Woolverton v. City of Wardell

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

LEE WOOLVERTON, )

)

Plaintiff, )

)

v. ) Case No. 1:17 CV 170 ACL

)

CITY OF WARDELL, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

Presently pending before the Court is Plaintiff Lee Woolverton’s Motion for New Trial.

(Doc. 163.)

Background

Woolverton filed this action against Defendants City of Wardell, Casey Redden, Chris

Rudd, Deputy Edward Holloway, Sheriff Tommy Greenwell, and Western Surety Company,1

asserting violations of his constitutional rights under 42 U.S.C. § 1983. Woolverton alleged

Defendants Rudd and Redden used excessive force during an April 11, 2016 traffic stop. Rudd

and Redden were police officers employed by the City of Wardell, Missouri, during the relevant

time.

Redden stopped the automobile Woolverton was driving in the City of Wardell for

allegedly having loud music playing and a license plate light out. Redden then contacted Rudd

to assist Redden with the stop. The Pemiscot County Sheriff’s dispatch told Redden that

Woolverton had a warrant out for his arrest from the City of Malden for failure to appear.

1Defendants City of Wardell, Western Surety Company, Deputy Edward Holloway, and Sheriff

Tommy Greenwell were dismissed from this action prior to trial. The only remaining

Defendants are Officers Chris Rudd and Casey Redden.

In his Amended Complaint, Woolverton alleged that Rudd and Redden used excessive

force when one or both: (1) slammed his head into a police vehicle; (2) took him to the ground

while his hands were cuffed behind his back, causing his leg to break; (3) roughly hauled him

about, knowing his leg was broken; and (4) roughly hauled him into the police vehicle instead of

calling an ambulance. Woolverton claimed that he suffered serious and continuing injuries as a

result of the Defendants’ actions.

This action was tried before a jury from August 24, 2020, through August 26, 2020. On

August 26, 2020, the jury returned its verdict in favor of the Defendants on all of Plaintiff’s

claims. On the same date, the Court issued a Judgment in accordance with the jury’s verdict.

(Doc. 161.)

On September 11, 2020, Plaintiff filed the instant Motion for New Trial.

Standard

Under Rule 59(a)(1)(A), “[a] new trial is appropriate when the first trial, through a

verdict against the weight of the evidence, an excessive damage award, or legal errors at trial,

resulted in a miscarriage of justice.” Gray v. Bicknell, 86 F.3d 1472, 1480 (8th Cir. 1996). A

miscarriage of justice does not result whenever there are inaccuracies or errors at trial; instead,

the party seeking a new trial must demonstrate that there was prejudicial error. Buchholz v.

Rockwell Int’l Corp., 120 F.3d 146, 148 (8th Cir. 1997). “Motions for new trials are generally

disfavored and will be granted only where a serious miscarriage of justice may have

occurred.” United States v. Petroske, 928 F.3d 767, 774 (8th Cir. 2019).

Discussion

Woolverton requests a new trial on eleven separate grounds. He first argues that the

Court erred in dismissing his claims against Defendant City of Wardell. Woolverton next argues

that the verdict was against the weight of the evidence. He then asserts eight claims of

evidentiary error. In his last ground, Woolverton argues that his right to a fair trial was

compromised by civil unrest occurring in the United States. The undersigned will discuss these

claims in turn.

I. City of Wardell Dismissal

Woolverton first argues that the Court erred in dismissing his 42 U.S.C. § 1983 claim

against Defendant City of Wardell.

Defendant City of Wardell (“City”) filed a motion to dismiss Woolverton’s claims

against the City under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.

Count III alleged a failure to train or supervise claim under 42 U.S.C. § 1983; and Count IV

alleged a negligence claim. Woolverton only challenges the Court’s dismissal of Count III.

The Court noted that a municipality may not be liable under § 1983 unless a

constitutional violation was committed pursuant to an official custom, policy, or practice. (Doc.

