Leonard v. St. Charles County Police Department

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

JAMIE LEONARD, )

)

Plaintiff, )

)

vs. ) Case No. 4:19-cv-00927-MTS

)

ST. CHARLES COUNTY, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This case involves the criminal justice system managing a mental health crisis, and the

particulars of the case are difficult. Indeed, at first blush, a listener hearing about the events that

transpired could possibly conclude that the government officials involved in the case could

partially be at fault and are partially to blame. And, to an extent, some of their actions may be

blameworthy to some degree. But this Court does not stand in judgment of whether state actors

do their jobs well or whether they could have done their jobs differently to bring about a better

result. Rather, in this case, the Court decides whether Defendants violated Plaintiff’s clearly

established constitutional rights. After watching the videos of the events at issue, reviewing the

undisputed facts and the briefing, and applying the established legal standards, the Court

concludes that no Defendant violated Plaintiff’s clearly established constitutional rights.

Accordingly, Defendants are entitled to judgment as a matter of law on all counts.

I. Background

Plaintiff Jamie Leonard has experienced episodes of psychosis. On July 19, 2017, he

experienced one of these psychotic episodes. After an encounter with officers of the Wentzville,

Missouri Police Department (“Wentzville”), Wentzville officers took Plaintiff into their custody

and, later that same evening, transferred Plaintiff to the custody of the St. Charles County,

Missouri Department of Corrections (“St. Charles DOC”). While confined at St. Charles DOC’s

Justice Center, Plaintiff was sprayed with oleoresin capsicum spray (“OC spray”), a chemical

irritant some refer to as pepper spray, during a search of his cell. Officers allowed Plaintiff to

rinse off the spray. But a short time later, once alone in his cell, Plaintiff, who had a preexisting

eye disease and was mentally unwell, began to touch his left eye. He repeatedly, but

intermittently, pulled and scraped at his left eye so severely that he eventually removed it from

its socket. Though St. Charles DOC personnel quickly intervened, and emergency medical

personnel transported Plaintiff to hospital for treatment, Plaintiff irreversibly had damaged his

eye, and a surgeon later removed Plaintiff’s left eye altogether.

Based on these events and his time in confinement with St. Charles DOC, Plaintiff

brought suit against St. Charles County, Missouri (“the County”) and four of its employees,

corrections officer Steven Harris, suicide prevention officer Donte Fisher, sergeant Lisa Baker,

and nurse Theresa Martin (collectively, the “Individual Defendants”), asserting claims under 42

U.S.C. § 1983 for violations of his constitutional rights. In his Fourth Amended Complaint,

Plaintiff asserts four counts, which the Court will address out of numerical order. In Count Two,

Plaintiff asserts the Individual Defendants violated his Fourth and Fourteenth Amendment rights

“to be free from unreasonable seizures of his person and the use of excessive force.” Doc. [88]

¶ 208. In Count Three, Plaintiff alleges the Individual Defendants violated his Eighth and

Fourteenth Amendment rights by subjecting him to “deliberate indifference to his serious

medical needs, in violation of his Eighth Amendment rights for inadequate prison care and

Fourteenth Amendment rights to due process of law and to be free of punishment prior to

adjudication of guilt.” Id. ¶ 225. Lastly against the Individual Defendants, Plaintiff alleges in

Count Four that the individual Defendants conspired to violate his Fourth, Eighth and Fourteenth

Amendment rights. Id. ¶ 231. As for Count One, Plaintiff alleges that Defendant St. Charles,

County itself violated his Fourth, Eighth, and Fourteenth Amendment rights. See Monell v.

Dep’t of Soc. Servs. of N.Y., 436 U.S. 658 (1978). He alleges “St. Charles maintains, condones,

and is deliberately indifferent to unconstitutional policies, customs and practices of its

Department of Corrections,” and that those policies, customs, and practices “directly caused” his

“constitutional deprivations.” Doc. [88] ¶¶ 197, 202.

Plaintiff moved for summary judgment only on Count One against Defendant St. Charles

County, except for the issue of damages. Doc. [99]; see also Fed. R. Civ. P. 56(a) (noting party

may move for summary judgment on “part of [a] claim”). Defendants also moved for summary

judgment. Doc. [92]. They seek it on all claims against them in their entirety.

II. Collateral Issues

a. Motion for Sanctions

Plaintiff has renewed its Motion for Sanctions against Defendant St. Charles because of

the County’s failure to preserve video footage from one camera outside of Plaintiff’s cell. Doc.

[97]. Plaintiff requests that the Court “presume that the destroyed information was unfavorable

to Defendant when ruling on the parties’ summary judgment motions pursuant to Rule

37(e)(2)(A)” or in the alternative give a proposed jury instruction requiring the jury to presume

the information in the video would have been unfavorable to the County. Id. The Court

previously denied Plaintiff’s Motion for Sanctions without prejudice to allow Plaintiff further

discovery to establish the intentionality of the failure to preserve. Doc. [59]; Doc. [85].

As the Court previously noted, the Federal Rules of Civil Procedure allow for Plaintiff’s

desired remedies “only upon [a] finding that the party acted with the intent to deprive another

party of the information’s use in the litigation.” Fed. R. Civ. P. 37(e)(2); accord Morris v. Union

Pac. R.R., 373 F.3d 896, 901 (8th Cir. 2004). In light of all the evidence and circumstances, the

Court cannot conclude that Defendant St. Charles intentionally destroyed the recordings of this

one particular camera. First, the St. Charles County Justice Center, where the events at issue

unfolded, retains recorded video for twenty-eight to thirty days, at which point new video

overwrites the oldest video. Thus, the video was overwritten by the system; there is no

indication the video was deleted or destroyed in any other way. Second, the County’s

Department of Corrections maintains over two-hundred individual security cameras throughout

the County’s Justice Center. The County preserved and provided Plaintiff with all the video it

had that showed Plaintiff, including the video of a Defendant spraying Plaintiff with OC spray

and the video of Plaintiff self-harming his left eye. The video that has been lost is the footage

from outside Plaintiff’s cell at the time Plaintiff was inside injuring his eye, which seemingly

would have shown officials’ actions during Plaintiff’s self-harming behavior. Absent any other

indication that the failure to preserve this one camera’s footage was nefarious, the Court finds it

too great a leap to conclude the County saved and turned over all the plainly relevant footage but

intentionally allowed this less relevant, at least on its face, footage to be overwritten with the

intent to deprive Plaintiff of its use in this litigation.

Therefore, the Court will deny Plaintiff’s Renewed Motion for Sanctions.

b. Motion to Exclude

Plaintiff also moves to exclude the affidavit of Lauri Smit “for nondisclosure and

untimeliness.” Doc. [106]. Defendants did not oppose this Motion. Accordingly, the Court will

not consider the affidavit in ruling on the motions for summary judgment. See Fed. R. Civ. P.

37(c)(1).

III. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56, a court must grant summary judgment to a

moving party “if the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). At the summary

judgment stage, facts must be viewed in the light most favorable to the nonmoving party, but

only if there is a “genuine” dispute as to those facts. Scott v. Harris, 550 U.S. 372, 380 (2007).

Mere “metaphysical doubt as to the material facts” is insufficient to defeat summary judgment.

Id. A party asserting that a fact is genuinely disputed must support the assertion by citing to

particular parts of materials in the record. Fed. R. Civ. P. 56(c). A district court, however, is not

“constrained to view only the evidence submitted by [the moving party] to support its summary

judgment motion; the court c[an] consider any evidence in the record.” Terra Indus., Inc. v.

Nat’l Union Fire Ins. Co. of Pittsburgh, Penn., 383 F.3d 754, 759 (8th Cir. 2004); accord Fed. R.

Civ. P. 56(c)(3) (providing court “may consider other materials in the record” besides just “cited

materials”).

