Percy GREEN, II, Plaintiff,
v.
State of MISSOURI, et al., Defendants.
United States District Court, E.D. Missouri, Eastern Division.
*822 Robert J. Reinhold, St. Louis, MO, for Plaintiff.
Robert J. Isaacson, Attorney General of Missouri, St. Louis, MO, for Paul Nocchiero, Joseph Mokwa, Chris Goodson, JoAnn Freeman-Morrow, Michael Quinn, Julius Hunter, Francis Slay, John Podolak, David Doetzel, Andrew Griffin, Brent Knox, Michael Regan, Daniel Peek.
Thomas R. McDonnell, St. Louis City Counselor, St. Louis, MO, for Francis Slay, State of Missouri, David Miller, John Bouhasin.
Stephen M. Durbin, Thomas L. Caradonna, Lewis Rice, St. Louis, MO, for Charles McCrary, Kestner Miller, Richard Grines, Special Administrative Board of the Transitional School District of the City of St. Louis.
MEMORANDUM AND ORDER
RODNEY W. SIPPEL, District Judge.
In a thirteen count complaint,[1] Plaintiff Percy Green, II has sued more than twenty defendants for violations of his constitutional and statutory civil rights and the Missouri common law. All claims concern his arrest at a St. Louis City School Board meeting on November 18, 2003 and his subsequent prosecution. In three separate motions, the defendants have moved for summary judgment. In the first motion, Defendants Michael Quinn, JoAnn Freeman Morrow, Julius Hunter, Chris Goodson, and Francis Slay, as current or former members of the St. Louis Board of Police Commissioners, Secretary Paul Nocchiero, and Chief of Police Joseph Mokwa, as well as individual officers David Doetzel, Michael Regan, Andrew Griffin, Daniel Peek, John Podolak, and Brent Knox jointly moved for summary judgment. In the second motion, Defendants Charles McCrary, Kestner Miller, and the Special Administrative Board of the Transitional School District of the City of St. Louis jointly moved for summary judgment. And in the final motion, Defendants *823 City of St. Louis, Francis Slay, as Mayor of the City of St. Louis, and two prosecutors, David Miller and John Bouhasin, jointly moved for summary judgment. For the reasons stated below, I will grant summary judgment on some claims and deny judgment on others.
I. Background
Plaintiff Percy Green is a well-known civil rights activist in St. Louis. Green's long history of civil rights activism is discussed in the landmark employment discrimination case, McDonnell Douglas Corp. v. Green,
Green filed his initial complaint on November 17, 2006. Over the course of the last three and a half years, Green has amended his complaint four times. In its final iteration, Green seeks damages for his personal injuries, loss of employment and economic opportunities, personal embarrassment, damage to his reputation, litigation costs, and his sense of personal distress regarding "movement losses." In this case, the "movement loss" at issue is not Green's seizure at the School Board meeting or the loss of his freedom to move. Rather, Green asserts that he was damaged because the success of "the movement" was of great personal importance to him. He claims he is entitled to damages for the failure of "the movement" because after his arrest, attendance at meetings "dropped off."
Before discussing the claims Green has made and the evidence the parties have submitted in support of and in opposition to summary judgment, it is necessary to explain the difficulty the defendants and the Court have encountered in their attempts to understand what, exactly, Green's claims and legal arguments are. Green is represented by counsel, and I have asked Green for clarification. Green's memoranda and responses frequently lack clarity and generally do not assist me in understanding his claims or arguments. It appears Green has made the following claims.
In Count I, Green sues Charles McCrary and Kestner Miller ("School Security Officers") and David Doetzel, Michael Regan, Andrew Griffin, Daniel Peek, John Podolak, Brent Knox, Craig Hebrank, Daniel Sweeney, and Byron Willis ("Defendant Police Officers"),[2] for violation of Green's First, Fourth, Fifth, Eighth and Fourteenth Amendment rights in their individual capacities. It is not clear whether Green asserts this count against the Special Administrative Board of the Transitional School District of the City of St. Louis ("SAB") and the Police Department through its Chief of Police Joseph Mokwa, its Secretary Paul Nocchiero, and Board Members Michael Quinn, JoAnn Freeman Morrow, Julius Hunter, Chris Goodson, and Francis Slay, in their capacities as current or former members of the St. Louis Board of Police Commissioners ("Police Board").
*824 In Count II, Green sues School Security Officers and Defendant Police Officers for violation of his statutory civil rights. Green alleges that School Security Officers and Defendant Police Officers engaged in intentional wrongful conduct and violence toward him, and they had no lawful authority to arrest him or use force against him. Green also claims the actions were done with actual malice and with willful and wanton indifference to, and deliberate disregard, for Green's constitutional rights. Green seeks exemplary and punitive damages.
In Count III, Green sues the Police Board for violations of Green's constitutional rights. Green claims that the Police Department had a policy and practice to authorize, acquiesce to, and cover up the use of excessive force.[3] Green further assets the Police Department had a policy and practice of authorizing its officers to verbally abuse detainees, and that these policies and practices caused Green to experience a constitutional deprivation. Green also claims the Police Department failed to adequately train, direct, supervise or control Defendant Police Officers concerning the use of excessive force and verbal abuse.
In Count IV, Green alleges that Defendant Police Officers, School Security Officers, and the Police Department conspired to violate his constitutional and statutory civil rights in violation of 42 U.S.C. §§ 1981, 1983, 1985 and the Equal Protection and Privileges and Immunities Clauses of the Fourteenth Amendment.
The Complaint does not contain any counts numbered V through VIII.
In Count IX, Green asserts a claim against the Police Department for respondeat superior liability for the intentional torts committed by Defendant Police Officers.
In Count X, Green asserts another claim against the Police Department, through the Police Board, for respondeat superior liability for the intentional torts of Defendant Police Officers, specifically the use of excessive force in the line of duty. Green claims that because the Police Department expressly authorized the use of excessive force, he is entitled to exemplary damages for the malicious conduct of Defendant Police Officers.
In Count XI, Green asserts a claim for negligence against Defendant Police Officers and School Security Officers. Green claims that Defendant Police Officers and School Security Officers were negligent when they used excessive force against him.
In Count XII, Green seeks exemplary and punitive damages from Defendant Police Officers and School Security Officers because their negligent violence was done with willful and wanton indifference to, and deliberate disregard for, human life and Green's rights.
In Count XIII, Green seeks damages from the Police Department for the negligence of Defendant Police Officers through the doctrine of respondeat superior because Defendant Police Officers' negligence *825 was committed within the scope of their employment and was an approved custom and usage of, or was encouraged, or acquiesced to, by the Police Department.
In Count XIV, Green asserts that the Police Department was negligent in that it failed to provide adequate training, supervision and control of Defendant Police Officers, and that Green was injured as a result of that failure.
In Count XV, Green claims he is entitled to punitive and exemplary damages from the Police Department for its failure to adequately train and supervise Defendant Police Officers because the failure to do so constitutes willful and wanton indifference to, and a deliberate disregard for, human life and the rights of private citizens, including Green.
In Count XVI, Green asserts a claim of malicious abuse of process, false arrest, and false imprisonment against School Security Officers and Defendant Police Officers. Green claims School Security Officers and Defendant Police Officers used the criminal process against him in order to intimidate him and dissuade him from asserting his rights, to cover up their own wrongdoing, and to avoid civil and criminal liability for their own acts. Green also claims School Security Officers and Defendant Police Officers falsely arrested him and falsely imprisoned him or caused him to be imprisoned.
In Count XVII, Green sues City of St. Louis, Francis Slay, as Mayor of the City of St. Louis, and two prosecutors, David Miller and John Bouhasin (collectively "City Defendants"), for malicious prosecution in violation of 42 U.S.C. §§ 1981, 1983 and 1985. Green claims David Miller, Bouhasin, Slay, and the City of St. Louis conspired to deprive him of his rights to free speech, free assembly, and equal protection under the United States Constitution by prosecuting him in retaliation for exercising his constitutional rights.
Green also repeatedly asserts that his Thirteenth Amendment rights were violated, but it is not clear under which count he brings his Thirteenth Amendment claim. Because it is a constitutional right, I will group it with his other constitutional claims in Count I.
What occurred at the November 18, 2003 School Board meeting prior to Green's arrest
Green attended a meeting of the St. Louis School Board on November 18, 2003. At that time, Green was sixty-eight years old. The meeting was held in the auditorium at Carr Lane School. Green testified that the auditorium was nearly full and "an enormous number of people" were present. Among them were School Security Officers; both McCrary, the Director of Security for the St. Louis Public Schools, and Kestner Miller,[4] a School Safety Officer, were inside the auditorium during the meeting. McCrary testified that due to recent acts of violence against board members at prior meetings, he was ordered to provide additional school security personnel and a contingent of St. Louis police officers at the November 18, 2003 meeting. Kestner Miller testified that his duties were to provide security and maintain order, and he received all instructions from his supervisor, McCrary. Several of Defendant Police Officers, namely Doetzel, Regan, Griffin, Podolak, and Knox, were stationed inside the building. Peek, another Defendant Police Officer, was stationed outside the Carr Lane School on the street.
