four areas: (1) the proper use of force, (2) deputies’ duties
to intervene to prevent the use of excessive force, and (3) the provision of medical care for those
held at the Regional Jail. Howard also discusses two additional topics: training provided to
deputies and agreements reached with Clinton County. The Court’s discussion of the Record
will be organized around these five areas.
7
Plaintiff contends that Howard’s declarations are not based on his personal knowledge, (e.g., Doc. 157, pp. 13-16),
but he does nothing more than describe the affidavit as such. In contrast, Howard declares that his statements are
based on “personal, first-hand knowledge of the facts” he describes, which is buttressed by the fact that Howard was
Gray’s assistant when Gray was the Regional Jail’s Administrator and became the Administrator after Gray passed
away. (Doc. 143-1, ¶¶ 1-2.) Moreover, as the Administrator, Howard has access to the Regional Jail’s records.
(Doc. 143-1, ¶ 4.)
5
1. Proper Use of Force
Howard avers that the Regional Jail has a written policy regarding the use of force, which
limits deputies to using only “the amount of force, reasonably necessary, to overcome the
resistance offered, subdue an individual detainee or restore order to a disruptive group, and/or
accomplish the lawful performance of duty while protecting the officer and the public.” (Doc.
143-1, ¶ 5.) The policy further required that whenever force was used, the officers were to
complete a written report, all such reports were to be reviewed by Shift Commanders, and the
Jail Administrator was to be notified.
(Doc. 143-1, ¶ 8.)
The Jail Administrator was to
investigate allegations of improper use of force, and impose discipline if improper force was
utilized. (Doc. 143-1, ¶¶ 9-12.) Under this policy, there were officers who were disciplined for
improper use of force. (Doc. 143-1, ¶¶ 13-15.)
Plaintiff does not dispute that these policies exist. Instead, he attempts to create a factual
dispute by contending that the policies are not actually followed; however, his effort to do so
fails for a variety of reasons.
Plaintiff relies extensively on affidavits submitted by Troy Thompson, Michael Stewart,
and Steven Turner,8 all of whom have been incarcerated at the Regional Jail. He characterizes
the affidavits as establishing very broad propositions about the practices at the Regional Jail, but
the affidavits do not support the propositions advanced. For instance, he relies on one or more of
the affidavits for the following facts:
8
The Regional Jail incorporates Clinton County’s argument that Stewart and Turner were not disclosed as potential
witnesses, so their affidavits should not be considered. (Doc. 163, p. 5 n.2.) Rule 37(c)(1) permits use of testimony
from an undisclosed witness if the failure to disclose is “substantially justified or is harmless.” The Court cannot
fairly determine whether the nondisclosure was substantially justified or harmless without soliciting further input
from Plaintiff, and under the circumstances the Court discerns no need to prolong consideration of the Regional
Jail’s motions.
6
“[T]he practice at the . . . jail is to use force not for the purposes set forth, but as
punishment for those that express opinions or seek redress for grievances, including
medical attention.” (Doc. 157, p. 2.)
Jailers used mace indiscriminately. (Doc. 157, pp. 3, 14.)
“[T]he officers on duty routinely employ maximum force against detainees and citizens.”
(Doc. 157, p. 4.)
Examination of the affidavits reveals no proper support for these assertions, and further
demonstrates their limited value. Thompson states that he has been in the Regional Jail “on 4-5
occasions between 2011-2013” and “the jailers were ‘mace happy’ spraying mace into the jail
cells of inmates, including myself, for no real reason. Spraying mace was a frequent event in
the” Regional Jail. (Doc. 157-7, ¶ 7.) He also states that he “know[s] that the jailers at the
[Regional Jail] would frequently ‘rough up’ or attack inmates. I have seen that happen on
several occasions.” (Doc. 157-7, ¶ 8.) There are two critical problems with Thompson’s
statements that undermine their probative value in this case. First, he provides no details about
any of these incidents. The mere fact that mace was utilized or force was employed does not
mean that the Constitution was violated. Second, he does not provide sufficient information to
ascertain the frequency with which these events occurred.
