Pitts v. City of CubaPitts v. City of Cuba
MEMORANDUM AND ORDER
This matter comes before the Court on Defendants, City of Cuba, City of Cuba Police Department, Ralph Bayliss, Les Murdock, Maurice Grant, Harold Halbert, Faye Howard, Kenny Killeen, Kevin Copling, Kent Robinson, Paul Crow, Doug Shelton, Jason Wilkerson, and Tim Bailey’s Motion for Summary Judgment [ECF No. 180]. For the reasons set forth below, their motion is granted in part, and denied in part.
I. BACKGROUND
On February 16, 2010, Plaintiffs Sharon Pitts (“Plaintiff Pitts”), Lisa King (“Plaintiff King”), Marilyn Copling (“Plaintiff Copling”), and Daniel Pitts, (collectively, “Plaintiffs”), acting pro se, filed a complaint against twenty-two individuals and eight public entities [ECF No. I].
In compliance with E.D. Mo. 7-4.01(E), Defendants filed a Statement of Undisputed Material Facts [ECF No. 180-1] in support of their Motion for Summary
The Statement of Undisputed Material Facts submitted by Plaintiffs contains many factual assertions that are wholly irrelevant for purposes of evaluating Defendants’ Motion. Because Plaintiffs failed to abide by local rules, and controvert the matters set forth by Defendants in their Statement of Uncontroverted Material Facts, the assertions are deemed admitted.
The essence of Plaintiffs’ case revolves around several key events. On February 28, 2008, Plaintiffs Pitts and King were visiting at the home of their parents, William (Leroy) Copling and Plaintiff Marilyn Copling, when an altercation occurred. Their father left his residence and went to his son, Kevin Copling’s home, where a 911 call was placed on his behalf, alleging abuse by Plaintiffs Pitts and King. Plaintiffs Pitts and King remained at their parents’ home, and also placed a call to 911, alleging that their father assaulted them. This incident led to the arrests of Plaintiffs Pitts and King on elder abuse charges on March 7, 2008. On April 24, 2008, a 911 call was made by Plaintiff Pitts in reference to a possible threat against Plaintiffs, which was conveyed by the 911 operator as an alleged disturbance at Plaintiff Copling’s home. As a result of this call, Defendant Shelton prepared a probable cause statement, alleging that Plaintiff Pitts filed a false report. Plaintiff Pitts was also issued a citation for trespassing at the Wagon Wheel Motel in 2008, and was arrested on January 21, 2010, by Defendant Wilkerson, for the assault of her brother, Dennis Copling. Plaintiffs have filed many complaints with the Cuba Police Department and the Cuba City Council. Numerous 911 calls have been made reporting alleged harassment and domestic abuse. Plaintiffs name several Defendants as members of an alleged conspiracy to deprive Plaintiffs of their constitutional rights in retaliation for their many complaints.
The following facts are those deemed admitted as Plaintiffs failed to controvert them.
On October 7, 2008, Officer Jason Wilkerson was dispatched to the Wagon Wheel Motel in Cuba, Missouri. At the time, the Wagon Wheel Motel was owned by the Armstrong family. Upon arrival, Officer Wilkerson was informed by the owners of the Wagon Wheel Motel that Sharon Pitts had been there, despite their prior warnings that she was not welcome on their property and that, this day, Pitts had refused to leave even when commanded to do so. Wilkerson later received written statements from the Armstrongs setting forth their complaint against Sharon Pitts. On the day of the incident, Officer Wilkerson interviewed Sharon Pitts, who claimed she had been assaulted by one of the Armstrongs. Officer Wilkerson issued Ms. Pitts a citation for trespassing based on the verbal statements he had taken from the Armstrongs.
On April 24, 2008, Officer Doug Shelton received a call from dispatch alerting him to a possible disturbance at the residence of Marilyn and Leroy Copling. Sharon Pitts had called dispatch asking for an officer to investigate threats. The dispatcher told Officer Shelton, “The third party report states that there’s a female threatening her father and mother and would like an officer to: respond.” Officer Shelton responded to the Copling residence and, once there, talked with Marilyn Copling, who told Officer Shelton there was no one there threatening her and there had not been anyone there all day. Officer Shelton determined he had probable cause to believe Sharon Pitts had committed the crime of Filing a False Police Report, and so filled out a probable cause statement to that effect. ,
On January 21, 2010, Officer Jason Wilkerson investigated a complaint by Sharon Pitts that she had been attacked by her brother, Dennis Copling. Officer Wilkerson went to Dennis Copling’s place of business to interview him regarding the allegation, and while there, observed a tear in Copling’s jacket. Dennis Copling reported that Sharon Pitts had grabbed his collar, pulled him toward her, and, in the process, ripped his jacket. Officer Wilkerson interviewed other employees who were present when the incident occurred and determined that the other employees’ stories matched Dennis Copling’s account of the event. Based on the verbal witness statements, Officer Wilkerson, determined he had probable cause to arrest Sharon Pitts.
During the period between January 1, 2007, and February 18; 2010, Sharon Pitts made forty-six calls to-911 dispatch. During the same period, Lisa King made eight calls to 911 dispatch, and Marilyn Copling made four calls. Pitts, King, and Copling have made numerous complaints to the Cuba City Council about Cuba Police officers and Kevin Copling. Pitts, King, and Copling have also made numerous complaints about the Cuba Police Department and its officers to other law enforcement
II. LEGAL STANDARD
A court shall grant a motion for summary judgment only 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, All U.S. at 323,
Further, the Court notes that it is “not required to speculate on which portion of the record the nonmoving party relies, nor is it obligated to wade through and search the entire record for some specific facts that might support the nonmoving party’s claim.” White v. McDonnell Douglas Corp.,
III. PLAINTIFFS’ CLAIMS AGAINST THE CITY OF CUBA POLICE DEPARTMENT AND THE CITY OF CUBA
The counts alleged against the Cuba Police Department and the City of Cuba, respectively, are:
1.. Count XXI: Cuba Police Department — Police Misconduct (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, and 14th Amendments).
2. Count XXIV: City of Cuba (42 U.S.C. §§ 1983 and 1986, and 1st, 4th, 5th, 8th, and 14th Amendments).
Both of these counts are followed by various allegations. Plaintiffs additionally incorporate by reference a lengthy factual narrative consisting of over 300 preceding paragraphs. Also, it is noted that, although Plaintiffs cite violations of the 1st, 4th, 5th, 8th, and 14th Amendments, they offer no explanation or factual support for how their particular rights were violated.
A. Count XXI: City of Cuba Police Department
In Count XXI of the Amended Complaint [ECF No. 89], Plaintiffs claim violations, under 42 U.S.C. § 1983, of their 1st, 4th, 5th, 8th, and 14th Amendment rights. Plaintiffs generally allege that the City of Cuba Police Department (“CPD”) developed and maintained policies or customs exhibiting deliberate indifference to the violation of constitutional rights [ECF No 89, ¶ 308]. Plaintiffs also maintain that it was the policy and/or custom of the CPD to inadequately supervise or train its officers.
Defendants do not discuss the allegations against the CPD separately, but instead incorporate the CPD into their discussion of the City of Cuba’s § 1983 liability. This Court finds, however, that under § 1983, a claim for relief must allege that a person acting under the color of state law deprived Plaintiffs of a constitutional right. Although Plaintiffs name the CPD as a Defendant, a police department is not usually considered a “person” within the meaning of § 1983. See Dean v.. Barber,
As this Court discussed in its January 7, 2011 Memorandum and Order,
In the Amended Complaint, Plaintiffs claim acts of retaliation by the City of Cuba, under § 1983 and § 1986, in violation of their 1st, 4th, 5th, 8th, and 14th Amendment rights. Plaintiffs generally allege that the City of Cuba (the “City”) developed and maintained policies or customs exhibiting deliberate indifference to the violation of constitutional rights [EOF No. 89, ¶ 368]. Plaintiffs argue that the City gained knowledge of Defendants’ pattern of unconstitutional conduct through Plaintiffs’ attendance at the City Council meetings and attempts at filing complaints.
Defendants argue that there is no liability for the city under Monell v. New York City Dep’t of Soc. Servs.,
The City of Cuba may be subject to § 1983 liability only if it had a “policy or custom” of failing to act upon prior similar complaints of unconstitutional conduct, which caused the constitutional injury at issue. Andrews v. Fowler,
Defendants argue that there is no policy or practice of the City of Cuba that encourages, requires, or rewards constitutional violations. They offer affidavits from Defendants Crow, Bailey, Wilkerson, and Shelton, in which each specifically states that they are aware of no policy or custom to engage in false arrests, unlawful searches, or a conspiracy to violate civil rights [ECF Nos. 188-1, 188-2, 188-3, 188-4]. Defendants maintain that Plaintiffs have not met their burden to show evidence of similar acts, or a pattern of them. This Court agrees.