51 at 10.) See Johnson v. Blaukat, 453 F.3d 1108, 1114 (8th Cir. 2006) (citing Monell v. Dep’t

of Soc. Servs. Of the City of New York, 436 U.S. 658, 690-91 (1978)). Further, “[t]here must be a

causal connection between the municipal policy or custom and the alleged constitutional

deprivation in order to state a valid claim under § 1983.” Ulrich v. Pope County, 715 F.3d 1054,

1061 (8th Cir. 2013). In other words, the custom, policy, or practice must have been the

“moving force” behind the violation. Luckert v. Dodge Cnty, 684 F.3d 808, 820 (8th Cir. 2012).

The Court found that Count III failed to allege facts indicating the City had an

unconstitutional policy or custom. The undersigned further found that the charges at issue “are

not crimes of violence that would put the City on notice that Redden was likely to apply

excessive force to inmates.” (Doc. 51 at 10.)

Woolverton argues that the Court erred in dismissing Count III because Redden’s charges

of parental kidnaping and aggravated stalking are crimes of violence. Assuming for the purpose

of this Motion that these crimes are crimes of violence, the City’s failure to take corrective action

as to one employee does not establish a policy or pattern. Further, these crimes both arose out of

domestic disputes that did not result in convictions, and are not related to the application of

excessive force to arrestees. Thus, Woolverton’s allegations that the City failed to properly train

and supervise are insufficient to state a claim. The Court declines to reconsider its previous

ruling dismissing Woolverton’s claims against the City.

II. Weight of the Evidence

In his second ground for relief, Woolverton states, “[t]he verdict was against the weight

of the evidence is made to preserve the record.” (Doc. 164 at 4.)

“[T]he prevention of injustice is the overriding principle in deciding whether to grant a

new trial on the ground that the verdict was against the weight of the evidence.” Leichihman v.

Pickwick Int’l, 814 F.2d 1263, 1267 (8th Cir. 1987). “A motion for new trial is addressed to the

judicial discretion of the district court and will not be reversed except for a clear abuse of that

discretion.” Id. at 1267-68. “The court should reject a jury’s verdict only where, after a review

of all the evidence giving full respect to the jury’s verdict, the court is left with a definite and

firm conviction that the jury has erred.” Ryan v. McDonough Power Equip., Inc., 734 F.2d 385,

387 (8th Cir. 1984). Where reasonable minds can differ in evaluating the credible evidence, a

new trial based on the weight of the evidence should not be granted. Jacobs Mfg. Co. v. Sam

Brown Co., 19 F.3d 1259, 1267 (8th Cir. 1994).

Based on all the evidence adduced at trial, the undersigned is not convinced that the jury

erred in reaching its verdict. To the contrary, this case involved conflicting evidence regarding

the alleged excessive use of force incident during Woolverton’s arrest, “and it is the jury's

function to choose between plausible versions of the evidence.” Jacobs Mfg., 19 F.3d at 1267.

The jury had ample evidence to reach the decision it did.

III. Evidentiary Rulings

An allegedly erroneous evidentiary ruling does not warrant a new trial unless the

evidence was so prejudicial that a new trial would likely produce a different result.” Burris v.

Gulf Underwriters Ins. Co., 787 F.3d 875, 880 (8th Cir. 2015) (internal quotation marks and

citation omitted). Woolverton challenges eight separate evidentiary rulings, which will be

discussed in turn.

1. Reasons Redden is No Longer a Police Officer

Three of Woolverton’s claims—Grounds Three, Four, and Five—relate to Redden’s

resignation from his law enforcement position.

a. Ground Three

In his third ground for relief, Woolverton argues that the Court erred in not allowing him

to question Redden about the reasons Redden is no longer a police officer. He explains that the

basis for the questioning is found in Plaintiff’s Exhibit 8. Woolverton states that the items in

Exhibit 8 relate to prior bad acts committed by Redden. Specifically, the documents refer to

Redden’s criminal charges of parental kidnapping and stalking, his giving up his law

enforcement license, and his violations of an order of protection. Woolverton acknowledges that

this evidence would ordinarily be inadmissible under Federal Rule of Evidence 404(b), but

argues that it is admissible in this case to show the mental state of Redden. Woolverton contends

that this evidence demonstrates that Redden was incompetent to act as a police officer. He also

argues that the evidence is relevant under Rules 401 and 402, because it shows Redden was

prone to act violently.

