Cartia v. Beeman

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

MATTHEW CARTIA and )

AUTUMN ADAMS, )

)

Plaintiffs, )

)

v. ) No. 4:21 CV 409 DDN

)

BRADLEY BEEMAN, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This action is before the Court on defendants’ motion for summary judgment and

other pretrial motions. [Docs. 53, 74, 80, 82.] The parties have consented to the exercise

of plenary authority by the undersigned United States Magistrate Judge pursuant to 28

U.S.C. § 636(c). The Court has original subject matter jurisdiction over plaintiffs’ federal

law claims pursuant to 28 U.S.C. § 1331 (federal question) and over the Missouri state law

claims pursuant to 28 U.S.C. § 1367(a) (supplemental jurisdiction).

After hearing oral argument, and reviewing the record and the briefs, the Court

concludes that defendants are entitled to summary judgment.

I. BACKGROUND

Plaintiffs Matthew Cartia and Autumn Adams commenced this action against

defendants in the Circuit Court of Lincoln County, Missouri, asserting claims under 42

U.S.C. § 1983 and Missouri state law following their arrests on April 20, 2018. Named as

defendants are Lincoln County Sheriff’s Office Detectives Bradley Beeman, Mason

McNail, Kevin Gugliano, and Timothy Livingston; Lincoln County Jail Correctional

Officers Rebecca A. Carroll and Katie Brooks; John Cottle, Sheriff of Lincoln County; and

Lincoln County, Missouri. Plaintiffs sue all individual defendants in their individual and

official capacities. Defendants removed the action to this Court based upon the existence

of federal question jurisdiction granted by 28 U.S.C. § 1331.

In their first amended complaint (FAC) (Doc. 30) plaintiffs allege the following.

On April 20, 2018, detectives Beeman, McNail, Gugliano, and Livingston had completed

an investigation at a residence located at 2 Pico Court, Moscow Mills, Missouri. The

investigation did not involve or include plaintiffs. Matthew Cartia, who resided at 2 Pico

Court with his parents, arrived there by motor vehicle with his fiancé, Autumn Adams,

after the investigation had concluded, but while Beeman, McNail, Gugliano, and

Livingston were still present. Plaintiffs started to record the activities of the detectives

outside the home on their cell phones. Defendants ordered them to stop recording and

plaintiffs refused. When plaintiffs refused to stop recording, Beeman placed Cartia under

arrest. Plaintiffs allege that, even though Cartia did not resist arrest, Beeman and Gugliano

punched, kicked, pushed, and slammed Cartia to the ground while he was already

handcuffed and restrained. Beeman and Gugliano used their weight to cause Cartia’s

movements to be restricted and choked him despite the fact that he was already handcuffed

and posed no threat to them. Beeman, McNail, Gugliano, and Livingston then yelled

threats and derogatory statements at them.

Plaintiffs further allege that while this was occurring, Adams reached out to help

Cartia. Either Gugliano or Livingston grabbed Adams and used excessive and

unreasonable force, injuring her. While placing Cartia in a patrol car, Beeman, McNail,

Gugliano, and/or Livingston caused injury to Cartia’s head, neck and other portions of his

body. Cartia was taken to Mercy Hospital Lincoln and then to the Lincoln County Jail.

Adams was also taken to the Lincoln County Jail. There both plaintiffs were held overnight

and released the following day.

Plaintiff Cartia alleges that while detained in the Lincoln County Jail, Correctional

Officers Rebecca Carroll and Katie Brooks wrongfully detained him by placing him in a

restraint chair in response to his request for water and to use the restroom and denied him

access to both. Adams alleges she was denied use of the restroom. Both assert that when

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they asked to be provided with these items their requests were denied and that Carroll and

Brooks responded by yelling, cursing, and threatening them. Plaintiffs allege they were

wrongfully charged with the Class A misdemeanor of Resisting Arrest by the Lincoln

County Prosecuting Attorney’s Office, as the charges were later dismissed.