Although Plaintiffs offer examples of various complaints that they have filed personally against officers and city officials (in particular, their brother, Defendant Kevin Copling, an alderman), they do not offer evidence of complaints by other citizens ■ made against city officers, or unconstitutional acts directed at other citizens that would give rise to an inference of a pattern. Even if a constitutional violation could be established as to Plaintiffs themselves, they would still need to show a requisite degree of fault by proof of a background of events that establish that the City of Cuba essentially decided to violate the Constitution. Here, there is no policy or custom specifically identified by Plaintiffs. They have failed to offer any examples of widespread misconduct, beyond their own allegations. The undisputed fact that Plaintiffs filed numerous complaints does not carry the same weight in establishing a pattern of misconduct as numerous complaints from a multiplicity of citizens.
Similarly, Plaintiffs have not offered evidence that it is the policy or custom of the City of Cuba to inadequately train and supervise its employees. As noted above, to be actionable under § 1983, the city’s failure to train must amount to deliberate indifference to the rights of the citizens of Cuba. Here, other than broad unsupported allegations in Count XXIV, Plaintiffs do not address the supervision or training of city employees. On the other hand, Defendants offer affidavits from City of Cuba Police officers (Defendants Crow, Shelton, Wilkerson, and Bailey) that they are Post-Certified and have maintained continuing education requirements [ECF Nos. 188-1, 188-2, 188-3, 188-4]. Defendants argue this is constitutionally adequate in the Eighth Circuit. See Brockinton v. City of Sherwood, Ark.,
Therefore, Plaintiffs have failed to establish a genuine issue of material fact as to the existence of a policy or custom resulting constitutional violations by the City of Cuba under § 1983. As such, summary judgment will be granted as to Count XXIV, and the City of Cuba will be terminated as a Defendant.
IV. PLAINTIFFS’ CONSPIRACY CLAIMS UNDER 42 U.S.C. §§ 1985 AND 1986 — COUNTS XI, XII, XIV, XV, XVI, AND XVII
Plaintiffs allege Counts XI, XII, XIV, XV, XVI, and XVII against Defendants Bayliss, Murdock, Grant, Halbert, Howard, Killeen, Copling, Robinson, Crow, Bailey, Wilkerson, and Shelton. Three of the Counts alleged against Defendants (Counts XI, XII, and XIV) are based on 42 U.S.C. § 1985, which creates a cause of action for conspiring to interfere with a person’s civil rights. Another three of the Counts alleged against Defendants (Counts XV, XVI, and XVII) are based on 42 U.S.C. § 1986, which creates a cause of
In order to state a claim for conspiracy under 42 U.S.C. § 1985, Plaintiffs must allege: “(1) the defendants conspired, (2) for the purpose of depriving any person or class of persons of equal protection of the laws, or of equal privileges and immunities under the laws, that (3) one or more of the conspirators did or caused to be done any act in furtherance of the conspiracy, and (4) as a result, another was injured in his person or property or deprived of having and exercising any vital privilege of a citizen.” Rollen v. Coates, No. 2:08CV34JCH,
If Plaintiffs fail to state a valid conspiracy claim against Defendants under § 1985, Plaintiffs’ § 1986 claims against Defendants must also be dismissed. “A cause of action under § 1986 is dependent on a valid claim under § 1985.” Kaylor v. Fields,
In their Memorandum in Support of Defendants’ Motion for Summary Judgment [ECF No 189], Defendants argue that all of Plaintiffs’ Civil Conspiracy claims under 42 U.S.C. § 1985, against all Defendants, are subject to summary judgment due to Plaintiffs’ failure to demonstrate a class-based animus, or establish that Plaintiffs are part of a suspect class. This Court agrees. Here, Plaintiffs do not allege they are members of a suspect class, nor do they offer any evidence of a class-based animus. Therefore, Plaintiffs fail to establish that a genuine issue of material fact as to the required second element of a § 1985 claim. As such, summary judgment will be granted as to Plaintiffs’ claims against Defendants under § 1985. Because Plaintiffs fail to state valid conspiracy claims against Defendants under § 1985, Plaintiffs’ § 1986 claims against Defendants must also be dismissed. The Court correspondingly will grant summary judgment as to all Defendants on Counts XI, XII, XIV, XV, XVI, and XVII.
V. PLAINTIFFS’ CLAIMS UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT — COUNTS I, II, AND III
In the Amended Complaint, Plaintiffs allege an Equal Rights of the Law violation [ECF No. 89, ¶ 2]. Defendants understand the basis of Plaintiffs’ Equal Protection claims to be the alleged refusal of the CPD to take Plaintiffs’ complaints seriously or believe them. Defendants argue that, to the extent that Plaintiffs are claiming a violation of the Equal Protection Clause of the Fourteenth Amendment, it does not apply, as Plaintiffs are not and have not alleged that they are members of a protected class. “To state a claim under the Equal Protection Clause, a § 1983 plaintiff must allege that a state actor intentionally discriminated against the plaintiff because of membership in a protected class.” Nolan v. Thompson,
Defendants cite to deposition testimony in which Plaintiffs allege that their calls to the Cuba Police are treated differently than other citizens, but offer no examples of the alleged disparity. Plaintiffs’ response to this argument is to “object” to it, and state that they have filed “numerous complaints” that “fall on deaf ears.” As such, Plaintiffs are simply re-iterating their former allegations, versus offering controverting evidence in the record of a disparity in treatment. Defendants further argue that even if an equal protection violation occurred, Defendant police officers have a rational basis for treating Plaintiffs’ reports differently than other citizens. According to Defendants, Plaintiffs’ lack of credibility, based on their plethora of complaints, provides a rational basis for any disparate treatment of Plaintiffs. In the Statement of Undisputed Material Facts, it is uncontroverted that Plaintiffs, collectively, placed 58 calls to the 911 dispatch between January 1, 2007, and February 18, 2010, and that numerous complaints were made to the City of Cuba Council and to other law enforcement agencies [ECF No. 180-1, ¶¶ 31-35].
Here, as observed by Defendants, Plaintiffs do not claim membership in a protected class. Because Plaintiffs do not allege that they are members of a protected class, they must show that the Defendant police officers systematically and “intentionally treated [them] differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook,
Plaintiffs have failed to provide evidence sufficient to meet this high burden of proof. They cite to no specific facts which establish a difference in the treatment they received from the manner in which others were treated. Plaintiffs do not provide any evidence, much less a detailed account of the preferred treatment by others. Plaintiffs have failed to raise a genuine issue of material fact as to whether they were intentionally treated differently than others similarly situated by the CPD. Further, they do not address Defendants’ argument that the Plaintiffs’ lack of credibility provides a rational basis for any alleged differential treatment. Thus, this Court finds that there is no genuine issue of material fact as to whether Defendants violated Plaintiffs’ Equal Protection Rights under Counts I, II, and III.
As an initial matter, Plaintiffs make allegations against the following Defendants in both their individual and official capacities [ECF No. 89, ¶ 1]. Plaintiffs’ claims against Defendants in their official capacity are deemed to be actions against the City of Cuba. A suit against a public employee in his or her official capacity is merely a suit against the public employer. Johnson v. Outboard Marine Corp.,
Plaintiffs individually name Defendants Bayliss, Murdock, Grant, Halbert, Howard, Killeen, and Robinson in the following Counts:
1. Count I: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
2. Count II: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;
3. Count III: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th, and 14th Amendments), asserted by Plaintiff Marilyn Copling;
4. Count XI: Conspiracy to interfere with civil rights (42 U.S.C. § 1985 and 1st, 4th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
5. Count XII: Conspiracy to interfere with civil rights (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;
6. Count XIV: Conspiracy to interfere with civil rights (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Marilyn Copling;
7. Count XV: Neglect to prevent conspiracy (42 U.S.C. § 1986 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
8. Count XVI: Neglect to prevent conspiracy (42 U.S.C. § 1986 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;
9. Count XVII: Neglect to prevent conspiracy (42 U.S.C. § 1986 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Marilyn Copling.
Defendants Bayliss, Murdock, Grant, Halbert, and Howard were elected aider-man for the City Of Cuba at times relative to the Amended Complaint.
Defendants argue that Plaintiffs do not allege that any member of the Cuba Board of Alderman, other than Kevin Copling, took any individual action which forms the basis of the lawsuit. Thus, Defendants maintain that the actions taken by the Board as a whole, give rise to liability only in its official capacity, not individual capacity. Defendants posit that Plaintiffs, even though they named members of the Board in Counts I, II, III, XI, XII, XIV, XV, XVI, XVII as individuals, only intended to sue them in their official capacity. Defendants then subsume the actions of the Board (as a whole) into their discussion of the liability of the City of Cuba, which has been deemed subject to summary judgment under Monell. Plaintiffs do not address Defendants’ characterization of the liability of the Board (and Defendants Bayliss, Murdock, Grant, Halbert, Howard, and Killeen).