Defendants filed a Motion in Limine—Motion in Limine #1—to exclude from evidence

Plaintiff’s Exhibit 8, titled “Various reports regarding arrest of Chief Redden,” as well as any

testimony, questioning, or argument regarding the content contained therein. (Doc. 126.) The

Court granted the Motion, on the basis that Redden was not convicted of any of the charges.

Woolverton did not object to the exclusion of the exhibit itself, but argued that he should be able

to inquire about the charges under Rule 608(b).

Defendants’ Motion in Limine #6 requested the exclusion of “testimony, questioning or

argument about Redden surrendering his license as a police officer or being fired or asked to

leave his position as Chief of Police for the City of Wardell.” (Doc. 126 at 2.)

At the pre-trial hearing, Plaintiff’s attorney explained that Redden was charged with

violating an order or protection for conduct on February 14, 2017; ten months after the conduct

alleged in the Complaint. The order of protection was requested by Redden’s ex-girlfriend,

Kaitlyn Palmer. As part of a guilty plea to the charge of violating the order of protection,

Redden was required to surrender his law enforcement certification. Id. Plaintiff’s attorney

acknowledged that this was character evidence, but argued that it was relevant and admissible to

show Redden’s competence as an officer. Id.

The Court held that evidence regarding Redden’s resignation due to the violation of an

order of protection was unrelated to the issue in this case of whether excessive force was applied

during Woolverton’s arrest. The undersigned further noted that the reasoning for the forced

resignation did not involve deceit or fraud. Id. See Glaze v. Childs, 861 F.3d 724, 726 (8th Cir.

2017) (upholding exclusion of evidence that Defendant officer was forced to resign after

violating institutional policy in excessive force case, finding evidence was “the type of

propensity evidence that [Rule 404(b)] prohibits.”); see also United States v. Oaks, 606 F.3d 530,

538 (8th Cir. 2010) (“Character evidence is of slight probative value and may be very

prejudicial. It tends to distract the trier of fact from the main question of what actually happened

on the particular occasion.”) (citation omitted).

Because the undersigned continues to believe these rulings were correct, Woolverton’s

motion for new trial on these grounds will be denied. Neither the parental kidnapping charge nor

the violation of the order of protection related to the events in this case or to Redden’s duties as a

police officer. The order of protection was issued in 2017, approximately one year after

Woolverton’s arrest. Any inquiry into the relationship of Redden and Ms. Palmer that led to the

violation of the order of protection would not be relevant to the issues in this case. To allow it

would have required the introduction of additional evidence regarding the basis for the order of

protection, the violation of the order of protection, Redden’s plea bargain, and the terms of

Redden’s resignation with the City. Undergoing such a mini-trial on collateral issues would

have likely lead to confusion of the issues and undue delay. Thus, this evidence was properly

excluded as improper character evidence prohibited by Rule 404(b).

b. Ground Four

In his fourth ground for relief, Woolverton argues that the Court erred in not allowing

him to cross-examine Redden regarding the reason Redden was no longer a police officer after

Redden “opened the door” by stating that he had never been charged with excessive use of force

in his employment. Relying upon Westcott v. Crinklaw, 68 F.3d 1073 (8th Cir. 1995), he

contends that Redden’s testimony that he had never been reprimanded for excessive force gave

the jury the false impression that his career as a police officer “was good.” (Doc. 164 at 6.)

In Westcott, an excessive force action brought when an officer shot and killed the

plaintiff, the Eighth Circuit held that the exclusion of evidence regarding an officer’s previous

suspensions for shooting incidents was an abuse of discretion. 68 F.3d at 1078. The Court noted

that the officer had testified that he had not fired his gun at a person in the line of duty and had

served as a member of the police force continuously and uninterrupted, which gave the jury a

favorable impression of his career as a police officer. Id. The excluded testimony was relevant

to the officer’s credibility. Id.