Stewart’s affidavit9 says nothing about the Regional Jail; it only reports events at the
Clinton County Jail, and does not contain anything that supports Plaintiff’s characterization of
practices at the Regional Jail. (Doc. 135-6.) Therefore, it has no bearing on the issues related to
the Regional Jail.
9
Plaintiff identifies Stewart’s affidavit as Exhibit 5. (E.g., Doc. 157, p. 10; Doc. 157-1.) Exhibit 5 is not Stewart’s
affidavit, and his affidavit was not submitted with Plaintiff’s responses to the Regional Jail’s original motion or its
supplemental motion. The Court has relied on Stewart’s affidavit Plaintiff submitted in connection with his
response to Clinton County’s Supplemental Motion for Summary Judgment.
7
Turner states that he filed a grievance over his treatment at the Regional Jail and as a
result met with Gray. He does not specifically identify the nature of his grievance, however. It
may be inferred that the grievance related to jailers’ use of mace, because Turner alleges that
jailers “sprayed mace into the cells as a way to control inmates and as a form of punishment.
When they started spraying mace, the jailers or deputies would frequently empty an entire can of
mace on one person or in one cell.” (Doc. 157-2, ¶ 7.) Turner also claims that inmates who
requested medical attention were frequently maced instead.
(Doc. 157-2, ¶ 8.)
As with
Thompson, Turner does not describe the frequency of these incidents or the period of time over
which they occurred. Also, Turner does not describe any force that was employed other than the
use of mace.
Plaintiff also points to force that was utilized on him to establish the Regional Jail’s
policies are regularly ignored. Specifically, he points to the fact that the incident at the Clinton
County Jail was precipitated by Clinton County Deputy John Patterson’s accusation that Plaintiff
took a “bladed stance,” then points to Stewart’s affidavit to establish this is an “excuse . . .
routinely used by [Clinton County] jail personnel to justify otherwise unjustified use of force.”
(Doc. 157, p. 2.) As stated above, however, Stewart’s affidavit does not say anything about the
Regional Jail, so it does not establish the Regional Jail’s practices. Moreover, one (or even two)
incidents do not establish a practice.
Plaintiff contends that while the Regional Jail’s policy may require that uses of force be
reported and that improper uses of force be investigated and result in discipline, the actual
practices of the Regional Jail are different. His argument is that there is no evidence that the Use
of Force Reports completed in this case were reviewed, and that it is unlikely that they were
because the reports are different and would have obviously demonstrated the need for an
8
investigation. (Doc. 157, p. 9.) However, even if no investigations or discipline occurred in this
case,10 Plaintiff has not presented any facts demonstrating that investigations are routinely not
conducted or that the Regional Jail’s investigatory and discipline policies are routinely ignored.11
2. Duty to Intervene to Prevent the Use of Excessive Force
Howard’s affidavit states that “officers of the [Regional Jail] have received instruction
that members of the public are to be protected from inappropriate force from any source.” (Doc.
143-1, ¶ 17.) However, the Regional Jail has not “received any confirmed information that an
officer of the [Regional Jail] failed to intervene to prevent physical injury inflicted by another
officer.” (Doc. 143-1, ¶ 17.)
Plaintiff controverts these facts only by contending that neither Woolsey nor Lacy
intervened to protect him from unconstitutional force. (Doc. 157, pp. 7, 13, 15.) Plaintiff does
not identify any other instances in which Regional Jail personnel allegedly failed to intervene to
prevent unconstitutional use of force.
3. Provision of Medical Care
The Regional Jail’s Use of Force Policy included provisions regarding medical care. The
policy required officers to make medical treatment available when (1) it was requested, (2) a
person complained of injury or continued pain or showed signs of “unusual distress,” (3) an
injury was observed or suspected, or (4) a supervisor directed that medical care be provided.
(Doc. 143-1, ¶ 7.) If an inmate “had a serious medical need, appropriate medical assistance
10
Plaintiff asserts that “[n]o one involved in the Mick, Stewart, or Turner situation was investigated or disciplined,”
but provides no citation for this fact. (Doc. 157, p. 10.) Moreover, Stewart did not describe any misconduct by
personnel at the Regional Jail, so the lack of discipline for those involved in his situation is irrelevant.