Claims based on federal law

Both plaintiffs assert the following federal law claims under 42 U.S.C. § 1983:

Counts 9 and 10: Use of excessive force during their arrests and seizure, against

defendants Beeman, Gugliano, McNail, Livingston, and Lincoln County, in violation the

Fourth, Fifth, and Fourteenth Amendments;

Counts 11 and 12: Malicious prosecution, against defendants Beeman, Gugliano,

McNail, Livingston, and Lincoln County, in violation of the Fourth and Fourteenth

Amendments;

Counts 15 and 16: Cruel and unusual punishment against defendants Carroll, Brooks,

and Lincoln County, in violation of the Fourth, Eighth, and Fourteenth Amendments; and

Count 20: Implementing a policy to arrest, detain, and prosecute individuals without

probable cause and to arrest individuals against whom law enforcement had used excessive

force, against defendants Lincoln County and Sheriff John Cottle, in violation of the

Fourth, Eighth, and Fourteenth Amendments.

Claims based on Missouri state law

Plaintiffs also bring the following claims based on violations of Missouri state law:

Counts 1 to 4 and 19: Assault and battery, against defendants Carroll, Brooks,

Beeman, Gugliano, and Livingston;

Counts 5 and 6: Malicious prosecution, against defendants Beeman, Gugliano,

McNail, and Livingston;

Counts 7 and 8: False arrest and false imprisonment, against defendants Beeman,

Gugliano, McNail, Livingston, and Lincoln County; and

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Counts 13, 17, and 18: Negligence and dereliction of ministerial duties against

defendants Carroll, Brooks, Beeman, Gugliano, McNail, and Livingston.

Motion for summary judgment

Defendants move for summary judgment on all counts. (Doc. 53.) They argue the

uncontroverted evidence shows that when plaintiffs did not comply with their instructions,

the defendant officers then placed them under arrest. Defendants argue plaintiffs have

proffered no evidence of malice on the part of any defendant and that plaintiffs lack the

evidence necessary to prove the elements of their alleged claims. In the alternative,

defendants contend that even if either plaintiff were able to present the requisite evidence,

their claims fail as a matter of law because each of the defendant officers is entitled to

qualified immunity from suit on plaintiffs’ federal claims, and likewise have official

immunity from suit on plaintiffs’ state law claims. Finally, they note that John Cottle, the

elected sheriff of Lincoln County, was not present at the scene of the arrests, and neither

Lincoln County nor Cottle can be held vicariously liable for the conduct of the other

defendant officers. Defendants contend both Cottle and Lincoln County are immune from

suit since neither Lincoln County nor Cottle adopted any policy or custom approving of

any allegedly unlawful conduct. In support of their motion, defendants submitted the

following evidence: plaintiffs’ own four-minute video recording of the April 20, 2018

incident; excerpts of plaintiffs’ depositions; defendants’ affidavits; and the incident report

from the search of the 2 Pico Court residence. Defendants seek the entry of judgment

against plaintiffs and the costs of the action.

Plaintiffs oppose the motion, as described more fully below, and submitted many

exhibits.

II. DISCUSSION

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment

shall be granted “if the movant shows that there is no genuine dispute as to any material

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

Eighth Circuit has stated:

On a motion for summary judgment, facts must be viewed in the light most

favorable to the nonmoving party only if there is a genuine dispute as to those

facts.... The nonmovant must do more than simply show that there is some

metaphysical doubt as to the material facts, and must come forward with

specific facts showing that there is a genuine issue for trial. 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.

Wood v. SatCom Marketing, LLC, 705 F.3d 823, 828 (8th Cir. 2013) (quoting Torgerson

v. City of Rochester, 643 F.d3d 1031, 1042 (8th Cir. 2011) (en banc)). “To clarify,

‘[a]lthough the burden of demonstrating the absence of any genuine issue of material fact

rests on the movant, a nonmovant may not rest upon mere denials or allegations, but must

instead set forth specific facts sufficient to raise a genuine issue for trial.’” Wood, id.