In reviewing the record, a court must not weigh evidence at the summary judgment stage

but instead should decide simply whether there is a genuine issue for trial. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986). “Where the record taken as a whole could not lead a

rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Scott,

550 U.S. at 380. “When opposing parties tell two different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury could believe it, a court should not adopt

that version of the facts for purposes of ruling on a motion for summary judgment.” Id. Thus,

accurate videos of events in question can allow a court to determine how events transpired

without weighing evidence. See White v. Jackson, 865 F.3d 1064, 1077 (8th Cir. 2017) (noting

that given “video and audio evidence” in the case, the court “need not accept [a party’s] version

of the facts”); Coker v. Ark. State Police, 734 F.3d 838, 843 (8th Cir. 2013) (reversing a grant of

summary judgment because “[w]ithout the aid of video or an understandable audio recording, it

is impossible to determine what happened . . . without weighing [the officer’s] version of [the

facts] against [the plaintiff’s] story”); Michael v. Trevena, 899 F.3d 528, 533–34 (8th Cir. 2018)

(finding genuinely disputed material fact precluded summary judgment on unlawful arrest claim

because recordings were inconclusive and jury could reasonably adopt either the officers’ or the

plaintiff’s version of facts); see also Brown v. City of St. Louis, No. 4:18-cv-00389-MTS, 2021

WL 2413364, at *7 (E.D. Mo. June 14, 2021).

IV. Facts1

Plaintiff was confined in the St. Charles DOC’s Justice Center between July 19, 2017 and

July 22, 2017. The lead-up to his confinement began when Wentzville officers first took

Plaintiff into custody sometime on July 19, 2017 while Plaintiff experienced a psychotic episode.

Doc. [110] ¶ 8. That same day, they took him to a local hospital where medical staff diagnosed

his psychosis but deemed him “fit for confinement.” Doc. [108] ¶ 21. Later that same night,

1 The Local Rules of this District require a party moving for summary judgement to file a Statement of

Uncontroverted Material Facts, which must “set forth each relevant fact in a separately numbered paragraph stating

how each fact is established by the record, with appropriate supporting citation(s).” Rule 4.01(E). Each party

opposing summary judgment must file a Response to Statement of Material Facts, which “must set forth each

relevant fact as to which the party contends a genuine issue exists.” Id. And the opposing party must support the

dispute “with specific citation(s) to the record.” Id. For their responses to numerous paragraphs in Plaintiff’s

Statement of Uncontroverted Material Facts, Defendants did not indicate that it contended a genuine issue existed,

nor did it cite to the record showing a contradiction. Rather, Defendants simply objected, most frequently saying

that many of Plaintiff’s paragraphs violated Local Rule 4.01(E) because they stated multiple facts in a single

paragraph—though many to which they object do not. In any event, Defendants did not dispute these facts nor

provide the Court any citations in the record to suggest they are disputed, and the Court has not seen any

contradictory evidence on the points discussed herein in its review of the admittedly vast record. Accordingly, the

Court takes those facts discussed herein that Defendants did not dispute with citation as uncontroverted facts. See,

e.g., DaPron v. Spire, Inc. Ret. Plans Comm., 377 F. Supp. 3d 946, 950 (E.D. Mo. 2019) (finding objections plaintiff

raised “that d[id] not cite to the record” were “ineffective for purposes of establishing a genuine factual dispute”),

aff’d, 963 F.3d 836 (8th Cir. 2020); Benford v. Schneider Nat’l Carriers, Inc., No. 4:19-cv-00550-MTS, 2021 WL

3033346, at *2 (E.D. Mo. July 19, 2021) (deeming “several” of opposing-party’s factual submissions as

uncontroverted where party “failed to respond” to the particular “factual assertions,” in violation of Local Rule

4.01(E)).

Wentzville officers transferred Plaintiff into the custody of St. Charles DOC at the County’s

Justice Center. Id. ¶ 20.

On the evening of July 21, while still confined at the Justice Center, Plaintiff exhibited

unusual behavior that continued into the following day. Doc. [110] ¶ 35. Just after 1:00 a.m. on

July 22, Plaintiff attempted to choke himself by putting his hand down his throat. Id. ¶ 37.

Officers at the Justice Center reported it to medical, and Defendant Theresa Martin, a nurse at the

Justice Center, responded. Id. Defendant Martin thereafter decided to have Plaintiff transferred

to the suicide prevention unit, and officers transferred him accordingly and placed him on close

observation. Id. ¶¶ 53, 61. At 1:37 a.m. that morning, July 22, Defendant Martin made a

segregation report regarding Plaintiff that noted he made suicidal statements and would be on

close observation until mental health and a medical supervisor cleared him. Id. ¶ 65.

Defendant Donte Fisher worked in the suicide prevention unit. In those early morning

hours that Plaintiff first spent in the unit, Defendant Fisher observed Plaintiff exhibiting

concerning behaviors like pacing, standing on his bunk, using profane language, and repeatedly

flushing his toilet. Id. ¶ 74; Doc. [108] ¶ 5. The Department’s policies required officers to

search the cells of those in the suicide prevention unit at the change of each suicide prevention

officer’s shift. Doc. [110] ¶ 70. Pursuant to that policy, Defendant Fisher, whose shift neared its

end, needed to search Plaintiff’s cell. Id. ¶ 72. Prior to the search, Defendant Fisher had a

meeting with two other officers—Defendant Steven Harris and Officer Scott, who is not a party

to this case. Id. ¶ 79–80. At the meeting, Defendant Fisher instructed Defendant Harris to have

his OC spray unholstered, as a precaution, prior to entering Plaintiff’s cell, id. ¶ 81, and the three

began Plaintiff’s cell search as planned. Doc. [108] ¶ 6.

A video in the record shows the search. Doc. [101-35]. In the video, most of Plaintiff

momentarily goes off screen showing only his head. Seconds later, he reappears with his hands

cuffed behind his back and walks away from the door toward the back of his cell. Once at the far

wall in his cell, he kneels. Shortly thereafter, Defendant Fisher enters the cell and walks to

Plaintiff, who remains kneeling. Officer Scott and Defendant Harris then enter, and Officer

Scott begins searching Plaintiff’s bunk. Though the video lacks audio, the parties agree that

Defendant Harris told Plaintiff that if he moved, Defendant Harris would spray Plaintiff with

pepper spray. Doc. [110] ¶ 111. Immediately after Defendant Harris gave Plaintiff that warning,

Plaintiff, who is six feet eight inches tall and weighed three-hundred pounds, Doc. [108] ¶ 16,

rises to his feet. Defendant Fisher places both hands on Plaintiff, and Defendant Harris and

Officer Scott move toward Plaintiff and Defendant Fisher. Defendant Fisher and Officer Scott

try to subdue Plaintiff and push him against the wall, but he is able to continue sliding along the

wall. Plaintiff reaches the corner of the cell, climbs on his bunk, and begins to dart. Defendant

Harris then deploys a quick burst of OC spray to Plaintiff’s face, and Plaintiff falls down on his

bunk. Defendant Harris immediately lowers his spray, and the three officers place their hands on

Plaintiff’s legs and back keeping him in a prone position.

After Plaintiff’s exposure to the OC Spray, Defendant Martin, the nurse, inspected him.

Doc. [110] ¶ 154. She directed the washing out of Plaintiff’s eyes with water and recommended

he be given a shower. Id. ¶¶ 154–55. Defendant Martin asked that officers bring Plaintiff back

to the medical department afterwards so Plaintiff could be monitored. Id. ¶ 158. Officers,

however, believed Plaintiff was too volatile to be given a shower or to remain in the medical

department. Id. ¶¶ 158, 156. Officers allowed Plaintiff to rinse out his eyes in a sink for at least

one minute, and then placed Plaintiff into a new cell in the suicide prevention unit. Id. ¶¶ 146–

47, 153–54. Plaintiff was then in his new cell and had not been provided any “sedation” or

“psychiatric medications.” Id. ¶ 178.

Another video in the record shows what happened shortly thereafter. Doc. [101-36]. The

timestamped video shows Plaintiff pacing in his cell. For a bit, he is out of view of the camera

but returns in view and can be seen at the sink washing his face and splashing it with water. He

then returns to pacing. At about 07:38:31 he briefly goes out of view but is seen again about four

seconds later, and for the first time, appears to scratch at his eye for several seconds. Over the

next twenty seconds or so, he intermittently rubs his left eye. At about 07:39:04 he begins

touching his eye with considerable force. He continues to move around the cell and touch his

eye with force, but he sporadically pauses for varying lengths of time only to resume touching it.