11
Plaintiff disputes Howard’s sworn statement that discipline is (and has been) meted out when excessive force is
utilized by contending that “[d]espite requests regarding these issues during [the] discovery process, no information
concerning other situations were provided.” (Doc. 157, p. 11.) This response is insufficient to create a factual
dispute. Moreover, Plaintiff has not identified the discovery requests that were designed to obtain this information,
nor did he seek relief from the Court for the Regional Jail’s failure to respond.
9
would be provided at the jail for the inmate, or the inmate would be taken to a local healthcare
provider.” (Doc. 143-1, ¶ 20.) Howard states that “it does not appear Mr. Gray ever received
any confirmed information that inmates of the [Regional Jail] were not receiving appropriate
medical care for serious medical needs.” (Doc. 143-1, ¶ 18.)
Plaintiff’s concedes that the policy exists but contends that it has never been enforced.
(Doc. 157, p. 4.) To support this claim he primarily relies on the events of this case. (Doc. 157,
pp. 7-8.) He augments the events of his case with Turner’s affidavit, which he describes as
advising Grey “[t]hat a practice to deny medical care . . . existed within his jail.” (Doc. 157, pp.
13-14.) Turner’s affidavit does not support this broad proposition: it says “that if inmates would
ask for medical attention; they would frequently not get the attention they requested and further
. . . they would get maced by the deputies for making the request.” (Doc. 157-2, ¶ 8.) However,
Turner’s affidavit does not specify the number or details of any such incidents, and does not
establish that any of the inmates had a serious medical need for which medical care was denied.
Moreover, Plaintiff admits that Dr. Glynn was called in this case. He included such
allegations in his Second Amended Complaint. (Doc. 80, ¶ 79.) Plaintiff’s response attempts to
qualify his own allegation, contending that the Regional Jail “was not justified in following the
advice of Dr. Glynn to let Mick continue without medical care, if in fact that was said.” (Doc.
157, p. 16.) However, Plaintiff offers no support from the Record that would suggest (1) Dr.
Glynn was not called and (2) Dr. Glynn’s advice – to wait until the following Monday – was not
exactly what Plaintiff described in his Second Amended Complaint.
4. Training
Howard’s affidavit states that “all officers of the [Regional Jail], including the three
Daviess-DeKalb officers identified in Plaintiff’s Second Amended Complaint, received training
10
regarding use of force, medical care of inmates, and on-the-job training to acquaint them with the
policies and procedures of the Regional Jail when they were first hired.” (Doc. 143-1, ¶ 16.)
Plaintiff’s efforts to create a factual dispute as to whether the officers were trained is not
supported by the Record.
First, Plaintiff alleges that “[m]any of the employees were not POST certified officers,
had never gone through the academy and were only given cans of mace to keep order. As a
result of this lack of training, mace was used indiscriminately in the pods of detainees, causing
needless pain.” (Doc. 157, p. 3.) However, Plaintiff does not cite any competent evidence from
the Record to support these facts. He cites “Ex. #2 Turner Petition.” Exhibit #2 is Turner’s
affidavit, and while Turner asserts that the officers at the Regional Jail “were . . . not trained on
how to use force in that jail,” (Doc. 157-2, ¶ 7), he does not explain his basis for knowing this
fact; the statement is an unsupported supposition on his part. Exhibit #3 is a Petition Turner filed
in state court in 2014, (Doc. 157-3); it does not say anything about training, but even if it did it
would not be competent evidence on the issue. Finally, even if it is true that officers at the
Regional Jail do not receive POST training12 or “go[ ] through the academy,” this fact would not
contradict Howard’s sworn statement that the officers are trained. It is entirely possible to
receive training outside of POST or the academy.
Second, Plaintiff points to deposition testimony from Woolsey, Keough, and Lacy, but
his representations about their testimony are not accurate. He cites pages 16 to 17 of Keough’s
deposition for the proposition that “[t]he jailers at [the Regional Jail] had no training in use of
force.” (Doc. 157, p. 3.) However, on those pages of his deposition Keough testified that he was
trained. (Doc. 157-8, pp. 2-3.) Plaintiff cites pages 51 and 52 of Woolsey’s deposition for the
12
“POST” is an acronym for Peace Officers Standards and Training, and is a program created by state law. (Doc.
