Wess v. Dunn

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

KOREY MAURICE WESS, )

)

Plaintiff, )

)

v. ) No. 4:21-cv-01281-HEA

)

SCOT DUNN, )

)

Defendant. )

OPINION, MEMORANDUM AND ORDER

This matter comes before the Court on review of plaintiff Korey Maurice Wess’s amended

complaint pursuant to 28 U.S.C. § 1915. Based on that review, and for the reasons discussed below,

the Court will dismiss the claim against the Maryland Heights Police Department. However, the

Court will direct the Clerk of Court to issue process on Sergeant Scot Dunn and Officer Andrew

Heimberger in their individual capacities.

Legal Standard on Initial Review

Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma

pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To

state a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate a plausible claim for relief,

which is more than a “mere possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.

Determining whether a complaint states a plausible claim for relief is a context-specific task that

requires the reviewing court to draw upon judicial experience and common sense. Id. at 679. The

court must “accept as true the facts alleged, but not legal conclusions or threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements.” Barton v. Taber, 820

F.3d 958, 964 (8th Cir. 2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73

(8th Cir. 2016) (stating that court must accept factual allegations in complaint as true, but is not

required to “accept as true any legal conclusion couched as a factual allegation”).

When reviewing a pro se complaint under 28 U.S.C. § 1915(e)(2), the Court must give it

the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A “liberal

construction” means that if the essence of an allegation is discernible, the district court should

construe the plaintiff’s complaint in a way that permits his or her claim to be considered within

the proper legal framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, even

pro se complaints are required to allege facts which, if true, state a claim for relief as a matter of

law. Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980). See also Stone v. Harry, 364 F.3d

912, 914-15 (8th Cir. 2004) (stating that federal courts are not required to “assume facts that are

not alleged, just because an additional factual allegation would have formed a stronger

complaint”). In addition, affording a pro se complaint the benefit of a liberal construction does not

mean that procedural rules in ordinary civil litigation must be interpreted so as to excuse mistakes

by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).

Background

Plaintiff is a self-represented litigant who is currently incarcerated at the Eastern Reception,

Diagnostic and Correctional Center in Bonne Terre, Missouri. On October 25, 2021, he filed a

civil action pursuant to 42 U.S.C. § 1983, naming Sergeant Scot Dunn of the Maryland Heights

Police Department as the sole defendant. (Docket No. 1). Plaintiff alleged that Sergeant Dunn

committed excessive force against him during the course of his arrest. Sergeant Dunn was sued in

an official capacity only. (Docket No. 1 at 2).

In his “Statement of Claim,” plaintiff asserted that on September 2, 2021, he was inside of

a residence when Sergeant Dunn kicked in the door, pointed his service weapon at him, and ordered

him to get on the ground. (Docket No. 1 at 3). Initially, plaintiff refused to comply with Sergeant

Dunn’s command. (Docket No. 1 at 4). Officer Andy Heimberger then “appeared at the door to

back Sergeant Dunn up,” whereupon Sergeant Dunn again ordered plaintiff to get on the ground.

At this point, plaintiff stated that he put his “hands up in surrender, turned [his] back on

the two officers and [lay] on the kitchen floor of the [residence].” According to plaintiff, “Sergeant

Dunn then acted as if he were handcuffing [him] and put [his] right arm behind [his] back until it

crossed the back of [his] body and forced [his] upper body to face him.” Sergeant Dunn then

allegedly “punched [plaintiff] 3 times in the face, knocking out 2 of [his] teeth and [splitting his]

upper lip,” which required stitches. Next, Sergeant Dunn “turned [plaintiff] back over and began

trying to slam [his] face into the concrete floor.”

As a result of this incident, plaintiff stated that he lost two teeth and required two stitches

for his split lip. He sought total damages of $10,075,000. (Docket No. 1 at 6).

Along with the complaint, plaintiff filed a motion for leave to proceed in forma pauperis.