(quoting Wingate v. Gage Cnty. Sch. Dist., No. 34, 528 F.3d 1074, 1078-79 (8th Cir.

2008)).

PLAINTIFFS’ FEDERAL LAW CLAIMS

The Court addresses defendants’ assertion of qualified immunity from suit as a

defense to plaintiffs’ federal claims under § 1983.

Qualified Immunity

Qualified immunity protects governmental officials from civil liability if “their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

To determine whether this applies to defendants, the Court considers two questions. First,

did the respective defendant violate a constitutional right? Second, was the right clearly

established at the relevant time? Morgan v. Robinson, 920 F.3d 521, 523 (8th Cir. 2019)

(en banc). If the answer to either question is no, the qualified immunity defense prevails.

See id. (explaining that the court may answer the questions in either order). To be clearly

established, “[t]he contours of the right must be sufficiently clear that a reasonable official

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would understand that what he is doing violates that right.” Anderson v. Creighton, 483

U.S. 635, 640 (1987). “[I]n the light of pre-existing law the unlawfulness must be

apparent.” Id. Reciting an abstract right at a high level of generality will not suffice. Id. at

639-40.

Counts 9 and 10 – Excessive Use of Force Claims

In Counts 9 and 10 plaintiffs assert defendants Beeman, Gugliano, McNail,

Livingston, and Lincoln County used excessive force against them during their arrest and

seizure. “In addressing an excessive force claim under § 1983, analysis begins by

identifying the specific constitutional right allegedly infringed by the challenged

application of force.” Graham v. Connor, 490 U.S. 386, 394 (1989). “[A]ll claims that

law enforcement officers have used excessive force – deadly or not – in the course of an

arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the

Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due

process’ approach.” Id. at 395. In this case the alleged excessive use of force occurred

during the arrest and seizure of plaintiffs. Therefore, the Court analyzes plaintiffs’ claims

under the Fourth Amendment rather than the Fourteenth Amendment.

“To establish a constitutional violation under the Fourth Amendment’s right to be

free from excessive force, the test is whether the amount of force used was objectively

reasonable under the particular circumstances.” Brown v. City of Golden Valley, 574 F.3d

491, 496 (8th Cir. 2009). The Court considers the claim “from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id.

(quoting Graham, 490 U.S. at 396). “Circumstances relevant to the reasonableness of the

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.’” Id.

In this case, plaintiffs audio and video recorded their encounter with the defendant

officers, beginning the recording in their vehicle as they were driving up the street to 2 Pico

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Court, noting a large number of police vehicles and the presence of officers. At the

beginning of the recording, plaintiff Cartia made the following oral statement while driving

up to the residence:

It is April 20, Friday, at 5:54 p.m. The cops have just arrived at my parents’

house a little bit ago. They are claiming that if I go up there to record them

that I am interfering with police action. Everyone knows that’s complete

bullcrap! I have the right to move wherever I want, and I have the freedom

of speech, my First Amendment which protects me for [(unclear word)] of

peace. This is a private neighborhood and a private property inside of that

private neighborhood. Therefore, especially with them being my parents and

my address at that place . . . . [Both plaintiffs orally state that the police have

no warrant.]

(Video.1) Plaintiffs then stepped out of the vehicle, continuing to record their walking up

the driveway to the officers, Cartia loudly demanding that the officers state their badge

numbers and names, and continuing to approach the officers after being instructed to stay

back on the driveway. (Id.; Doc. 55-2, Cartia Depo. 55-56, Exh. B).

This Court must analyze the conduct of each officer separately. McReynolds v.

Schmidli, 4 F.4th 648, 655 (8th Cir. 2021) (because an officer may be held liable only for

his or her own use of excessive force, the court reviews officer's actions separately); Wilson

v. Northcutt, 441 F.3d 586, 591 (8th Cir. 2006) (liability under § 1983 is personal, and each

defendant's conduct must be independently assessed).