141-1, ¶ 15; see also, e.g., Mo. Rev. Stat. §§ 590.010(4), 590.030 - .050.)
11
proposition that “[n]o training was afforded the officers at [the Regional Jail] that would give
them an understanding of the proper use of force and the circumstances in which it was
justified.” (Doc. 157, p. 12; see also Doc. 157, p. 13.) However, Woolsey did not testify that he
was not trained; to the contrary, he testified that he was. (Doc. 157-6, p. 8.) Finally, Plaintiff
contends that Lacy testified that he was “not trained in use of force,” (Doc. 157, p. 13), but the
portions of Lacy’s deposition that Plaintiff cites discusses the additional training he received
upon being promoted to Lieutenant; the excerpts do not contain any questions designed to
ascertain the full extent of Lacy’s training. (Doc. 157-13, pp. 3-4.)
5. Agreements with Clinton County
Howard avers that Gray “was never involved in the operation of the Clinton County Jail,
or in the operations of the Clinton County Sheriff’s Department.” (Doc. 143-1, ¶ 21.) He further
states that “there was never an agreement or understanding between Mr. Gray and anyone
associated with Clinton County that the constitutional rights of anyone should be violated.”
(Doc. 143-1, ¶ 19.)
Plaintiff counters Howard’s statements by observing that detainees at the Clinton County
Jail were frequently sent to the Regional Jail. However, the citations to the Record for this fact is
blank. (Doc. 157, p. 14.) Plaintiff also points to the events at the Clinton County Jail to suggest
that there was a meeting of the minds. (Doc. 157, p. 15.) Finally, he contends that Thompson’s
and Turner’s affidavits establish a meeting of the minds between Clinton County and
Daviess/DeKalb Counties, (Doc. 157, p. 15), but nothing in those affidavits addresses the issue.
II. DISCUSSION
Additional discussions of the Record will be necessary, but with this background in place
the Court can address Clinton County’s motions.
12
A moving party is entitled to summary
judgment on a claim only upon a showing that “there is no genuine issue of material fact and that
the moving party is entitled to a judgment as a matter of law.” See generally Williams v. City of
St. Louis, 783 F.2d 114, 115 (8th Cir. 1986). “[W]hile the materiality determination rests on the
substantive law, it is the substantive law’s identification of which facts are critical and which
facts are irrelevant that governs.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Thus, “[o]nly disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Wierman v. Casey=s Gen. Stores,
638 F.3d 984, 993 (8th Cir. 2011) (quotation omitted). In applying this standard, the Court must
view the evidence in the light most favorable to the non-moving party, giving that party the
benefit of all inferences that may be reasonably drawn from the evidence. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Tyler v. Harper, 744 F.2d 653,
655 (8th Cir. 1984), cert. denied, 470 U.S. 1057 (1985).
A party opposing a motion for
summary judgment may not simply deny the allegations, but must point to evidence in the
Record demonstrating the existence of a factual dispute. Fed. R. Civ. P. 56(c)(1); Conseco Life
Ins. Co. v. Williams, 620 F.3d 902, 909-10 (8th Cir. 2010).
While there are three avenues for establishing municipal liability, the Court need only
discuss the second one (unofficial custom) in detail. Plaintiff cannot proceed on a theory that
Clinton County maintains unconstitutional policies. In most respects, it is uncontroverted that
Clinton County has policies, and Plaintiff does not allege that the policies are unconstitutional.
“[A] written policy that is facially constitutional . . . does not itself give rise to municipal
liability.” Szabla v. City of Brooklyn Park, 486 F.3d 385, 392 (8th Cir. 2007) (en banc).