In general, Plaintiffs do not address Defendants’ arguments in their responses to Defendants’ Motion. (See Plaintiffs’ Response to in Opposition to Defendant’s City of Cuba, et. al’s Motion for Summary Judgment (“Response”) [ECF No. 200], the Memorandum of Law in Support of Plaintiffs Response in Opposition (“Memorandum in Opposition”) [ECF No. 201], and Plaintiffs Supplement Response in Opposition (“Supplement”) [ECF No. 204] (grammatical mistakes in the originals)). Instead, Plaintiffs merely state, in their Memorandum in Opposition, that Defendants violated Plaintiffs’ constitutional rights under §§ 1983, 1985, and 1986, and then list numerous eases and exhibits. Notably, Plaintiffs do not tie any case or exhibit to a particular claim. Nor do Plaintiffs respond directly to legal arguments made by Defendants. As such, the Court has attempted to parse through these allegations and over 90 exhibits, to find a genuine issue of material fact as to the stated claims.
Upon review of the lengthy Amended Complaint, the Court attempted to discern any actions taken by the mayor or Board members. Plaintiffs relate instances of attending City council meetings to file' complaints regarding allegations of misconduct by the Cuba 'Police Department- and harassment by Kevin Copling
1. Counts I, II, and III
Counts I, II, and III allege violations of Plaintiffs’ rights in retaliation for exercising free speech rights under 42 U.S.C. § 1983. As previously determined, this Court finds that any claims against Defendants in their official capacity under § 1983 fail to establish a genuine issue of material fact. Defendants do not discuss the liability of the mayor or Board in their individual capacities under Counts I, II, and III, maintaining that most of the alleged acts do not implicate individual board members, but involve the Board as a whole. The Court agrees that any assertions which cannot be identified with an individual Defendant cannot give rise to individual liability under § 1983. By the plain terms of 42 U.S.C. § 1983, two, and only two allegations, are required in order to state a cause of action under § 1983: the complaint must allege that (1) some person has deprived the plaintiff of a federal right; and (2) the person who has deprived the plaintiff of that right acted under color of state law. See Zutz v. Nelson,
The limited references to individual acts by Defendants Killeen and Bayliss involve instructing the Plaintiffs to get a lawyer, listening to the city attorney’s advice, and being informed that the City was not going to do anything about Plaintiffs’ complaints. A § 1983 claim must allege a violation of a constitutional right. Plaintiffs do not show how these individual actions rise to the level of a constitutional protection, nor can the Court discern a violation.
Furthermore, Plaintiffs do not specifically name any of the Defendant Board members or mayor, other than Defendant Copling, as members of an alleged conspiracy in the Amended Complaint. “To prove a § 1983 conspiracy claim, plaintiff must show: (1) defendants conspired to deprive her of a constitutional right; (2) at least one of the alleged co-conspirators engaged in an overt act in furtherance of the conspiracy; and (3) the overt act injured her.” See Askew■ v. Millerd,
2. Counts XI, XII, XTV, XV, XVI, and XVII
As discussed previously, the Court will grant summary judgment as to Plaintiffs’ conspiracy claims under § 1985 and § 1986 (Counts XI, XII, XIV, XV, XVI, XVII). Thus, summary judgment is granted as to all Counts alleged against Defendants Bayliss, Murdock, Grant, Halbert, Howard, and Killeen, and they áre terminated as parties to this lawsuit.
B. Claims Against the City Attorney — Defendant Robinson
Plaintiffs allege Defendant Robinson, City of Cuba attorney, is a final decision maker and policy maker. Defendants allege he is a contract attorney who provides legal advice to the Board of Aldermen. Defendants dispute Plaintiffs’ characterization of Defendant Robinson as a decision maker, and state that there is no evidence in the record from which a fact-finder could conclude Defendant Robinson played any role other than city attorney [ECF No. 209].
1. Counts XI, XII, XIV, XV, XVI, XVII and § 1983 Conspiracy Claims Under Counts I, II, and III
Three of the Counts alleged against Defendant Robinson (Counts XI, XII, and XIV) are based on 42 U.S.C. § 1985, which creates a cause of action for conspiring to interfere with a person’s civil rights. Another three of the Counts alleged against Defendant Robinson (Counts XV, XVI, and XVII) are based on 42 U.S.C. § 1986, which creates a cause of action for neglect to prevent a conspiracy to interfere with a person’s civil rights. As discussed .previously, the Court will grant summary judgment as to Plaintiffs’ conspiracy claims under § 1985 and § 1986 (Counts XI,. XII, XIV, XV, XVI, and XVII).
Plaintiffs do not specifically name Defendant Robinson as a member of an alleged conspiracy in the Amended Complaint. Under § 1983, a “plaintiff must show: (1) defendants conspired to deprive her of a constitutional right; (2) at least one of the alleged co-conspirators engaged in an overt act in furtherance of the conspiracy; and (3) the overt act injured her.” See Askew,
2. Counts I, II, III
As the conspiracy Counts against Defendant Robinson warrant dismissal, only Counts I, II, and III, alleging violations of Plaintiffs’ rights in retaliation for exercising free speech rights under 42 U.S.C. § 1983 remain. In their Amended Complaint, Plaintiffs allege Defendant Robinson advised the Council not to speak to Plaintiffs about their complaint filed against Defendant Shelton [ECF No. 89, ¶ 164]. Plaintiffs also assert that Defendant Robinson told Plaintiffs to contact the Missouri State Highway Patrol themselves about their alleged treatment from the
Under the doctrine of qualified immunity, officials performing discretionary functions should be shielded 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. Harlow v. Fitzgerald,
Plaintiffs do not address Defendants’ assertion of Defendant Robinson’s qualified immunity under § 1983. They do reference a lengthy enumeration of cases in their Response.
VII. CLAIMS AGAINST DEFENDANTS CROW, COPLING, BAILEY, WILKERSON AND SHELTON IN THEIR INDIVIDUAL CAPACITY
A. Defendant Crow
The Counts asserted against Defendant Crow are as follows:
1. Count I: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
2. Count II: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;
3. Count III: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th, and 14th Amendments), asserted by Plaintiff Marilyn Copling;
4. Count VI: False Arrest (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;
5. Count XI: Conspiracy to interfere with civil rights (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
6. Count XII: Conspiracy to interfere with civil rights (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;
7. Count XIV: Conspiracy to interfere with civil rights (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Marilyn Copling;
8. Count XV: Neglect to prevent conspiracy (42 U.S.C. § 1986 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
9. Count XVI: Neglect to prevent conspiracy (42 U.S.C. § 1986 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;
10. Count XVII: Neglect to prevent conspiracy (42 U.S.C. § 1986 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Marilyn Copling;
11. Count XX: Abuse of process (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King.
In the Amended Complaint, Plaintiffs do not identify how Defendant Crow has allegedly violated their Constitutional rights under the above enumerated counts, but instead incorporate the lengthy recitation of facts preceding each
I. Counts XI, XII, XIV, XV, XVI, XVII and § 1983 Conspiracy Claims Under Counts I, II, and III
As discussed previously, the Court will grant summary judgment as to Plaintiffs’ conspiracy claims under § 1985 and § 1986 (Counts XI, XII, XIV, XV, XVI, XVII). As such, the Court will turn to Plaintiffs’ conspiracy claims under § 1983 against Defendant Crow, under Counts I, II, and III. To prove a § 1983 conspiracy claim, plaintiff must show: (1) defendants conspired to deprive her of a constitutional right; (2) at least one of the alleged co-conspirators engaged in an overt act in furtherance of the conspiracy; and (3) the overt act injured her. Askew,
Here, the Court concurs that Plaintiffs do not establish the element requiring a showing that Defendant Crow conspired, nor do they establish that their constitutional rights were violated. Plaintiffs only offer a mere allegation that Defendant Crow participated in a plan. This broad, conclusory allegation is not further supported by any facts offered by Plaintiffs to create a genuine material issue as to the conspiracy’s existence, or Defendant Crow’s participation in it. “Speculation and conjecture are not enough to prove a conspiracy exists.” Mettler,
•Defendants argue that there are three claims against Defendant Crow brought by Plaintiff King: false arrest, false imprisonment,
Similarly, Defendants argue that the seizure of Plaintiff King’s cell phone during her arrest was constitutional, and also, that Defendant Crow was entitled to qualified immunity. Defendants maintain that seizure was proper as a search incident to an arrest and under the plain view exception. It is undisputed that Plaintiff King claimed to have video recordings on the seized phone* of the February 28, 2008 incident that gave rise to her arrest. Id. at ¶ 11. It is further uncontroverted that after the seizure, Defendant Crow applied for, and obtained a warrant to search the phone. Id. at ¶ 12.
As noted above, in the Eighth Circuit, a determination of whether an official is entitled to qualified immunity in a civil rights action requires an examination of whether his or her conduct violated a constitutional right, and whether that right was clearly established. Hutson,
The seizure of Plaintiff King’s cell phone is analyzed under the Fourth Amendment, which guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV; Sheets v. Butera,
Here, it is uncontroverted that Plaintiff King had previously claimed that there was evidence of the incident underlying the charges against her on her cell phone. In fact, Plaintiffs themselves offer an affidavit by Plaintiff Copling, which states that Defendant Crow seized the phone after'Plaintiff King told him she had videotaped the incident underlying the arrest [ECF No. 202-1, Exhibit I], Plaintiffs do not address Defendants’ arguments of qualified immunity, or attempt to satisfy their burden in showing that the law was clearly established in such a manner that Defendant Crow would have had notice that the seizure was unconstitutional. As such, the Court finds that a reasonable officer could find that probable cause existed to seize the phone. Thus, Defendant Crow is entitled to qualified immunity and summary judgement under the Fourth Amendment for both the arrest and seizure.