*826 McCrary was aware of Green's prior civil rights activities and considered Green "a well known civil rights activist in the St. Louis area." Before that night, Kestner Miller did not have personal knowledge of Green's history as a civil rights activist. Doetzel, Regan, Griffin, Podolak, Knox, and Peek all testified that they were unaware of Green's history of civil rights activity.
The November 18, 2003 meeting was contentious, and speakers were routinely interrupted by shouts from the audience. Green observed a lot of yelling. According to Green, the yelling was coming from "everywhere in the auditorium." Green heard yelling from his right, his left, behind him, and in front of him.
There is a factual dispute concerning Green's behavior at the meeting. Green states that he spoke during the public access time, but during other portions of the meeting, he did not make "any noise" louder than a conversational tone, and he did not "boo." Byron Clemens, a St. Louis Public School teacher, testified that he paid "close attention" to Green during the meeting. Clemens noticed outbursts during the meeting, but none of them were centered near Green. Clemens also testified that at no time did Green, in a public way, say or do anything boisterous, contentious, disruptive, or inappropriate. R. William Purdy, a former teacher and administrator in the St. Louis Public Schools, testified that Green was seated about 10 to 15 feet in front of him and to the right. Purdy witnessed many others speak out of turn, yell, boo, or otherwise interfere with the meeting, but Green was not seated with the people behaving that way. Purdy testified that due to his proximity to Green at the meeting, he can state "with certainty" that Green spoke only during the public comment portion of the meeting and did not boo or disrupt the meeting in any manner.
For purposes of this motion, Defendant Police Officers and Police Board agree that Green was not boisterous or disruptive. Other defendants, namely the School Security Officers and SAB, deny that Green comported himself quietly and calmly during the meeting. McCrary claims that he heard Green repeatedly make loud disruptive outbursts, but he is unable to remember the specific words Green spoke. McCrary also testified that he heard the School Board President, Darnetta Clinkscale repeatedly ask Green to refrain from making disruptive outbursts and that he, himself, made a personal request that Green stop his outbursts while School Board members were conducting their discussions. McCrary also testified that he did not ask any police officers to arrest Green, and he did not enter an agreement with any police officers or "named defendants" to arrest or prosecute Green.
It appears that Kestner Miller did not see or hear Green make any loud outbursts. When asked to state what comments or statements Green made during the meeting, Kestner Miller did not mention any loud outbursts. Kestner Miller did, however, witness others telling Green to be quiet. For example, Kestner Miller testified that he witnessed Clinkscale repeatedly ask Green to refrain from making verbal disruptions. Kestner Miller also testified that he witnessed McCrary ask Green not to make any outbursts. Kestner Miller testified that he did not ask police officers to arrest Green, and he did not enter an agreement with any police officers or "named defendants" to arrest or prosecute Green.
There is also a factual dispute about what happened when School Security Officers approached Green. Green testified that the first "unusual" thing was that Kestner Miller approached him and told him he would have to leave. Green states *827 that he responded, "Have to leave? Why am I askedWhy am I being asked to leave? I have every right to be at this meeting as anyone else. I'm a taxpayer. And so, therefore, I'm not leaving." Green testified that he believed Kestner Miller leaned down and said, "I'm asking you to leave again." Green states that he refused again and then noticed Kestner Miller's supervisor, McCrary, standing 35 to 50 feet away near a column to Kestner Miller's right. Green said Kestner Miller looked toward McCrary. Green then witnessed McCrary gesture with his left hand for someone in the back of the room to come forward, but Green could not see to whom McCrary signaled. Before McCrary made the gesture, Green had not seen any police officers that night, and no one had mentioned anything about the officers to him. After McCrary signaled, a police officer approached Green and ordered him to leave. Green testified that when he asked the officer why he was being asked to leave, the officer told him "they don't want you here." Green said that he responded that he had a right to be at the meeting, the officer reiterated his request that Green leave the meeting, and Green was arrested shortly thereafter.
McCrary testified that he and Kestner Miller approached Green together to ask him to leave the auditorium. After Green refused, McCrary says he summoned the St. Louis City police officers and asked them for assistance in requesting Green leave the auditorium. According to Kestner Miller, when he approached Green and asked Green to refrain from making loud outbursts, Green responded, "you are full of bullshit." Kestner Miller states that St. Louis City police officers then asked Green to leave the auditorium.
The police report is consistent with Kestner Miller's testimony and supports portions of McCrary's testimony, but contradicts other portions. The report states that McCrary and Kestner Miller confronted Green on two occasions and asked him to refrain from any loud outbursts. According to the police report, McCrary did not ask the officers for assistance in requesting that Green leave the auditorium. Instead, the report states that after McCrary asked Green to leave, McCrary summoned officers Podolak and Doetzel and requested that Green be arrested for peace disturbance.
Other witnesses also testified about what happened in the moments before School Security Officers approached Green. Purdy testified that after he saw Clinkscale signal to McCrary, a security officer approached Green and ordered him to leave. Purdy then observed McCrary signal to someone at the back of the room. Clemens testified that as Green sat in his seat quietly and doing nothing, Clinkscale signaled to McCrary, who nodded in agreement. Clemens saw another school security officer, who he later learned was Kestner Miller, approach Green. Clemens testified that Kestner Miller motioned to McCrary who beckoned two uniformed police officers.
What the police officers knew at the time they arrested Green
Five of Defendant Police Officers participated in Green's arrest at the School Board meeting: Regan, Doetzel, Griffin, Podolak, and Knox. Officer Peek testified that he was not present at the School Board meeting, and was instead stationed outside the building. Peek did not participate in removing Green from the meeting, and his only involvement in the incident was conveying Green to the Justice Center for booking after Green was brought to the police cruiser by the other officers. Peek testified that he did not come to an agreement with any other person concerning Green's constitutional rights and that his actions in driving Green to the Justice *828 Center were not motivated by Green's race or civil rights activities. Peek claims his sole motivation was his assignment to convey any arrested person to the Justice Center.
Officers Regan, Doetzel, Griffin, Podolak, and Knox submitted nearly identical affidavits concerning their actions and knowledge before they arrested Green. They each testified that they were detailed to the School Board meeting due to recent disturbances at the meetings and were stationed outside the auditorium until summoned by McCrary, who advised the officers that Green "was disrupting the meeting by making loud oral outbursts and requested assistance in requesting Plaintiff to leave the auditorium." In their answers to Green's second set of interrogatories, Regan, Doetzel, Griffin, Podolak, and Knox each testified that they "ha[d] no specific recollection of any specific words being spoken by [Green] prior to his arrest." Regan, Doetzel, Griffin, Podolak, and Knox also testified that they had no knowledge of Green's conduct "other than the information provided by Mr. McCrary," and their actions in helping to arrest Green were not motivated by Green's race or civil rights activities, and were solely motivated by the information provided by McCrary. They each testified that they did not come to an agreement with any other officer or any person concerning Green's constitutional rights. The only difference among the affidavits was that Regan's affidavit noted that McCrary is African American.
Green disputes that Regan, Doetzel, Knox, Griffin, and Podolak were outside the auditorium. Green testified that he saw McCrary signal to the back of the auditorium, but he did not see the group at the back of the auditorium. Clemens testified that he saw McCrary signal to the back of the room where police officers were standing. Purdy also testified that he saw McCrary signal to someone at the back of the room and then a uniformed officer immediately approached. Although there appears to be a factual dispute over whether the officers were stationed outside the auditorium or at the back, this dispute is not material because there is no evidence that the officers witnessed any of Green's conduct during the meeting.
Facts relating to Green's "resistance" to arrest and the amount of force used in arresting Green
Green testified that after he was told he was under arrest, an officer grabbed his arm. The officers had to use their own strength to handcuff Green because he went limp. The officers pulled Green to the floor and placed him on his stomach. His face never impacted the ground in any significant manner. Green said that when the officers placed him face down on the floor, it was painful, but he did not scream out. Green also testified that the officers began to pull and drag him out of the auditorium, and he was dragged approximately 30 to 50 feet out a side door to a police cruiser.
Purdy testified that a uniformed police officer yanked Green "violently" by his arm and out of his seat and "threw" Green on the floor. Clemens testified that, without warning, an officer "violently grabbed" Green by the arm and yanked him on to the floor. Another officer then helped to "violently" roll Green onto the floor. According to Clemens, the officers, joined by several other uniformed officers, "dragged" Green out the door.
Kestner Miller stated that Green held on to the side of his seat when the police officers asked him to leave. McCrary stated that Green "fell to the floor in what is known as `Passive Resistance Mode' and placed his body in an outstretched rigid form, which caused the officers to have to carry him out of the auditorium." Clemens testified that "Green put up absolutely *829 no resistance and there was no resistance in his hands to being handcuffed." Clemens explained that as officers "dragged" Green out, "Green was limp and did not kick or thrust his body or arms in any manner to resist or attack the police officers." Purdy testified that "Green made no action of resistance of any type." Green testified that he "just went limp" because he did not want the officers to claim that he had hit them or kicked them. None of the police officers testified that Green resisted them in any manner.