Similarly, there is no need to fully explore inadequate training as a basis for the Regional
Jail’s liability. Plaintiff attempted to identify factual disputes regarding training and his legal
13
arguments mention this theory, but Plaintiff does not discuss how it applies given the facts in the
Record and this is a sufficient reason to reject it. Moreover, the Record would not permit
Plaintiff to prevail on this theory. A plaintiff pursuing this theory must demonstrate that (1) the
training practices are inadequate, (2) the municipality was deliberately indifferent, and (3) the
deficiency in training caused the plaintiff’s injury. E.g., Andrews v. Fowler, 98 F.3d 1069, 1076
(8th Cir. 1996). As a prerequisite to establishing deliberate indifference, there must be some
proof that the County knew the training procedures were inadequate and likely to result in a
constitutional violation. Livers v. Schenck, 700 F.3d 340, 355-56 (8th Cir. 2012). And, to
establish causation, the plaintiff must identify a specific deficiency in any training that actually
occurred so that a the factfinder can determine whether “the injury [would] have been avoided
had the employee been trained under a program that was not deficient in the identified respect[.]”
City of Canton v. Harris, 489 U.S. 378, 391 (1989). The uncontroverted facts demonstrate that
the Regional Jail’s officers are trained, and Plaintiff does not identify any inadequacies in the
training or any evidence establishing that the Regional Jail knew of any inadequacies in the
training.
To prevail, then, Plaintiff must be able to demonstrate that the Regional Jail has an
unofficial custom of unconstitutional conduct. As discussed earlier, however, there is no support
in the Record that would permit such a finding. The matter is discussed on Count-by-Count
basis below.
A. Count I – Excessive Force
Plaintiff’s arguments regarding Count I revolve around his claim that the Regional Jail
has a practice of improperly using mace on those in custody. He alleges that the Regional Jail
has a practice of “macing” detainees, both as a means of crowd/prisoner control and as a
14
response when medical care is requested. (Doc. 157, pp. 19, 20.) However, as discussed in Part
I(B)(1) above, the Record does not support Plaintiff’s allegations. At best – and construing the
competent evidence in the Record in the light most favorable to Plaintiff – he has demonstrated
that mace has been utilized at the Regional Jail. This fact, alone, does not establish a custom or
practice of utilizing mace in an unconstitutional manner.
“[M]ultiple incidents . . . could
establish a ‘custom’ if some evidence indicates that the incidents occurred over a course of time
sufficiently long to permit notice of, and then deliberate indifference to or tacit authorization of,
the conduct by policymaking officials.” Johnson, 725 F.3d at 829. This is because “[n]otice is
the touchstone of deliberate indifference in the context of § 1983 municipal liability,” Atkinson v.
City of Mountain View, 709 F.3d 1201, 1216 (8th Cir. 2013): without multiple incidents, there
cannot be notice of anything to the policymaker(s), and thus no deliberate indifference to the
unconstitutional conduct. Therefore, “a custom can be shown only by adducing evidence of a
continuing, widespread, persistent pattern of unconstitutional misconduct.” Jenkins v. County of
Hennepin, MN, 557 F.3d 628, 634 (8th Cir. 2009) (quotation omitted); see also McGautha v.
Jackson County, Mo., Collections Dep’t, 36 F.3d 53, 56 (8th Cir. 1994).
Thompson and Turner have described isolated incidents in which mace has been
employed, but have provided insufficient information to determine that the uses were
unconstitutional. This falls short of demonstrating a “continuing, widespread, persistent” pattern
of unconstitutional conduct. See Mettler v. Whitledge, 165 F.3d 1197, 1205-06 (8th Cir. 1999)
(“Seven complaints, filed between September 1987 and 1993, accuse Haltiner of excessive or
unnecessary force, but none of these complaints were sustained after departmental investigation,
even in part. . . . [O]nly two complaints against Whitledge . . . accused him of excessive or
unnecessary force, and only the May 1986 complaint was sustained in part.”). Like the plaintiff
15
in Mettler, Plaintiff also “has produced no evidence regarding the factual background of these
previous complaints, nor has [he] shown that the incidents giving rise to these complaints bear
any factual similarity to the” case at bar, other than the general fact that the incidents occurred in
Regional Jail. See id. Finally, even if Plaintiff has established a factual dispute regarding the
existence of a pattern of using mace unconstitutionally, he has not established a factual dispute
regarding the Regional Jail’s indifference to or authorization of that custom. The fact that there
was no investigation or discipline in this case (if true) does not establish a custom.13
Plaintiff also seems to rely on (1) Woolsey’s involvement in the incident at the Clinton
County Jail, (see Doc. 157, p. 19), and (2) being thrown onto his shoulder while at the Regional
Jail, (Doc. 80, ¶ 26), to support Count I.
