Washington v. St. Louis, Missouri, City of

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

JANICE WASHINGTON, as personal )

Representative of the estate of )

VELMA PAYTON,1 )

)

Plaintiff, )

)

v. ) Case No. 4:20-cv-861-SEP

)

CITY OF ST. LOUIS, et al., )

)

Defendants. )

MEMORANDUM & ORDER

Before the Court is Defendants’ Motion for Summary Judgment.2 Doc. [10]. The

Motion is fully briefed. For the reasons set forth below, the Motion is denied as to Count I

against Defendants Hughes, Brandon, and Arthur; granted as to Count I against Defendants

Glass and Carson; and granted as to Count III against Defendant City of St. Louis.

BACKGROUND

Plaintiff Janice Washington brings this action as personal representative of the estate of

Velma Payton, the mother of decedent, Louis Payton, who died of an opioid overdose on August

1, 2018,3 while detained at St. Louis City’s Medium Security Institution (MSI). Doc. [1] ¶ 1.

Her Complaint asserts claims against Dale Glass, Commissioner of the St. Louis Division of

1 The original Plaintiff in this action, Velma Payton, passed away on November 23, 2020. Doc. [51] ¶ 1.

Pursuant to Federal Rule of Civil Procedure 25(a), Plaintiff Janice Washington was substituted for Velma

Payton. Doc. [56].

2 Defendants moved for summary judgment on all of Plaintiff’s claims, Doc. [10], and the Court granted

the motion in part and denied it in part, see Doc. [40]. The Court granted the motion with respect to

Count I against Defendants Carson and Glass in their official capacities. Id. at 10. The Court further

required that Plaintiff respond to: (1) the individual Defendants’ legal arguments for summary judgment

on the basis of qualified immunity, and (2) the City’s argument for summary judgment as to Count III on

the basis of sovereign immunity. Id. In all other respects, the motion was denied. Thus, the only issues

for the Court to resolve in this Order are whether qualified immunity shields individual Defendants from

Count I and whether sovereign immunity shields the City of St. Louis from Count III.

3 The Complaint states that Mr. Payton died “the night of August 1, 2018,” Doc. [1] ¶ 1, but the

Defendants allege that the death occurred shortly after midnight on August 2, 2018. Doc. [10] ¶ 1 n.1.

The discrepancy is immaterial for purposes of this Order.

Corrections, and Jeffrey Carson, Superintendent of the MSI, in their individual and official

capacities; Corrections Lieutenant Philander Hughes, and Corrections Officers Ryan Branson

and Matthias Arthur, in their individual capacities; and the City of St. Louis.4 See Doc. [1].

On August 1 and 2, 2018, Mr. Payton was an inmate at MSI housed in Dorm B. Id. ¶¶ 1,

19.5 On the evening of August 1, 2018, Payton obtained and used fentanyl in the sleeping

quarters, which correctional staff monitored through video cameras. Id. ¶ 21. Later in the

evening, Payton allegedly entered the common area of Dorm B, also referred to as the day room,

which was also monitored through video cameras by correctional staff. Id. ¶ 22.

At 11:19 PM, Mr. Payton began rocking back and forth in his chair, and less than a

minute later, his “head rolled back and his body slumped over.” Id. ¶ 23. Other detainees

attempted to revive Mr. Payton, noticing that his breathing was “ragged and infrequent” and that

he became cold to touch and his lips and hands turned blue. Id. ¶¶ 24, 25. According to

Plaintiff, during the time that the other detainees were assisting Mr. Payton, none of the

Defendants entered the common area of Dorm B, despite the detainees attempting to notify

Defendants of the emergency. Id. ¶ 26. Two correctional officers walked past the window in the

common room where the detainees were surrounding Mr. Payton and causing a commotion, and

still neither officer entered the room, despite the detainees shouting that Payton was not

breathing, that a man was dying in the room, and that he needed medical attention. Id. ¶¶ 27-29.

Plaintiff alleges that Defendants did not enter the room until four minutes and forty

seconds after Mr. Payton lost consciousness. Id. ¶ 31. At that time, instead of tending to Mr.

Payton, Defendants watched as the detainees attempted to revive him with ice. Id. ¶ 34. Minutes

later, on-staff nurses arrived and began administering CPR and started Payton on an automated

external defibrillator, which showed that his heart was unresponsive. Id. ¶¶ 35, 36. The nurses

also provided Plaintiff with breathing support and naloxone upon being informed by the

detainees that Mr. Payton had overdosed. Id. ¶ 37. Once an ambulance and EMT staff arrived at

4 Defendants Hughes, Branson, and Arthur will be referenced collectively as “Correctional Officer

Defendants.” The suit originally included an additional correctional officer, Tannaka Boler, see Doc. [1]

at 10, who is deceased and terminated from this case.

5 Plaintiff does not respond to ¶¶ 1-24 of Defendants’ Statement of Uncontroverted Material Facts

because the Court required Plaintiff to respond to only that portion of the qualified immunity analysis that

Defendants contended did not require the Court to rely on the as-yet-undeveloped factual record. See

Doc. [40] at 8. Thus, the Court relies on the parties’ Statements of Uncontroverted Material Facts, Docs.

[12], [58], [60], only in considering the City’s sovereign immunity defense.

the facility, Mr. Payton was taken to St. Louis University Hospital where he was pronounced

dead. Id. ¶ 39.

On August 26, 2020, Defendants moved for summary judgment on all counts. Doc. [10].

Plaintiff responded to the motion for summary judgment with a motion pursuant to Federal Rule

of Civil Procedure 56(d), asserting that she could not adequately oppose the motion for summary

judgment without discovery. Doc. [20]. On review of those motions, the Court granted

summary judgment as to Count I against Defendants Carson and Glass in their official capacities

and ordered Plaintiff to respond to: (1) the Defendants’ qualified immunity arguments that did

not require the resolution of factual disputes, and (2) Defendants’ argument for summary

judgment as to Count III against the City on the basis of sovereign immunity. Doc. [40] at 10.

The motion for summary judgment was denied in all other respects. Id. Therefore, the only

issues before the Court at this time are whether the individual defendants are entitled to qualified

immunity as to Count I, and whether the City is entitled to sovereign immunity as to Count III.

LEGAL STANDARD

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

finds, based on the factual record, that “there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). Material facts are those that “might affect the outcome of the suit under the

governing law,” and there is a genuine dispute where “a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The moving party bears the initial burden of “informing the district court of the basis for

its motion, and identifying those portions of the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, which it believes

demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at

323. The burden then shifts to the non-movant to “present specific evidence, beyond ‘mere

denials or allegations [that] . . . raise a genuine issue for trial.’” Farver v. McCarthy, 931 F.3d

808, 811 (8th Cir. 2019) (quoting Wingate v. Gage Cnty. Sch. Dist., No. 34, 528 F.3d 1074,

1078-79 (8th Cir. 2008)).