At about 07:40:45 he begins using both hands on his eye, and it is evident that the way he is

beginning to touch his eye would injure it. At about 07:40:57, he briefly pauses and falls to the

floor. He begins to lay face down on the floor of his cell. His hands are clasped together with

his elbows turned outward, and he his resting his forehead on his hands. He is not still, but it is

unclear whether he is, at that point, further damaging his eye. He mostly stays in that position

until, still lying face down, he reaches his arms above his head at about 07:41:18. A small

amount of blood is visible on the floor under his face. At about 07:41:30, he begins touching his

eye once again, and at 07:42:15 blood is visible on his hands. At 07:42:53, more blood is visible

on the ground where Plaintiff continues to lie. At 07:43:03, officials enter Plaintiff’s cell and

begin to restrain him.

At some point during Plaintiff’s self-harm, an official made a medical emergency call.

Doc. [110] ¶ 200. In response to that call, Defendant Lisa Baker, a sergeant on duty, went into

the hall outside Plaintiff’s cell. Id. ¶ 201. Officer Scott also was present outside of Plaintiff’s

cell. Pursuant to Department policy, the two waited outside of Plaintiff’s cell for “appropriate

backup,” until they had “at least three officers” present. Id. ¶¶ 202, 204, 207. By the time the

officers entered Plaintiff’s cell at 07:43:03, Plaintiff had injured his eye. Id. ¶ 209.

Defendant Martin arrived at Plaintiff’s cell, responding to the medical emergency call,

after the officials had already entered the cell and subdued Plaintiff. Id. ¶ 216. She observed

Plaintiff’s eye out of its socket but still attached via tissue. Id. ¶ 218. She placed Plaintiff’s eye

back into its socket to the extent she could and covered it with gauze moistened with saline. Id.

¶ 220. Emergency medical technicians who responded to the Justice Center transported Plaintiff

to a local hospital, but the hospital sent Plaintiff to Saint Louis University Hospital given the

nature or extent of his injury. Id. ¶¶ 223, 225. Plaintiff’s doctor later concluded that the eye was

permanently blind. Id. ¶ 227.

V. Discussion

a. Qualified Immunity Entitles the Individual Defendants to Summary Judgment on

Count Two’s Claim of Excessive Force.

Defendants argue that qualified immunity shields them from any liability on Count Two

and entitles them to summary judgment. The doctrine of qualified immunity shields officials

from civil liability when their conduct “does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” White v. Pauly, 137 S.

Ct. 548, 551 (2017) (per curiam) (internal quotations omitted). A right is “clearly established”

when it is “sufficiently clear that every reasonable official would have understood that what he is

doing violates that right.” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (internal

quotations omitted). Though there need not be “a case directly on point for a right to be clearly

established, existing precedent must have placed the statutory or constitutional question beyond

debate.” White, 137 S. Ct. at 551 (internal quotations omitted). It is not enough that a rule

merely is “suggested by then-existing precedent.” D.C. v. Wesby, 138 S. Ct. 577, 590 (2018).

Rather, the “precedent must be clear enough that every reasonable official would interpret it to

establish the particular rule the plaintiff seeks to apply.” Id.

The “clearly established” standard requires that the legal principle clearly prohibit the

official’s conduct “in the particular circumstances before him.” Id. Thus, the inquiry “must be

undertaken in light of the specific context of the case, not as a broad general proposition.”

Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam) (internal quotations omitted). The

Supreme Court repeatedly has told courts, and continues to tell courts, “not to define clearly

established law at a high level of generality.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018);

City of Tahlequah, Okla. v. Bond, __ S. Ct. __, No. 20-1668, 2021 WL 4822664, at *2 (U.S. Oct.

18, 2021).

In Count Two, Plaintiff alleges that the Individual Defendants violated his Fourth

Amendment rights through excessive force. The Fourth Amendment protected Plaintiff from

“unreasonable . . . seizures,” U.S. Const. amend. IV, and excessive force constitutes an

unreasonable seizure. See Torres v. Madrid, 141 S. Ct. 989, 994 (2021). Since an official “is

only liable for his . . . own misconduct,” Whitson v. Stone Cty. Jail, 602 F.3d 920, 928 (8th Cir.

2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)), the Court must examine each

Individual Defendants’ own actions to determine whether he or she violated Plaintiff’s Fourth

Amendment rights. Pitts v. City of Cuba, 913 F. Supp. 2d 688, 708 (E.D. Mo. 2012) (noting

specific facts must “show[] what each named defendant allegedly did, or failed to do, that

allegedly violated the plaintiff’s federal constitutional rights”). Further, to overcome qualified

immunity, precedent must have clearly established that each Individual Defendant’s own actions

“in the particular circumstances” at issue violated Plaintiff’s Fourth Amendment rights. See

Wesby, 138 S. Ct. at 590. Relevant to Count Two, the Supreme Court has said the “specificity”

regarding the particular circumstances is “especially important in the Fourth Amendment

context,” where it is “sometimes difficult for an officer to determine how the relevant legal

doctrine, here excessive force, will apply to the factual situation the officer confronts.” Mullenix,

577 U.S. at 12.

Puzzlingly, though, despite the need for the existence of specific precedent to defeat the

Individual Defendants’ entitlement to qualified immunity, Plaintiff cited none.2 Instead, Plaintiff

discussed “multiple recent cases” against St. Charles County or its employees where the

County’s “summary judgment attempts on qualified immunity were defeated.” Doc. [107] at 5

(emphasis in original). The facts in those cases, however, are “dramatically different from the

facts here.” See Bond, 2021 WL 4822664, at *2 (“Suffice it to say, a reasonable officer could

miss the connection between th[ose] case[s] and this one.”). Further, most of them were decided

after the events giving rise to this case occurred. Doc. [107] 3–10 (citing, e.g., Quaraishi v. St.

Charles Cnty., Mo., 986 F.3d 831 (8th Cir. 2021); Smith v. St. Charles Cty., Mo., No. 4:18-cv-

171-JCH, 2021 WL 253998, at *1 (E.D. Mo. Jan. 26, 2021); Qandah v. St. Charles Cty., Mo.,

No. 4:20-cv-53-JCH, 2021 WL 808857, at *4–5 (E.D. Mo. Mar. 3, 2021)). Post-incident cases,

2 See Rivas-Villegas v. Cortesluna, __ S. Ct. __, No. 20-1539, 2021 WL 4822662, at *2–3 (U.S. Oct. 18, 2021)

(“[T]o show a violation of clearly established law, [respondent] must identify a case that put [the officer] on notice

that his specific conduct was unlawful. [Respondent] has not done so.”); Bond, 2021 WL 4822664, at *3 (“Neither

the panel majority [below] nor the respondent have identified a single precedent finding a Fourth Amendment

violation under similar circumstances. The officers were thus entitled to qualified immunity.”); Wesby, 138 S. Ct. at

582 (noting arrestees “failed to identify a single precedent finding a Fourth Amendment violation under similar

circumstances”); Kasiah v. Crowd Sys., Inc., 915 F.3d 1179, 1185 (8th Cir. 2019) (finding plaintiff “failed to meet

his burden of showing that [defendant] violated a right that was clearly established”); Chambers v. Pennycook, 641

F.3d 898, 904 (8th Cir. 2011) (noting that plaintiff alleging excessive use of force “must establish that the

constitutional right was clearly established”); Monroe v. Arkansas State Univ., 495 F.3d 591, 594 (8th Cir. 2007)

(“Although the defendant bears the burden of proof for [qualified immunity], the plaintiff must demonstrate that the

law was clearly established.”); Johnson-El v. Schoemehl, 878 F.2d 1043, 1048 (8th Cir. 1989) (“The plaintiff must

demonstrate that the law is clearly established[.]”). But see Preston v. Waddle, No. 4:06-cv-0835-AGF, 2008 WL

11512023, at *7 (E.D. Mo. Apr. 29, 2008) (noting some panels of the Eighth Circuit have been inconsistent

regarding the burden to demonstrate that right was clearly established).

though, are “of no use in the clearly established inquiry.” Bond, 2021 WL 4822664, at *2;

accord Williams v. Herron, 687 F.3d 971, 974 (8th Cir. 2012) (noting “government officials

possess qualified immunity unless . . . the right violated was clearly established when the alleged

misconduct occurred”).