However, Plaintiff has not identified facts
demonstrating uses of force other than as related to the use of mace, nor has he otherwise argued
that the Regional Jail has a practice of utilizing excessive force outside that context.
The uncontroverted facts in the Record demonstrate that the first and second elements
necessary to a “custom” theory cannot be proven. Therefore, the Regional Jail is entitled to
summary judgment on Count I.
B. Count III – Failure to Intervene
The Regional Jail argues that “even if it is assumed for purposes of this motion that one
or more officers of the Regional Jail failed to intervene [to prevent the administration of
unconstitutional force], summary judgment . . . is appropriate because there is no evidence that
this conduct was the result of an unconstitutional policy or custom.” (Doc. 143, p. 9.) In
response, Plaintiff contends that “the practice of beating prisoners for sport was so common that
13
Separate and apart from these issues, the Court doubts Plaintiff has presented a claim based on a custom of using
mace unconstitutionally. In his argument, Plaintiff repeatedly states that he was maced, but he provides no Record
support for this fact. (Doc. 157, p. 19.) In contrast, the deposition excerpt supplied by Defendants suggests that
Plaintiff admitted he was not maced. (Doc. 163-1.)
16
many, many detainees complained of the beatings they took – amongst themselves and in official
documents including grievances, lawsuits and direct communications with management of the
jail. And, the practice of punitively making detainees was so common that many detainees made
this complaint.” (Doc. 157 p. 24.) This, he contends, constitutes deliberate indifference on the
part of the Regional Jail. (Doc. 157, pp. 24-25.) However, as discussed earlier, the Record
simply does not support Plaintiff’s characterization of the facts. Plaintiff has not pointed to
competent evidence in the Record that would permit a jury to find that the Regional Jail has a
custom of permitting officers to allow other law enforcement officers (be they from Clinton
County or the Regional Jail) to administer “beatings.”
C. Count IV – Conspiracy
Count IV alleges that Clinton County and Daviess/DeKalb County conspired to deprive
Plaintiff of his rights. Specifically, he alleges that the counties “formed a plan and/or had a
meeting of the minds on February 24, 2012, either at [Plaintiff’s mother’s house] or at the
Clinton County Sheriff’s Department” to (1) enter Plaintiff’s mother’s house “without
permission or probable cause,” (2) repeatedly use a taser on Plaintiff, (3) “punch[ ] Plaintiff in
his left arm repeatedly with such force as to break his arm,” and (4) take Plaintiff into custody
without probable cause. (Doc. 80, ¶¶ 74-75.) The Regional Jail contends these allegations are
insufficient to plead a claim of conspiracy and, even if they are, the Record demonstrates that
there is no meeting of the minds between the two counties. Plaintiff argues that his pleading is
sufficient, but even if it is not he should be permitted to amend the Second Amended Complaint.
He also contends that the Record – primarily, Turner’s and Stewart’s affidavits – are sufficient to
create a factual dispute requiring resolution by a jury. As discussed below, the Court agrees with
the Regional Jail.
17
There are four elements to a conspiracy claim under 42 U.S.C. § 1983: (1) two or more
defendants conspired (2) with the intent to deprive the plaintiff of rights, (3) an act in furtherance
of the conspiracy, and (4) that the plaintiff or his property was injured, or he was deprived of
exercising his rights or privileges as a United States citizen. E.g., Barstad v. Murray County,
420 F.3d 880, 887 (8th Cir. 2005). “A conspiracy claim requires evidence of specific facts that
show a ‘meeting of minds’ among conspirators” and “requires at least two persons.” Id. Here,
Plaintiff only alleges, in a conclusory manner, that Clinton County and Daviess/DeKalb County
“reached an understanding, acted in concert, and engaged in a course of conduct together and
otherwise conspired among themselves to deprive Plaintiff of his rights under the United States
Constitution . . . .” (Doc. 80, ¶ 73.) These conclusory allegations are insufficient to plead a
conspiracy claim. Plaintiff requests leave to amend his pleading to conform to the evidence, but
the Rule permitting such amendments applies to evidence introduced at trial. Fed. R. Civ. P.