Motions for summary judgment in qualified immunity cases are “unique in that the court

should not deny summary judgment any time a material issue of fact remains on the

constitutional violation claim . . . .” Jones v. McNeese, 675 F.3d 1158, 1161 (8th Cir. 2012)

(quoting Brockinton v. City of Sherwood, Ark., 503 F.3d 667, 671 (8th Cir. 2007)) (cleaned

up). Because qualified immunity “is an immunity from suit rather than a mere defense to

liability[,] . . . it is effectively lost if a case is erroneously permitted to go to trial.” Id. (citing

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Therefore, in a qualified immunity case, “the

court must take a careful look at the record, determine which facts are genuinely disputed, and

then view those facts in a light most favorable to the non-moving party so long as those facts are

not so blatantly contradicted by the record that no reasonable jury could believe them.” Id. at

1161-62 (quoting O’Neil v. City of Iowa City, Iowa, 496 F.3d 915, 917 (8th Cir. 2007)) (cleaned

up).

DISCUSSION

I. Defendants Hughes, Branson, and Arthur are not entitled to qualified immunity;

Defendants Glass and Carson are.

Defendants argue that all five individual Defendants are entitled to summary judgment on

the basis of qualified immunity. Doc. [11-1] at 12. “Qualified immunity shields government

officials from liability in a § 1983 action unless their conduct violates a clearly established right

of which a reasonable official would have known.” Burnikel v. Fong, 886 F.3d 706, 709 (8th

Cir. 2018) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Thus, a “[q]ualified

immunity analysis requires a two-step inquiry: (1) whether the facts shown by the plaintiffs

make out a violation of a constitutional or statutory right, and (2) whether the right was clearly

established at the time of the defendant’s alleged misconduct.” Morgan v. Robinson, 920 F.3d

521, 523 (8th Cir. 2019) (en banc) (quoting Nord v. Walsh Cnty., 757 F.3d 734, 738 (8th Cir.

2014)) (quotation marks omitted). “Unless both of these questions are answered affirmatively, [a

defendant] is entitled to qualified immunity.” Id. at 523 (quoting Nord, 757 F.3d at 738)

(quotation marks omitted).

Although “[q]ualified immunity is an affirmative defense for which the defendant carries

the burden of proof,” the “plaintiff . . . must demonstrate that the law is clearly established.”

Sparr v. Ward, 306 F.3d 589, 593 (8th Cir. 2002) (citing Johnson-El v. Schoemehl, 878 F.2d

1043, 1048 (8th Cir. 1989)). “A right is clearly established only where it is ‘sufficiently clear

that every reasonable official would have understood that what he is doing violates that right.’”

Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 7 (2021) (per curiam) (quoting Mullenix v. Luna, 577

U.S. 7, 11 (2015) (per curiam)). Although case law directly on point is not necessary to

demonstrate that a right is clearly established, “existing precedent must have placed the statutory

or constitutional question beyond debate.” Id. (quoting White v. Pauly, 137 S. Ct. 548, 551

(2017)). The Supreme Court has reiterated in recent decisions that clearly established rights

“should not be defined at a high level of generality.” White, 137 S. Ct. at 552 (quoting Ashcroft

v. al-Kidd, 563 U.S. 731, 742 (2011)) (quotation marks omitted). Qualified immunity exists to

protect “all but the plainly incompetent or those who knowingly violate the law.” Id. at 551

(quoting Mullenix, 577 U.S. at 12).

A. Defendants Hughes, Branson, and Arthur have not shown that they are entitled

to qualified immunity.

Plaintiff alleges that the Correctional Officer Defendants (i.e., Hughes, Branson, and

Arthur) violated Mr. Payton’s Fourteenth Amendment Due Process rights by acting with

deliberate indifference to his serious medical needs by: (1) failing to respond to direct

information that Payton was having a medical emergency and (2) failing to provide any first aid

or CPR after calling for the medical professionals.6 Doc. [1] ¶ 73; Doc. [57] at 4, 6.

The Court has already determined that, based on the undeveloped factual record,

Defendants have not satisfied the first prong of the qualified immunity analysis. Doc. [40] at 7.

Defendants argue that they did not violate Mr. Payton’s constitutional rights because there was

no delay in responding to the emergency or rendering aid, and, in the case of the supervising

officers, that they had no personal involvement in the actions that took place on the evening of

his death. Doc. [11-1] at 12-15. The Court found Defendants’ factual showing insufficient to

find qualified immunity based on a lack of liability under the Fourteenth Amendment. Doc. [40]

at 7. In doing so, however, the Court recognized that Defendants had made arguments going to

the second prong that purported not to depend on a finding of liability. Id. at 7-8. Given the

imperative to resolve questions of qualified immunity as early as possible and to spare

defendants the burden of unwarranted discovery, the Court required Plaintiff to respond to those

arguments before commencing discovery. Id. (citing Hunter v. Bryant, 502 U.S. 224, 227

6 Because Plaintiff was a pretrial detainee at MSI, Doc. [1] ¶ 1, his “right to medical care arises under the

Due Process Clause of the Fourteenth Amendment.” Jackson v. Buckman, 756 F.3d 1060, 1065 (8th Cir.

2014) (citing Vaughn v. Greene Cnty., 438 F.3d 845, 850 (8th Cir. 2006)). Although Plaintiff’s claim is

rooted in the Fourteenth Amendment, a pretrial detainee is “entitled to at least as much protection under

the Fourteenth Amendment as under the Eighth Amendment.” Kitchen v. Miller, 343 F. Supp. 2d 820,

823 (E.D. Mo. 2004) (quoting Hartsfield v. Colburn, 371 F.3d 454, 457 (8th Cir. 2004)). Therefore, the

Court applies the deliberate indifference standard for an Eighth Amendment violation to Plaintiff’s claim.

(1991); Harlow, 457 U.S. at 818-19. Accordingly, the parties have now submitted arguments as

to whether, despite not being able to establish an absence of liability, Defendants are nonetheless

entitled to qualified immunity because it was not clearly established at the time of the incident

that their conduct was a violation of Mr. Payton’s constitutional rights. See Docs. [57], [65].