Plaintiffs also generally allege violations of their First Amendment rights under § 1983 (and Counts I, II, and III), in the form of retaliation for the exercise of those rights. Defendants argue that Plaintiffs must show that Plaintiff King would not have been arrested but for Defendant Crow’s retaliatory animus, which requires them to establish a complete lack of probable cause. In the context of a First Amendment retaliatory arrest claim, to show a violation of their rights, Plaintiffs must establish a causal connection between a defendant’s retaliatory animus and [plaintiffs’] subsequent injury. Baribeau v. City of Minneapolis,
Additionally, Plaintiffs allege, under Count XX, an abuse of process claim against Defendant Crow under § 1986. Defendants argue in a footnote, that they are unaware of any § 1985 abuse of process claim, and so do not address it.
As such, “[t]he law in Missouri is well settled. To sustain an action for abuse of process, the facts must demonstrate an illegal and improper use of such process that is not warranted or authorized, an ulterior motive in exercising such process, and damages.” Wells v. Orthwein,
This Court concludes that Defendant Crow is entitled to summary judgment on all Counts against him (I, II, III, YI, XI, XII, XIV, XV, XVI, XVII, and XX), and he is terminated as a party to this action.
B. Defendant Copling
The following Counts are alleged against Defendant Copling:
1. Count I: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
2. Count II: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;
3. Count III: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th, and 14th Amendments), asserted by Plaintiff Marilyn Copling;
4. Count XI: Conspiracy to interfere with civil rights (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
5. Count XII: Conspiracy to interfere with civil rights (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;
6. Count XIV: Conspiracy to interfere with civil rights (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Marilyn Copling;
7. Count XV: Neglect to prevent conspiracy (42 U.S.C. § 1986 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
8.Count XVI: Neglect to prevent conspiracy (42 U.S.C. § 1986 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;
9.Count XVII: Neglect to prevent conspiracy (42 U.S.C. § 1986 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Marilyn Copling;
10. Count XIX: Abuse of process (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
11. Count XX: Abuse of process (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King.
Defendants understand Plaintiffs’ claims against Defendant Copling to be centered around his alleged harassment of Plaintiffs, utilizing his position as an alderman to continue the harassment, and participating in a conspiracy to deprive Plaintiffs of their rights. Defendants posit that most of Plaintiffs’ complaints against Defendant Copling consist of acts such as driving down the street, following Plaintiffs in Walmart, honking his horn at, looking at, or talking to them. Defendants then argue, based on this alleged conduct, that Defendant Copling was not acting under the color of state law as required under § 1983.
Upon review of the lengthy recitation of factual assertions included in the Amended Complaint, there are numerous references to Defendant Copling. Plaintiffs claim Defendant Copling bragged about having police officers make false reports whenever Plaintiffs filed complaints against him or others, and that he told Plaintiffs that they were going to be denied from addressing the City of Cuba Council [ECF No. 89, ¶¶ 119-120]. Plaintiffs confirm that on different occasions, the Council refused to listen to or take their written complaints, and denied their request to contact the Missouri State Highway Patrol. Id. at ¶¶ 165,173,174.
There are also multiple allegations surrounding Defendant Copling’s harassment of Plaintiffs. Id. at ¶ ¶ 126, 131, 151, 156, 198, 200. In 2008, Plaintiff Pitts states she had to file an order of protection against Defendant Copling as the police refused to do anything because he was an alderman. Id. at ¶ 133. In 2009, Plaintiffs Pitts and Copling claim they obtained orders of protection against Defendant Copling. Id. at ¶¶ 198,199.
Several averments in the Amended Complaint concern alleged false statements made by Defendant Copling. Plaintiffs state that they found several false statements filed by Defendant Copling about Plaintiffs at the Crawford County Prosecutor’s office in 2008. Id. at ¶ 104. Additionally, Defendant Copling and his daughter allegedly wrote out false statements to get Plaintiffs Pitts and King arrested. Id. at ¶ 140. Furthermore, when Cuba Police Officer Green arrived at Plaintiff Copling’s home to enforce an ex-parte order against her husband, William (Leroy) Copling, Defendant Copling allegedly made false reports to Officer Green regarding Plaintiffs Pitts and King, in an attempt to get them arrested. Id. at ¶ 145. Plaintiffs maintain that Officer
In Plaintiffs’ Supplement, they also allege that Defendant Copling forged his father’s name (William (Leroy) Copling) on an ex-parte order of protection against Plaintiffs Pitts and King [ECF No. 204, ¶¶ 37-40]. Plaintiffs support this assertion with a copy of the order, as well as an incident report. The incident report states that Defendant Copling remarked that Lesley Hutson, of the Clerk’s office, instructed him to sign the order; however, the report further adds that Hutson denied the accuracy of Defendant Copling’s statement [ECF Nos. 204, ¶ 44-45; 205, Exhibit 44],
Finally, Plaintiffs make repeated allegations of conspiracies involving Defendant Copling and Defendant Tim Bailey (of the CPD) [ECF No. 89, ¶¶54, 86, 116, 117, 128, 135, 238]. Plaintiffs allege a conspiracy to manufacture false charges against Plaintiffs, involving Defendant Copling, Defendant Bailey, and defendants Magel and Spratt,
1. Counts I, II, III, XIX, and XX
As noted above, Defendants argue that the claims against Defendant Copling fail as he was not acting under the color of state law, a required element under § 1983. However, Defendants reference acts by Defendant Copling, such as honking, driving past Plaintiffs, talking to them, and looking at them. While the Court would agree that these ordinary acts, described as harassment by Plaintiffs, may not be made possible due to his official position as an alderman, there are other actions in the Amended Complaint which could be construed as connected to his official duties. For example, Plaintiffs allege that they were not allowed to file complaints about Defendant Copling, and that the Council, on which he sat, refused to listen to Plaintiffs. Furthermore, Defendant Copling is alleged to have made and filed false reports against Plaintiffs, including reports made to Officer Green, and forged ex-parte orders against Plaintiffs Pitts and King. Defendant Crow’s affidavit appears to confirm that Plaintiffs’ allegation, involving Defendant Copling and Officer Green, was substantiated.
Additionally, there are Defendant Copling’s own alleged statements regarding plans to falsely charge and arrest Plaintiffs. Plaintiffs offer Affidavits and exhibits in support of their assertions [ECF No. 205, Exhibits 44, 45, 74, 75, 77, 78]. Thus, this Court finds a genuine issue of material fact as to the required element, under § 1983, that Defendant Copling acted under the color of state law. Defendants further argue that qualified immunity protects Defendant Copling, even if he is found to be acting under color of state law. However, they offer no argument other than the conclusory statement that there were no constitutional violations based upon such acts as talking to, honking at, and driving past Plaintiffs. As such, Defendants have not addressed all of Plaintiffs’ allegations, nor have they met their burden in establishing the affirmative defense.
It also appears that Plaintiffs assert a viable conspiracy claim against Defendant Copling under § 1983 (Counts I,
Additionally, Plaintiffs assert Abuse of Process claims by Plaintiffs Pitts and King (XIX, XX) against Defendant Copling, As discussed above, these claims are understood to be under state law, and involve an illegal and improper use of such process that is not warranted or authorized. The Court also finds a genuine issue of material fact as to these Counts based on Plaintiffs’ many allegations, including false reports filed against Plaintiffs. See Boyer,
Thus, summary judgment will be denied as to Counts I, II, III, XIX, and XX.
2.Counts XI, XII, XTV, XV, XVI, and XVII
As discussed previously, the Court will grant summary judgment as to Plaintiffs’ conspiracy claims against Defendant Copling under § 1985 and § 1986 (Counts XI, XII, XIV, XV, XVI, XVII). Although there are many references by Plaintiffs to Defendant Copling’s participation in a conspiracy, Plaintiffs’ civil conspiracy claims under 42 U.S.C. § 1985 and § 1986 are subject to summary judgment due to Plaintiffs’ failure to allege any facts demonstrating a class-based animus or membership in a suspect class.
C. Defendant Bailey
The following Counts have been asserted against Defendant Bailey:
1. Count I: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
2. Count II: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;
3. Count III: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th, and 14th Amendments), asserted by Plaintiff Marilyn Copling;
4. Count V: False Arrest (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
5. Count VI: False Arrest (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;
6. Count VII: False Imprisonment (42 U.S.C. § 1988 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
7. Count VIII: False Imprisonment (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;
8. Count X: Malicious Prosecution (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
9. Count XI: Conspiracy to interfere with civil rights (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
10. Count XII: Conspiracy to interfere with civil rights (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;
11. Count XIV: Conspiracy to interfere with civil rights (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Marilyn Copling;
12. Count XV: Neglect to prevent conspiracy (42 U.S.C. § 1986 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
13. Count XVI: Neglect to prevent conspiracy (42 U.S.C. § 1986 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;
14. Count XVII: Neglect to prevent conspiracy (42 U.S.C. § 1986 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Marilyn Copling;
15. Count XIX: Abuse of process (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
16.Count XX: Abuse of process (42 U.S.C. § 1986 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King.