(Docket No. 2). The Court granted the motion and assessed an initial partial filing fee. (Docket

No. 11). Because plaintiff was proceeding in forma pauperis, the Court also reviewed his complaint

under 28 U.S.C. § 1915. Based on that review, the Court determined the complaint was subject to

dismissal, as plaintiff had not stated an official capacity claim against Sergeant Dunn.

Taking into consideration plaintiff’s status as a self-represented litigant, the Court did not

dismiss the case outright. Rather, plaintiff was instructed to file a written supplement to his

complaint indicating whether or not he intended to sue Sergeant Dunn in an individual capacity.

He was advised to sign the supplement and return it to the Court within thirty days. Plaintiff was

told that his failure to comply would result in the Court proceeding with its 28 U.S.C. § 1915

review and treating Sergeant Dunn as being sued in his official capacity only.

Plaintiff complied with the Court’s order by filing a signed, written supplement to the

complaint. (Docket No. 15). In the supplement, plaintiff explained that he “misunderstood the

capacity question” and that he intended to sue Sergeant Dunn “in his individual capacity only.”

On February 16, 2022, the Court received an amended complaint. (Docket No. 16).

The Amended Complaint

Plaintiff’s amended complaint is brought pursuant to 42 U.S.C. § 1983, and names the

Richmond Heights Police Department, Sergeant Scot Dunn, and Officer Andrew Heimberger as

defendants. (Docket No. 16 at 1). Sergeant Dunn and Officer Heimberger are sued in their

individual capacities only. (Docket No. 16 at 2-3). The amended complaint raises Fourth

Amendment claims of excessive force and failure to intervene.

In the “Statement of Claim,” plaintiff asserts that on September 2, 2021, Sergeant Dunn

kicked in the door of the residence at 176 Plum, and “pointed his service weapon at” plaintiff.

(Docket No. 16 at 3). Sergeant Dunn “advised [plaintiff] to lay on the floor,” but plaintiff refused

due to “broken glass on the floor” in the area where he was standing. (Docket No. 16 at 3-4).

Immediately after plaintiff’s refusal, Officer Heimberger appeared in the door to back up

Sergeant Dunn. (Docket No. 16 at 4). Sergeant Dunn again advised plaintiff to get on the floor.

Plaintiff “put [his] hands up in surrender with [his] palms facing the two officers, turned [his] back

on the two officers, and [lay] on the kitchen floor.”

According to plaintiff, Sergeant Dunn “acted as if he were handcuffing [plaintiff] and

placed [plaintiff’s] right arm behind [his] back until it crossed the back of [his] body and forced

the right side of [his] upper body to turn and face [Dunn].” Sergeant Dunn then allegedly “punched

[plaintiff] three times in the face,” which knocked out two upper teeth, loosened two more, and

split his upper lip, requiring stitches. Next, Sergeant Dunn tried “to slam [plaintiff’s] face into the

concrete floor,” though plaintiff “used [his] neck muscles as long as [he] could to prevent [his]

face from hitting the floor.” (Docket No. 16 at 5). Eventually, plaintiff was able to move his left

arm under his forehead, allowing Sergeant Dunn to slam his “forehead into [his] forearm instead

of the concrete floor.”

While plaintiff was being punched by Sergeant Dunn, he alleges that Officer Heimberger

stood about two feet away and watched. (Docket No. 16 at 6). Plaintiff claims that Officer

Heimberger did not make any verbal or physical attempts to prevent Sergeant Dunn from punching

him. (Docket No. 16 at 6-7). When Sergeant Dunn began trying to slam plaintiff’s head into the

floor, Officer Heimberger “again stood by and did nothing,” even though he “was very well aware

that excessive force was being used.” (Docket No. 16 at 7).

As a result of this incident, plaintiff states that he sustained the loss of two upper front

teeth, that two of his upper teeth were loosened, and that his lip was split, requiring two stitches.