With respect to Defendants’ alleged failure to respond, Plaintiff argues that Eighth

Circuit case law clearly establishes that an intentional delay in obtaining medical care for an

inmate gives rise to a deliberate indifference claim. Doc. [57] at 4. For delay to constitute

deliberate indifference, “the information available to the prison official must be such that a

reasonable person would know that the inmate requires medical attention, or the prison official’s

actions (or inaction) must be so dangerous to the health or safety of the inmate that the official

can be presumed to have knowledge of a risk to the inmate.” Tlamka v. Serrell, 244 F.3d 628,

633 (8th Cir. 2011).7

To show that Mr. Payton’s rights were clearly established under the circumstances

presented here, Plaintiff analogizes the facts of this case to those of Plemmons v. Roberts, 439

F.3d 818 (8th Cir. 2006). Doc. [57] at 4. In Plemmons, the plaintiff alleged that he informed a

booking officer that he was a heart patient, and six hours later, began experiencing heart attack

symptoms, including arm and chest pain, profuse sweating, and nausea. Plemmons, 439 F.3d at

824. The plaintiff further alleged that the jailers were aware of his need for medical attention, as

his cellmate called the jailers to seek help, but no one answered. Id. When the jailers did arrive,

the plaintiff alleged that his symptoms were dismissed as those of an anxiety attack. Id. The

plaintiff then alleged that, twenty-five minutes later, two jailers returned, and, at that time, the

plaintiff requested an ambulance, as he believed he was having a heart attack. Id. Despite that,

the jailers did not call an ambulance for another ten to fifteen minutes. Id. On those facts, the

Eighth Circuit determined that “any reasonable officer would have known a delay in providing

prompt, appropriate medical care to [the plaintiff]” constituted deliberate indifference in

violation of the plaintiff’s constitutional rights. Id. at 825. Plaintiff argues that the same logic

applies here: A reasonable correctional officer or lieutenant would have known that failing to

7 A deliberate indifference claim also requires that the inmate actually suffered from an objectively

serious medical need. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Defendants do not dispute that

Plaintiff suffered from an objectively serious medical need. See Doc. [65] at 6 n.2. Their argument

focuses on whether they were aware of and disregarded Plaintiff’s serious medical need. See id.

respond for over four and a half minutes after Plaintiff lost consciousness, despite the commotion

and the detainees’ attempts to alert Defendants to Mr. Payton’s medical needs, constitutes

deliberate indifference in violation of the Fourteenth Amendment. Doc. [57] at 5.

Defendants argue that Plemmons is sufficiently factually distinct from this case that it

could not have put them on sufficient notice that their actions violated Mr. Payton’s clearly

established rights. Doc. [65] at 6. In particular, Defendants note that, in Plemmons, the plaintiff

told the defendants twice that he was experiencing significant chest pain, and the defendants

ultimately waited a total of 50 minutes before calling an ambulance. Id. at 5; Plemmons, 349

F.3d at 821, 825. Here, by contrast, Plaintiff does not allege that Defendants were aware of the

commotion in the common room nor that they heard the yelling for help. Doc. [65] at 6. To find

that Defendants were put on notice by Plemmons, they argue, would be to define Plaintiff’s

constitutional right at a “high level of generality,” which the Supreme Court has admonished

courts to avoid. Id.; see White, 137 S. Ct. at 552; Ashcroft, 563 U.S. at 742.

Construing the evidence in the light most favorable to Plaintiff and drawing all

reasonable inferences in her favor, Plaintiff has established that Mr. Payton’s right to prompt

attention by Defendants was clearly established under Plemmons. Defendants’ argument that

Plaintiff has failed to allege that Defendants heard the yelling or commotion is unavailing, as

Plaintiff has alleged facts that support an inference that Defendants knew of Mr. Payton’s need

for attention. Plaintiff alleges that the other inmates “desperately attempted to verbally alert the

guards to the emergency,” including yelling that there was a man in the room dying. Doc. [1]

¶¶ 28, 29. She further alleges that, in addition to the yelling, two officers walked past the

window of the room where the commotion was and neither entered the room. Id. ¶ 27. The

Court has already found that Defendants have not defeated those allegations as a matter of law,

finding that the “significant gaps in the sleeping room surveillance video preclude the Court from

determining whether [inmate Weddle’s notification] was the first time they were notified of Mr.

Payton’s difficulties.” Doc. [40] at 4. And Plaintiff has not had an opportunity to conduct

discovery to develop further support for her well-pled allegations. Thus, the Court cannot find

an absence of genuine dispute of material fact as to what Defendants knew and when.

Assuming Defendants were aware of Plaintiff’s need for help and that they delayed

responding for roughly four and a half minutes, Plemmons sufficiently places Defendants on

notice that such conduct would constitute deliberate indifference. Defendants’ attempts to

differentiate Plemmons from the facts of this case are unsuccessful. While the officers in

Plemmons waited longer before responding than Defendants in this case allegedly waited, they

were also responding to an apparently less urgent medical need than the officers here were. See

Tlamka, 244 F.3d at 635 (“[T]he determination of whether [a] delay is constitutionally actionable

depends on the seriousness of an inmate’s medical condition and on the reason for the

delay . . . .”). Plaintiff alleges that Mr. Payton was “completely unresponsive,” and that his body

was slumped over, with his head rolled back. Doc. [1] ¶ 23. Evidence adduced by Defendant

supports the allegations of his unresponsiveness. See, e.g., Doc. [26] at 1, 5, 7, 9; see also Doc.

[12-1] ¶ 12. Mr. Payton’s unconsciousness allegedly caused the group of detainees to become

frantic, as several attempted to revive him and shouted to get the attention of Defendants. Id.

¶¶ 25, 29. The facts, both as alleged and as so far substantiated by Defendants, suggest that Mr.

Payton’s condition was plainly dire. By contrast, although the plaintiff in Plemmons complained

multiple times of symptoms, he was apparently responsive throughout the episode, and the

officers at one point attributed his complaints to anxiety. Plemmons, 439 F.3d at 824. The

circumstances in Plemmons were not as severe as those alleged in this case, and still they were

found sufficient for a finding of deliberate indifference. Accordingly, it would have put a

reasonable officer in the Defendants’ situation on notice that failure to respond with due haste to

an inmate in comparatively severe medical distress would constitute deliberate indifference. Cf.

Tlamka, 244 F.3d at 633 (given the “obvious and serious nature” of an inmate’s medical needs, a

10-minute delay in providing medical care evinced deliberate indifference).

Defendants are correct that the Supreme Court has cautioned that clearly established

rights “should not be defined at a high level of generality.” White, 137 S. Ct. at 552 (quoting

Ashcroft, 563 U.S. at 742) (quotation marks omitted). But the Supreme Court has also held that

case law directly on point is not necessary to find that a right is clearly established. Id. The

Eighth Circuit has placed it beyond debate that when an officer is aware of an inmate’s serious

medical need and fails to respond to that need in a timely manner under the circumstances

presented, that failure constitutes deliberate indifference proscribed by the Eighth and Fourteenth

Amendments. Viewing the allegations in the light most favorable to Plaintiff, “any reasonable

officer would have known” that failing to respond to Mr. Payton’s urgent medical need for four

and a half minutes, “with no good or apparent explanation for the delay,” would have violated

his Fourteenth Amendment rights. Plemmons, 439 F.3d at 825 (quoting Tlamka, 244 F.3d at

635). Therefore, viewing the immature record in the light most favorable to Plaintiff,

Defendants are not entitled to qualified immunity against Plaintiff’s “failure to respond” claim.

In addition to the failure to respond claim, Plaintiff further argues that Defendants may

also be held liable for deliberate indifference because of their failure to render medical aid to Mr.

Payton upon arriving in Dorm B. Doc. [57] at 6. Specifically, Plaintiff claims that Defendants’

failure to approach Mr. Payton, check his pulse, or provide CPR between the time that they

arrived at the scene and the time that the medical professionals arrived constitutes deliberate

indifference. Defendants argue that case law does not clearly establish that calling the on-site

medical professionals instead of personally rendering aid constitutes deliberate indifference

under the circumstances presented.8 Doc. [65] at 10-12.