Detective Bradley Beeman

Plaintiff Cartia argues Detective Beeman used force which was unreasonable and

unnecessary at the time of his arrest in violation of the Fourth Amendment. He contends

Beeman used a hip toss, slamming him on his face, even though he was not resisting arrest,

had not committed a crime, and was handcuffed behind his back. He asserts Beeman

1 Both sides have submitted the audio-video recording to the Court, plaintiffs as Doc. 77-

10 and defendants as Doc. 55-1. References to this recording in this Memorandum Opinion

are stated as “Video.”

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punched and slapped him several times in the face while he was face down on the ground,

handcuffed and not resisting. Cartia asserts Beeman held him on the ground by placing his

knee in the back of his neck and that Beeman held the position even though he told him he

could not breathe.

The uncontroverted evidence, however, shows that Beeman was confronted by

Cartia, who was visibly angry and who continued to shout and approach officers after being

instructed to stand back. (Doc. 55-1; Doc. 55-2, Cartia Depo. pp. 55-56, Exh. B; Doc. 55-

4, Beeman Aff., Exh. D.) Beeman placed Cartia under arrest, and Cartia then became

more upset and shouted: “Don’t touch my girlfriend, you fuckers!” When Cartia pulled

against the handcuffs, Beeman used a hip toss to bring him to the ground as Cartia

reasonably appeared to be resisting. Beeman sustained a small laceration to his hand.

(Doc. 55-4, Beeman Aff. ¶¶ 34-36, Exh. D; Doc. 55-8, Incident Report, p. 6, Exh. H; Doc.

55-9, Use of Force Report, pp. 6, 11, Exh. I.) Cartia testified that Beeman held him down

on the ground for three or four minutes. (Doc. 55-2, Cartia Depo. p. 72, Exh. B.) Cartia

also claims that while being wrestled to the ground, Beeman slapped him in the face and

pressed down on the back of his neck. Beeman had no physical contact with plaintiff

Adams. (Doc. 55-3, Adams Depo. 39:3-8, Exh. C.)

As a matter of law, the use of force by Beeman was not excessive under the Fourth

Amendment. An officer is entitled to use force when a subject at least appears to be

resisting. Ehlers v. City of Rapid City, 846 F.3d 1002, 1011 (8th Cir. 2017). In Ehlers, the

plaintiff claimed excessive force where an arresting officer shoved the plaintiff down to

the ground, pushed his head down, and handcuffed him behind his back. Id. at 1007. The

Eighth Circuit held the takedown was not excessive because the plaintiff “at least appeared

to be resisting” and, therefore, the officer was entitled to use this force to restrain him. Id.

at 1011. Here, like in Ehlers, Cartia at least appeared to be resisting, and Beeman’s

takedown of Cartia was no more severe than the use of force at issue in Ehlers.

Accordingly, Beeman was justified in his conduct under the circumstances he encountered.

This Court may not now in hindsight second guess Beeman’s use of force during this arrest

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in light of plaintiff Cartia’s very apparent, threatening, and disruptive conduct. Id. at 1011;

see also Kohorst v. Smith, 968 F.3d 871, 877-79 (8th Cir. 2020) (affirming grant of

summary judgment; officer’s arm-bar takedown, push to the ground, and use of taser did

not constitute unreasonable use of force); Blazek v. City of Iowa City, 761 F.3d 920, 923

(8th Cir. 2014) (excessive force claim may be rejected even though plaintiff had only been

passively resisting arrest, officer “forcefully threw” plaintiff to the ground, pinned him

down, and placed his weight into the plaintiff's back before handcuffing him); cf., Karels

v. Storz, 906 F.3d 740, 745 (8th Cir. 2018) (takedowns are appropriate when officers face

noncompliant arrestees under threatening or dangerously unpredictable circumstances).

As a result, the Court concludes Beeman’s take down of Cartia did not violate a

constitutional right.