(Docket No. 16 at 4). He is seeking a total of $1,275,000 in damages. (Docket No. 16 at 10).

Discussion

Plaintiff is a self-represented litigant who brings this civil action pursuant to 42 U.S.C. §

1983, accusing defendants of excessive force and failure to intervene. Because he is proceeding

in forma pauperis, the Court has reviewed his amended complaint under 28 U.S.C. § 1915. Based

on that review, and for the reasons discussed below, the Court will dismiss the claim against the

Maryland Heights Police Department. However, the Court will direct the Clerk of Court to issue

process on Sergeant Dunn in his individual capacity as to plaintiff’s claim of excessive force, and

on Officer Heimberger in his individual capacity as to plaintiff’s claim of failure to intervene.

A. Claim Against Maryland Heights Police Department

It is not entirely clear whether plaintiff intended to name the Maryland Heights Police

Department as a defendant in this action. While the Maryland Heights Police Department is listed

in the case caption, plaintiff does not mention it in the section of the form complaint for identifying

the parties. In any event, to the extent that plaintiff is suing the Maryland Heights Police

Department, the claim must be dismissed. A police department is a department or subdivision of

local government, and not a distinctly suable entity. See Ketchum v. City of West Memphis, Ark.,

974 F.2d 81, 82 (8th Cir. 1992) (affirming dismissal of West Memphis Police Department and West

Memphis Paramedic Services because they were “not juridical entities suable as such”). See also

Owens v. Scott Cty. Jail, 328 F.3d 1026, 1027 (8th Cir. 2003) (stating that “county jails are not

legal entities amenable to suit”); and De La Garza v. Kandiyohi Cty. Jail, 18 Fed. Appx. 436, 437

(8th Cir. 2001) (affirming district court dismissal of county jail and sheriff’s department as parties

because they are not suable entities). Therefore, any claim against the Maryland Heights Police

Department must be dismissed.

Even if the City of Maryland Heights was substituted as the proper party, plaintiff has not

stated a municipal liability claim. A local governing body such as the City of Maryland Heights

can be sued directly under 42 U.S.C. § 1983. See Monell v. Dep’t of Soc. Servs. of City of New

York, 436 U.S. 658, 690 (1978). However, a municipality cannot be held liable merely because it

employs a tortfeasor. A.H. v. City of St. Louis, Mo., 891 F.3d 721, 728 (8th Cir. 2018) (“In an action

under § 1983, a municipality…cannot be liable on a respondeat superior theory”). Rather, to

prevail on this type of claim, the plaintiff must establish the governmental entity’s liability for the

alleged conduct. Kelly v. City of Omaha, Neb., 813 F.3d 1070, 1075 (8th Cir. 2016). Such liability

may attach if the constitutional violation “resulted from (1) an official municipal policy, (2) an

unofficial custom, or (3) a deliberately indifferent failure to train or supervise.” Mick v. Raines,

883 F.3d 1075, 1079 (8th Cir. 2018). See also Marsh v. Phelps Cty., 902 F.3d 745, 751 (8th Cir.

2018) (recognizing “claims challenging an unconstitutional policy or custom, or those based on a

theory of inadequate training, which is an extension of the same”). Thus, there are three ways in

which plaintiff can prove the liability of the City of Maryland Heights.

First, plaintiff can show the existence of an unconstitutional policy. “Policy” refers to

“official policy, a deliberate choice of a guiding principle or procedure made by the municipal

official who has final authority regarding such matters.” Corwin v. City of Independence, Mo., 829

F.3d 695, 700 (8th Cir. 2016). For a policy that is unconstitutional on its face, a plaintiff needs no

other evidence than a statement of the policy and its exercise. Szabla v. City of Brooklyn, Minn.,

486 F.3d 385, 389 (8th Cir. 2007). However, when “a policy is constitutional on its face, but it is

asserted that a municipality should have done more to prevent constitutional violations by its

employees, a plaintiff must establish the existence of a ‘policy’ by demonstrating that the

inadequacies were a product of deliberate or conscious choice by the policymakers.” Id. at 390.