Defendants understand Plaintiffs’ claims to be based on the March 7, 2008 arrests of Pitts and King for elder abuse, and the April 24, 2008 prosecution of Pitts for filing a false police report. Defendants argue that Defendant Bailey was not personally or individually involved in those arrests or prosecutions, and, consequently, Plaintiffs’ allegations against him must be only in his supervisory capacity as City Marshall of Cuba. Defendants argue these claims are necessarily asserted against Defendant Bailey in his official capacity, and, therefore, asserted against the City of Cuba, and subject to analysis under Monell. As there is no liability for the City under Monell, Defendants assert that Defendant Bailey is also entitled to summary judgment.
Upon review of the Amended Complaint, the Court finds several allegations against Defendant Bailey. As noted before in the discussion of the claims against Defendant Copling, there are numerous assertions by Plaintiffs that Defendant Bailey was a member of a conspiracy with Defendants Copling, Magel and Spratt to manufacture false investigations, false statements, and false charges against Plaintiffs [ECF No. 89, ¶ 228]. See also, e.g., Id. at ¶¶ 54, 86, 116, 117, 128, 135, 223, 228, 238, 325, 350. Plaintiffs make allegations that the conspiracy produced a false narcotics investigation, illegal wiretaps, and other false reports. Id. at ¶¶230, 350(f). Plaintiffs further allege that the conspiracy existed in order to facilitate retaliation against Plaintiffs for filing complaints and speaking out at meetings. Id. at ¶¶ 325(k), 350(g).
Lastly, Plaintiffs allege that Bailey refused to let Cuba officers respond to Pitts’
1.Counts V, VI, VII, VIII, and X
Defendants argue that all Counts against Defendant Bailey are asserted against him in his official capacity as he did not personally participate in the arrests or prosecution of Plaintiffs Pitts and King. Defendants then conclude that Plaintiffs’ false arrest (Counts V, VI), false imprisonment (Counts VII, VIII), and malicious prosecution claims (Count X) must fail against Defendant Bailey in his individual capacity. This Court agrees. Plaintiffs have made no factual assertions regarding Defendant Bailey’s personal involvement in Plaintiffs Pitts and King’s arrests and Plaintiff Pitts’ prosecution. Allegations against him in his supervisory role as Marshall fall under the doctrine of respondeat superior and warrant summary judgment under § 1983. See Martin,
2.Counts XI, XII, XIV, XV, XVI, and XVII
As determined previously, the Court will grant summary judgment as to Plaintiffs’ conspiracy claims under § 1985 and § 1986 (Counts XI, XII, XIV, XV, XVI, XVII). Although there are many allegations by Plaintiffs of Defendant Bailey’s participation in a conspiracy, Plaintiffs’ civil conspiracy claims under 42 U.S.C. § 1985 and § 1986 are subject to summary judgment due to Plaintiffs’ failure to allege any facts demonstrating a class-based animus, or that they are members of a suspect class.
3.Counts I, II, III, XIX, and XX
Plaintiffs’ Counts I, II, and III allege that Defendant Bailey acted in retaliation for Plaintiffs “exercising free speech fights” under 42 U.S.C. § 1983. In order “to state a claim for relief under § 1983, a plaintiff must allege sufficient facts to show (1) that the defendant(s) acted under color of state law, and (2) that the alleged wrongful conduct deprived the plaintiff of a constitutionally protected federal right.” Zutz,
Plaintiffs also assert that Defendant Bailey committed third-degree assault against Plaintiff Pitts. Plaintiffs do not give any factual detail as to how Defendant Bailey committed the alleged assault. Plaintiffs do not explain how this alleged assault violated their rights. As such, it remains a conclusory allegation. To establish it as a fact genuinely in dispute, Plaintiffs must provide citation to
Plaintiffs Pitts and King additionally include Abuse of Process claims (Counts XIX and XX) against Defendant Bailey. As noted previously, to sustain an action for abuse of process, the facts must demonstrate an illegal and improper use of such process that is not warranted or authorized, an ulterior motive in exercising such process, and damages. Wells,
As noted above, Plaintiffs make numerous conspiracy assertions against Defendant Bailey. Plaintiffs allege false reports, wiretapping of Plaintiffs Pitts and King’s phones, and a false narcotics investigation resulting from a conspiracy to retaliate against them. To prove a § 1983 conspiracy claim, plaintiff must show: (1) defendants conspired to deprive her of a constitutional right; (2) at least one of the alleged co-conspirators engaged in an overt act in furtherance of the conspiracy; and (3) the overt act injured her. Askew,
[T]he elements of a conspiracy are rarely established through means other than circumstantial evidence, and summary judgment is only warranted when “the evidence is so one-sided as to leave no room for any reasonable difference of opinion as to how the case should be decided.” The court must be convinced that the evidence presented is insufficient to support any reasonable inference of a conspiracy.
S.L. ex rel. Lenderman v. St. Louis Metro. Police Dept. Bd. of Com’rs, No. 4:10CV2163CEJ,
D. Defendant Wilkerson
The following counts have been asserted against Defendant Wilkerson:
1. Count I: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
2. Count II: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;
3. Count III: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th, and 14th Amendments), asserted by Plaintiff Marilyn Copling;
4. Count V: False Arrest (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
5. Count VII: False Imprisonment (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
6. Count XI: Conspiracy to interfere with civil rights (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
7. Count XII: Conspiracy to interfere with civil rights (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;
8. Count XIV: Conspiracy to interfere with civil rights (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Marilyn Copling;
9. Count XV: Neglect to prevent conspiracy (42 U.S.C. § 1986 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
10. Count XVI: Neglect to prevent conspiracy (42 U.S.C. § 1986 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;
11. Count XVII: Neglect to prevent conspiracy (42 U.S.C. § 1986 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Marilyn Copling;
12. Count XIX: Abuse of process (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
Defendants believe the basis of Plaintiffs’ claims against Defendant Wilkerson to be 1) his issuance of a citation to Plaintiff Pitts for trespassing at the Wagon Wheel Motel, 2) her January 21, 2010 arrest by Defendant Wilkerson, and 3) Defendant Wilkerson’s handcuffing of Plaintiff Pitts during that arrest. Defendants identify the claims as false arrest, false imprisonment, and excessive force, all under the Fourth Amendment. As there are no allegations involving Plaintiffs King and Copling, summary judgment will be granted as to the claims by them against Defendant Wilkerson (Counts II and III).
In the Amended Complaint, Plaintiffs do not identify Defendant Wilkerson as a member of a conspiracy to deprive Plaintiffs of their constitutional rights. Without even a mere allegation that Defendant Wilkerson conspired, Plaintiffs fail to make a sufficient showing as to the required elements under § 1983 (Counts I, II, and III). See Askew,
The remaining claims against Defendant Wilkerson involve alleged violations of Plaintiff Pitts’ constitutional rights under Counts I, V, VII, and XIX.
1. The Trespassing Citation
On October 7, 2008, Plaintiff Pitts was issued a citation by Defendant Wilkerson for trespassing at the Wagon Wheel Motel. The events that transpired are in dispute between the Plaintiffs and the owners of the motel, the Armstrongs. Plaintiffs’ Amended Complaint stated the following: Plaintiff Pitts was followed into the lot of the motel by several police cars, which eventually left [ECF No. 89, ¶ 166]; A
Defendants’ Statement of Undisputed Material Facts presents a different version of the events as communicated to Defendant Wilkerson. These facts were not controverted, so they are deemed admitted by the Plaintiffs. As recounted in the Background section of this Order, the undisputed facts are as follows:
On October 7, 2008, Officer Jason Wilkerson was dispatched to the Wagon Wheel Motel in Cuba, Missouri. At the time, the Wagon Wheel Motel was owned by the Armstrong family. Upon arrival, Officer Wilkerson was informed by the owners of the Wagon Wheel Motel that Sharon Pitts had been there despite their prior warnings that she was not welcome on their property and that, this day, Pitts had refused to leave even when commanded to do so. Wilkerson later received written statements from the Armstrongs setting forth their complaint against Sharon Pitts. On the day of the incident, Officer Wilkerson interviewed Sharon Pitts, who claimed she had been assaulted by one of the Armstrongs. Officer Wilkerson issued Ms. Pitts a citation for trespassing based on the verbal statements he had taken from the Armstrongs.
Defendants argue that Plaintiff Pitts’ claims fall under the Fourth Amendment. Defendants maintain that the issuance of the citation was supported by probable cause, and under the Fourth Amendment, a seizure is reasonable if the police officer had probable cause. Also, they further assert that Defendant Wilkerson is entitled to qualified immunity, and, thus, Plaintiffs bear the burden of establishing that there is a lack of arguable probable cause.