Green also submitted a video of the arrest that was shot by local St. Louis television station NewsChannel 5. The video clip shows an officer and Green conversing and Green calmly waving his hand back and forth as if to say, "no." The officer then grabbed Green's left arm and began to pull Green from the chair. Another officer placed his hand on Green's back to assist in pulling Green from the chair. The video also shows that Green did not actively resist. There is no indication of any violence on the video.
Green testified that after he was out of the view of the auditorium, an officer tightened his handcuffs.[5] Once Green reached the cruiser, Green stepped into the rear and sat on one of the benches. Peek then drove Green to the Justice Center for booking. During the ride to the Justice Center, which lasted about 5 or 10 minutes, Green sat alone in the rear of the van. As he rode to the Justice Center, Green experienced 6 or 7 abrupt stops, but the stops did not cause him to fall or hit the inside of the cruiser. Green testified that the abrupt stops caused the handcuffs to tighten. Green could not see the road, and it was impossible for him to know why the driver was stopping.
The only physical injuries Green claims to have suffered are injuries to his wrists caused by the handcuffs. Green testified that his circulation was cut off and did not return for a couple of months. The handcuffs left a mark which ultimately receded, and Green never sought medical treatment for his alleged wrist injuries. Green also testified that he currently has no problems with his hands or wrists attributable to Defendant Police Officers' conduct.
Facts concerning the prosecution of Green
David Miller was the Attorney Manager in the City Counselor's Office assigned to the Municipal Courts. John Bouhasin was an Assistant City Counselor primarily assigned as a prosecutor in Municipal Court from November 2003 to December 31, 2005. Francis Slay was the Mayor of the City of St. Louis during all of 2003 to 2006.
After Green was arrested for peace disturbance, David Miller charged Green with peace disturbance and resisting arrest. David Miller testified that he based his decision to prosecute Green on information he was told by a police officer: that Green was disturbing a Board of Education meeting by "screaming, yelling, jumping up and down on tables," and he believed that amounted to peace disturbance. Bouhasin testified that the charges were improperly dismissed from a "call docket" on June 17, 2005.
Bouhasin testified that he decided to refile the charges against Green because there were witnesses that wished to testify and prosecute Green, and in Bouhasin's opinion, there were sufficient facts to pursue the charges. Green's attorney, Robert Reinhold, testified that when he asked David Miller about why the charges were *830 refiled, David Miller answered, "The mayor wants us to refile them, and we do what the mayor wants." David Miller testified that the exchange between Reinhold and him did not occur. David Miller acknowledged that refiling charges was rare, and during his thirty years in the City Counselor's officer he had probably refiled charges less than fifteen times. Slay denies having personally communicated with David Miller or Bouhasin regarding Green's prosecution. Slay also denies requesting that David Miller or Bouhasin refile the charges against Green after they had been dismissed.
II. Legal Standard
In considering whether to grant summary judgment, a district court examines the "pleadings, the discovery and disclosure materials on file, and any affidavits." Fed.R.Civ.P. 56(c)(2). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Lynn v. Deaconess Medical Center,
The party seeking summary judgment bears the initial responsibility of informing the court of the basis of its motion and identifying those portions of the affidavits, pleadings, depositions, answers to interrogatories, and admissions on file which it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,
III. Discussion
Before analyzing the individual bases for summary judgment that the various parties have raised, I will address Green's Fifth, Eighth and Thirteenth Amendment claims brought against all parties, and any claim he brings under 42 U.S.C. § 1982.
Both the Fifth and Fourteenth Amendments to the United States Constitution contain Due Process Clauses. The Fifth Amendment Due Process Clause limits the actions of the federal government, and a plaintiff may sue for violations under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
I will also grant judgment to all defendants on Green's Eighth Amendment claims. The Supreme Court has made explicit "that all claims that law enforcement officers have used excessive force deadly or notin the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard." Graham v. Connor,
Green also alleges that the defendants have deprived him of his Thirteenth Amendment rights. Section one of the Thirteenth Amendment provides, "Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." While primarily directed at the enslavement of Blacks in the southern states, the Thirteenth Amendment applies to all compulsory servitude. The Amendment extends beyond slavery and applies to cases where involuntary service is compelled by the use or threatened use of physical or legal coercion. United States v. Kozminski,
I turn now to the individual motions for summary judgment filed by the various defendants.
A. Claims Green brings against Defendant Police Officers
1. Fourth Amendment Claims
Defendant Police Officers argue that Green's Fourth Amendment Unlawful Arrest claim under 42 U.S.C. § 1983 fails as a matter of law because the officers had probable cause to arrest Green for peace disturbance and resisting arrest. They also argue that, even if they lacked probable cause to arrest Green, they are entitled to qualified immunity because they did not violate any clearly established constitutional right. Defendant Police Officers argue that Green's Fourth Amendment Excessive Force claim under 42 U.S.C. § 1983 fails as a matter of law because the officers used reasonable force, and they are entitled to qualified immunity because right to be free from the de minimis force applied to Green was not clearly established.
The doctrine of qualified immunity shields government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan,
a. Unlawful arrest
In Green's case, I believe it is most beneficial to first address whether the facts establish that Green was arrested in violation of the Fourth Amendment. The Fourth Amendment to the United States Constitution provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched." U.S. Const. amend. IV. "[A] police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony." United States v. Watson,
There is probable cause for an arrest when the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information are sufficient to warrant a prudent person in believing that the person arrested had committed or was committing an offense. Beck v. Ohio,
Probable cause is a "practical, nontechnical conception" and must be evaluated based on the totality of the circumstances. Illinois v. Gates,
*833 When analyzing the totality of the circumstances, "an informant's veracity, reliability, and basis of knowledge are all relevant and important factors." United States v. Palega,
The Missouri Attorney General claims that Clay v. Conlee,
In this case, Defendant Police Officers did not receive any information from the victim of a crime, thereby making the Clay victim-identification bright-line rule inapplicable to Green's situation. Instead, Doetzel, Regan, Griffin, Podolak, and Knox each indicated that their sole source of information about Green's alleged outbursts was McCrary, who advised them in person that Green was disrupting the meeting. When determining whether information provided by an informant is reliable, more weight is given to information when officers meet face-to-face with an informant and judge him to be credible. United States v. Wallace,
Having determined that the officers acted reasonably in finding the information provided to them by McCrary was reliable, I must now determine whether that information established probable cause that Green had committed or was committing a crime. Brinegar,
The ordinances of the City of St. Louis make peace disturbance a misdemeanor offense. Section 15.36.030 of the St. Louis Municipal Ordinances, provides:
*834 Any person who shall disturb the peace of others by noisy, riotous or disorderly conduct, or by violent, tumultuous, offensive or obstreperous conduct or carriage, or by loud and unusual noises, or by seemly, profane, obscene, indecent, lewd or offensive language, calculated to provoke a breach of the peace, or by assaulting, striking or fighting another in any park, street, alley, highway, thoroughfare, public place or public resort within the City . . . so that others in the vicinity are disturbed thereby, shall be guilty of a misdemeanor.
Peace disturbance is also illegal under Missouri state law. Section 574.010 of the Missouri Revised Statutes provides:
1. A person commits the crime of peace disturbance if: (1) He unreasonably and knowingly disturbs or alarms another person or persons by (a) Loud noise; or (b) Offensive language addressed in a face-to-face manner to a specific individual and uttered under circumstances which are likely to produce an immediate violent response from a reasonable recipient; or (c) Threatening to commit a felonious act against any person under circumstances which are likely to cause a reasonable person to fear that such threat may be carried out; or (d) Fighting; or (e) Creating a noxious and offensive odor; (2) He is in a public place or on private property of another without consent and purposely causes inconvenience to another person or persons by unreasonably and physically obstructing: (a) Vehicular or pedestrian traffic; or (b) The free ingress or egress to or from a public or private place.
2. Peace disturbance is a class B misdemeanor upon the first conviction. Upon a second or subsequent conviction, peace disturbance is a class A misdemeanor. Upon a third of subsequent conviction, a person shall be sentenced to pay a fine of no less than one thousand dollars and no more than five thousand dollars.