Here, Redden testified on direct examination that he had never been disciplined for using

excessive force. Unlike the officer’s testimony in Westcott, Redden’s statement was truthful.

Redden’s resignation was not related to an excessive force incident in the line of duty, but,

rather, resulted from the violation of an order of protection involving his ex-girlfriend. As

previously discussed, evidence regarding Redden’s violation of the order of protection and

subsequent resignation is not relevant and was improper character evidence. Thus, Redden did

not open the door to this line of questioning and the evidence was properly excluded.

c. Ground Five

Woolverton next argues that the Court erred in prohibiting him from inquiring on cross-

examination regarding why Redden surrendered his law enforcement certification and regarding

Redden’s arrests before and after the incident under FRE 608(b).

Rule 608(b) provides that during cross-examination the court may allow inquiry into

specific instances of a witness’s conduct if the conduct is probative of the witness’s character for

truthfulness. Fed. R. Evid. 608(b).

Woolverton’s argument is unavailing. The evidence at issue did not involve deceit or

fraud. Woolverton fails to explain how this evidence would have been probative of Redden’s

character for truthfulness. See Glaze, 861 F3d at 726 (court properly declined to allow inquiry

about defendant’s resignation under Rule 608(b) when proffered evidence did not involve deceit

or fraud).

2. Time in Prison

Woolverton next argues that the Court erred in prohibiting him from inquiring as to

whether Redden was incarcerated after Redden inquired as to whether Woolverton had spent

time in prison. Woolverton explains that, because Defendants’ attorney’s questioning of

Woolverton violated the Court’s ruling on a motion in limine, the Court should have permitted

Woolverton to engage in the same line of questioning with Redden to cure the prejudice resulting

from the introduction of the evidence.

On cross-examination, Defendants’ attorney asked Woolverton whether he had served

time in prison related to his possession of a controlled substance conviction. (Tr. 10.) Plaintiff’s

attorney immediately objected, before Woolverton answered, and a sidebar conference took

place. During the sidebar, the undersigned explained to Defendants’ attorney that, pursuant to

the rulings on the motions in limine, Woolverton could only be asked the name of the charged

offense, the date of the conviction, and the sentence imposed. Woolverton could not be asked

whether he served any time in prison. Plaintiff’s attorney requested that the jury be advised to

disregard Defendants’ attorney’s question. The Court granted the request, and directed the jury

to disregard the question concerning whether Woolverton spent any time in prison. Defendants’

attorney then questioned Woolverton regarding the date of the offense and the sentence he

received. Woolverton testified that he received probation.

The Court finds that no error occurred in prohibiting Woolverton from inquiring as to

whether Redden had been incarcerated. Although Defendants’ attorney asked Woolverton

whether he had served time in prison, Woolverton did not answer the question. Defendant’s

attorney was admonished that this line of questioning was not permissible, and counsel did not

question Woolverton any further on the issue. Further, the undersigned instructed the jury to

disregard the question. As such, no improper evidence was introduced and Woolverton was not

prejudiced. Because no prejudice occurred, Woolverton was not entitled to ask Redden whether

he had been incarcerated.

3. Missouri Self-Defense Law

In his seventh ground for relief, Woolverton argues that the Court erred in failing to take

judicial notice of Missouri law regarding “the right to defend oneself from attack by police

officers during an arrest,” as stated in State v. Thomas, 625 S.W.2d 115, 122 (Mo. 1981). (Doc.

164 at 7.) Woolverton cites the following language from Thomas:

We note at the outset the difference between resisting arrest and defending

oneself against excessive force used in effecting the arrest. As stated in State v.