Interestingly, both parties rely on the same case—Tlamka v. Serrell, 244 F.3d 628 (8th

Cir. 2001)—to support their positions. In that case, Mr. Tlamka, an inmate, suffered a heart

attack and collapsed in the prison yard, and another inmate immediately ran to alert a corrections

officer that Tlamka was having a heart attack. Id. at 630. Two other inmates began performing

CPR on Tlamka and began to see positive results. Id. at 630-31. Tlamka regained a more

normal color, his eyes opened, and he appeared to begin to catch his breath on his own. Id. at

631. According to the other inmates, the corrections officers arrived at the scene and ordered

them to stop administering CPR to Tlamka. Id. Although the inmates argued with the officers

that it was imperative that CPR be continued, they reluctantly stopped providing aid to Tlamka.

Id. The inmates further alleged that, after their aid ceased, none of the officers approached

Tlamka or continued the CPR. Id. Sometime later, other corrections officers arrived with a

8 Defendants argue that precedent from this circuit has held that a police officer is not liable under § 1983

for failing to render first aid or CPR where he or she summoned the necessary medical help instead.

Docs. [11-1] at 8-11, [65] at 12-14; see Teasley v. Forler, 548 F. Supp. 2d 694 (E.D. Mo. 2008);

Tagstrom v. Enockson, 857 F.2d 502 (8th Cir. 1988); Goza v. City of Ellisville, 2015 US Dist. LEXIS

108618 (E.D. Mo. Aug. 18, 2015); Powell v. Shelton, No. 4:17-cv-2017-HEA (E.D. Mo. June 7, 2020).

Plaintiff argues that the Eighth Circuit has established different precedent for liability for police officers

working outside of correctional facilities and liability for correctional officers. Doc. [57] at 8. The cases

cited by Defendants are based upon Supreme Court precedent holding that the Fourteenth Amendment

requires that police “provide medical care to persons who . . . have been injured while being apprehended

by the police.” Teasley, 548 F. Supp. 2d at 709 (quotation marks omitted) (quoting City of Revere v.

Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)). Given that the Supreme Court has instructed courts that a

qualified immunity analysis “must be undertaken in light of the specific context of the case,” Brosseau,

543 U.S. at 199, the Court analyzes the allegations here under the standards that the Eighth Circuit has

applied to correctional officers. See, e.g., Tlamka, 244 F.3d at 623-33; Plemmons 439 F.3d at 823; Ruark

v. Drury, 21 F.3d 213, 216 (8th Cir. 1994).

gurney and transported Tlamka to the turnkey area, where a prison nurse rendered aid and CPR

was once again performed. Id. Construing the record in the light most favorable to the plaintiff,

the Eighth Circuit found that the alleged 10-minute gap between when the inmates ceased CPR

and when Tlamka was treated by the nurse could support an Eighth Amendment claim for

deliberate indifference. Id. at 634.

Plaintiff argues that Tlamka clearly establishes that Defendants’ alleged failure to provide

prompt medical assistance to Mr. Payton constitutes deliberate indifference, and therefore they

are not entitled to qualified immunity at this stage. See Doc. [57] at 6. The Court agrees. It is

true that the factual circumstances in Tlamka were not identical to those in this case. Among

other facts that the Eighth Circuit noted were: that the period of alleged inactivity by officers on

the scene was up to 10 minutes; that Tlamka had been responding favorably to CPR administered

by fellow inmates; that the officers in Tlamka made inmates stop administering CPR; and that an

inmate told the officers that continuing CPR was essential. Id. at 633. Here, there is no

allegation that Defendants made the other detainees completely stop rendering aid, although

Plaintiff does allege that the officers “attempted to move the detainees away from Mr. Payton.”

Doc. [1] ¶ 33. Also, the alleged time period when four officers “stood by . . . and watched the

remaining detainees try to revive Mr. Payton with ice” was “four additional minutes”—i.e., after

officers entered the room, which was allegedly already “four minutes and 40 seconds after Mr.

Payton lost consciousness.” Doc. [1] ¶¶ 31, 34. However, given the Tlamka court’s reliance on

the “the patent nature of Tlamka’s condition, considering the corrections officers’ ability to

provide CPR,” 244 F.3d at 633, those differences alone would not prevent Tlamka from

providing notice to reasonable officers in Defendants’ position that they had a duty to provide

emergency medical assistance to Mr. Payton under the alleged circumstances of this case. See

Rivas-Villegas, 142 S. Ct. at 7 (quoting White, 137 S. Ct. at 551).

Defendants attempt to draw other distinctions between this case and Tlamka, arguing that

they “did not know what was wrong with Payton, did not know Payton had stopped breathing,

did not know if Payton had a pulse, and did not know that he needed CPR or that CPR would be

helpful as opposed to harmful.” Doc. [65] at 10. But Defendants themselves have produced

evidence that Mr. Payton’s lips were purple, that he was unconscious, that other inmates were

trying to revive him with ice, and that they had been told that he was not breathing. Doc. [26] at

1, 5, 7, 9; see also Doc. [12-1] ¶ 12 (Defendant Branson’s attestation that inmate Brandon

Weddle reported to him “Ya’ll [sic] need to get in here . . . it’s a dude passed out and he looks

like he’s going to die.”). Defendants acknowledge that, “when medical staff arrived, they began

to administer CPR.” Doc. [12-3] ¶ 21. And while each individual Defendant’s sworn affidavit

does attest that he is “not a trained medical professional,” Doc. [12-1] ¶ 27, [12-2] ¶ 27, [12-3]

¶ 26, none denies that he had been trained in CPR and first aid. See Doc. [1] ¶ 67. Nor does

Defendant Hughes deny Plaintiff’s specific allegation that he had “received specific training on

how to recognize signs and symptoms of an overdose and how to provide emergency aid.” Id.

¶ 68. As this Court already held, the factual record is insufficient to demonstrate an absence of

genuine dispute of material fact as to such questions. See Doc. [40] at 4. To the extent that

Defendants’ claim to qualified immunity also depends on the finding of such facts in their favor,

it also fails.

Defendants also place great significance on the fact, sworn to in their affidavits and

corroborated by the surveillance video evidence, that they called for medical assistance from on-

site medical providers immediately upon entering the room. They argue that “the permanent

presence of on-site medical assistance reasonably expected to immediately respond to inmate

housing units” relieves them of any obligation to render interim medical are. Doc. [11] at 11-20.

That argument assumes too much. First, it assumes that Defendants’ expectation that on-site

medical professionals would respond “immediately” to the medical situation was “reasonable,”

which is a claim that Plaintiff is entitled to test via the discovery process before Defendants are

entitled to rely on it to justify summary judgment. And second, it assumes that the existence of

such on-site care would make a “dispositive” difference in failure to provide medical care cases.