Detective Kevin Gugliano

Cartia’s excessive force claim against Detective Gugliano also fails as a matter of

law. Gugliano assisted in Cartia’s arrest by helping restrain and carry Cartia to the patrol

car to be transported to the County Jail. Cartia testified at his deposition that he called

Gugliano “a f’ing scumbag and a piece of shit cop.” (Doc. 55-2, Cartia Depo. 52:3-5, Exh.

B.) He further testified that Gugliano thrust his head against the car door while being

placed in the patrol car and choked him while holding him down inside the car. (Cartia

Depo. pp. 51-52, Exh. B.) Gugliano also assisted in placing Adams in handcuffs and

instructed her to sit down on the lawn after she reached out toward Beeman during Cartia’s

arrest. (Adams Depo. pp. 16-17, Exh. C.)

These facts, viewed in the light most favorable to plaintiffs, are insufficient to make

a submissible claim of excessive force against Gugliano. See e.g., Kelsay v. Ernst, 933

F.3d 975 (8th Cir. 2019). In Kelsay, the female plaintiff was dressed only in swimwear,

and the officer went to arrest her for attempting to interfere with another arrest. After the

officer arrived at the poolside, Kelsay began to walk away from him and towards her

daughter who was involved in a verbal altercation with a patron near the pool exit. The

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officer followed Kelsay, grabbed her arm, and instructed her “get back here." Id. at 978.

Kelsay stopped walking and turned to face the officer at which time the officer released

her arm. Kelsay told the officer that “some bitch is talking shit to my kid and I want to

know what she's saying.” Id. Kelsay turned away from the officer and continued walking

toward her daughter. Officer Ernst then grabbed Kelsay, placed her in a “bear hug,” and

threw her to the ground, breaking her clavicle. Id. The Eighth Circuit held these facts did

not establish a Fourth Amendment violation and therefore Kelsay’s excessive force claim

against the officer failed as a matter of law. Id. at 981 (stating in part, “a reasonable officer

in Ernst’s position could have believed that it was important to control the situation and to

prevent a confrontation . . . .”)

The evidentiary record proffered in this case indicates that the factual circumstances

facing Gugliano were more disruptive and threatening than those in Kelsay. And the type

and level of force alleged against Gugliano was much less severe and injurious than in

Kelsay. See also Kohorst v. Smith, 968 F.3d 871, 877-79 (8th Cir. 2020) (holding that

officer’s arm bar takedown, push to the ground, and use of taser did not constitute

unreasonable use of force).

The Court concludes that plaintiffs have failed to present evidence of a submissible

claim for excessive force against Officer Gugliano.

Detectives Mason McNail and Timothy Livingston

Plaintiffs broadly allege without providing any specific facts that Detectives McNail

and Livingston used excessive force against them. However, the evidence shows that

neither McNail nor Livingston participated in Cartia’s arrest. McNail did not touch or

injure either of the plaintiffs. (Cartia Depo. 67:22-25, 68:1-13, Exh. B; McNail Aff. ¶ 10,

Exh. G.) Livingston did not touch Cartia. At the direction of McNail, Livingston

handcuffed and detained Adams while she sat on the front lawn of the Pico Court residence.

(Doc. 55-2, Cartia Depo. 56:24-25, 57:1-6, Exh. B; Doc. 55-5, Livingston Aff. ¶ 29, Exh.

E).

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As plaintiffs have presented no evidence to suggest that either McNail or Livingston

used any force that can be deemed “excessive,” plaintiffs’ excessive force claims against

McNail and Livingston fail as a matter of law.

Qualified Immunity and Excessive Force Claims

It is established that the use of objectively unreasonable force violates the Fourth

Amendment. Boudoin v. Harsson, 962 F.3d 1034, 1039 (8th Cir. 2020). But in

determining whether a plaintiff may claim that a defendant violated a clearly established

law or right, plaintiff must do more than refer generally to such a right. “‘[C]learly

established law’ may not be defined at a ‘high level of generality.’” Id. In the Fourth

Amendment context, specificity is particularly important. Sok Kong Trustee for Map Kong

v. City of Burnsville, 960 F.3d 985, 992 (8th Cir. 2020). The Supreme Court has recognized

“that 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.” Kisela v.