Beyond those factually distinct, subsequent cases, Plaintiff offered only factual assertions

regarding what is “well-known” in the “corrections industry,” made policy arguments, and

offered other possible alternatives to OC spray that Defendants could have employed. See, e.g.,

Doc. [107] at 13 (claiming pepper-spraying handcuffed individual is “well-known to be

objectively unreasonable in the corrections industry”); id. at 14 (“What message does that send

to Defendant Harris – and our community – if he is [entitled to qualified immunity]?”); id. at 15

(noting there “were other means that could have been employed to avoid the use of pepper

spray”). Those points do not overcome qualified immunity.

Plaintiff pointed the Court to no case or set of cases that made it clear that every

reasonable official would have known that the conduct at issue in the circumstances at issue was

unlawful. Kingsley v. Hendrickson, 576 U.S. 389, 400 (2015) (noting “an officer enjoys

qualified immunity and is not liable for excessive force unless he has violated a clearly

established right, such that it would have been clear to a reasonable officer that his conduct was

unlawful in the situation he confronted” (internal alterations and quotations omitted)).

Nevertheless, the Court undertook its own search. See Kuessner v. Wooten, No. 1:17-cv-57-

AGF, 2018 WL 6788602, at *6 (E.D. Mo. Dec. 26, 2018) (“Neither [plaintiff] nor the Court has

identified a precedent finding a Fourth Amendment violation under similar circumstances.”),

aff’d, 987 F.3d 752 (8th Cir. 2021); see also Bell v. Neukirch, 979 F.3d 594, 613 (8th Cir. 2020)

(Stras, J., concurring in part and dissenting in part) (noting “neither [the arrestee] nor the court”

identified “a single precedent” finding a constitutional violation under similar circumstances).

1. Defendant Harris

The Court has not located or been provided with precedent that clearly established that

Defendant Harris’s spraying of Plaintiff with OC spray while Plaintiff was handcuffed, but

disobeying directions by standing up and moving away, violated Plaintiff’s Fourth Amendment

rights. As a broad general proposition, it is clearly established that using pepper spray on an

individual who is secured, is not acting violently, and who poses no threat to officers or anyone

else violates the Fourth Amendment. See, e.g., Vinyard v. Wilson, 311 F.3d 1340, 1348 (11th

Cir. 2002). But that is not what happened here, and the Court’s inquiry “must be undertaken in

light of the specific context of the case, not as a broad general proposition.” Brosseau, 543 U.S.

at 198 (internal quotations omitted).

Defendant Harris’s actions were vastly different from those of the official in Henderson

v. Munn, for example, where the Eighth Circuit found summary judgment for the official on the

qualified immunity issue was improper. 439 F.3d 497, 503 (8th Cir. 2006). There, the plaintiff

brought suit for a Fourth Amendment violation alleging that the defendant used excessive force

in spraying the plaintiff’s face with pepper spray during his arrest. Id. The plaintiff asserted that

he did not resist arrest, and that he was “under control” and “lying face down on the ground with

both arms handcuffed behind his back.” Id. From those facts, the Eighth Circuit made the easy

conclusion that a jury could conclude plaintiff’s “compromising position” made him “little or no

threat” to the safety of anyone around. Id. Accordingly, the Eighth Circuit concluded, under the

circumstances, “the use of pepper spray may have been a gratuitous and completely unnecessary

act of violence” that violated plaintiff’s Fourth Amendment rights. Id. (internal quotations and

alterations omitted); see also Ross v. Buck, 186 F. App’x 697, 699 (8th Cir. 2006) (per curiam)

(finding questions of fact prevented summary judgment for officer on qualified immunity

grounds because reasonable jury could find officer’s conduct “was gratuitous and therefore

unreasonable” where officer sprayed pepper foam on plaintiff three times while plaintiff was

lying down and had his feet held down by another officer).

Even looking outside this Circuit, the Court found nothing suggesting that Defendant

Harris’s conduct violated a clearly established right. In Dean v. Jones, for example, the Fourth

Circuit found material facts “sharply disputed by the parties” prevented summary judgment on

an excessive force claim. 984 F.3d 295, 304 (4th Cir. 2021). In that case, unlike here, no party

disputed that the defendant-officer sprayed the plaintiff-detainee with pepper spray while the

plaintiff was handcuffed on the ground. Id. at 303. The plaintiff claimed he was “fully subdued

and non-resistant, lying on his back with handcuffed arms beneath him” whereas the defendant

claimed the plaintiff was “still largely unsubdued and grappling on the ground.” Id. at 304.

With those facts in dispute, the court found “a reasonable jury could find that [the plaintiff] was

pepper-sprayed only after any threat to safety had passed, and from that infer an impermissible

retaliatory motive.” Id. at 305; see also Tracy v. Freshwater, 623 F.3d 90, 99 (2d Cir. 2010)

(“[I]f a jury credited [the plaintiff’s] version of the events and determined that [the defendant]

applied pepper spray after [the plaintiff] had already been handcuffed and was offering no

physical resistance of police commands, it might well conclude that the use of that pepper spray

was unreasonable under the circumstances.”).

Video of the incident at issue here plainly shows a much different event than the cases

discussed above. It shows that Plaintiff, who is six feet eight inches tall and weighed

approximately three-hundred pounds, stood up from the kneeling position in which officers had

him. Doc. [108] ¶ 16. The parties do not dispute that Defendant Harris told Plaintiff before he

stood up that “if he moved, he would be sprayed with pepper spray.” Doc. [110] ¶ 111. After

Plaintiff stood up, the video shows the officers tried to subdue him by placing their hands on

him, but he begins to walk. Officers continued to use their hands to keep him against the wall,

but as he approached the corner of the cell, he darted. Defendant Harris then administered a

short burst of OC spray, about twelve to eighteen inches from Plaintiff’s face, and Plaintiff

immediately fell to his bunk. Once Plaintiff was down, Defendant Harris helped the two other

officers keep Plaintiff subdued; Defendant Harris did not use any more OC spray on Plaintiff

once officers had Plaintiff under control. Defendant Harris, then, is entitled to summary

judgment on Count Two.

2. Defendants Fisher, Baker, and Martin

Plaintiff also asserts a Fourth Amendment claim against Defendants Fisher, Baker, and

Martin. Like Defendant Harris, each of these three Defendants is liable, if at all, only for his or

her own conduct. Whitson, 602 F.3d at 928; Manning v. Cotton, 862 F.3d 663, 669 (8th Cir.

2017) (noting that a person may only be held liable for a constitutional violation if his or her own

conduct violated a clearly established constitutional right). Once again, Plaintiff provided no

precedent showing that Defendants Fisher, Baker, or Martin violated Plaintiff’s clearly

established right by their involvement—to the extent they even were involved—in the use of

force, and the Court found no precedent.

Plaintiff argues that summary judgment for Defendant Fisher on Count Two would be

improper since he “organized and directed the planned use of force” against Plaintiff and

instructed Defendant Harris to have his pepper spray “unholstered” and “in his hand and ready to

use.” Doc. [107] at 14. The Court finds nothing unconstitutional about such conduct under the

facts of this case, and, in any event, it certainly was not clearly established by any case the Court

located. Further, given the conclusion that Defendant Harris’s use of OC spray did not violate

any clearly established right, the Court cannot conclude that any precautious preparation to use

the OC spray violated Plaintiff’s clearly established rights. Accordingly, Defendant Fisher is

entitled to summary judgment on Count Two.