Assuming Plaintiffs are arguing that the issuance of a citation is a seizure,
Probable cause is to be determined upon the objective facts available to the officers at the time of the [seizure] if “ ‘the totality of facts based on reasonably trustworthy information would justify a prudent person in believing the individual [seized] had committed ... an offense’ at the time of the [seizure].” Smithson v. Aldrich, 235
Under the doctrine of qualified immunity, however, the issue for the court “is not probable cause but arguable probable cause.” Kuehl v. Burtis,
Here, the undisputed facts allege that Defendant Wilkerson was dispatched to the Wagon Wheel based on the Robin-sons’ call to the police. He was informed that Plaintiff Pitts had prior warnings that she was not welcome on their property [ECF No. 182-9]. He was told that Plaintiff Pitts had refused to leave. Id. In this case, the undisputed facts establish that Defendant Wilkerson had arguable probable cause to issue a citation for trespassing. He, at the very least, had an objectively reasonable belief that probable cause for an citation existed. Under Mo. Rev.Stat. § 569.140, “a person commits the crime of trespass in the first degree if he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure or upon real property. A person does not commit the crime of trespass in the first degree by entering or remaining upon real property unless the real property is fenced or ... as to which notice against trespass is given by: (1) Actual communication to the actor.”
Under the doctrine of qualified immunity, Plaintiffs must establish a genuine issue of fact as to whether Defendant Wilkerson should have known that his conduct would violate Plaintiff Pitts’ rights. This would require Plaintiffs to show that no officer could even arguably believe she had such probable cause. This is a high burden in light of the undisputed facts. Although Plaintiffs offer affidavits to support their version of the incident, what is relevant to the Fourth Amendment and qualified immunity, is whether it was arguable that a reasonable officer could have believed Plaintiff Pitts committed the offense of trespassing. Here, the Court concludes that a reasonable officer could have found probable cause, and thus, Plaintiffs have failed to meet their burden.
2. January 21, 2010 Arrest of Plaintiff Pitts
Plaintiff Pitts alleges that on January 21, 2010, her brother, Dennis Copling assaulted her when she was trying to serve him with court documents [ECF No. 89, ¶¶ 210-211], When Defendant Wilkerson was dispatched to investigate Plaintiff Pitts’ 911 call, he allegedly refused to take written statements from Plaintiffs Pitts and King. Id. at ¶¶ 211-212. Defendant Wilkerson later arrested Plaintiff Pitts without a warrant. Id. at ¶¶ 213, 215.
On January 21, 2010, Officer Jason Wilkerson investigated a complaint by Sharon Pitts that she had been attacked by her brother, Dennis Copling. Officer Wilkerson went to Dennis Copling’s place of business to interview him regarding the allegation, and while there, observed a tear in Copling’s jacket. Dennis Copling reported that Sharon Pitts had grabbed his collar, pulled him toward her, and, in the process, ripped his jacket. Officer Wilkerson interviewed other employees who were present when the incident occurred and determined that the other employees’ stories matched Dennis Copling’s account of the event. Based on the verbal witness statements, Officer Wilkerson determined he had probable cause to arrest Sharon Pitts.
Defendants argue that a seizure is reasonable under § 1983 if the police officer had probable cause. If the defense of qualified immunity is asserted, Defendants state that it is the Plaintiffs’ burden to show a lack of even arguable probable cause. Defendants assert that a reasonable officer would have found probable cause to believe that Plaintiff Pitts had violated two Missouri State statutes criminalizing assault.
A warrantless arrest is consistent with the Fourth Amendment if it is supported by probable cause. Fisher v. Wal-Mart Stores, Inc.,
Under the doctrine of qualified . immunity, the issue for the court “is not probable cause but arguable probable cause.” Kuehl,
In this case, the undisputed facts and circumstances provided Defendant Wilkerson with a reasonable basis to find probable cause to arrest Plaintiff Pitts for assault.
3. Excessive Force Claim— Handcuffing During the Arrest
During Plaintiff Pitts’ January 21, 2010 arrest, Plaintiff Pitts avers that she told Defendant Wilkerson that she was going “to sue him for false arrest due to him having tunnel vision,” and then he, according to Plaintiff Pitts, committed “police brutality” against her by securing his handcuffs as tight as he could causing her undue pain [ECF No. 89, ¶ 214], Plaintiff Pitts maintains that she was in great pain from the handcuffs cutting into her hands, and she so informed Defendant Wilkerson. Id. at ¶ 217. She further alleges that she had to be treated at the Crawford County Sheriff Jail, and she showed the deep marks made by the handcuffs to, the jailers and nurse. Id. at ¶¶ 218, 219. The jailers allegedly told Plaintiff Pitts that “she must be sensitive to cuffs.” Id. at ¶219. The following day, Plaintiff Pitts claims she went to the hospital as she was still in pain from the handcuffs [ECF Nos. 202-, ¶ 28; 89, ¶ 221].
Defendants, although accepting for purposes of summary judgment only, that Plaintiff Pitts found the handcuffs too tight, argues that the force is reasonable and permissible under the Fourth Amendment. Defendants point out that although Plaintiff Pitts claims to have visited the Sullivan hospital for treatment due to her alleged injury, she claims she does not have access to the records and is unable to produce them [ECF No. 189, p. 16 n. 12], Defendants argue that Defendant Wilkerson is entitled to qualified immunity for the application of the handcuffs as it did not violate a clearly established right.
Given the state of the law in 2010, a reasonable officer could have believed that as long as she did not cause more than a de minimus injury to an arrestee, her actions would not run afoul of the Fourth Amendment. It is well-established that “the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham v. Connor,
An examination of whether the Plaintiff suffered more than a de minimus injury, however, is not the end of the inquiry, however, in the Eighth Circuit. The Court must also consider “whether the force used to effect a particular seizure is reasonable.” Chambers v. Pennycook,
The record contains no evidence that Plaintiff Pitts suffered more than de minimus short-term injury, such as pain and swelling. Plaintiff presents no evidence of medical records to support any injury. It is certainly possible that an excessive application of force could cause a de minimus injury. Here, Plaintiffs claim that Defendant Wilkerson secured the cuffs as tight as he could. However, handcuffing involves restraint, and naturally entails some discomfort. There are no facts alleged to indicate unusual, serious, or lingering injury from wearing the cuffs. Based on the totality of circumstances, the Court does not find that the facts as alleged create a genuine issue as to the use of an excessive amount of force. Furthermore, although Plaintiffs list a few cases to support their claim, the case law referenced is not binding precedent.
Finally, Plaintiffs Pitts alleges an abuse of process claim (Count XIX) against Defendant Wilkerson. To sustain an action for abuse of process, a plaintiff must present sufficient evidence to support the allegations in his petition stating a cause of action for abuse of process. Wells,
Therefore, Defendant Wilkerson is entitled to summary judgment on the remaining claims by Plaintiff Pitts under Counts I, V, VII, and XIX.
E. Defendant Shelton
The following Counts have been asserted against Defendant Shelton:
1.Count I: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
2. Count II: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;
3. Count III: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th, and 14th Amendments), asserted by Plaintiff Marilyn Copling;
4. Count V: False Arrest (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
5. Count VI: False Arrest (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;
6. Count VII: False Imprisonment (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
7. Count VIII: False Imprisonment(42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;
8. Count X: Malicious Prosecution (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
9. Count XI: Conspiracy to interfere with civil rights (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts; •
10. Count XII: Conspiracy to interfere with civil rights (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;
11. Count XIV: Conspiracy to interfere with civil rights (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Marilyn Copling;
12. Count XV: Neglect to prevent conspiracy (42 U.S.C. § 1986 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
13. Count XVI: Neglect to prevent conspiracy (42 U.S.C. § 1986 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;
14. Count XVII: Neglect to prevent conspiracy (42 U.S.C. § 1986 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Marilyn Copling;
15. Count XIX: Abuse of process (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;
16. Count XX: Abuse of process (42 U.S.C. § 1986 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King.
Defendants find the basis of Plaintiffs’ claims against Defendant Shelton to be 1) his completion of a probable cause statement concerning Plaintiff Pitts, pursuant to his investigation of the February 28, 2008 incident at the Copling residence, 2) his completion of a probable cause statement concerning Plaintiff King, pursuant to his investigation of the February 28, 2008 incident at the Copling residence, and 3) Defendant Shelton’s completion of a probable cause statement concerning Plaintiff Pitts, pursuant to his investigation of Plaintiff Pitts for filing a false police report. Defendants identify the claims as false arrest and false imprisonment as to Plaintiff King, and false arrest, false imprisonment, and malicious prosecution as to Plaintiff Pitts. As there are no allegations involving Plaintiff Copling, summary judgment will be granted as to claims by her (Count III).