Nunes, 546 S.W.2d 759 (Mo.App.1977), “the jurisdictions which have abrogated

the common law right to resist an unlawful arrest recognize that the right of self-

defense against excessive force remains unimpaired.” Id. at 762. An officer is

expected to be the aggressor, and is not to be “placed on the same level as

ordinary individuals having a private quarrel” or “denied that protection

commensurate with the public duty exacted.” State v. Nolan, 354 Mo. 980, 192

S.W.2d 1016, 1020 (1946). If, after announcing his intention to arrest, the officer

encounters flight or resistance he is bound by Section 544.190 to use “all

necessary means to effect the arrest.” Conversely, he is prohibited from using any

more force than is necessary to effect the arrest; his doing so will constitute an

assault, See Manson v. Wabash Railroad Company, 338 S.W.2d 54, 61 (Mo.banc

1960); State ex rel. Donelon v. Deuser, 345 Mo. 628, 134 S.W.2d 132, 135

(1939), and generates the right of the arrestee to defend himself against the

excess. This right is a last resort, however. Defendant must have done all he can,

consistent with his own safety, to avert the necessity. State v. Jackson, 522

S.W.2d 317, 319 (Mo.App.1975). Hence, it is said “the arrestee forfeits his right

to self-defense if he knows that if he desists from physical resistance and submits

to arrest, the excessive force will cease.” State v. Nunes, 546 S.W.2d at 763.

625 S.W.2d at 122. Woolverton contends that he should have been allowed to argue that

“holding his ground” was allowable under Missouri law under Thomas, and that the jury should

have been so instructed.

Woolverton further argues that the principle cited in Thomas was applied in a Section

1983 excessive force case in Brossart v. Janke, No. 3:14-cv-62, 2016 WL 9459263 (D. N.D. Jan.

12, 2016). In Brossart, the plaintiff had been convicted of Physical Obstruction of a

Governmental Function. Id. at *5. Under North Dakota law, a defendant’s forceful resistance to

an arrest is not justified unless the arresting officers use excessive force. Id. The jury was

required to find beyond a reasonable doubt that the officer’s force was not excessive in order to

convict. Id. The Court held that Brossart’s conviction established that the officer did not use

excessive force, thereby barring Brossart’s § 1983 excessive force claim under the Heck

doctrine. Id. at *6.

The Court finds that both Thomas and Brossart are inapposite. In Thomas, a defendant

convicted of capital murder in the slaying of a police officer argued on appeal that he had the

right to defend himself and to resist an unlawful arrest. 625 S.W.2d at 119-120. Thomas has no

application in the instant civil action under § 1983. Similarly, the Brossart Court applied the

principles of self-defense to excessive force by officers in the context of a defense to a criminal

charge. Although Brossart was in fact a civil case, the court did not take judicial notice of the

state self-defense law, nor did it instruct the jury on such. The state self-defense law was

mentioned only in connection with an analysis under Heck. As such, it does not aid Woolverton

in any respect.

Woolverton’s theory presented at trial was that the Defendant officers orchestrated a

coordinated physical attack on him for no reason. He testified that he did not resist arrest at any

time, although he “held his ground” after Rudd slammed his head into the patrol vehicle in order

to prevent another assault. Woolverton, unlike the defendant in Thomas, was not charged with

any crime due to the act of holding his ground. Defendants did not argue that they were entitled

to apply force because Woolverton was holding his ground after having his head slammed into

the patrol vehicle. Instead, Defendants offered a completely different account of the arrest.

According to the Defendants, Woolverton was belligerent and resisted arrest from the moment he

was pulled over, and they did not slam his head into the patrol vehicle at any time. The Court

denied Woolverton’s request to take judicial notice of Missouri self-defense law because it was

not relevant to the facts of this civil case, and would simply confuse the issues for the jury.

Woolverton has failed to demonstrate this decision was erroneous.

4. Kaitlyn Palmer Cross-Examination

In his eighth ground for relief, Woolverton argues that the Court erred in prohibiting him

from questioning witness Kaitlyn Palmer regarding her breakup with Defendant Redden and the

subsequent order of protection proceedings under Rule 608(b). He contends that Defendants

opened the door to such testimony when they asked Ms. Palmer if the breakup was amicable and

she testified that it was not amicable.