For Defendant Martin, Plaintiff argues she violated his Fourth Amendment rights when

she “failed to convey that pepper spray should not be used” on him due to his “acute psychosis”

and “uveitis/iritis.” Doc. [107] at 15. Even assuming for the sake of argument that Plaintiff had

a constitutional interest in not being pepper-sprayed regardless of his conduct, because of his

acute psychosis and uveitis, it does not follow that Defendant Martin somehow violated

Plaintiff’s Fourth Amendment rights by failing to convey a message. And yet again, Plaintiff

provided no precedent whatsoever showing that this right was clearly established. The Court

cannot conclude that it was “sufficiently clear that every reasonable official would have

understood” that when Defendant Martin did not convey to others that OC spray should not be

used on Plaintiff that she violated Plaintiff’s clearly established right. See Mullenix, 577 U.S. at

11.

Lastly, Plaintiff argues that Defendant Baker violated Plaintiff’s Fourth Amendment

rights because Defendant Baker “was supposed to be supervising th[e] entire occurrence,” but

she “abdicat[ed] her duty.” Doc. [107] at 16. As an initial point, given that the Court concluded

none of the other three Individual Defendants violated a clearly established right related to the

use of force on Plaintiff, it seems to follow logically that a failure to supervise the “entire

occurrence” would fail. Nevertheless, the Court will review the claim under its specific

standard. “[A] general responsibility for supervising the operations of a prison is insufficient to

establish the personal involvement required to support liability.” Camberos v. Branstad, 73 F.3d

174, 176 (8th Cir. 1995). Here, it is undisputed that Defendant Baker did not participate in the

use of force. “When a supervising official who had no direct participation in an alleged

constitutional violation is sued for failure to train or supervise the offending actor, the supervisor

is entitled to qualified immunity unless plaintiff proves that the supervisor (1) received notice of

a pattern of unconstitutional acts committed by a subordinate, and (2) was deliberately

indifferent to or authorized those acts.” S.M. v. Krigbaum, 808 F.3d 335, 340 (8th Cir. 2015).

Plaintiff has not cited record evidence establishing either point. The Court has been pointed

toward nothing in the record that shows a prior pattern of unconstitutional acts—not subsequent

acts or sporadic allegations—existed. And, even if there was a prior pattern, there is no

indication that Defendant Baker received notice of the events establishing the pattern.

Having found that qualified immunity entitles all named Defendants in Count Two to

summary judgment, the Court will dismiss Count Two in its entirety.

b. The Individual Defendants Are Entitled to Summary Judgment on Count Three

Because None Was Deliberately Indifferent to Plaintiff’s Serious Medical Needs.

In Count Three, Plaintiff alleges the Individual Defendants violated his Eighth and

Fourteenth Amendment rights. The Eighth Amendment to the Constitution prohibits the

infliction of “cruel and unusual punishments.” Since Plaintiff was not incarcerated as a

convicted offender, his Count Three is “more properly viewed under the Fourteenth

Amendment.” Hartsfield v. Colburn, 371 F.3d 454, 456–57 (8th Cir. 2004). However, the Due

Process Clause of the Fourteenth Amendment “affords pretrial detainees at least as much

protection as the Eighth Amendment provides to convicted prisoners.” Edwards v. Byrd, 750

F.3d 728, 732 (8th Cir. 2014). Therefore, if the action or inaction at issue in this case would

have violated the Eighth Amendment had Plaintiff been a prisoner, the conduct “necessarily

violated” Plaintiff’s rights under the Fourteenth Amendment. Id.; see also Leftwich ex rel.

Leftwich v. Cty. of Dakota, 9 F.4th 966, 972 (8th Cir. 2021) (noting pretrial detainees are entitled

to at least as great protection as that afforded to convicted prisoners under Eighth Amendment

and evaluating claims for pretrial detainee under Eighth Amendment standard). Plaintiff’s claim

for deliberate indifference, therefore, will survive summary judgment if a reasonable jury could

find (1) he suffered from an objectively serious medical need, and (2) the official knew of the

need yet deliberately disregarded it. Hartsfield, 371 F.3d at 457.

Deliberate indifference “is a difficult burden for a plaintiff to meet.” Liebe v. Norton,

157 F.3d 574, 577 (8th Cir. 1998) (quoting Rellergert v. Cape Girardeau Cty., Mo., 924 F.2d

794, 796 (8th Cir. 1991)). “Deliberate indifference is equivalent to criminal-law recklessness.”

Schaub v. VonWald, 638 F.3d 905, 914 (8th Cir. 2011). There must be “more than negligence,

more even than gross negligence, and mere disagreement with treatment decisions does not rise

to the level of a constitutional violation.” Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th

Cir. 1995). There must be “a highly culpable state of mind approaching actual intent.” Choate

v. Lockhart, 7 F.3d 1370, 1374 (8th Cir. 1993). There must be “apathy or unconcern.”

Rellergert, 924 F.2d at 797.

Plaintiff seems to offer numerous specific actions or inactions by the Individual

Defendants that he argues amounted to deliberate indifference, like a failure to administer

specific medications or the failure to contact a specific type of specialist.3 But the failure to

perform specific actions that Plaintiff would have had Defendants take does not amount to

3 Plaintiff details them, at least in part, as: “(a) the failure to note Plaintiff’s medical unfitness to be pepper sprayed,

(b) the failure to administer Haldol injections, (c) the failure to timely contact a psychiatrist, (d) the failure to

administer Plaintiff his psychiatric medications, (e) the failure to administer Plaintiff his eye medication, (f) the

failure to administer Plaintiff his Suboxone, (g) the failure to otherwise restrain Plaintiff in his cell before his eye

was torn out, (h) the failure to decontaminate Plaintiff’s eye post-pepper spray, and (i) the failure to intervene while

Plaintiff was actively tearing out his eye over the course of minutes while Defendant’s staff just watched it.” Doc.

[117] at 3–4.

deliberate indifference. Estate of Rosenberg, 56 F.3d at 37 (noting “disagreement with treatment

decisions does not rise to the level of a constitutional violation”). Rather, the question is whether

their actions, or inaction, toward Plaintiff amounted to apathy, unconcern, or exceeded gross

negligence and approached actual intent. Plaintiff’s specific instances fall into two categories: a

failure to treat Plaintiff and a failure to intervene during Plaintiff’s self-harm.

First, the alleged deliberate indifference through the failure to treat Plaintiff. As noted

earlier and equally applicable to Count Three, each Individual Defendant may only be held liable

for his or her own actions or inactions. Manning, 862 F.3d at 669. Of the four Individual

Defendants, only Defendant Martin, a nurse, was a member of the Department’s medical team.

See Doc. [88] ¶¶ 8–11. Defendants Harris, Fisher, and Baker were not medical professionals.

But Plaintiff “provides no specific evidence to show that any of the[se] nonmedical defendants

were involved in, or directly responsible for, his allegedly insufficient medical care.” Saylor v.

Nebraska, 812 F.3d 637, 644 (8th Cir. 2016). Since these non-medical professional Defendants

did not prevent Plaintiff from receiving medical treatment, “they cannot be held liable for the

treatment decisions made by the medical professionals.” Muhammad v. Robinson, No. 5:15-cv-

00240-DPM-JTK, 2016 WL 3023849, at *3 (E.D. Ark. Apr. 27, 2016) (citing Keeper v. King,

130 F.3d 1309, 1315 (8th Cir. 1997)); accord Olson v. Hansen, 221 F.3d 1343 (8th Cir. 2000)

(per curiam) (“Because . . . the non-medical defendants did not delay or deny him access to

medical care, [the plaintiff’s] deliberate-indifference claims fail.”). Thus, Defendants Harris,

Fisher, and Baker, are entitled to summary judgment on Plaintiff’s theories in Count Three that

they were deliberately indifferent by failing to treat his psychosis or his reactive arthritis.4

4 In addition, regarding the failure to treat theory premised on the post-OC spray treatment, since Defendant Harris

did not show apathy or unconcern but allowed Plaintiff to wash the OC spray off his face, and Plaintiff, in fact, did

wash it off his face, neither Defendant Harris, nor any other Individual Defendant, was deliberately indifferent in

that regard.