Furthermore, in the Amended Complaint, Plaintiffs do not name Defendant Shelton as a member of a conspiracy to deprive Plaintiffs of their constitutional rights. Without an allegation that Defendant Shelton conspired, Plaintiffs’ claims will fail to meet the required elements under § 1983 (Counts I, II, and III). See e.g., Askew,
The remaining claims against Defendant Shelton involve alleged violations of Plaintiff Pitts and King’s constitutional rights under Counts I, II, V, VI, VII, VIII, X, XIX and XX. ' -
1. Probable Cause Statements— Elder Abuse Charges
According to the Amended Complaint, on February 28, 2008, Plaintiffs Pitts and King were assaulted by their father at his home [ECF No. 89, ¶ 37]. Their father left, and went to Defendant Copling’s residence. Id. at ¶ 38. Defendant Shelton responded to separate 911 calls from Defendant Copling’s residence and Plaintiff Copling’s residence. Id. at ¶¶ 39, 40, 41, 43. According to Plaintiffs, when Defendant Shelton came to Plaintiff Copling’s home, he viewed a video of the incident, listened to an audio recording, heard their account of what transpired, and left statements for them to fill out. Id. at ¶¶ 44, 48. Plaintiffs allege that Defendant Shelton did not look for any signs or marks of
A different version of the alleged events was reported by Defendant Shelton, as noted in the Defendants’ Statement of Undisputed Material Facts. As recounted in the Background section of this Order, the undisputed facts, deemed admitted by the Plaintiffs, are as follows:
On February 28, 2008, Officer Doug Shelton took a statement from Leroy Copling in which Copling claimed to have been physically assaulted by Lisa King and verbally abused by both King and Sharon Pitts. Officer Doug Shelton observed red marks on Leroy Copling’s neck which Shelton believed were consistent with Copling’s claim. Officer Shelton also interviewed Sharon Pitts, Lisa King, and Marilyn Copling about the incident.- Lisa King claimed to have a video of the incident on her cellular phone, but refused to turn the phone over to Officer Shelton. Marilyn Copling claimed to have a recording of the incident, which Officer Shelton listened to at the scene. Officer Shelton ultimately filed probable cause statements against Sharon Pitts and Lisa King for the crime of Elder Abuse. Warrants were issued for Sharon Pitts’ and Lisa King’s arrests for Elder Abuse.
Defendant Shelton offers an affidavit which supports the above version of the events on February 28, 2008. Defendant Shelton avers in the affidavit that, although Plaintiff King maintained her father choked her, he (Shelton) did not observe any marks consistent with her allegations [ECF No. 188-2, ¶ 9]. Similarly, Defendant Shelton claims that although Plaintiff Pitts stated her father hit her in the face with a phone, he did not see any marks consistent with her story. Id. at ¶ 10. He also maintains that all he heard on the audio was yelling, cursing, and a female singing happy birthday to Leroy Copling. Id. at ¶ 8. Additionally, Defendant Shelton claims that all he observed on the video (from Plaintiff King’s phone) was Leroy Copling flipping off' the camera. Id. at ¶ 11. Although Plaintiffs allege that Defendant Shelton withheld their statements from the' Prosecutor, Defendant Shelton explains in his affidavit that the Plaintiffs did not deliver original statements to the station, and he left a message with Plaintiff Pitts’ husband Jerry, that he needed the originals, but never received them. Furthermore, Defendant Shelton collected as part of his investigation, written statements from a number of family members, attesting to the long-running abuse Plaintiffs Pitts and King have directed at Leroy Copling, their father [ECF No. 182-11, Exhibit 17],
Plaintiffs appear to base their § 1983 claims for false arrest (of Plaintiffs Pitts and King), false imprisonment (of Plaintiffs Pitts and King), and malicious prose
Defendants argue that it is immaterial that Defendant Shelton did not include a detailed account of Plaintiffs’ side of the story in his probable cause affidavit. According to Defendants, the probable cause statements do give notice that there are two versions of the events. Defendants propose that even if Defendant Shelton omitted information, there is no basis for liability unless probable cause would not have existed had the omitted facts been included. Defendants further argue that the Plaintiff must show the omissions were made deliberately or recklessly.
In the context of a search warrant, the Eighth Circuit has determined that “A search warrant may be invalidated because of omitted facts if (1) the police omitted facts with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading and (2) the affidavit, if supplemented by the omitted information would not have been sufficient to support a finding of probable cause.” U.S. v. Alexander,
Here,' even if Plaintiffs could somehow establish that Defendant Shelton was reckless in omitting their version of events, a reasonable officer could determine, if Plaintiffs’ omitted information had been included, that there was still probable cause to find that Plaintiffs Pitts and King committed elder abuse. First of all, it is undisputed that there were marks on Leroy Coplings’ neck consistent with his story. Although Plaintiffs allege that Defendant Shelton did not look to see if Plaintiff Pitts and King had marks on them, it is unlikely that he would have missed marks, which would be openly visible on Plaintiffs face or neck, when responding to the call. Furthermore, Defendant Shelton collected statements from family members attesting to abuse by Plaintiffs Pitts and King, further corroboration of Leroy Copling’s account. A reasonable officer could have determined probable cause existed as to the elder abuse charges, even if fully apprised of Plaintiffs’ allegations.
Plaintiffs assert separate claims under Counts V, VI, VII, VIII, and X for false arrest, false imprisonment, and malicious prosecution (as to Plaintiff Pitts alone).
Assuming false imprisonment is cognizable under § 1983, to state such a claim, “a plaintiff must demonstrate the elements of a common law claim and show that his Fourth Amendment right to be free from unreasonable search and seizure has been violated.” Cox v. City of Maryland Heights, No. 4:09CV852DDN,
As to Plaintiff Pitts’ malicious prosecution claim, “[i]t is well established in this circuit that an action for malicious prosecution by itself is not punishable under § 1983 because it does not allege a constitutional injury.” Sanders v. Sears, Roebuck & Co.,
2. Probable Cause Statement— False Police Report
According to the Amended Complaint, Plaintiff Pitts called 911, and requested that an officer speak with Leroy Copling to find out the names of three women she claimed were threatening bodily harm to Plaintiffs [ECF No. 89, ¶ 136].
Plaintiffs’ main issue seems to be that the transcript of the 911 call [ECF Nos. 182-5] by Pitts only reveals that she wanted an officer to inquire about the identity of the female Leroy Copling said would stomp Plaintiffs, not that' there was a suspect at the residence threatening her parents. This appears to be the source of her allegations that Defendant Shelton lied in his reports and committed perjury.
Defendant Shelton recounts a different understanding of the content of the 911 call. The following facts are drawn from Defendants’ Statement of Undisputed Material Facts and are deemed admitted by Plaintiffs:
On April 24, 2008, Officer Doug Shelton received a call from dispatch alerting him to a possible disturbance at the residence of Marilyn and Leroy Copling. Sharon Pitts had called dispatch asking for an officer to investigate threats. The dispatcher told Officer Shelton, “The third party report states that there’s a female threatening her father and mother and would like an officer to respond.” Officer Shelton responded to the Copling residence and, once there, talked with Marilyn Copling. Marilyn Copling told Officer Shelton there was no one there threatening her and there had not been anyone there all day. Officer Shelton determined he had probable cause to believe Sharon Pitts had committed the crime of Filing a False Police Report, and so filled out a Probable Cause statement to that effect.
Defendant Shelton’s sworn affidavit [ECF No. 188 — 2] as well as the probable cause statement he completed [ECF No. 182-6] both indicate that the 911 dispatcher told Defendant Shelton that there was a female threatening the Coplings. Furthermore, Defendants provided a transcript of the 911 dispatcher’s conversation with Defendant Shelton, confirming that Defendant Shelton was told by the 911 operator, based on information from a third-party (Plaintiff Pitts), that there was a person threatening the Coplings at their residence [ECF No. 182-5, p. 3]. Based on the information relayed by the 911 operator, and Plaintiff Copling’s response that there had been no one at her residence threatening them that day, Defendant Shelton found probable cause that Plaintiff Pitts had committed the offense of filing a false report [ECF No. 188-2]. Furthermore, it is an undisputed fact that “Officer Shelton determined he had probable cause to believe Sharon Pitts had committed the crime of Filing a False Police Report” [ECF No. 180-1, ¶ 25],
As discussed above, a malicious prosecution can form the basis of a § 1983 suit only if defendant’s conduct also infringes some provision of the Constitution or federal law. Gunderson,
Defendants also address the possibility that Plaintiffs are claiming malicious prosecution in the context of a substantive due process claim for the reckless failure to investigate. The Eighth. Circuit has explained, that to establish a violation of due process based on a failure to .investigate, a plaintiff must show that the officers “intentionally or recklessly failed to investigate, thereby shocking the conscience.” Folsom,
Finally, Plaintiffs Pitts and King also allege abuse of process claims by Plaintiffs Pitts and King (Counts XIX and XX) against Defendant Shelton. To sustain an action for abuse of process, a plaintiff must present sufficient evidence to support the allegations in his petition stating a cause of action for abuse of process. Wells,
Therefore, all Counts alleged against Defendant Shelton will be subject to summary judgment, and Defendant Shelton will be terminated as a party to the lawsuit.