The Missouri courts have long "held that statutes abridging speech are constitutional to the extent that they prohibit only that speech which is likely to incite others to immediate violence." State v. Carpenter,
Under Missouri law, "any statute or ordinance providing for punishment for a breach of the peace[6] is unconstitutionally broad and vague if by its terms a person could be punished for exercising his right to freedom of speech and assembly as protected by the First Amendment of the United States Constitution and guaranteed by the 14th Amendment." City of Kansas City v. Thorpe,
Loud speech, absent more, cannot constitute the crime of peace disturbance under Missouri law. In Tinker, a protester who screamed and yelled at police and security guards, "pigs," or "stupid pigs," could not be found guilty of a peace disturbance because the words were not intended to provoke others to violence. Id. at 513-520; see also State v. Bickings,
It is therefore clear, that under Missouri law and the St. Louis ordinance, Defendant Police Officers had probable cause to arrest Green for peace disturbance based on his verbal conduct only if the "the facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief" that Green's verbal conduct was calculated to provoke a breach of the peace or "intended to and was reasonably probable to incite others to violence." Brinegar,
In this case, Defendant Police Officers were stationed at the School Board meeting because there had recently been disturbances at meetings. Regan, Doetzel, Podolak, Griffin, and Knox were summoned by McCrary who told them that Green was "disrupting the meeting by making loud oral outbursts." Their informant, McCrary, stated in his answers to Green's interrogatories that Green's "exact actions" were "making loud oral outbursts that were disrupting the Board of Education meeting." Regan, Doetzel, Podolak, Griffin, and Knox stated under oath that they had "no specific recollection of any *836 specific words being spoken by Plaintiff prior to his arrest."[7] McCrary, also stated under oath that he did not remember the "specific words" spoken by Green. In light of these facts, and taking all reasonable inferences in Green's favor, the police officers believed Green's loud oral outbursts were words.
While there is evidence that Green told Kestner Miller, "you are full of bullshit," there is no evidence that this information was conveyed to Defendant Police Officers or that McCrary informed Defendant Police Officers that Green was speaking in a way that might incite others to violence. Based on the evidence submitted, a reasonable officer would not be justified in believing Green's verbal conduct was calculated to provoke a breach of the peace or "intended to and was reasonably probable to incite others to violence" as required by state law. See Tinker,
Because Defendant Police Officers believed Green was simply "disrupting the meeting by making loud oral outbursts" through words, and they did not believe Green was using "fighting words," there was no probable cause to believe Green's conduct violated the peace disturbance statute or ordinance.
Defendant Police Officers also argue that they had probable cause to arrest Green for resisting arrest because, after Green was arrested, he resisted by going limp. This argument has no merit because it is undisputed that Green had already been arrested, and therefore seized under the Fourth Amendment, at the time Green went limp.[8] It is therefore irrelevant whether they later developed probable cause to arrest him. Probable cause must exist at the time of the arrest. Baribeau,
At my request, the parties briefed the issues of whether Green's refusal to leave the auditorium was a criminal infraction, whether Defendant Police Officers had probable cause to arrest Green for an infraction other than peace disturbance, and, if there was probable cause to arrest Green for another infraction, whether Defendant Officers violated Green's Fourth Amendment rights for arresting him for the incorrect infraction. Supreme Court "cases make it clear than an arresting officer's state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause." Devenpeck v. Alford,
In Devenpeck, law enforcement officers arrested Jerome Alford for violation of the Washington Privacy Act because he had been recording his conversations with the *837 officers. Id. at 592. After arresting Alford, Devenpeck discussed a series of possible criminal offenses with prosecutors, including violation of the Privacy Act, impersonating a police officer, and making a false representation. Id. Devenpeck rejected the suggestion that he levy multiple charges against Alford because "the State Patrol does not, as a matter of policy, `stack charges' against an arrestee." Id. A divided panel of the Ninth Circuit Court of Appeals held that the law enforcement officers "could not have had probable cause to arrest because they cited only the Privacy Act charge and tape recording officers conducting a traffic stop in Washington." Id. at 593. The majority held that, because impersonating a law enforcement officer and obstructing a law enforcement officer were not "closely related" to the offense Devenpeck invoked when he arrested Alford, there was no probable cause to arrest Alford for those offenses. Id. The Supreme Court rejected that test, explaining that the relevant inquiry was whether the facts, when viewed objectively, support a finding of probable cause, not the officer's subjective reason for making the arrest, and found the "rule that the offense establishing probable cause must be `closely related' to, and based on the same conduct as, the offence identified by the arresting officer of the arrest" inconsistent with its precedent. Id. at 593-94. The Court remanded the case for consideration of whether the law enforcement officers lacked probable cause to arrest Alford for obstructing a law enforcement officer or for impersonating a law enforcement officer. Id. at 595.
In this case, Defendant Police officers assert that although they did not arrest Green for trespass, there was probable cause to arrest Green for trespass under § 569.140 of the Missouri Revised Statutes for his refusal to leave the auditorium at Carr Lane School. Section 569.140.1 provides: "A person commits the crime of trespass in the first degree if he. . . knowingly remains unlawfully in a building or inhabitable structure. . . ." An individual's refusal to leave a building after an authorized agent requests him to leave is sufficient to support the charge of trespassing. State v. Armstrong,
As in Armstrong, here, a security officer approached Green and asked him to leave. While there is a dispute whether both Kestner Miller and McCrary or just Kestner Miller approached Green, it is undisputed that a security officer asked Green to leave and Green refused and thereby unlawfully remained in the building. It is also undisputed that Defendant Police Officers were aware of Green's refusal to leave. They therefore had probable cause to arrest Green for trespass. Under current Supreme Court precedent, the facts that the police did not arrest Green for trespass and the prosecutors did not charge Green with trespass are not relevant to the Court's probable cause analysis. See generally Devenpeck,
*838 b. Excessive force
Defendant Police Officers argue that Green's Fourth Amendment Excessive Force claim fails as a matter of law because the officers used reasonable force, and even if they used excessive force, they are entitled to qualified immunity because right to be free from the de minimis force applied to Green was not clearly established.
"All claims that law enforcement officers have used excessive force, whether deadly or not, in the course of an arrest, investigatory stop, or other seizure are analyzed under the Fourth Amendment's objective reasonableness standard." Nance v. Sammis,
The Eighth Circuit has stated that "a de minimis use of force or injury is insufficient to support a finding of a constitutional violation." Crumley v. City of St. Paul,
In this case, Green claims the officers used excessive force when they handcuffed him and dragged him from the school auditorium. He claims that after he was removed from the auditorium, an officer tightened the handcuffs around his wrists before placing him in the police van to transport him to the Justice Center. Green also claims that Peek used excessive force while driving Green to the Justice *839 Center by excessively stopping the vehicle abruptly, which hurt Green's wrists. Green testified that his circulation was cut-off and did not return for several months, but he never sought medical attention.
Green's excessive force claims can be broken into two categories: (1) the force used to remove him from his seat, handcuff him, and remove him from the auditorium; and (2) the force used to tighten the handcuffs after Green was removed from the auditorium and to convey him to the Justice Center.
i. Force used in auditorium
The force used to remove Green from the auditorium was reasonable. In Curd v. City Court of Judsonia, Arkansas,
After Green was placed on his stomach on the floor, the officers pulled and dragged Green for approximately 30 to 50 feet out of the auditorium. Green testified it was painful, but not so painful that he screamed out. This lasted about half a minute. Green does not claim that the officers threw him or jostled him about as they dragged or carried him out of the auditorium. It is undisputed that Green refused to walk out and instead went limp so that the officers would be forced to use their own strength to remove Green. This de minimis use of force cannot support a finding that the officers used unreasonable force in removing Green from the auditorium. See Namanny,
ii. Force used after Green was removed from the auditorium
Green also complains that an officer used excessive force by tightening the handcuffs around his wrists and that Peek used excessive force by driving in an abusive manner. As for Green's claim that officers used excessive force by applying the handcuffs too tightly, the Eighth Circuit concluded in Foster v. Metropolitan Airports Comm'n,
*840 Green also claims that Peek engaged in abusive driving because the cruiser came to about 6 or 7 abrupt stops during the five to ten minute ride to the Justice Center, which jostled Green and caused handcuffs to tighten. Green does not allege that Peek touched him in any way, and he acknowledges that the stops did not cause him to fall or hit the inside of the cruiser. There is simply no evidence that the manner in which Peek was driving was an excessive use of "force." Green also admitted that he could not see the road, and it was impossible for him to know why Peek stopped so abruptly. Moreover, the only physical injuries Green claims to have suffered are the injuries to his wrists that were caused by the handcuffs. Green has failed to demonstrate that any police officers used excessive force in effecting his arrest. As a result, Defendant Police Officers are entitled to summary judgment on Green's Fourth Amendment Excessive Force claims.