Doc. [65] at 11. Defendants cite no authority for the proposition that the mere existence of on-

site medical staff relieves correctional officers of the constitutional obligation to render

emergency care to an inmate in physical distress. The Tlamka decision places no apparent

significance on where the medical assistance that ultimately arrived came from. See Tlamka, 244

F.3d at 631. In fact, that opinion notes that the plaintiff eventually received care from a “prison

nurse,” who was “waiting to render aid” in an area “approximately 50 feet from where he had

collapsed.” Id. That fact did not prevent the Eighth Circuit from finding that the officers’

alleged failure to render emergency medical care before the nurse arrived could amount to a

violation of Tlamka’s constitutional rights. Id. at 634. Therefore, this Court is not persuaded by

Defendants’ unsupported argument that the existence of on-site medical professionals should be

dispositive here.

The burden is on Plaintiff to show that the allegedly violated right is “clearly established”

by pointing to precedent. Plaintiff has done so here, and Defendants’ attempts to distinguish this

case from Tlamka are unavailing. Viewing the sparse record in the light most favorable to

Plaintiff and giving her the benefit of every reasonable inference, the Court finds that she has

made a sufficient showing that a reasonable officer in Defendants’ position would have been on

notice that the failure to render medical aid to Mr. Payton was a violation of his rights under the

Eighth and Fourteenth Amendments.

B. Defendants Glass and Carson are entitled to qualified immunity.

Plaintiff also alleges that Defendants Commissioner Glass and Superintendent Carson

acted with deliberate indifference in violation of the Fourteenth Amendment by “set[ting] a

policy that correctional officers were not allowed to carry naxolone or other opioid antagonists.”

Doc. [57] (citing Doc. [1] ¶ 76). Plaintiff argues that such a policy is deliberately indifferent to

Mr. Payton’s medical needs in that it requires that officers wait for medical staff or other

emergency help to respond to the scene when an inmate is overdosing. See id.

“A supervisor may not be held liable for a deliberate indifference claim under § 1983 for

the constitutional violations of a subordinate on a respondeat superior theory.” Tlamka, 244

F.3d at 635 (citing Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995)). A supervisor can, however,

be held liable if he or she “created a policy or custom under which the constitutional violation

occurred.” Baude v. City of St. Louis, 476 F. Supp. 3d 900, 913 (E.D. Mo. 2020) (quoting B.J.G.

ex. rel. McCray v. St. Charles Cnty. Sheriff, 2010 WL 1838414, at *3 (E.D. Mo. May 6, 2010))

(aff’d B.J.G. ex. rel. McCray v. St. Charles Cnty. Sheriff, 400 F. App’x 127 (8th Cir. 2010)).

Liability for a policy or custom “attaches in two situations, where a municipal policy is itself

unconstitutional, and where the municipality’s deliberate indifference to the need to train and

supervise its employees caused an employee to violate a third party’s constitutional rights.” A.H.

v. St. Louis Ctny. Missouri, 891 F.3d 721, 728 (8th Cir. 2018) (citing City of Canton v. Harris,

489 U.S. 378, 386-90 (1989)).

Plaintiff argues that Defendants Glass and Carson may be held liable under the first

situation, by allegedly setting the policy that correctional officers could not carry opioid

antagonists. Doc. [65] at 15. But Plaintiff has not carried her burden to demonstrate that such a

policy is unconstitutional under the Eighth and Fourteenth Amendments. Plaintiff describes

Defendants Glass’s and Carson’s personal involvement in creating and applying the policy that

did not permit the correctional officers to carry naloxone or other opioid antagonists and asserts

that they knew of the risks associated with delays in care during an opioid overdose. Doc. [57] at

11, 13; Doc. [1] ¶ 77. But even assuming that is true, Plaintiff has not presented any authority

clearly establishing that the failure of municipality supervisors to equip correctional officers with

opioid antagonists constitutes deliberate indifference.

Plaintiff cites Bonner v. Outlaw, 552 F.3d 673, 676 (8th Cir. 2009), to show that the

Eighth Circuit has permitted supervisor liability where supervisors created a policy under which

prisoners were not notified that their incoming mail had been returned. Id. But, relevant to the

facts of that case, the Supreme Court already determined in Procunier v. Martinez, 416 U.S. 396

(1974), that “[t]he interest of prisoners and their correspondents in uncensored communication

by letter, grounded as it is in the First Amendment, is plainly a ‘liberty’ interest within the

meaning of the Fourteenth Amendment . . . .” Bonner, 552 F.3d at 676 (quoting Procunier, 416

U.S. at 417). Thus, the policy in Bonner that failed to provide notice of incoming mail to

inmates violated their constitutional rights. Id. at 679. Here, Plaintiff’s only support for her

argument that a policy prohibiting the officers from carrying opioid antagonists violates the

Constitution is the general proposition that intentional delay in providing medical care to inmates

violates the Constitution. Doc. [57] at 12 (citing Plemmons, 439 F.3d at 825).

Plaintiff bears the burden of demonstrating that Mr. Payton’s rights were clearly

established. Sparr, 306 F.3d at 593. To support her theory of liability, then, Plaintiff must point

to precedent that would make it clear to every reasonable officer in Glass and Carson’s positions

that the failure to provide inmates with immediate access to opioid antagonists in the event of an

overdose constitutes deliberate indifference. See Rivas-Villegas, 142 S. Ct. at 7. Precedent

establishing that correctional officers cannot intentionally delay providing medical treatment

does not provide sufficient notice that a policy of not providing naloxone would violate

Plaintiff’s constitutional rights. Therefore, Defendants Glass and Carson are entitled to qualified

immunity as to Count I.

II. Defendant City of St. Louis is entitled to sovereign immunity on Count III.

Defendants argue that the City is entitled to summary judgment as to Count III on the

basis of sovereign immunity. Doc. [11-1] at 17-21. Under Missouri law, the City is entitled to

sovereign immunity from tort claims “unless the General Assembly has waived such immunity.”

Phelps v. City of Kansas City, 371 S.W.3d 909, 912 (Mo. Ct. App. 2012) (quoting Kraus v. Hy-

Vee, Inc., 147 S.W.3d 907, 914 (Mo. Ct. App. 2004)); Mo. Rev. Stat. § 537.600. In addition to

express waivers, the City can waive sovereign immunity if the governing body either: (1)

“purchase[s] liability insurance for tort claims” or (2) “duly adopts” a “self-insurance plan[.]”

Mo. Rev. Stat. § 537.610. Waivers of sovereign immunity are construed narrowly, and “the

extent of the waiver is expressly dictated, and limited, by the terms of the insurance policy.”

Hendrix v. City of St. Louis, 636 S.W.3d 889, 900 (Mo. Ct. App. 2021) (quoting Topps v. City of

Country Club Hills, 272 S.W.3d 409, 415 (Mo. Ct. App. 2008)). “The plaintiff shoulders the

burden of proving the existence of an insurance policy and that the terms of the policy cover the

plaintiff’s claim.” Id. (citing Topps, 272 S.W.3d at 415; Brennan By & Through Brennan v.