VIII. SUMMARY AND CONCLUSION
Upon entering this Order, the following Counts will be dismissed with prejudice from this case: Count I as to Defendants Bayliss, Murdock, Grant, Halbert, Howard, Killeen, Robinson, Crow, Wilkerson, and Shelton; Count II as to Defendants Bayliss, Murdock, Grant, Halbert, Howard, Killeen, Robinson, Crow, Wilkerson, and Shelton; Count III as to Defendants Bayliss, Murdock, Grant, Halbert, Howard, Killeen, Robinson, Crow, Wilkerson, and Shelton; Count V as to Defendants Wilkerson, Shelton, and Bailey; Count VI as to Defendants Crow, Shelton, and Bailey; Count VII as to Defendants Wilkerson, Shelton, and Bailey; Count VIII as to Defendants Shelton and Bailey; Count X as to Defendants' Shelton and Bailey; Counts XI, XII, XIV, XV, XVI, XVII, as to Defendants Bayliss, Murdock, Grant, Halbert, Howard, Killeen, Robinson, Crow, Copling, Bailey, Wilkerson, and Shelton; Count XIX as to Defendants Shelton, Wilkerson, and Bailey; Count XX as to Crow, Shelton and Bailey; Count XXI as to the City of Cuba Police Department; Count XXIV as to the City of Cuba. The following Defendants are terminated as there are no longer any Counts pending against them: City of Cuba Police Department, City of Cuba, Ralph Bayliss, Les Murdock, Maurice Grant, Harold Halbert, Faye Howard, Kenny Killeen, Kent Robinson, Paul Crow, Doug Shelton, and Jason Wilkerson.
Accordingly,
Notes
. Daniel Pitts is no longer a party to this action. He was terminated from the lawsuit on August 30, 2012.
. All matters set forth in the statement of the movant shall be deemed admitted for purposes of summary judgment unless specifically controverted by the opposing party. E.D. Mo. 7-4.01(E).
. The facts contained in this section are the same facts set forth in the Defendants' Statement of Undisputed Material Facts [ECF No. 180-1], The Statement of Undisputed Material Facts contains citations to the record, in support of each fact, which are not repeated here.
. Plaintiffs assert multiple counts under the Fifth and Eighth Amendments. However, the due process clause of the Fifth Amendment only applies to actions by the federal government. Pub Util. Comm’n of D.C. v. Pollak,
. Plaintiffs reference the following officers of the CPD in Count XXI: Tim Bailey, Paul Crow, Doug Shelton, Richard Dildine, and Jason Wilkerson. According to Defendants, Richard Dildine has passed away and is no longer a party to this action.
. In Count XXIV, Plaintiffs allege the City had notice of the conduct of the following Defendants: Tim Bailey as the City Marshall; Doug Shelton, Paul Crow, Richard Dildine, and Jason Wilkerson as police officers; Kent Robinson as the City Attorney; Kenny Killeen as the City of Cuba mayor; Kevin Copling, Faye Howard, Ralph Bayless, Maurice Grant, Les Murdock, and Harold Halbert employed by the City as aldermen. Plaintiffs allege the aldermen, mayor and city attorney are final policy makers in charge of running the city. Id. at n 375, 382.
. It is uncontroverted that Plaintiffs placed complaints with the CPD, Crawford County Sheriff’s Department, the Missouri Highway Patrol, the FBI, and the United States Department of Justice.
. See note 4, supra.
. Defendant Copling, an elected alderman, also named in the Amended Complaint, is discussed separately below.
. Note that this summary by the Court of Plaintiffs’ response to, and method of addressing Defendants' Motion for Summary Judgment, is common to all of the following Defendants, and the Counts alleged against them. The Court, however, to avoid repetition, will not reiterate this discussion for each Defendant.
. Defendant Kevin Copling is Plaintiffs Pitts and King’s brother and ■ Plaintiff Copling’s son.
. Defendants cite to deposition testimony by Plaintiff Pitts where she concedes that her claims against Defendant Robinson are based entirely on his advice [ECF No. 209], This Court agrees that Plaintiffs have -offered no evidence on the record to support their contention that Defendant Robinson was a final decision-maker.
. Note-that Plaintiffs simply reference a list of cases supporting liability for the City of Cuba and Defendant Robinson. They fail however to identify how the listed cases relate to the Motion for Summary Judgment, nor do they identify which ones are applicable to Defendant Robinson.
. Claims against Defendants were alleged in their official capacity as well [ECF No. 89, ¶ 1], However, as noted above, claims against Defendants Crow, Copling, Bailey, Wilkerson, and Shelton, in their official capacity, are deemed to be claims against the City of Cuba. Under a Monell analysis, this Court has previously concluded that Plaintiffs have failed to establish a genuine issue of material fact as to the existence of an unconstitutional policy or custom by the City of Cuba. Therefore, claims against Defendants Crow, Copling, Bailey, Wilkerson, and Shelton, in their official capacity, need not be further addressed by the Court.
. Defendants remark that Defendant Crow is listed (as a defendant) to Plaintiffs' Count VIII. Upon review of the Amended Complaint, this statement is in error and will be disregarded as such. Also, see note 4, supra, as to claims under the Fifth and Eighth Amendments.
. It seems Plaintiffs’ allegations that Defendant Crow wrote probable cause statements relate to Plaintiff Pitts and King's March 7, 2008 arrests for elder abuse. However, Defendants offer the undisputed fact that Defendant Shelton wrote these statements, as well as referencing authenticated copies of the statements in support of that fact [ECF Nos. 180-1, ¶ 6, and 182-7]. As Plaintiffs did not specifically controvert Defendants’ Statement of Undisputed Material Facts, these facts are deemed admitted, and the Court will not consider these assertions any further as to Defendant Crow.
. Plaintiffs do allege false imprisonment claims under Counts VII and VIII against other Defendants, however Defendant Crow is not named in either of these Counts. As Defendants do not further discuss false imprisonment, this assertion appears to be a typographical error.
. Defendants maintain that Plaintiff Copling has suffered no injury by Defendants, and her only claim under § 1983 is limited to the Equal Protection violation discussed above [ECF No. 189, n. 7]. Defendants also do not mention any claims by Plaintiff Pitts against Defendant Crow, presumably as they found no factual allegations to support a claim.
. Defendants refer to Count XK as stating an abuse of process claim under § 1985, instead of 1986, as stated in the Amended Complaint.
. See note 4, supra.
. Counts I, II, and III are alleged under § 1983. Under § 1983, a plaintiff must allege sufficient facts to show (1) that the defendants) acted under color of state law, and (2) that the alleged wrongful conduct deprived the plaintiff of a constitutionally protected federal right. Zutz,
. Defendants Magel and Spratt are not Defendants in the instant Motion.
. See note 4, supra.
. See note 4, supra.
. A seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution. United States v. Jacobsen,
. Although Defendants do not specifically address Pitts' arrest as a First Amendment retaliatory arrest, Defendants do note that a retaliatory prosecution claim requires plaintiff to demonstrate a complete lack of probable cause [ECF No. 184-1, pp. 11-12]. The Court likewise agrees that the presence of probable cause to arrest [plaintiff] defeats a First Amendment retaliatory arrest claim. Galarnyk v. Fraser,
. See Mo.Rev.Stat. §§ 565.073 and 565.074— Second and Third Degree Domestic Assault.
. “A person commits the crime of domestic assault in the third degree if the act involves a family or household member ... and: (1) The person attempts to cause or recklessly causes physical injury to such family or household member; or ... (3) The person purposely places such family or household member in apprehension of immediate physical injury by
. Although the defendant bears the burden of proof for this affirmative defense, the plaintiff must demonstrate that the law was clearly established. Monroe,
. The cases are from the' Ninth Circuit, Sixth Circuit and district court of Georgia. Notably, Plaintiffs completely fail to address existing precedent in the Eighth Circuit, which of course, is most relevant to a determination of “established law” and the objective reasonableness of an officer's actions taking place within the Circuit.
. See note 4, supra.
. In Missouri, Mo.Rev.Stat. § 565.184, codifies the crimes of knowingly causing of attempting to cause physical contact knowing the other person will regard the contact as harmful or provocative; purposely engaging in conduct involving more than one incident that causes grave emotional distress; purposely or knowingly placing an elder adult in apprehension of immediate physical injury; intentionally failing to provide care, goods or services to an elder adult; or knowingly acting or failing to act in a manner which results in grave risk to the life, body or health of an elder adult.
. The general test of whether executive action denying a liberty interest is egregious enough to violate due process is whether it shocks the conscience. Folsom v. Morgan County, Mo., No. 2:10CV04128NKL,
. The transcript of the 911 call reveals that Plaintiff Pitts only mentioned one lady who allegedly told her dad she was going to stomp Plaintiffs [ECF No. 182-5,11. 6-8].
. In the transcript of the proceedings related to the charge against Plaintiff Pitts, Defendant Shelton explains that he did not interview Leroy Copling as he saw him in his vehicle on Route 66, not at his residence, near the time of the reported incident'[ECF No. 202-1, Exhibit 20, p. 14].
. As noted previously in this Order, a retaliatory prosecution claim for the exercise of First Amendment rights requires Plaintiffs to establish a lack of probable cause. Therefore, Plaintiffs’ claim also fails under this theory.