15(b).
More importantly, Plaintiff has identified no “evidence” of a meeting of the minds to
which the pleadings can conform. Plaintiff contends “there was a pattern and practice of taking
detainees to [the Regional Jail] from Clinton County, particularly where medical care was
required” and that “the deputies at Clinton [County] made it clear that a policy existed to send
detainees that were hurt to” the Regional Jail and that the Regional Jail “covered up the beatings
that Clinton County jailers were meting out to prisoners by accepting their injured detainees into
the jail.” (Doc. 157, p. 25.) This is not a fair description of the Record; that is, nothing in the
Record supports these facts. Moreover, assuming for the sake of argument that Plaintiff has
fairly described the Record, this is not the claim asserted in Count IV. Count IV alleges that the
two counties conspired to (1) unlawfully enter the house where Plaintiff lived, (2) administer a
18
taser, (3) arrest him, and (4) administer excessive force at the Clinton County Jail. (Doc. 80, ¶
75.) Count IV does not mention an agreement to transport prisoners to the Regional Jail to
deprive them of any rights, nor does it mention medical care.
The Record would not permit a jury to find that Clinton County conspired with the
Regional Jail to deprive Plaintiff of his rights in the manner described in Count IV. Accordingly,
the Regional Jail is entitled to summary judgment on Count IV.
D. Count V – Deliberate Indifference to Serious Medical Needs
Similar to its arguments on the other counts, the Regional Jail argues that the Record will
not permit a jury to find that there was persistent pattern of the Regional Jail depriving detainees
of care for serious medical needs, much less that its policymaker was aware of such a pattern.
(Doc. 143, p. 12.) Plaintiff’s argument pursues two themes: (1) Plaintiff was deprived of
medical care for his serious medical needs, and (2) Turner and Thompson were similarly taken to
the Regional Jail. (Doc. 157, p. 26.) However, Thompson does not allege that the Regional Jail
deprived him of medical care. (Doc. 157-7.) Turner only opines that other detainees at the
Regional Jail “frequently” would not get the care they asked for and does not establish that
anyone’s constitutional right to medical care was violated. (Doc. 157-2, ¶ 8.)
Even if the Record demonstrated jailers at the Regional Jail have a practice of not seeking
medical assistance, Plaintiff specifically alleges that the jailers contacted Dr. Glynn. In fact,
Count V is directed more at Dr. Glynn’s recommendation than any failing on the part of the
jailers. Therefore, even if the Regional Jail has an unconstitutional practice whereby jailers do
not obtain instructions from a doctor when faced with a detainee’s serious medical needs,
Plaintiff’s allegations demonstrate that he was not harmed by that practice.14
14
The Second Amended Complaint included Dr. Glynn as a defendant (in his official capacity, because like the
other Defendants he was not named in his individual capacity), but the claims involving Dr. Glynn were dismissed
19
III. CONCLUSION
For Plaintiff to prevail on his claims against the Regional Jail, a jury must believe, among
other things, that there was a continuing, widespread, persistent pattern of unconstitutional
misconduct by officers at the Regional Jail. A jury must also believe that the Regional Jail was
deliberately indifferent to, or tacitly authorized, this pattern of misconduct.
The evidence
establishes that neither of these two elements can be proved, and Plaintiff has not identified any
evidence in the Record that creates a factual dispute on these two points. Therefore, the
Regional Jail’s motions for summary judgment, (Doc. 126, Doc. 142), are GRANTED.
IT IS SO ORDERED.
/s/ Beth Phillips
BETH PHILLIPS, JUDGE
UNITED STATES DISTRICT COURT
DATE: February 23, 2017
by agreement of the parties. (Doc. 160; Doc. 162.)
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?