Defendant Martin, however, was a medical professional and responsible for Plaintiff’s

medical care. But it is uncontroverted that she provided medical care to Plaintiff for the serious

medical conditions of which she was aware. She was aware of Plaintiff’s acute psychosis, and

she acted on it. She moved him to a suicide prevention unit. Id. ¶ 53. She noted in his

segregation report that he should be under “close observation” until he was cleared by mental

health and a medical supervisor. Doc. [101-28]. Later, but before Plaintiff removed his eye, she

even asked that he be brought back to medical so he could be monitored. Id. ¶ 158. She plainly

was not indifferent to Plaintiff’s acute psychosis. See Luckert v. Dodge Cty., 684 F.3d 808, 818

(8th Cir. 2012) (finding despite detainee’s suicide and nurse being “mistaken as to [detainee’s]

risk of suicide,” her limited “actions d[id] not indicate [she] was apathetic or unconcerned with

[detainee’s] condition”). Similarly, Defendant Martin was not deliberately indifferent after

Plaintiff was sprayed with OC spray. She inspected Plaintiff, directed that his eyes be washed

out, and asked that he be given a shower. Doc. [118] ¶ 154. The record plainly shows she had

concern for Plaintiff’s wellbeing. Her actions, or alleged inactions, do not rise to the high level

of deliberate indifference.

While the record establishes that Defendant Martin was aware of Plaintiff’s psychosis

and his OC spray exposure, the Court has been pointed toward nothing in the record showing

Defendant Martin had actual knowledge of Plaintiff’s reactive arthritis or eye conditions.

Without knowledge of the condition, she could not have been deliberately indifferent to it.

Kulkay v. Roy, 847 F.3d 637, 644 (8th Cir. 2017) (“A necessary element of deliberate

indifference is that the defendant officials had actual knowledge of the substantial risk posed to

an inmate’s health and safety.”). In hindsight, now knowing how the events would unfold, it

may be easy to come up with examples of things that Defendant Martin perhaps could have done

that may have altered the trajectory of this unfortunate occurrence, but her actions and attention

to Plaintiff cannot be said to even amount to gross negligence, let alone criminal recklessness.

See Schaub v. VonWald, 638 F.3d 905, 915 (8th Cir. 2011) (noting deliberate indifference is not

measured by “hindsight’s perfect vision”).

Next is Plaintiff’s claims that the Defendants’ failure to treat Plaintiff’s self-harm

amounted to deliberate indifference. Looking at the actions or inactions of each Individual

Defendant, as the Court must, Defendants Harris, Fisher, and Martin plainly are entitled to

summary judgment since they were not present for Plaintiff’s self-harm. Defendant Harris was

“off duty” and thus “not there” when it happened. Doc. [101-26] at 10 (63:14-20); see also Doc.

[118] ¶ 149 (noting Defendant Harris “departed from [Plaintiff]” prior to the beginning of his

self-harm). Nor was Defendant Fisher present for the events. Doc. [101-25] at 20 (84:2-3, 9-13)

(noting Fisher “departed the unit” after the OC spray and that Fisher “wasn’t there” during the

self-harm); see generally Doc. [118] (not describing any involvement of Defendant Fisher during

the self-harm); Doc. [108] (same). Officers had already entered Plaintiff’s cell and subdued him

by the time Defendant Martin arrived responding to the sick call.5 Doc. [118] ¶ 216. When she

did, she immediately started tending to Plaintiff. Id. at 220. The Court has seen no evidence or

argument that any of these three Defendants were supposed to be there but failed to be. Since

they were neither there nor required to be there, they could not have been deliberately indifferent

when they did not intervene.

5 In addition, by the same principle that holds non-medical staff to a different standard than medical staff on medical

care, it stands to reason that a non-security focused staff member would not be held to the same standard as a

security focused staff member on a security issue. Cf. Saylor, 812 F.3d at 644 (noting absence of evidence to show

that nonmedical defendants were involved in, or directly responsible for, insufficient medical care). For example,

there is nothing in the record that tends to show Defendant Martin, as a nurse, had the ability or authority to open

Plaintiff’s cell.

That leaves only Defendant Baker, who unlike the other three Individual Defendants was

present for some part of the self-harm and was among the officials that responded. Defendant

Baker arrived outside Plaintiff’s cell in response to a medical emergency call that someone

placed because of Plaintiff’s actions. Doc. [118] ¶¶ 200–01. It is uncontroverted that when

Defendant Baker arrived at Plaintiff’s cell she waited for additional officers before entering

because she could not enter without “appropriate backup.” Id. ¶¶ 202, 205. Defendant Baker

waited until three officers were present, which she believed to be required policy, and then

entered Plaintiff’s cell. Id. ¶¶ 206–07. Once inside Plaintiff’s cell, officers subdued Plaintiff and

stopped his self-harm.

As a matter of law, Defendant Baker’s actions cannot be said to be deliberately

indifferent. She did not have apathy toward Plaintiff or unconcern for him; she responded to the

medical emergency call and entered his cell. See Rellergert, 924 F.2d at 797. And there is

nothing in the record that even suggests that Defendant Baker chose to delay entering the cell,

even in part, just for the sake of delay—that is, that she had a highly culpable mental state

approaching intentionality—when she waited to enter the cell until appropriate backup arrived.

See Choate, 7 F.3d at 1374. The mere fact that Plaintiff was able to harm himself before

Defendant Baker intervened does not itself establish deliberate indifference. See Luckert v.

Dodge Cty., 684 F.3d 808, 818 (8th Cir. 2012) (noting detainee’s suicide was “not probative” of

deliberate indifference question because “tying the suicide to proof of deliberate indifference is

tantamount to requiring jailers to provide suicide-proof institutions” and “ensure against suicide

ever happening”). Before she put herself and her fellow officers in harm’s way by entering

Plaintiff’s cell, she needed to ensure her safety and theirs. Recall that Plaintiff stood six feet

eight inches tall and weighed around three-hundred pounds. He was mentally unstable, and less

than one hour earlier, he did not follow officers’ orders and tried to avoid being restrained by

them. Doc. [118] ¶ 219.

Further, even ignoring the sensible reason that the record shows the delay occurred, the

video of the event that shows the grisly incident puts the abstract idea of a delay in perspective.

While the video eventually becomes undeniably disturbing to watch, the time between when a

person would recognize Plaintiff had a serious medical need and when officials entered the cell

is relatively short—too short to exhibit a deliberate indifference. And the time between when

Defendant Baker recognized it and when she intervened is, if anything, shorter because it is not

established when, exactly, Defendant Baker heard the medical emergency call or when she

realized what Plaintiff was doing to himself. See Crew v. Minor, No. 2:18-cv-27-CAS, 2018 WL

4922218, at *7 (E.D. Mo. Oct. 10, 2018) (noting importance of facts relating to “how much of

the incident [the officer] saw, how quickly she would have been able to respond, [and] how

much time she had to intervene”). Additionally, viewing the event with hindsight’s advantage

shows that Plaintiff damaged his eye before it would have become apparent to someone that

Plaintiff had a serious medical need. See Tucker v. Evans, 276 F.3d 999, 1002 (8th Cir. 2002)

(finding no deliberate indifference where, even if policy had allowed officer to intervene sooner,

“by the time [officer] knew something was wrong,” the damage already was done and officer

“would not have been able to intervene in time” to prevent inmate’s death).

Even when viewing the video and looking at the facts in the most favorable light to

Plaintiff, a reasonable jury could not conclude that Defendant Baker was deliberately indifferent

for failing to intervene sooner. See Rellergert, 924 F.2d at 797–98 (noting “jury might

reasonably conclude that [jail official] acted imprudently, wrongly, or negligently” but “as a

matter of law” the “evidence cannot permit the conclusion that [jail official] acted with deliberate

indifference”); see also Williams v. Kelso, 201 F.3d 1060, 1065 (8th Cir. 2000) (“At best,

plaintiff’s proof in this [case] amounts to negligent conduct, not deliberate or willful conduct on

[the jail official’s] part.”); Tucker, 276 F.3d at 1002 (“[V]iewed in the light most favorable to the

appellees, these facts at best only demonstrate negligence.”).