Curators of the Univ. of Missouri, 942 S.W.2d 432, 436-37 (Mo. Ct. App. 1997)).

In her Complaint, Plaintiff alleges that the City obtained insurance, or in the alternative

self-insurance, through the Public Facilities Protection Corporation (PFPC), which is funded in

part by an annual payment from the City. Doc. [1] ¶ 133. The funds in the PFPC, according to

Plaintiff, are used to pay “any and all claims against the City, including claims against City

correctional officers” for the types of violations that she alleges in this suit. Id. The City, on the

other hand, denies that it obtained any insurance plan that covers the conduct alleged here or that

it is self-insured, and insists that sovereign immunity therefore bars Plaintiff’s claims against it.

Doc. [11-1] at 19; Doc. [62] at 1. Defendants submit an affidavit from the Register of St. Louis

City—the officer charged with custody of all city contracts—verifying that no such contract or

ordinance exists. See Doc. [12-13] ¶ 8. In its previous Memorandum and Order, the Court

determined that that showing was sufficient to demonstrate an absence of genuine dispute of

material fact, satisfying the initial threshold for summary judgment, and thus, the Court ordered

Plaintiff to respond to Defendants’ Motion as to Count III against the City. Doc. [40] at 9-10.

A. Plaintiff has not demonstrated the existence of a genuine issue of material fact as

to whether the City purchased liability insurance.

The City, in the form of an affidavit of Dionne M. Flowers—the Register of the City of

St. Louis—maintains that it “has not purchased any liability insurance policy to cover torts

personal injuries, or any other claims that do not arise from dangerous property conditions or the

operation of motor vehicles.” Doc. [58] ¶ 25 (citing Doc. [12-13]). In support of her argument,

Plaintiff denies the City’s assertion, citing ¶¶ 26-44 of her Statement of Additional Material

Facts as evidence.9 Id. With respect to the purchase of liability insurance, Plaintiff points to an

affidavit of Karen Jackson—the Clerk Coordinator for the City of St. Louis who reports to Ms.

Flowers—which was submitted by the City in a response to a Court order in Cody v. City of St.

Louis, No. 4:17-cv-2707-AGF (E.D. Mo. Aug. 28, 2020). There, just a few days after the

Flowers affidavit was submitted in this case, Ms. Jackson submitted that “not all departments and

divisions within the City of St. Louis provide copies of all their contracts to the City of St. Louis

Register[.]” Doc. [58-1] ¶ 6. Therefore, Ms. Jackson noted that she could not “attest with

certainty” whether certain liability insurance contracts existed. Id.

Plaintiff argues that, in light of Ms. Jackson’s affidavit, the “City’s citation to Ms.

Flowers’ affidavit does nothing to settle the question of whether the City has purchased liability

insurance . . . .” Doc. [57] 14. The Court disagrees. The Court already determined in its

previous Order that the City met its initial burden on summary judgment to submit evidence

“demonstrat[ing] the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at

323. The evidence introduced in response (i.e., Ms. Jackson’s affidavit) does not sufficiently

controvert the evidence adduced by the City. To meet its burden at this stage, Plaintiff must

“present specific evidence, beyond ‘mere denials or allegations [that] . . . raise a genuine issue for

trial.’” Farver, 931 F.3d at 811 (quoting Wingate, 528 F.3d at 1079). Viewing the evidence in

the light most favorable to Plaintiff, Ms. Jackson’s affidavit does not provide any specific

evidence demonstrating that the City purchased liability insurance covering Plaintiff’s claims.

And where the evidence is merely colorable, as it is here, summary judgment is appropriately

granted. Anderson, 477 U.S. at 247-48.

B. The PFPC is not a self-insurance plan as a matter of law and thus cannot be a

basis of the City’s waiver of sovereign immunity.

Plaintiff’s second argument in support of a waiver of sovereign immunity is that, even if

the City did not purchase liability insurance, it obtained self-insurance via the PFPC. Under Mo.

9 The Court agrees with Defendant that Plaintiff failed to comply with Local Rue 4.01(E) by failing to

deny Defendant’s ¶ 25 “with specific citation to the record, upon which [Plaintiff] relies.” E.D. Mo. L.R.

4.01(E); Doc. [62] at 2. In the interest of adjudicating the merits of Plaintiff’s argument, which can be

deciphered from her Statement of Additional Facts and Memorandum in Opposition, the Court will not

deem ¶ 25 admitted, but Plaintiff is admonished to take greater care to comply with the Court’s Local

Rules in the future.

Rev. Stat. § 537.610.1, sovereign immunity is waived only “in such amount and for such

purposes provided in any self-insurance plan duly adopted by the governing body” of the City of

St. Louis. The City contends that its governing body is the Board of Alderman, which “duly

adopts” measures by ordinance.10 Doc. [62] at 2. To show that the City waived sovereign

immunity by the adoption of a self-insurance plan, Defendant argues, Plaintiff must point to an

ordinance adopted by the Board of Alderman that explicitly authorizes a self-insurance plan

covering Plaintiff’s claims. Doc. [62] at 2-3. The City again points to Ms. Flowers’s affidavit

stating that she “has no record of any City ordinance duly enacted by the City’s Board of

Alderman that purports to adopt a plan of self-insurance providing liability coverage for the City

for tort claims other than those arising from motor vehicle accidents with vehicles operated by

City employees and claims arising from the dangerous condition of public property,” including

any such records relating to the PFPC. Doc. [12-13] ¶¶ 6, 7.

Plaintiff points to no ordinance passed by the Board of Alderman adopting a self-

insurance plan that covers her claims. Instead, Plaintiff argues that the PFPC is itself a self-

insurance plan, Doc. [57] at 15, and that the City has adopted it, albeit not by ordinance. She

urges the Court, in the absence of a statutory definition of “self-insurance plan,” to define the

term according to Black’s Law Dictionary: “[a] plan under which a business maintains its own

special fund to cover any loss[.]” Id. at 16; Self-Insurance Definition, Black’s Law Dictionary

(11th ed. 2019). In support of her claim that the PFPC meets this definition, Plaintiff submits

several of the PFPC’s founding documents, including its Articles of Incorporation, Doc. [58-2],

bylaws, Doc. [58-3], and a 1987 resolution of the City’s Board of Estimate and Apportionment,

Doc. [58-4], which suggest that the PFPC’s purpose at its inception was to insure the city against

all claims for damages.