2. Fourteenth Amendment claims
a. Due Process Clause
Green's complaint is not a model of clarity. Green seems to bring some claims under the Fourteenth Amendment Due Process Clause. In their motion for summary judgment, Defendant Police Officers interpreted Green's Fourteenth Amendment Due Process Clause claims as relating exclusively to the alleged use of excessive force during Green's arrest. In his response in opposition, Green did not dispute this interpretation of his complaint. Therefore, I, too, will limit Green's due process claim to his allegations of excessive force. As noted above, the Supreme Court has made explicit "that all claims that law enforcement officers have used excessive forcedeadly or notin the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard." Graham,
b. Privileges and Immunities
Defendant Police Officers also move for summary judgment on Green's claims under the Fourteenth Amendment Privileges and Immunities Clause. Defendant Police Officers argue that Green's Privileges and Immunities claim fails because his lawsuit does not relate to discrimination against out-of-state residents in matters of fundamental concern or to any interstate matters. They cite the law for evaluating claims under the Privileges and Immunities Clause of Article IV, and do not cite any law concerning the Fourteenth Amendment Privileges and Immunities Clause. E.g. United Bldg. and Constr. Trades Council of Camden County and Vicinity v. Mayor and Council of the City of Camden,
In his response in opposition, Green does not respond to Defendant Police Officers' assertion that they are entitled to judgment on his claim under the Privileges and Immunities clause. Although a party opposing summary judgement "may not rely merely on allegations or denials in its own pleading," that obligation attaches only "[w]hen a motion for summary judgment is properly made as supported." *841 Fed.R.Civ.P. 56(e)(2). To make and properly support a motion for summary judgment, the movant must show there is no genuine issue of material fact and "that the movant is entitled to judgment as a matter or law." Fed.R.Civ.P. 56(c)(2). In this case, Defendant Police Officers have not even identified the law applicable to Green's Fourteenth Amendment Privileges and Immunities claim. While it is true that Green's Complaint lacks clarity and it is not clear what specific privilege and immunity Green claims Defendants deprived him of, Defendant Police Officers have not addressed any of the rights protected by the Fourteenth Amendment Privileges and Immunities Clause (i.e. the right to petition Congress, the right to vote in federal elections, the right to travel, etc.). The Slaughter-House Cases,
c. Equal Protection claims
Green claims Defendant Police Officers discriminated against him because of his race. Defendant Police Officers argue they are entitled to judgment as a matter of law on Green's Fourteenth Amendment Equal Protection claim because Green has failed to prove unlawful, purposeful discrimination. Green's response in opposition does not address any of Defendant Police Officers' arguments regarding Green's Equal Protection claims.
As a general matter, "the Equal Protection Clause requires that state actors treat similarly situated people alike." Habhab v. Hon,
Green has failed to show that Defendant Police Officers treated him differently than non-African-American audience members or that their decision to arrest him was based on his race. First, the record does not show that McCrary, or any other person, identified any other members of the audience as making loud noise or yelling. While there is no evidence that Defendant Police Officers failed to arrest members of other races after being informed about noise-making or yelling, there is also no evidence to that they had been informed that any other person was making noise or yelling. Additionally, there is no evidence that Defendant Police Officers' decision to arrest Green was based on his race. Although Green testified that he believed police officers in the City of St. Louis have a general attitude of dominance and often abuse their authority, Green has submitted no evidence that Defendant Police Officers held any racial animus towards African-Americans, that they said any remarks where one could infer racial animus, or that they treated Green differently than similarly situated people of another race. The only evidence submitted about Defendant Police Officers' motivation to arrest Green was their testimony that their actions to arrest Green were based exclusively on the information provided to them by McCrary. Because there is no evidence that Defendant Police Officers' actions were based on Green's race, I will grant summary judgment to *842 Defendant Police Officers on Green's Equal Protection claim.
3. 42 U.S.C. § 1981 claim
Like Green's Fourteenth Amendment Equal Protection claim, Green claims he was denied equal rights under the law on account of his race in violation of 42 U.S.C. § 1981. Defendant Police Officers argue they are entitled to judgment as a matter of law on Green's § 1981 claim because Green has failed to prove that Defendant Police Officers acted with the intent to discriminate against him on the basis of race. Green's response in opposition does not address any of Defendant Police Officers' arguments regarding his § 1981 claim.
Section 1981, like the Equal Protection clause, can be violated only by purposeful discrimination. Gen. Bldg. Contractors Ass'n, Inc. v. Pennsylvania,
4. First Amendment Claim
Green claims his arrest was motivated, in part, as retaliation against him for his long history of civil rights activities, and to prevent him from exercising his constitutional rights in the future. Defendant Police Officers argue that they are entitled to judgment because Green has presented no evidence the officers acted with the intent to deprive him of his First Amendment rights and there is no evidence any of Defendant Police Officers were aware of Green's civil rights history. Green responds that his reputation as a public figure is so well-known that it is "doubtful" that Defendant Police Officers were unaware of his civil rights activities. Green also argues that the fact that other members of the audience were disruptive, but were not arrested gives rise to an inference that Green was "specially singled out for arrest for reasons other than misconduct, peace disturbance or wrongdoing of any type."
The First Amendment to the United States Constitution provides that "Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people to peaceably assemble. . . ." "A citizen's right to exercise First Amendment freedoms without facing retaliation from government officials is clearly established." Baribeau,
Again in affidavits containing identical language, Regan, Doetzel, Podolak, Griffin, and Knox testified that "[b]efore approaching [Green] that evening, [they] had no specific knowledge of [Green's] prior civil rights activities." Regan, Doetzel, Podolak, Griffin, and Knox *843 further testified that their "actions that night in helping to arrest Green were not motivated in any part by [Green's race or] civil rights activities at any point in time, or any other factor other than the information provided to [them] by Mr. McCrary." Peek testified he "had no knowledge of [Green's] prior civil rights activities," and his act of "conveying [Green] to the Criminal Justice Center was not motivated in any manner by [Green's race], any civil rights activity by [Green] or any other factor other than [his] assignment to convey any arrested individuals in the cruiser." Green has presented no evidence that but-for his past exercise of his First Amendment rights, Defendant Police Officers would not have arrested him. The evidence shows that Defendant Police Officers arrested Green because McCrary told them Green was disrupting the school board meeting by making loud oral outbursts. Because there is no evidence Defendant Police Officers singled out Green due to his exercise of his constitutional rights, I will grant summary judgment to Defendant Police Officers on Green's First Amendment claims.
5. 42 U.S.C. § 1985 Conspiracy claim
Green contends that Defendant Police Officers conspired to violate his constitutional rights. Defendant Police Officers argue that they are entitled to judgment because there is no evidence that they formed an agreement to violate Green's constitutional rights. Green argues that there was a "seamless conspiracy" to arrest him, as evidenced by board member Clinkscale's signal to McCrary, who signaled to Kestner Miller, who signaled back to McCrary, who signaled to the police officers to arrest Green.
To establish a 42 U.S.C. § 1985(3) conspiracy claim, a plaintiff must show "(1) the existence of a civil conspiracy; (2) that the purpose of the conspiracy was to deprive her either directly or indirectly of her civil rights; (3) that a conspirator did an act in furtherance of the object of the conspiracy; and (4) damages, shown by demonstrating either injury to the person or property or the deprivation of a civil right." Mettler v. Whitledge,
Although Green has submitted evidence that a series of nods and hand signals that communicated "come forward" or "come here" were made by Clinkscale, Kestner Miller and McCrary, Green has not provided any evidence that there was a "meeting of the minds" between Defendant Police Officers and others to violate Green's rights. Defendant Police Officers testified that they did not come to an agreement with any person regarding Green. The evidence shows that Defendant Police Officers were summoned by McCrary who either asked them to arrest Green or to eject him from the meeting because Green was making loud outbursts. There is simply no evidence that Defendant Police Officers conspired to deprive Green of his constitutional rights. Moreover, in order to prevail on a claim for civil conspiracy under 42 U.S.C. § 1985, the plaintiff must prove a deprivation of a constitutional right or privilege. White v. McKinley, 519 *844 F.3d 806, 814 (8th Cir.2008). As discussed above, Green has not established that Defendant Police Officers deprived him of a constitutional right or privilege. As a result, Defendant Police Officers are entitled to judgment on Green's conspiracy claim.
6. Negligence by Defendant Police Officers
Defendant Police Officers argue that there is no cause of action for negligent use of force or negligent abusive treatment under Missouri law and Green has not identified any Missouri case involving negligent abusive treatment or use of force. If there is a cause of action for negligent use of force or abusive treatment, Defendant Police Officers are entitled to immunity under the doctrine of official immunity. "Official immunity provides protection to public officials from liability for negligence related to the performance of their discretionary acts." Conway v. St. Louis County,
Official immunity does not apply to discretionary acts done in bad faith or with malice. Blue v. Harrah's North Kansas City, LLC,
A defendant acts with malice when he wantonly does that which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial or injurious to another. An act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference to the rights of others. . . .
Bad faith, although not susceptible of concrete definition, embraces more than bad judgment or negligence. It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another.
Id. Because Green has produced no evidence that Defendant Police Officers' actions in using force on him were done in bad faith or with malice, Defendant Police Officers are entitled to official immunity on Green's negligence claim. As a result, I will grant judgment on this claim.