“A policy may be either a policy statement, ordinance, regulation, or decision officially adopted

and promulgated by the municipality’s governing body.” Angarita v. St. Louis Cty., 981 F.2d 1537,

1546 (8th Cir. 1992).

Second, plaintiff can establish a claim of liability based on an unconstitutional “custom.”

In order to do so, plaintiff must demonstrate:

1) The existence of a continuing, widespread, persistent pattern of

unconstitutional misconduct by the governmental entity’s

employees;

2) Deliberate indifference to or tacit authorization of such conduct

by the governmental entity’s policymaking officials after notice

to the officials of that misconduct; and

3) That plaintiff was injured by acts pursuant to the governmental

entity’s custom, i.e., that the custom was a moving force behind

the constitutional violation.

Johnson v. Douglas Cty. Med. Dep’t, 725 F.3d 825, 828 (8th Cir. 2013).

Finally, plaintiff can assert a municipal liability claim by establishing a deliberately

indifferent failure to train or supervise. See City of Canton, Ohio v. Harris, 489 U.S. 378, 388

(1989) (explaining that inadequate training may serve as the basis for 42 U.S.C. § 1983 liability

only when “the failure to train amounts to deliberate indifference”). To show deliberate

indifference, a plaintiff must prove that the municipality “had notice that its procedures were

inadequate and likely to result in a violation of constitutional rights.” See Jennings v. Wentzville

R-IV Sch. Dist., 397 F.3d 1118, 1122 (8th Cir. 2005). Ordinarily, this is done by a plaintiff alleging

a “pattern of similar constitutional violations by untrained employees.” See S.M. v. Lincoln Cty.,

874 F.3d 581, 585 (8th Cir. 2017).

Plaintiff does not need to specifically plead the existence of an unconstitutional policy or

custom. See Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 591 (8th Cir. 2004).

However, at a minimum, the complaint must allege facts supporting the proposition that an

unconstitutional policy or custom exists. Doe ex rel. Doe v. Sch. Dist. of City of Norfolk, 340 F.3d

605, 614 (8th Cir. 2003). Here, plaintiff has not presented facts sufficient to support the proposition

that he was harmed due to an unconstitutional policy, custom, or failure to train on the part of the

City of Maryland Heights.

First, plaintiff does not point to any “policy statement, ordinance, regulation, or decision

officially adopted and promulgated by the municipality’s governing body” as being at issue in this

case. Certainly, he does not allege that excessive force was used against him due to “a deliberate

choice of a guiding principle or procedure made by the [City of Maryland Heights] official who

has final authority regarding such matters.” Instead, plaintiff’s facts concern the personal actions

of two law enforcement officers during a single incident of alleged excessive force. The Court

cannot infer the existence of an unconstitutional policy or custom from a single occurrence. See

Wedemeier v. City of Ballwin, Mo., 931 F.2d 24, 26 (8th Cir. 1991).

Second, plaintiff has not demonstrated the existence of an unconstitutional custom, as his

facts do not show “a continuing, widespread, persistent pattern of unconstitutional misconduct by”

City of Maryland Heights employees, much less that policymaking officials have been deliberately

indifferent to or tacitly authorized such misconduct. Rather than a persistent pattern, plaintiff has

described only a solitary incident. As noted above, the Court cannot infer the existence of an

unconstitutional custom from one occurrence.

Third, plaintiff has not shown that the City of Maryland Heights was deliberately

indifferent in training or supervising its employees, as he has not shown that the city “had notice

that its procedures were inadequate and likely to result in a violation of constitutional rights.”

Typically, notice is demonstrated by alleging a “pattern of similar constitutional violations by

untrained employees.” Plaintiff has not established the presence of any sort of pattern, but has

confined his facts to a single occurrence.