Accordingly, the Individual Defendants are entitled to summary judgment on all of Count

Three.

c. The Individual Defendants Are Entitled to Summary Judgment on Count Four

Because No Evidence in the Record Suggests a Conspiracy Existed.

In Count Four, Plaintiff alleges that the four Individual Defendants had a conspiracy to

violate his Fourth, Eighth, and Fourteenth Amendment rights. A conspiracy claim under 42

U.S.C. § 1983 requires three elements: (1) that the defendant conspired with others to deprive

him of constitutional rights; (2) that at least one of the alleged co-conspirators engaged in an

overt act in furtherance of the conspiracy; and (3) that the overt act injured the plaintiff. White v.

McKinley, 519 F.3d 806, 814 (8th Cir. 2008). Besides establishing these three elements, a

plaintiff must also have faced an actual deprivation of a constitutional right or privilege. Id.;

Askew v. Millerd, 191 F.3d 953, 957 (8th Cir. 1999).

Plaintiff notes that Defendant Harris and Defendant Fisher planned together or discussed

how they would proceed before they searched Plaintiff’s cell, the event during which Defendant

Harris used OC spray on Plaintiff. But even if that prior meeting established that Defendant

Harris and Defendant Fisher conspired together, the Court already has concluded that none of the

Defendants violated Plaintiff’s Fourth Amendment rights during the cell search. Thus, Plaintiff

has not demonstrated he “suffered a constitutional deprivation as a result of the alleged

conspiracy,” and his § 1983 civil conspiracy claim against Defendant Harris and Defendant

Fisher must fail. Kingsley v. Lawrence Cty., Mo., 964 F.3d 690, 702–03 (8th Cir. 2020) (quoting

Askew, 191 F.3d at 957).

Plaintiff’s conspiracy claims against Defendant Martin and Defendant Baker fare no

better since the Court has concluded Plaintiff suffered no constitutional deprivation by any of the

alleged conspirators. But even if he had suffered a constitutional deprivation, Plaintiff references

no evidence whatsoever that even suggests a conspiracy containing Defendant Martin or

Defendant Baker to violate Plaintiff’s rights existed. Plaintiff merely argues that Defendant

Martin, who was not even present during Plaintiff’s self-harm, gave her “assent” to the

conspiracy to violate Plaintiff’s rights by her “complete lack of interest” in Plaintiff’s medical

care. Doc. [107] at 21. And he argues that Defendant Baker likewise exhibited a “complete lack

of interest” in the use of force on Plaintiff and his medical care. Id. at 21–22. But he ties no

other actions or inactions to them. The Court is cognizant that “the elements of a conspiracy are

generally proved by circumstantial evidence.” Helmig v. Fowler, 828 F.3d 755, 763 (8th Cir.

2016) (quoting Burton v. St. Louis Bd. of Police Comm’rs, 731 F.3d 784, 799 (8th Cir. 2013).

But the Court is “convinced that the evidence presented is insufficient to support any reasonable

inference of a conspiracy.” Id.; accord Askew, 191 F.3d at 958 (finding judgment as a matter of

law appropriate on § 1983 civil conspiracy claim when “record contains no proof beyond

speculation to support the verdict”). The Court therefore also will grant summary judgment on

Count Four to Defendant Martin and Defendant Baker.

d. Defendant St. Charles County Is Entitled to Summary Judgment on Count One

Because Plaintiff Has Not Shown a Constitutional Violation Occurred, Let Alone

One That Resulted from a Policy or Custom of the Municipality.

Plaintiff’s remaining count is against St. Charles County, Missouri itself. While

Defendant St. Charles County is a “person” that can be liable under 42 U.S.C. § 1983, the

Supreme Court has made clear that the County “cannot be held liable on a respondeat superior

theory, that is, solely because it employs a tortfeasor.” Szabla v. City of Brooklyn Park, Minn.,

486 F.3d 385, 389 (8th Cir. 2007) (en banc) (citing Monell, 436 U.S. at 691). While the County

cannot be held liable solely because it employed a tortfeasor, “there must be an unconstitutional

act by a municipal employee before [it] can be held liable.” Webb v. City of Maplewood, 889

F.3d 483, 487 (8th Cir. 2018) (internal quotations omitted). Then, if there has been an

unconstitutional act by an employee, the County would be liable under § 1983 only if the

execution of its policy or custom inflicted Plaintiff’s injury. Brewington v. Keener, 902 F.3d

796, 801 (8th Cir. 2018) (citing City of Canton v. Harris, 489 U.S. 378, 385 (1989)); see also

Calgaro v. St. Louis Cty., 919 F.3d 1054, 1058 (8th Cir. 2019) (“A county may be liable for a

constitutional violation under § 1983 only if the violation resulted from a policy or custom of the

municipality.”).

The Court has concluded that none of the Individual Defendants are liable for the claims

Plaintiff has brought against them. But because municipal liability does not require a plaintiff to

bring a substantive claim against the individual employee, Plaintiff could theoretically succeed

on a Monell claim despite a finding that the named municipal employees were entitled to

summary judgment. See Meier v. St. Louis, Mo., 934 F.3d 824, 829 (8th Cir. 2019), cert. denied,

140 S. Ct. 2566 (2020). Plaintiff puts forward multiple theories on how Defendant St. Charles’s

policy or custom inflicted his injuries: (i) it “ratified” the constitutional violations; (ii) certain

policies were unconstitutional as written; (iii) it was deliberately indifferent in its failure to train

or supervise; and (iv) it had unconstitutional unofficial customs. The Court will take them each

in turn.

1. Ratification

Plaintiff’s first theory is that Defendant St. Charles County is liable because it ratified the

alleged constitutional violations after they had ended. He cited Lollie v. Johnson, No. 14-cv-

4784-SRN, 2015 WL 3407931, at *7 (D. Minn. May 27, 2015), where the court noted “a

municipality may be held liable for a constitutional violation where an authorized policymaker

approved the subordinate’s unconstitutional decision and the basis for it.” (emphasis added).

Though even the Lollie court denied plaintiff’s attempts to use the theory. Id.

Even assuming that a local government’s post-incident response could ratify the actions

or inactions of its employees in a use of force and deliberate indifference case like this one,6

Plaintiff seeks to attribute liability to the County through an email where an employee of

Defendant St. Charles County thanked other employees for their “response and assistance” with

Plaintiff and praised their “teamwork” and the “exceptional job.” Doc. [100] at 24. Monell,

though, rejected liability for local governments based on respondeat superior. Yet Plaintiff

bases this ratification argument on a version of respondeat superior. He seeks to make the

County liable based on what yet another one of its employees did—send an appreciative email.7

There is no indication whatsoever that the employee who sent the email, even if in a managerial

6 Compare the possible application of a ratification theory in this case to the § 1983 case involving an employment

decision from which the ratification theory Lollie references developed, for example. See City of St. Louis v.

Praprotnik, 485 U.S. 112, 127 (1988) (plurality opinion) (noting “[i]f the authorized policymakers approve a

subordinate’s decision and the basis for it, their ratification would be chargeable to the municipality because their

decision is final” (emphasis added)). Or compare the possible application in this case to a § 1983 case involving

protracted, ongoing conduct about which high-ranking municipal officials were aware. See Dixon v. Lowery, 302

F.3d 857, 867 (8th Cir. 2002) (remanding case for development of record as to whether dispute of material facts

existed on issue of municipal liability for the alleged ratification of officers’ unconstitutional conduct given “the

failure to order the officers to cease [the unconstitutional conduct] earlier”). In this case, there was no reversible

decision and nothing ongoing that the County could ratify.

7 For this same reason, Plaintiff’s theory that the County’s positions or arguments in this suit ratify the conduct also

fails because they too are made by its employees. But even if those with final policymaking authority set the

County’s positions or made its arguments in this suit, finding that a municipality ratifies conduct and becomes liable

under Monell whenever it defends itself or its employees in a suit would subject every municipality to Monell

liability in every suit they defended against.

role, sets the official policies of the County. The Supreme Court has refused to accept a “broad

definition of municipal policymakers.” Praprotnik, 485 U.S. at 131. “[A]d hoc searches for

officials possessing such ‘de facto’ [final policymaking] authority” would be “a step towards

overruling Monell and adopting the doctrine of respondeat superior” and would “foster needless

unpredictability in the application of § 1983.” Id. Accordingly, the Court finds the actions by

other County employees cited by Plaintiff did not ratify the conduct such to make the County

liable under Monell.