7. Malicious Abuse of Process
The elements of an abuse of process claim are: (1) the defendant made an illegal, improper, perverted use of process, a use neither warranted nor authorized by the process; (2) the defendant had an improper purpose in exercising such illegal, perverted, or improper use of process, and (3) damages resulted. Duvall v. Lawrence,
8. False Imprisonment
Under Missouri law, an action for false imprisonment must be brought within two years after the cause of action has accrued. Mo.Rev.Stat. § 516.140. A cause of action for false imprisonment accrues at the time the plaintiff is released from imprisonment. Stafford v. Muster,
9. False Arrest
The Missouri Supreme Court has explained that false arrest is simply another name for the tort of false imprisonment. Highfill v. Hale,
B. Claims Green brings against the Members of the Board of Police Commissioners, Chief Mokwa, and Secretary Nocchiero
1. Constitutional claims under Monell
The only claims Green appears to bring against the Police Board under Monell are for the Police Department's policy and practice of authorizing excessive force and verbal abuse, and for failure to train or supervise officers to prevent the use of excessive force and verbal abuse.[9] A municipality cannot be held liable under § 1983 solely because it employs a tortfeasor. Monell v. Dep't of Social Servs.,
2. Respondeat superior for intentional torts
In Counts IX and X, Green seeks damages from the St. Louis City Police Department for the intentional torts Defendant Police Officers committed within the scope of their employment. The Police Board argues that sovereign immunity *846 bars Green's claims against it because it is a state created entity. Although the Supreme Court of Missouri held that the Board is an "agency of the state" in Smith v. State,
"Under respondeat superior, an employer is liable for damages from the misconduct of its employee acting within the course and scope of employment." Stanley v. City of Independence,
3. Negligent training, supervision, and control of police officers
In Count XIV, Green seeks damages from the St. Louis City Police Department for negligently failing to train, supervise, and control its police officers in "the use of deadly force and other matters incidental to the exercise of police functions." Although Green's complaint is frequently difficult to interpret, it is clear that Green's claims concerning constitutional violations are brought in Counts I and III. I therefore interpret Count XIV to address the negligent training, supervision, and control that gave rise to Green's state law claims.
The sole argument that the Police Board makes for judgment on this claim is that Green's claims are barred by sovereign immunity. As discussed above, both the Supreme Court and the Eighth Circuit have held that the St. Louis Board of Police Commissioners is not protected by Eleventh Amendment sovereign immunity. Although the Board cannot avail itself to the protections of the Eleventh Amendment, because this is a state-law claim, I must also analyze the possibility of state-law immunity.
The substantive law of Missouri controls Green's state law claims. St. Paul Fire & Marine Ins. Co. v. Missouri United Sch. Ins. Council,
The Missouri Supreme Court has repeatedly stated that the St. Louis Police Board is a state agency. Hodges v. City of St. Louis,
C. Claims against School Security Officers
1. First Amendment
McCrary and Kestner Miller argue that because the School Board meeting was a designated (or limited) public forum and Green made loud outbursts and used inappropriate language, they were permitted to eject Green from the meeting. They also assert that because Green claims he was sitting quietly and not saying anything at the time of his arrest, as a matter of law, they could not have violated his First Amendment rights. I do not address whether McCrary and Kestner Miller are entitled to qualified immunity because they did not assert qualified immunity as a defense in their motion for summary judgment.
One of McCrary and Kestner Miller's arguments relies on a disputed material fact, whether Green was silent at the meeting or made loud outbursts, which in itself would defeat their motion for summary judgment. Both of their arguments indicate a fundamental misapprehension about the nature of Green's First Amendment claims. The focal point of McCrary and Kestner Miller's First Amendment argument is what types of restrictions the School Board could place on Green's speech. They spend substantial energy discussing the type of forum the School Board meeting was, the types of permissible restrictions on speech in that forum, and how those restrictions applied to Green's claim to show that they did not impermissibly restrain Green's speech at the School Board meeting.
But Green's First Amendment claim is not that his speech was restricted at the School Board meeting. Instead, Green's claim is that Defendant Police Officers and School Security Officers retaliated against him for his past civil rights activities and his speech during the comment section of the meeting. Indeed, this is one of the few areas where his claims are relatively clear.[10] On page 4 of Green's complaint, he asserts:
11c Plaintiff Green because of his race (Black) and his history of lawful civil rights activities for many decades and his lawful and appropriate exercise of First Amendment Rights of free speech and assembly, Plaintiff was arrested at a St. Louis School Board meeting on November 18, 2003 hereafter herein [sic], the only person arrested at that meeting, by the collaborative conspiratorial action or acquiescence of the then School Board of the City of St. Louis, Board Members. This action against Plaintiff was because of his exercise of and to prevent further exercise of his U.S. Constitution [sic] protected rights under the First, Fourth, Fifth, Eighth, Thirteen [sic] and Fourteenth Amendments and violation of 42 U.S.C. 1981, 1982, 1983 and common law and to deny him equal protection of the law and privileges and immunities.
11d Plaintiff's arrest, prosecution [sic] (which resulted in acquittal) arose out of *848 unlawful [sic] November 18, 2003 arrest at the school board meeting in which Plaintiff was exercising his Rights of free speech and assembly and was in [sic] result of the acted on conspiracy and common plan to deny Plaintiff his Constitutional rights and equal protection of the law and rights of free speech and assembly and because of his race (Black) by the Defendant Police Officers and Defendant School Security Officers who acted against Plaintiff because of his race and exercise of his Constitutional rights of free speech and assembly. . . .
As discussed above, citizens have the right to exercise their First Amendment freedoms without facing retaliation from government officials. Baribeau,
2. Fourth Amendment claims
McCrary and Kestner Miller argue that they cannot be liable for violating Green's Fourth Amendment rights because Green admits that they did not personally participate in his arrest. "The Fourth Amendment covers only `searches and seizures.'" County of Sacramento v. Lewis,
3. Fourteenth Amendment claims
McCrary and Kestner Miller argue they are entitled to judgment on Green's Fourteenth Amendment Equal Protection Clause claim because there is no evidence his removal from the School Board meeting was based on his race. As discussed above, to prevail on his claim, Green, as a threshold matter, show that McCrary and Kestner Miller treated him differently than similarly-situated audience members based on his race. There is simply no evidence that the decision to remove Green from the School Board meeting was based on race. As a result, McCrary and Kestner Miller are entitled to judgment on Green's Equal Protection Clause claim. I will also grant them summary judgment on Green's Due Process Clause argument for the same reasons I granted Defendant Police Officers judgment on Green's Fourteenth Amendment Due Process clause claims, namely that Green's excessive force *849 claim must be brought under the Fourth Amendment, and not the Fourteenth Amendment. Additionally, I will dismiss without prejudice any claims Green brings against McCrary and Kestner Miller under the Privileges and Immunities Clause for failure to state a claim for the reasons discussed above.
4. 42 U.S.C. § 1981 claim
In their motion for summary judgment, McCrary and Kestner Miller recognize that Green alleges they violated his statutory civil rights under 42 U.S.C. § 1981 in Count II. Although McCrary and Kestner Miller argued that Green's §§ 1983 and 1985 claims fail, they did not set forth any argument why they are entitled to judgment on Green's § 1981 claim. As a result, I will not grant judgment to McCrary and Kestner Miller on Green's § 1981 claim.
5. 42 U.S.C. § 1985 conspiracy claim
Green contends that McCrary and Kestner Miller, along with Defendant Police Officers and the Police Board, conspired to violate his constitutional rights. McCrary and Kestner Miller argue that they are entitled to judgment on Green's conspiracy claims because Green has failed to establish that they violated any of his constitutional rights, that they did not ask Defendant Police Officers to arrest Green, and that there is no evidence that they formed an agreement to violate Green's constitutional rights. Green argues that there was a "seamless conspiracy" to arrest him, as evidenced by Board Member Clinkscales' signal to McCrary, who signaled to Kestner Miller, who signaled back to McCrary, who signaled to the police officers to arrest Green.
As discussed above, to establish a 42 U.S.C. § 1985(3) conspiracy claim, a plaintiff must show "(1) the existence of a civil conspiracy; (2) that the purpose of the conspiracy was to deprive her either directly or indirectly of her civil rights; (3) that a conspirator did an act in furtherance of the object of the conspiracy; and (4) damages, shown by demonstrating either injury to the person or property or the deprivation of a civil right." Mettler,
McCrary and Kestner Miller first argue that because Green has failed to show that they violated any of his constitutional rights, his claim for conspiracy fails. In order to prevail on a claim for civil conspiracy under 42 U.S.C. § 1985, the plaintiff must prove a deprivation of a constitutional right or privilege. White,
McCrary and Kestner Miller also argue that they are entitled to judgment as a matter of law because it is "undisputed" that they did not ask any St. Louis City police officers to arrest Green at the School Board meeting. Both McCrary and Kestner Miller testified that they did not ask any police officers to arrest Green. While Defendant Police Officers testified in their affidavits that McCrary asked for their assistance in requesting Green to leave the auditorium, some of Defendant Police Officers provided a slightly different *850 account in their answers to Green's second interrogatories. In response to the question whether they heard any statements from School Board Member or School Board Security Officers on November 18, 2003, Doetzel stated, "Defendant has no specific recollection of any statement of comment of any School Board Member on the referenced date. Further answering, please see CN #XX-XXXXXX." Knox and Regan stated, "With regard to statements or comments by Board Security Officers, please see CN# XX-XXXXXX." That document, the police report, states "Charles McCrary summoned Lt. John Podolak and Sgt. David Doetzel to his location and informed us that Percy G. Refused to leave on his own and requested that Percy G. Be arrested for Peace Disturbance." Accordingly, it is not "undisputed" that McCrary did not ask the police officers to arrest Green. McCrary and Kestner Miller also argue that Green's conspiracy claim fails because Defendant Police Officers had probable cause to arrest Green. Green alleges McCrary and Kestner Miller conspired to deprive him of his constitutional rights, including his First Amendment rights. If McCrary and Kestner Miller conspired to have Green arrested and ordered Green to leave the auditorium in retaliation for Green's First Amendment activities and Defendant Police Officers had probable cause to arrest Green based on that order, the fact that McCrary and Miller succeeded in manufacturing probable cause for Defendant Police Officers to arrest Green cannot undermine Green's claim that McCrary and Kestner Miller conspired to have him arrested.