Hughes, 138 S. Ct. 1148, 1152 (2018). “Use of excessive force is an area of the law in

which the result depends very much on the facts of each case, and thus police officers are

entitled to qualified immunity unless existing precedent squarely governs the specific facts

at issue.” Id. at 1153; see also Kelsay v. Ernst, 933 F.3d 975, 980 (8th Cir. 2019).

Here, plaintiffs have provided no case precedent that places the question of their

rights, in the relevant factual circumstances, demarked by a “bright line.” See Boudoin,

962 F.3d at 1039-40 (generally, a plaintiff must identify a case where an officer acting

under similar circumstances was held to have violated the Fourth Amendment); Cf. Davis

v. Hall, 375 F.3d 703, 712 (8th Cir. 2004) (“Officials are not liable for bad guesses in gray

areas; they are liable for transgressing bright lines.”). Nor can the Court find any precedent

that clearly establishes that an officer violates the Fourth Amendment ban on excessive

force when individuals, such as plaintiffs here, actively interfere with law enforcement

activity. No existing precedent “clearly established” that the conduct of any of the

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defendant officers amounted to an excessive use of force in violation of the Fourth

Amendment. Therefore, like Kelsay, each of the defendant officers is entitled to qualified

immunity on plaintiffs’ use of excessive force claims. The Court grants summary judgment

in their favor on these claims.

Counts 15 and 16 – Claims for Cruel and Unusual Punishment

It is undisputed that plaintiffs spent the night at the Lincoln County Jail, were

released the following day, and that Correctional Officers Rebecca Carroll and Katie Brooks

worked at the jail that night. Plaintiffs allege that Carroll and Brooks punished them by

depriving them of certain hygiene practices and by placing Cartia in a restraint chair at the

jail in violation of the Due Process Clause of the Fourteenth Amendment.

Cartia contends that upon his arrival at the jail, he was not aggressive, was not

violent, and was compliant with correctional officers and staff. Cartia testified that he

believed he was placed in a restraint chair solely in order to punish him and “teach [him] a

lesson.” (Doc. 55-2, Cartia Depo. at 32, Exh. B.) He argues this violated the jail’s own

policy and procedure that requires restraint chairs be used only when a detainee is violent

or aggressive.

The uncontroverted evidence reveals the following. Matthew Cartia testified at his

deposition that he was held in the restraint chair for “10 to 15 minutes.” (Docs. 55-2, 77-

11, Cartia Depo. 44-45.) Both Cartia and Adams testified that they sustained no injuries

as a result of the conduct of either Carroll or Brooks. Cartia testified at his deposition that

Carroll did not injure him in any way. (Cartia Depo., 41:11-13, Exh. B). Adams likewise

testified at her deposition that neither Carrol nor Brooks injured her in any way. (Doc. 55-3,

Adams Depo. 26:10-12, 23-25, Exh. C).

The case cited by plaintiffs, Hope v. Pelzer, 536 U.S. 730, 743-45 (2002), is not at

all analogous. In that case, the Supreme Court held that the defendant state prison officials’

act of cuffing an inmate to a hitching post outside for seven hours, while shirtless in the

hot sun, violated clearly established constitutional standards.

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Based on the above, the defendants are entitled to summary judgment on plaintiffs’

claims of cruel and unusual punishment.

Qualified Immunity

Moreover, Carroll and Brooks are entitled to qualified immunity on plaintiffs’

claims of cruel and unusual punishment. Plaintiffs have not provided "controlling

authority" or "a robust 'consensus of cases of persuasive authority'" that "placed the

statutory or constitutional question beyond debate" at the time of the alleged violation.