2. Unconstitutional as Written

Plaintiff next argues that some of the County’s policies were unconstitutional as written.

Much of the argument Plaintiff provides deals with the County’s policies, or lack of policies,

regarding a “planned use of force” or a “pepper spray policy.” Doc. [100] at 25–26. Given that

the Court has found that no underlying constitutional violation occurred regarding the use of

force as seen on the video in the record, these policies or lack of policies did not cause an

unconstitutional act. Thus, there is nothing for which the County can be held liable regarding

those alleged policy issues.

Plaintiff also argues that the lack of other policies, besides the use of force policies, made

the County’s policies unconstitutional as written. Namely, he argues the County’s policies did

not require adequate custody staff in the suicide prevention unit, and that the County’s policies

did not reflect those of the National Commission on Correctional Health Care (“NCCHC”).

“The failure to have a policy does not give rise to municipal liability unless such failure reflects a

deliberate indifference to the citizenry’s constitutional rights.” Der v. Connolly, 825 F. Supp. 2d

991, 1000 (D. Minn. 2010) (citing Szabla, 486 F.3d at 392 (“As we have explained, however, a

written policy that is facially constitutional, but fails to give detailed guidance that might have

averted a constitutional violation by an employee, does not itself give rise to municipal

liability.”)).

“Notice is the touchstone of deliberate indifference in the context of § 1983 municipal

liability.” Atkinson v. Mountain View, Mo., 709 F.3d 1201, 1216 (8th Cir. 2013). But “[o]ther

than the single incident at issue in this case,” Plaintiff has submitted no evidence of the

Individual Defendants’ or any other County DOC employees’ deliberate indifference through

failure to intervene or failure to treat. Id.; see also Szabla, 486 F.3d at 393 (quoting Young v.

City of Augusta, 59 F.3d 1160, 1172 (11th Cir. 1995) (“[T]he need for a particular type of

training may be obvious where jailers face clear constitutional duties in recurrent situations.”)).

Accordingly, since no reasonable jury could find the County had notice that its lack of written

policies on the precise number needed in the suicide prevention unit or policies that matched the

NCCHC’s policies were likely to result in a constitutional violation, the County is not liable

under this theory even if Plaintiff suffered a constitutional violation.

3. Deliberately Indifferent in Its Failure To Train or Supervise

For this theory, much of the argument Plaintiff provides, like noted above, deals with the

County’s alleged failure to train or supervise regarding the use of OC spray. Given that the

Court has found that no underlying constitutional violation occurred regarding the use of force at

issue here, these policies or lack of policies did not cause an unconstitutional act. Consequently,

there is nothing for which the County can be held liable regarding the alleged failure to train or

supervise concerning the OC spray.

The other point on which Plaintiff argues the County was deliberately indifferent in its

failure to train and supervise was on “how closely to watch an inmate.” Doc. [100] at 29. The

Court finds that the record is insufficient to make a submissible case of deliberate indifference on

this theory. The evidence does not show that the County had a history of failing to watch

inmates under observation or even failing to intervene in necessary situations for inmates under

observation. “So far as the record reveals, this was a one-time incident, and there is no evidence

of a pattern of constitutional violations making it ‘obvious’ that additional training or safeguards

were necessary.” Szabla, 486 F.3d at 392. This isolated incident “cannot support a claim that

the County acted with deliberate indifference by inadequately training its officers” on how

closely to watch an inmate. Id. This theory also fails regardless of whether Plaintiff suffered a

constitutional violation.

4. Unconstitutional Unofficial Customs

Lastly, Plaintiff asserts there were unconstitutional unofficial customs. Establishing

municipal liability through an unofficial custom is a “heavy burden.” Mick v. Raines, 883 F.3d

1075, 1080 (8th Cir. 2018). To establish municipal liability through an unofficial custom of the

municipality a plaintiff must demonstrate “(1) the existence of a continuing, widespread,

persistent pattern of unconstitutional misconduct by the governmental entity’s employees; (2)

deliberate indifference to or tacit authorization of such conduct by the governmental entity’s

policymaking officials after notice to the officials of that misconduct; and (3) that plaintiff was

injured by acts pursuant to the governmental entity’s custom, i.e., that the custom was a moving

force behind the constitutional violation.” Corwin v. Indep., Mo., 829 F.3d 695, 700 (8th Cir.

2016) (quoting Snider v. Cape Girardeau, 752 F.3d 1149, 1160 (8th Cir. 2014)).

Here, Plaintiff has failed to show that prior to the events at issue in this case there was a

continuing, widespread, persistent pattern of unconstitutional misconduct by the County’s

corrections employees. To be sure, Plaintiff has described various alleged incidents of

wrongdoing by corrections staff, but they almost all occurred after the incident at issue here.

See, e.g., Doc. [117] at 4–8 (describing events that allegedly occurred in or on: July 27, 2017;

September 18, 2017; “summer of 2018”; July 8, 2018; December 25, 2018; February 28, 2019;

May 20 & 27, 2019; and February 13, 2020). Even if the exceedingly few allegations that

occurred prior to the events at issue here and to which Plaintiff cites were factually similar

enough to establish a custom, see id. at 7, 8 (describing events that allegedly occurred on

February 8, 2017 and in the “summer of 2016”), and were numerous enough to establish a

continuing, widespread, persistent pattern, Plaintiff provided no evidence that the County and its

officials ignored the alleged misconduct. See Parrish v. Luckie, 963 F.2d 201, 204–05 (8th Cir.

1992) (noting plaintiff “presented detailed and compelling” evidence that defendant police

department avoided, ignored, and covered up complaints of physical and sexual misconduct by

officers); Harris v. City of Pagedale, 821 F.2d 499, 501–06 (8th Cir. 1987) (finding plaintiff had

proven a municipal custom through the presentation of detailed evidence regarding particular

officer’s identical misconduct, and numerous allegations of identical misconduct, and the city’s

failure to investigate or punish that conduct). When a plaintiff has not shown “prior complaints

sufficient to demonstrate that the municipalities and their officials ignored” alleged misconduct,

“the mere existence of previous . . . complaints does not suffice to show a municipal custom.”

Mettler v. Whitledge, 165 F.3d 1197, 1205 (8th Cir. 1999).

The undisputed facts show that even if a constitutional violation occurred, it did not result

from the County’s policy or custom. As such, the County is entitled to summary judgment on

Count One because it did not cause any constitutional violation.

CONCLUSION

It would be easy for the Court, with the advantage of hindsight, thorough evaluation, and

unrushed consideration, to come up with ways the officials involved in the events of this case

could have acted differently and brought about a better outcome.* But that is not the standard by

which to judge the merits of Plaintiff's claims. See Hunter v. Bryant, 502 U.S. 224, 228 (1991)

(noting the court should not ask “whether another reasonable, or more reasonable, interpretation

of the events can be constructed five years after the fact”). Nor would it be just to set such a

standard for those required to make these daily difficult decisions in an instant. Applying the

established legal standards on these claims to the undisputed material facts, Defendants are

entitled to judgment as a matter of law.

Accordingly,

IT IS HEREBY ORDERED that Plaintiff's Renewed Motion for Sanctions, Doc [97], is

DENIED.

IT IS FURTHER ORDERED that Plaintiffs Motion to Exclude Affidavit of Lauri

Smit, Doc. [106], is GRANTED.

IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment, Doc.

[99], is DENIED.

IT IS FINALLY ORDERED that Defendants’ Motion for Summary Judgment, Doc.

[92], is GRANTED.

An appropriate judgment will accompany this Memorandum and Order.

Dated this 5th day of November, 2021. /

| io

UNITED STATES DISTRICT JUDGE

8 Indeed, even Defendants acknowledge that, in hindsight, the St. Charles County Department of Corrections “could

have performed better.” Doc. [115] at 5.

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