Additionally, McCrary and Kestner Miller argue that Green "cannot identify a single fact" to support his argument that they conspired to cause his arrest. "The question of the existence of a conspiracy to deprive [a plaintiff] of [his or her] constitutional rights should not be taken from the jury if there is a possibility the jury could infer from the circumstances a `meeting of the minds' or understanding among the conspirators to achieve the conspiracy's aims." White,
6. Negligence
McCrary and Kestner Miller argue that they are entitled to judgment on Green's negligence claims because there is no evidence they used any force against him. "To establish a claim for negligence under Missouri law, the plaintiff must prove: (1) the existence of a duty on the part of the defendant to protect the plaintiff from injury, (2) a failure of the defendant to perform that duty, and (3) an injury proximately caused by the defendant's failure." Blevens v. Holcomb,
7. Malicious abuse of process
As discussed above, "[t]he essence of abuse of process is not the commencement of an action without justification, but it is the misuse of process for an end other than that which it was designed to accomplish." Guirl,
8. False arrest and false imprisonment
As discussed above, Green's claims of false imprisonment and false arrest are barred by the statute of limitations. As a result, McCrary and Kestner Miller are entitled to judgment on these claims.
D. Claims Green brings against SAB
It is difficult to ascertain which, if any, counts Green has brought against SAB. SAB interpreted Green's complaint as if Green brings Counts I and Count IV against it, and moved for summary judgment on both counts. It is clear that in his Second Amended Complaint, Green brought Count IV against the School Board, among others, but Count IV of Green's Fourth Amended Complaint concerns only "Defendant Officers, and School Security Officers, said Chief and Board of Commissioners, acting and operating as St. Louis Missouri Police Department." There does not appear to be any allegation that SAB was involved in the conspiracy alleged in Count IV, and the count does not assert liability under Monell.
As discussed earlier, Green may bring Count I against the SAB for constitutional violations under Monell. Although it is *852 not clear whether Count I is brought against SAB, it is clear that Green has not provided any evidence the School District had a policy or custom that caused a violation of his constitutional rights. As a result, SAB is entitled to summary judgment on all claims brought against it.
E. Claims Green brings against the Prosecutors, Slay, as Mayor of the City of St. Louis, and the City of St. Louis
In their statement of uncontroverted material facts, City Defendants suggested Count XVII, which is for malicious prosecution in violation of 42 U.S.C. §§ 1981, 1983 and 1985, was the only count asserted against them. Green denied this and stated that other portions of the Complaint direct claims against City Defendants. Because Green did not identify which counts he claims to assert against City Defendants, I ordered him to specify the counts. Green responded that Counts III, IV, and X are purportedly brought against City Defendants. I have reviewed Green's Fourth Amended Complaint and conclude that no reading of Counts III, IV and X would have put City Defendants on notice that those counts were brought against them. I agree with City Defendants that only Count XVII is brought against them. In Count XVII, Green claims David Miller, Bouhasin, Slay, and the City of St. Louis conspired to deprive Green of his rights of free speech, free assembly and equal protection under the United States Constitution by prosecuting him in retaliation for exercising his constitutional rights.
Defendants David Miller and Bouhasin assert that they are entitled to absolute immunity for the prosecutorial decisions relating to filing and refiling the charges against Green. Green argues that prosecutors can be held liable where there is an egregious violation of 42 U.S.C. § 1983.
"[I]n initiating a prosecution and in presenting the State's case, the prosecutor is [absolutely] immune from a civil suit for damages under s 1983." Imbler v. Pachtman,
Prosecutors are only entitled to absolute immunity "when the prosecutor performs distinctly prosecutorial functions." McGhee v. Pottawattamie County,
In this lawsuit, Green seeks to hold David Miller and Bouhasin liable for refiling charges against him after the charges had been dismissed. Green does not claim, nor has he presented any evidence, that David Miller and Bouhasin violated his rights while performing administrative or investigative activities. Instead, the evidence shows that David Miller issued the charges against Green, and Bouhasin decided to refile the charges after they were dismissed. The decision to file or refile charges is unquestionably "a distinctly prosecutorial function" that is "intimately *853 associated with the judicial phase of the criminal process." McGhee,
Defendant Slay, in his capacity as Mayor of the City of St. Louis, argues that he is entitled to summary judgment because there is no evidence he conspired with any person to violate Green's rights. Green appears to argue that Slay is liable because he played a role in Green's prosecution. To establish a 42 U.S.C. § 1983 conspiracy claim, a plaintiff must show "(1) that the defendant conspired with others to deprive him of constitutional rights; (2) that at least one of the alleged co-conspirators engaged in an overt act in furtherance of the conspiracy; and (3) that the overt act injured the plaintiff," and (4) that the plaintiff was actually deprived of a constitutional right. White,
Green has presented no evidence that Slay conspired with David Miller and Bouhasin to deprive him of his constitutional rights. Slay denies having personally communicated with David Miller or Bouhasin regarding the prosecution of Green. Slay also denies requesting that David Miller or Bouhasin refile the charges against Green after they had been dismissed. There is no evidence that Slay was aware that the Defendant Police Officers lacked probable cause to arrest Green or that the prosecutors might have lacked probable cause to prosecute Green. Bouhasin testified that he decided to refile the charges against Green based on the fact that there were witnesses that wished to testify and prosecute Green, and in Bouhasin's opinion, there were sufficient facts to pursue the charges. Whether David Miller told Reinhold that Slay wanted the charges refiled or not is immaterial because there is no evidence that Slay told David Miller to refile the charges for the purpose of directly or indirectly depriving Green of his civil rights. "Speculation and conjecture are not enough to prove that a conspiracy exist[ed]." Mettler,
Defendant City of St. Louis argues it is entitled to judgment as a matter of law because Green has presented no evidence of an official policy or custom that would give rise to liability under Monell. Green argues that the City of St. Louis is liable for Slay's acts because Slay is the highest official in the city.
Green's argument is wrong as a matter of law. The doctrine of respondeat superior is inapplicable to suits for civil rights violations under 42 U.S.C. § 1983. Id. at 691,
*854 Green has presented no evidence of a city custom or policy to deprive individuals of their constitutional rights by conspiring to engage in malicious prosecutions. As a result, the City of St. Louis is entitled to summary judgment.
Count XVII also raises claims under 42 U.S.C. § 1981.[12] Section 1981 provides that all persons in the United States "shall have the same right in every state and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens...." 42 U.S.C. § 1981. In Jett v. Dallas Independent School Dist.,
Green also makes a claim under the Missouri common law for conspiracy, malicious prosecution and abuse of process. Miller and Bouhasin have absolute immunity for their prosecutorial acts under the common law. Carden v. George,
"To succeed on a claim for malicious prosecution, the plaintiff has the burden of proving that the defendant instigated the prosecution of the underlying criminal case against him, without probable cause and with malice, which was terminated in his favor, and resulting in damages to him." Doyle v. Crane,
"[A]buse of process is different from malicious prosecution." Moffett v. Commerce Trust Co.,
F. Claims against Craig Hebrank, Daniel Sweeney, and Byron Willis
Rule 4(m) of the Federal Rules of Civil procedure provides, "If a defendant is not served within 120 days after the complaint is filed, the courton motion or on its own after notice to the plaintiffmust dismiss the action without prejudice or order that service be made within a specified time." An individual may be served by
(1) following state law for serving a summons ... or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
Fed.R.Civ.P. 4(e). Missouri state law permits service of process
by delivering a copy of the summons and petition personally to the individual or by leaving a copy of the summons and petition at the individual's dwelling house or usual place of abode with some person of the individual's family over the age of fifteen years, or by delivering a copy of the summons and petition to an agent authorized by appointment or required by law to receive service of process.
Mo. R. Civ. P. 54.13.