The undersigned precluded Woolverton from eliciting testimony from Ms. Palmer

regarding the breakup and subsequent order of protection under Rule 404(b) because this

evidence is irrelevant to the issues of excessive force and would be highly prejudicial to

Defendants. Ms. Palmer testified truthfully that the breakup was not amicable. The evidence

was not admissible under Rule 608(b), as evidence of the breakup was not probative of Ms.

Palmer’s character for truthfulness. Thus, Woolverton’s argument lacks merit.

5. Woolverton’s Felony Guilty Plea

Woolverton next argues that Defendants’ “excessive reliance” on Woolverton’s guilty

plea was prejudicial.

The Court permitted Defendants to question Woolverton regarding his guilty plea to a

felony unlawful use of a weapon charge for impeachment purposes, because he failed to disclose

this information in answering Defendants’ Interrogatories. (Tr. 1-3.) When asked by

Defendants’ attorney if he listed every conviction or plea of guilty to a felony as asked by

Interrogatory No. 9, Woolverton responded in the affirmative. (Tr. 4.) Defendants’ attorney

then cited Woolverton’s testimony on direct examination that he had pled guilty to the felony

crime of unlawful use of a weapon. Id. Woolverton responded that that charge was a suspended

imposition of sentence and was not a felony. Id. A lengthy colloquy took place, during which

Woolverton repeated his erroneous belief that the charge of unlawful use of a weapon was not a

felony. (Tr. 4-6.) After a sidebar conference, the Court permitted Defendants to show

Woolverton court documents reflecting that his guilty plea was to a felony charge. (Tr. 6-8.)

When Woolverton continued to deny that he pled guilty to a felony crime, Defendants offered

the exhibit into evidence without objection. (Tr. 9.)

Defendants were entitled to impeach Woolverton regarding his guilty plea to the felony

charge of unlawful use of a weapon pursuant to Federal Rule of Evidence 609. To the extent this

testimony was lengthy or “excessive” as Woolverton alleges, this was solely due to

Woolverton’s refusal to admit he had in fact pled guilty. The Court did not err in allowing this

evidence.

6. Redden’s Surrender of Law Enforcement Certificate

In his final claim of evidentiary error, Woolverton argues that the Court erred in

prohibiting evidence regarding the surrender of Redden’s law enforcement certificate and the

circumstances surrounding his separation from his position as Wardell police chief. Woolverton

argues that this evidence is relevant to Redden’s competency as a police officer, which affects

the qualified immunity analysis.

The Court has discussed the circumstances surrounding Redden’s resignation extensively

with respect to Woolverton’s third, fourth, and fifth grounds for relief. The resignation resulted

from events occurring in Redden’s personal life and did not relate to his treatment of arrestees in

the line of duty. As such, the proposed evidence is irrelevant to Redden’s competence as a

police officer and was properly excluded under Federal Rules of Evidence 401, 402, 403, and

404.

For the reasons stated above, the Court's evidentiary rulings were not improper, and there

was no prejudice justifying a new trial.

IV. Ground 11

In his final claim, Woolverton argues that the trial in this case occurred “during a period

of civil unrest in this nation in Kenosha Wisconsin.” (Doc. 164 at 12.) He states that the

“escalation of the unrest was reported in the media and may have prejudiced the jury.” Id.

Woolverton concluded that, “[i]n fairness a new trial should be ordered.” Id.

Woolverton fails to explain the nature of this unrest or how unrest occurring in Kenosha,

Wisconsin had any bearing on this trial conducted in Cape Girardeau, Missouri. This conclusory

allegation is insufficient to establish prejudice to warrant a new trial.

Accordingly,

IT IS HEREBY ORDERED that Plaintiff’s Motion for New Trial (Doc. 163) is denied.

/s/ Abbie Crites-Leoni

ABBIE CRITES-LEONI

UNITED STATES MAGISTRATE JUDGE

Dated this 10th day of November, 2020.