Finally, to the extent that plaintiff might seek to hold Maryland Heights responsible for the

actions of one of its employees, the Court notes that respondeat superior is not available in a 42

U.S.C. § 1983 action. See A.H., 891 F.3d at 728 (“In an action under § 1983, a

municipality…cannot be liable on a respondeat superior theory”).

For all these reasons, plaintiff has failed to demonstrate the liability of the City of Maryland

Heights. Therefore, to the extent that plaintiff is attempting to sue the City of Maryland Heights,

the claim must be dismissed. See Ulrich v. Pope Cty., 715 F.3d 1054, 1061 (8th Cir. 2013)

(affirming district court’s dismissal of Monell claim where plaintiff “alleged no facts in his

complaint that would demonstrate the existence of a policy or custom” that caused the alleged

deprivation of plaintiff’s rights).

B. Individual Capacity Claim Against Sergeant Dunn

Plaintiff has sued Sergeant Dunn in his individual capacity, alleging that Dunn used

excessive force against him during the course of his arrest, in violation of the Fourth Amendment.

“The Fourth Amendment protects citizens from being seized through excessive force by law

enforcement officers.” Thompson v. City of Monticello, Ark., 894 F.3d 993, 998 (8th Cir. 2018).

See also Andrews v. Fuoss, 417 F.3d 813, 818 (8th Cir. 2005) (“The right to be free from excessive

force is included under the Fourth Amendment’s prohibition against unreasonable seizures of the

person”); and Wilson v. Spain, 209 F.3d 713, 715 (8th Cir. 2000) (“The Fourth Amendment’s

prohibition against unreasonable seizures of the person applies to excessive-force claims that arise

in the context of an arrest or investigatory stop of a free citizen”). The violation of this right is

sufficient to support an action under § 1983. Crumley v. City of St. Paul, Minn., 324 F.3d 1003,

1007 (8th Cir. 2003).

Whether force is excessive under the Fourth Amendment requires a determination of

whether or not law enforcement officers’ actions are “objectively reasonable in light of the facts

and circumstances confronting them, without regard to their underlying intent or motivation.”

Ellison v. Lesher, 796 F.3d 910, 916 (8th Cir. 2015). Factors that are relevant to the reasonableness

of an officer’s conduct include “the severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and whether he is actively resisting arrest

or attempting to evade arrest by flight.” Burnikel v. Fong, 886 F.3d 706, 710 (8th Cir. 2018).

In this case, plaintiff states that Sergeant Dunn kicked in the door to a residence, pointed

his gun at plaintiff, and ordered plaintiff on the ground. Plaintiff initially refused, but complied

with Sergeant Dunn’s second command. While plaintiff was on the floor, Sergeant Dunn acted as

though he was going to handcuff him, but instead crossed plaintiff’s arm behind his back until it

forced plaintiff to turn and face Dunn. At that point, plaintiff alleges that Sergeant Dunn punched

him three times in the face, knocking out two of his teeth. Then, Sergeant Dunn tried to slam

plaintiff’s face into the floor, though plaintiff asserts that he was able to cushion these blows with

his forearm. According to plaintiff, all this occurred after he had put his hands in the air,

surrendered himself, and lowered himself to the ground in compliance with Sergeant Dunn’s

command. The Court must accept these facts as true, and make all reasonable inferences in

plaintiff’s favor. See Jones v. Douglas Cty. Sheriff’s Dep’t, 915 F.3d 498, 499 (8th Cir. 2019).

Therefore, the Court will direct the Clerk of Court to issue process on Sergeant Dunn in his

individual capacity as to plaintiff’s claim of excessive force.

C. Individual Capacity Claim Against Officer Heimberger

Plaintiff has sued Officer Heimberger in his individual capacity, alleging that Heimberger

failed to intervene to stop Sergeant Dunn from using excessive force. Under the Fourth

Amendment, a police officer may be held liable for failing to intervene to prevent the

unconstitutional use of force by another officer. Nance v. Sammis, 586 F.3d 604, 612 (8th Cir.