1. Hebrank
On March 25, 2010, I informed Green that Hebrank had never filed an answer to his complaint and that no one entered his or her appearance. I ordered Green to show cause why Hebrank should not be dismissed because it appeared that the November 21, 2007 service was ineffective in that did not comply with Fed.R.Civ.P. 4(e). Green responded to the Show Cause Order by submitting evidence that on February 27, 2007, Green personally served Defendant Craig Hebrank with notice of this lawsuit at his home. Green's process server submitted an affidavit that after Hebrank answered the door and acknowledged he was Craig Hebrank, the process server personally handed the summons to him. For reasons unknown to the process server, he was asked to serve Hebrank again, and he did so on November 21, 2007 by leaving the summons at the Cottleville *856 police station. Because the record establishes that the February 27, 2007 service complied with Fed.R.Civ.P. 4(e), I will not dismiss Hebrank for lack of service.
A district court may dismiss a claim sua sponte under Fed.R.Civ.P. 41(b) for failure to prosecute. See Skelton v. Henry,
2. Willis and Sweeney
On November 21, 2007, summons were purportedly executed on Daniel Sweeney and Byron Willis, both of whom were sued in their individual capacities and official capacities as officers or supervisors of the St. Louis Police Department. The return for Byron Willis states, "Left Copies at Centra [sic] Bureua [sic], St. Louis Police Dept." The return for Daniel Sweeney states, "Left copies at Defendant's work, Central Detective Bureau, St. Louis Police Dept." Neither Sweeney or Willis filed an answer, and no one entered his or her appearance to represent them.
Service can be effectuated by delivering a copy of each to an agent authorized by appointment or by law to receive service of process. Fed.R.Civ.P. 4(e)(2)(C); Mo. R. Civ. P. 54.13. The issue here is whether Green has provided sufficient evidence that the unnamed person at the Central Detective Bureau is an agent authorized by appointment or by law to receive service of process for Willis and Sweeney. Because there was no evidence in the record that the unnamed agent was authorized to accept service of process and it appeared that service on those defendants was ineffective for failing to comply with Fed.R.Civ.P. 4(e), on March 25, 2010, I ordered Green to show cause why they should not be dismissed for lack of service. In response, Green provided the affidavit of his process server that states he "had been repeatedly told that the person that received the summons in the case of Willis and Sweeney that that person had authority to receive for these present employees and officers who were in good standing as officers and that they did not want me to personally approach them to serve them on the job or in public nor at their respective homes as their addresses were not intended for security reasons to be publicly known. I knew this was the procedure also because I had been in prior years a police officer myself." I find this statement by Green's process server insufficient to establish that the unnamed individual was authorized to accept service for Willis and Sweeney. Green has failed to provide any evidence that Willis and Sweeney appointed the unnamed individual to accept service for them and has failed to cite any statute or ordinance that authorized the unnamed individual to receive service for Willis and Green. As a result, I will dismiss without prejudice all claims against Willis and Sweeney for lack of service in this matter. Even if service were valid, I would dismiss all claims *857 against Willis and Sweeney for failure to prosecute.
Conclusion
I will grant summary judgment to all parties on Green's Fourth Amendment claims, Fifth Amendment claims, Eighth Amendment claims, Thirteenth Amendment claims, his claims under 42 U.S.C. § 1982, Green's false imprisonment and false arrest claims. I will dismiss without prejudice Green's Fourteenth Amendment Privileges and Immunities Clause claims against all parties for failure to state a claim.
I will grant summary judgment to Peek, Regan, Doetzel, Podolak, Griffin, Knox, Quinn, Freeman Morrow, Hunter, Goodson, and Slay, as current or former members of the St. Louis Board of Police Commissioners, Mokwa, Nocchiero, David Miller, Bouhasin, Slay, as Mayor of the City of St. Louis, and the City of St. Louis summary judgment on all claims made against them. I will also grant the Special Administrative Board of the Transitional School District of the City of St. Louis summary judgment on all claims made against it.
I will dismiss with prejudice all claims against Craig Hebrank for failure to prosecute, and I will dismiss without prejudice the claims against Byron Willis and Daniel Sweeney.
In short, the only claims remaining are Green's First Amendment retaliation claim, 42 U.S.C. § 1981 claim, and 42 U.S.C. § 1985 conspiracy claim against McCrary and Kestner Miller.
Accordingly,
IT IS HEREBY ORDERED that Green's Fourteenth Amendment Privileges and Immunities claims against all defendants are DISMISSED without prejudice.
IT IS FURTHER ORDERED that all claims against Defendants Byron Willis and Daniel Sweeney are DISMISSED without prejudice.
IT IS FURTHER ORDERED that the claims against Defendant Craig Hebrank are DISMISSED with prejudice.
IT IS FURTHER ORDERED that Defendants Michael Quinn, JoAnn Freeman Morrow, Julius Hunter, Chris Goodson, and Francis Slay, in his capacity as member of the St. Louis Board of Police Commissioners, Paul Nocchiero, Joseph Mokwa, David Doetzel, Michael Regan, Andrew Griffin, Daniel Peek, John Podolak, and Brent Knox's motion for summary judgment [# 248] is GRANTED.
IT IS FURTHER ORDERED that Defendants Charles McCrary, Kestner Miller, and the Special Administrative Board of the Transitional School District of the City of St. Louis's motion for summary judgment [# 245] is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that Defendants David Miller, John Bouhasin, Francis Slay, as Mayor of the City of St. Louis, and City of St. Louis's motion for summary judgment [# 238] is GRANTED.
NOTES
Notes
[1] The counts are numbered I, II, III, IV, IX, X, XI, XII, XIII, XIV, XV, XVI, and XVII. The complaint does not contain counts numbered V, VI, VII, or VIII.
[2] Because Hebrank, Sweeney, and Willis are dismissed for failure to prosecute or for lack of service, discussed infra, my use of the term "Defendant Police Officers" throughout this order refers only to Doetzel, Regan, Griffin, Peek, Podolak, and Knox.
[3] The complaint says it was the Police Department's policy "to cover up the use of excessive force despite the lack of probable cause to arrest or any actual violation which would justify the issuance of a ticket." This allegation, of course, does not make sense because a determination of whether or not the force used in effecting an arrest was excessive is unrelated to whether there was probable cause to effect the arrest. In their motion for summary judgment, members of the Police Board interpreted this claim to allege a policy that permits excessive force, and not a policy that permits arrests without probable cause. Green did not dispute this interpretation so I, too, will interpret this claim to mean a policy concerning the use of excessive force.
[4] Because more than one defendant has the surname Miller, I will identify them by their first and last names.
[5] This portion of the record is unclear because page 68 of Green's deposition was not submitted.
[6] "Breach of the peace" is a term that includes all violations of public peace or order and act tending to a disturbance thereof. City of St. Louis v. Slupsky,
[7] Michael Regan, David Doetzel, John Podolak, Andrew Griffin, and Brent Knox each used this identical language in their Answers and Objections to Plaintiff's second interrogatories. Daniel Peek answered in his Answers and Objections to Plaintiff's second interrogatories that he heard no comments or statements by Green.
[8] Because Green was already seized at the point the officers claim they had probable cause to arrest Green for resisting arrest, I do not address whether they did in fact have probable cause to arrest Green for resisting arrest. I note, however, that there are serious questions as to whether the officers had probable cause to arrest Green for resisting arrest based on his passive resistance. Under the Missouri statute, a person can be guilty of resisting arrest only if he uses or threatens the use of violence or physical force or by fleeing. Mo.Rev.Stat. § 575.150.1. There are no allegations here that Green used or threatened force or fled.
[9] As described in the background section, Count III asserts the Police Board had a policy and practice to allow and a policy and practice to authorize, acquiesce to, and cover up the use of excessive force. Green further assets the Police Department had a policy and practice of authorizing its officers to verbally abuse detainees, and that these policies and practices caused Green to experience a constitutional deprivation. Green also claims the Police Department failed to adequately train, direct, supervise or control Defendant Police Officers concerning the use of excessive force and verbal abuse.
[10] Defendant Police Officers recognized Green's claim as one for retaliation and argued that the claim fails because their conduct was not motivated by Green' civil rights activities. Green's response in opposition makes it clear that his First Amendment claims are for retaliation. For example, he argues, "Green was singled out for retribution," and "And for what could Mr. Green be singled out other than for his past exercise of his First Amendment Rights, over the last fifty years and also for his exercise of free speech in critical and public opposition to the Slay majority slate. . . ."
[11] Unlike McCrary and Kestner Miller, Defendant Police Officers testified that they came to no agreement with other officers, any other defendant or any other person.
[12] At the summary judgment stage, Green stated that Count XVII was brought under both 42 U.S.C. § 1983 and 42 U.S.C. § 1985. He did not claim to assert a claim under 42 U.S.C. § 1981. I will address the § 1981 claim because Green's Fourth Amendment Complaint clearly says the act was committed in violation of § 1981 as well as other violations.