Plaintiff also submits evidence purporting to show that the City has routinely

acknowledged its use of the PFPC to cover litigation exposure and has frequently paid claims

similar to Plaintiff’s using the PFPC funds. See Docs. [58-5]–[58-16]. Plaintiff’s evidence

includes: municipal bond issues from 2016 and 2018 stating that “when no independent

10 The Court agrees with Defendant that the Board of Alderman, as a matter of law, is the governing body

of the City of St. Louis. Doc. [62] at 5 (citing Chicago, B. & Q. R. Co. v. North Kansas City, 367 S.W.2d

561, 567 (Mo. banc. 1963)). Plaintiff does not dispute that the Board of Alderman exercises its authority

by ordinance; Instead, she argues that the City may adopt a self-insurance plan in ways other than by

ordinance by the Board of Alderman. See Doc. [57] at 20.

insurance coverage exists, payments of settlements and judgment are administered by the PFPC,

the city’s self-insurance plan,” and that the City’s “Law Department prepares vouchers from

such payments which are submitted to the Comptroller’s Office and drawn on PFPC’s account,”

Doc. [60] ¶¶ 31, 32 (citing Docs. [58-5] – [58-7]); two statements from Defendants’ Tax and

Revenue Anticipation Notes Payable from the General Revenue Fund in 2015 and 2016

describing two cases in which the City admitted using or their plan to use PFPC to pay for claims

similar to Plaintiff’s, id. ¶¶ 33, 34 (citing Docs. [58-8], [58-9]); a declaration of Javad Khazaeli,

a licensed attorney in Missouri, stating that, in his experience, settlements of the City are paid via

check from an account titled “Treasurer of the City of St. Louis PFCP, id. ¶ 35 (citing Doc. [58-

10]); the City’s 2017 Comprehensive Annual Financial Reports which notes that the PFPC’s

“sole purpose is to provide the City with a defined and funded self-insurance program for claims,

judgments, and other related legal matters,” id. ¶ 36 (citing Docs. [58-11] at 50, [58-12] at 52); a

letter from the City Counselor to Alderwoman Megan E. Green, stating that the PFPC “insure[s]

the City against all claims,” and that the PFPC may be “properly thought to be self-insurance,”

id. ¶ 37 (citing Doc. [58-13] at 3-4); that the City pays a premium to the PFPC; id. ¶¶ 38, 39

(citing Docs. [58-13] at 2, [58-14] at 32); the City’s 2019 Annual Operating Report, which

defines the PFPC as providing “general protection from judgments rendered against the City,” id.

¶ 40 (citing Doc. [58-14] at 32); the City’s website stating that the PFPC is the City’s self-

insurance program, id. ¶ 41 (citing Doc. [58-15]); and, finally, the statements of City Budget

Director Paul Payne noting that the PFPC is the City’s self-insurance fund, and that the City

budgets for judgments against them by their contributions to the fund, id. ¶ 42 (citing Doc. [58-

16] at 6).

Plaintiff asks this Court to decide whether the City’s relationship with the PFCP, whereby

funds paid by the City to PFPC are allegedly used to pay tort judgments against the City and its

employees, constitutes a “duly adopted” self-insurance plan sufficient to effect a waiver of

sovereign immunity under Mo. Rev. Stat. § 537.610.1. This Court has repeatedly found similar

allegations sufficient to survive motions to dismiss. Morgan-Tyra v. City of St. Louis, 2019 WL

5597094, at *8 (E.D. Mo. Oct. 30, 2019) (citing Aldridge v. City of St. Louis, Missouri, 2019 WL

1695982, at *13 (E.D. Mo. Apr. 17, 2019); Fortenberry v. City of St. Louis, 2019 WL 1242671,

at *7 (E.D. Mo. Mar. 18, 2019)) (“The [Court] agrees with the other judges in this District who

have held that similar allegations of PFPC insurance or self-insurance are sufficient at this stage

to plead an exception to sovereign immunity under § 537.610.1.”). But the issue is now before

the Court on summary judgment. Therefore, the Court must determine whether Plaintiff has

adduced sufficient evidence for the Court to find, as a matter of law, that the City’s relationship

with the PFPC effects a waiver of its sovereign immunity as to Plaintiff’s claim. See Kreutz v.

Curators of Univ. of Missouri., 363 S.W.3d 61, 63-64 (Mo. Ct. App. 2011) (“Whether sovereign

immunity applies to a defendant is . . . a question of law.”).

Previously, this Court has declined to answer this question in the interest of comity, as

Missouri appellate courts had “not addressed this issue nor [had] they interpreted the relevant

statutes as they relate to the City’s participation in the PFPC program.” Laney v. City of St.

Louis, 2021 WL 4439252, at * 11 (E.D. Mo. Sept. 28, 2021) (appeal pending) (declining to

exercise supplemental jurisdiction over state law claims where the issue was one of first

impression under Missouri law). On November 9, 2021, however, the Missouri Court of

Appeals addressed the issue in Hendrix v. City of St. Louis, 636 S.W.3d at 899-901.11

Ms. Hendrix made the same argument as Ms. Washington: “[T]he city waived sovereign

immunity by duly adopting self-insurance or liability insurance through the PFPC.” Id. at 889.

The City submitted affidavits stating that it had not purchased liability insurance to cover torts,

personal injuries, or any other clams that do not arise from either dangerous property conditions

or the operation of motor vehicles, nor did it have any record of any contract entered between the

City and the PFPC or an ordinance duly enacted by the Board of Alderman to adopt a self-

insurance plan providing liability coverage for the plaintiff’s claims. Id. at 900-01. In response,

the plaintiff produced “the PFPC’s articles of incorporation, its bylaws, a document entitled

‘City of St. Louis Risk Management Program,’ a screenshot from the City’s website referring to

the PFPC as ‘the city’s self-insurance program,’ and a letter from City Counselor Julian Bush to

a City Alderwoman, stating that the PFPC's purpose is to ‘insure the City against all claims’ and

that it can ‘be properly thought to be self-insurance.’” Id. at 901.

On that record, the Missouri Court of Appeals determined that the plaintiff had not

produced sufficient evidence to overcome the City’s showing supporting summary judgment on

the basis of sovereign immunity. Id. In particular, the court held that plaintiff did not provide

11 The Missouri Court of Appeals issued its decision in Hendrix after the parties’ Motion for Summary

Judgment was fully briefed, but Defendant filed a Motion for Leave to File Notice of Supplemental

Authority addressing the Hendrix decision, to which Plaintiff responded. See Docs. [71], [72].

“any evidence . . . showing that the City does have insurance covering her specific claim.” Id.

The court went on to discuss that the City Counselor’s letter was not persuasive, as it merely

reflected his opinion, and the founding documents “fail to show that the City either has liability

insurance or is self-insured” as to Plaintiff’s specific claims. Id.

The City argues that the evidence presented by Plaintiff here is nearly identical to that

adduced by Hendrix, and thus, the Court should—indeed, must—conclude that such evidence is

insufficient to defeat summary judgment. Doc. [71] at 2-3. Plaintiff argues that the City

overstates the holding in Hendrix, in that it did not find that the PFPC is not a program of self-

insurance as a matter of law. Doc. [74] at 2. Rather, the holding merely stated that the plaintiff

failed to produce sufficient evidence to defeat summary judgment. Id. Unlike the plaintiff in

Hendrix who submitted five exhibits, Plaintiff submitted 18. See Docs. [58-1]–[58-18]. And

Plaintiff notes that, unlike in Hendrix, she has submitted evidence that controverts the Flowers

affidavit by submitting Ms. Jackson’s affidavit in Cody v. City of St. Louis, Doc. [58] ¶ 26, which

proves that the PFPC has been regularly used to pay tort claim judgments like hers, id. ¶¶ 33-35.