2009). “To establish a failure to intervene claim, however, the plaintiff must show that the officer

observed or had reason to know that excessive force would be or was being used.” Hollingsworth

v. City of St. Ann, 800 F.3d 985, 991 (8th Cir. 2015). See also Krout v. Goemmer, 583 F.3d 557,

565 (8th Cir. 2009) (explaining that police officer had duty to intervene to prevent the excessive

use of force where the officer was aware of the abuse and the duration of the episode was sufficient

to permit an inference of tacit collaboration); and White v. Jackson, 865 F.3d 1064, 1081 (8th Cir.

2017) (stating that in Fourth Amendment excessive force context, a police officer may be liable

for failing to intervene “where the officer is aware of the abuse and the duration of the episode is

sufficient to permit an inference of tacit collaboration”).

In this case, plaintiff alleges that Sergeant Dunn ordered him to the floor, acted as though

he was going to handcuff him, punched him in the face three times, and tried to slam his head into

the ground. While this occurred, plaintiff asserts that Officer Heimberger was only two feet away,

that Officer Heimberger witnessed Sergeant Dunn’s actions, and that Officer Heimberger did not

say or do anything to stop Sergeant Dunn, even though he was in a position to do so. The Court

must accept these allegations as true, and make all reasonable inferences in plaintiff’s favor. See

Jones, 915 F.3d at 499. Therefore, the Court will direct the Clerk of Court to issue process on

Officer Heimberger in his individual capacity as to plaintiff’s claim of failure to intervene.

D. Motion to Reassess Initial Partial Filing Fee

The Court has received a letter from plaintiff that has been construed as a motion to reassess

his initial partial filing fee. (Docket No. 14). In the motion, plaintiff states that he only receives

$5.00 a month now that he has been transferred to the Missouri Department of Corrections. As

such, he cannot afford to pay the initial partial filing fee. In support of the motion, plaintiff has

submitted a Department of Corrections account summary. (Docket No. 17). Having reviewed the

motion, the Court will order plaintiff to pay an initial partial filing fee of $1.00. See 28 U.S.C. §

1915(b)(1).

E. Motion for Extension of Time

Plaintiff has filed a motion for an extension of time in which to file his inmate account

statement. (Docket No. 18). The motion will be denied as moot as plaintiff has submitted an

account statement to the Court and an initial partial filing fee has been assessed.

Accordingly,

IT IS HEREBY ORDERED that plaintiff’s motion to reassess his initial partial filing fee

(Docket No. 14) is GRANTED.

IT IS FURTHER ORDERED that plaintiff must pay an initial partial filing fee of $1.00

within twenty-one (21) days of the date of this order. Plaintiff is instructed to make his remittance

payable to “Clerk, United States District Court,” and to include upon it: (1) his name; (2) his prison

registration number; (3) the case number; and (4) the statement that the remittance is for an original

proceeding.

IT IS FURTHER ORDERED that plaintiff’s motion for an extension of time in which to

submit his inmate account statement (Docket No. 18) is DENIED AS MOOT.

IT IS FURTHER ORDERED that plaintiff’s claim against the Maryland Heights Police

Department is DISMISSED without prejudice. See 28 U.S.C. § 1915(e)(2)(B). A separate order

of partial dismissal will be entered herewith.

IT IS FURTHER ORDERED that the Clerk of Court shall issue process or cause process

to issue on defendant Scot Dunn in his individual capacity as to plaintiff’s claim of excessive force,

and on defendant Andrew Heimberger in his individual capacity as to plaintiff’s claim of failure

to intervene.

IT IS FURTHER ORDERED that an appeal from this partial dismissal would not be

taken in good faith.

Dated this 17" day of February, 2022. 2 ip

HENRY EDWARD AUTREY

UNITED STATES DISTRICT JUDGE

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