In addition to disputing the scope of the Hendrix decision, the parties dispute to what

extent, if at all, the Missouri Court of Appeals’s opinion is binding on this Court. See Docs. [71]

at 2-3; [74] at 3. “The decisions of the Missouri Supreme Court as to state law are binding on

this court.” B.B. v. Cont’l Ins. Co., 8 F.3d 1288, 1291 (8th Cir. 1993). This Court is bound by

the Missouri Supreme Court’s “construction of its own law, and even where there is no case

directly on point . . . [the Court] look[s] to relevant state precedent, analogous decisions,

considered dicta, and any other reliable data to determine how the [Missouri Supreme Court]

would construe [the] law. In re W. Iowa Limestone, Inc., 538 F.3d 858, 866 (8th Cir. 2008).

And although this Court is not bound by the Missouri Court of Appeals, “state appellate court

decisions are highly persuasive and should be followed when they are the best evidence of state

law.” Baxter Int’l, Inc. v. Morris, 976 F.2d 1189, 1196 (8th Cir. 1992).

Viewing the record in the light most favorable to Plaintiff, and in light of the Missouri

Court of Appeals’s holding in Hendrix, the Court concludes that, like Hendrix, Plaintiff here has

failed to present sufficient evidence to defeat the City’s invocation of sovereign immunity.

Although Plaintiff does provide more evidence than Hendrix did, the Missouri Court of Appeals

found most significant the lack of “any evidence . . . showing that the City does have insurance

covering her specific claim. . . . The City Counselor is not the governing body of St. Louis and

the letter is not evidence that a self-insurance plan was duly adopted by the City’s governing

body . . . .” See Hendrix, 636 S.W.3d at 901. Like the City Counselor’s letter and the founding

documents, Plaintiff’s additional evidence tends to show that the PFPC is either intended to be or

has been used as a self-insurance plan. That still provides no affirmative evidence that the

governing board of St. Louis City adopted a self-insurance program to cover claims like Ms.

Washington’s, as required by Mo. Rev. Stat. § 537.610.

The Court reaches this conclusion not only in deference to the Hendrix decision as “the

best evidence of state law,” though it does regard Hendrix as such. Baxter Int’l Inc., 976 F.2d at

1196. The Court also agrees with the Missouri Court of Appeals, as a matter of statutory

interpretation, that the text of Mo. Rev. Stat. § 537.610 requires a litigant to provide evidence

that a governing body “duly adopted” a self-insurance program covering the specific claim. Id.;

see also State ex. rel Goldsworthy v. Kanatzar, 543 S.W.3d 582, 585 (Mo. banc. 2017) (“The

primary goal of statutory interpretation is to give effect to legislative intent, which is most clearly

evidenced by the plain text of the statute.”); Arkansas Times LP v. Waldrip, 988 F.3d 453, 463

(8th Cir. 2021), reh’g en banc granted, No. 19-1378 (8th Cir. June 10, 2021) (federal courts “are

bound by a state’s rules of statutory interpretation when reviewing a statute of that state”).

Section 537.610 provides that the scope of any waiver of immunity is limited to “such

amount and for such purposes provided in any self-insurance plan duly adopted by the governing

body” of the municipality. Mo. Rev. Stat. § 537.610. Section 537.610 does not define “duly” or

“adopted.” In Missouri courts, “[a] word not defined in a statute is given its ordinary meaning

pursuant to the dictionary.” Gross v. Parson, 624 S.W.3d 877, 884-85 (Mo. banc. 2021)

(quoting Bus. Aviation, LLC v. Dir. of Revenue, 579 S.W.3d 212, 218 (Mo. banc 2019)).

Webster’s Third New International Dictionary (3d ed. 2002)12 defines “duly” as “in a due

manner, time, or degree.” And under “adopt,” the same dictionary provides that when it used “of

a deliberative body,” it means “to endorse and assume official responsibility for.” See Gross,

624 S.W.3d at 885 (“The context in which a word is used determines which of the word’s

ordinary meanings the legislature intended.”). Thus, if something is “duly adopted” by a

governing body, that ordinarily means that the governing body endorsed or assumed

12 Missouri courts commonly refer to the Third Edition of Webster’s Third New International Dictionary

in construing undefined statutory terms. See, e.g., Gross, 624 S.W.3d at 886, 887; Bus. Aviation, 579

S.W.3d at 218; Brock v. Dunne, 637 S.W.3d 22, 30 (Mo. banc. 2021); Ed Napleton St. Louis Imports, Inc.

v. American Honda Motor Co., Inc., 638 S.W.3d 534, 540 (Mo. Ct. App. 2021).

responsibility for it in due manner. Those definitions do not resolve all uncertainty about the

application of § 537.610, of course. Further analysis might be required to determine what

constitutes “due” manner, for example. But none of Plaintiff's evidence about the PFPC’s

operations and the City’s use of it supports a conclusion that the Board of Alderman of the City

of St. Louis endorsed or assumed responsibility for a self-insurance plan that covers Plaintiff's

claim in any manner. Therefore, the Court cannot find a waiver of the City’s sovereign

immunity. That conclusion is especially clear given Missouri courts’ instructions that such

statutory waivers be construed “strictly” and “narrowly.” Richardson v. State Highway &

Transp. Comm’n, 863 S.W.2d 876, 880 (Mo. banc. 1993) (collecting cases); A.F. v. Hazelwood

Sch. Dist., 491 S.W.3d 628, 635 (Mo. Ct. App. 2016) (quoting Topps v. City of Country Club

Hills, 272 S.W.3d 409, 415 (Mo. Ct. App.2008)).

“The plaintiff shoulders the burden of proving the existence of an insurance policy and

that the terms of the policy cover the plaintiff's claim.” Jd. (citing Topps, 272 S.W.3d at 415).

Because Plaintiff has not carried that burden, sovereign immunity shields the City of St. Louis

from Plaintiff's Count II.

CONCLUSION

For the foregoing reasons, the Correctional Officer Defendants are not entitled to

qualified immunity as to Count I for the alleged violations of Plaintiffs Fourteenth Amendment

rights, but Defendants Glass and Carson are, and Defendant City of St. Louis 1s entitled to

summary judgment as to Count III on the basis of sovereign immunity.

Accordingly,

IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment is

GRANTED IN PART and DENIED IN PART. The Motion is denied as to Count I against

Defendants Hughes, Brandon, and Arthur; granted as to Count I against Defendants Glass and

Carson; and granted as to Count III against Defendant City of St. Louis.

A separate Judgment shall accompany this Memorandum and Order.

Dated this 31“ day of March, 2022.

het Li Ui.

SARAH E. PITLYK

UNITED STATES DISTRICT JUDGE

21