Ashcroft v. al-Kidd, 563 U.S. 731, at 741-42 (1999). In other words, plaintiffs have

provided no caselaw holding that detaining an arrestee overnight without certain hygiene

items or placing an arrestee in a restraint chair for ten to fifteen minutes amounts to cruel

and unusual punishment. Accordingly, Carroll and Brooks are entitled to qualified

immunity from liability on plaintiffs’ claims in Counts 15 and 16.

Counts 11 and 12 – Claims for Malicious Prosecution

Counts 11 and 12 assert claims for malicious prosecution against Beeman,

Gugliano, McNail, Livingston, and Lincoln County. These claims fail as a matter of law.

Section 1983 only provides a remedy for violations of rights expressly secured by federal

statutes or the U.S. Constitution. Kurtz v. City of Shrewsbury, 245 F.3d 753, 758 (8th Cir.

2001). The Constitution does not mention malicious prosecution nor do plaintiffs cite a

basis for a federal cause of action for malicious prosecution. Further, the Eighth Circuit

has uniformly held that malicious prosecution by itself is not cognizable under § 1983

because it does not allege a constitutional injury. Id.; see also Tech Ordinance Inc., v.

United States, 244 F.3d 641, 650 (8th Cir. 2001) (an action for malicious prosecution does

not state a claim of constitutional injury).

Even assuming arguendo the existence of such a federal cause of action, the

presence of probable cause to prosecute plaintiffs would defeat their claims. Here, the

video recording evidence before the Court establishes such probable cause. It shows

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plaintiffs intentionally interfering with ongoing law enforcement activity and resisting

arrest. See Joseph v. Allen, 712 F.3d 1222, 1228 (8th Cir. 2013) (noting that even if Kurtz

did not preclude a malicious prosecution claim, the existence of probable cause to arrest

and initiate a criminal prosecution would merit summary judgment for officers on such a

claim). Accordingly, plaintiffs’ § 1983 claims for malicious prosecution fail as a matter of

law.

Count 20 – Claim for Unconstitutional Custom or Policy

In Count 20 plaintiffs generally allege that Lincoln County and Sheriff John Cottle

had several customs and usages that rose to the level of policy and that led to the violation

of plaintiffs’ rights. In support, they note that there have been 22 civil lawsuits brought

against Lincoln County and its Sherriff’s Department for claims of excessive force,

malicious prosecution, and civil rights violations in the 10 years preceding the April 20,

2018 incident at issue here. They argue it was the actions of Sheriff Cottle and Lincoln

County that allowed these constitutional violations to occur.

Defendants argue this claim fails because plaintiffs have failed to proffer evidence

of an approved policy or custom that drove or directed the conduct alleged against the

defendants. The Court agrees.

Plaintiffs establish § 1983 municipal liability if they prove that their constitutional

rights were violated by “an ‘action pursuant to official municipal policy’ or misconduct so

pervasive among non-policymaking employees of the municipality ‘as to constitute a

custom or usage with the force of law.’” Ware v. Jackson County, 150 F.3d 873, 880 (8th

Cir. 1998). “[A]bsent a constitutional violation by a city employee, there can be no § 1983

or Monell liability for the City.” Whitney v. City of St. Louis, 887 F.3d 857, 861 (8th Cir.

2018). To show a “custom or usage,” plaintiffs must prove “(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

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officials of that misconduct; and (3) an injury by acts pursuant to the governmental entity’s

custom.” Mitchell v. Kirchmeier, 28 F.4th 888, 899-900 (8th Cir. 2022) (cleaned up).

Plaintiffs have presented no substantial evidence that Lincoln County or John Cottle

ever had an official policy that authorized the conduct plaintiffs allege against the

individual officers. Nor have plaintiffs shown that Lincoln County or John Cottle

permitted their deputy Sheriffs to regularly or customarily abuse or mistreat arrestees. To

show such, plaintiffs must present evidence of “a continuing, widespread, persistent pattern

of unconstitutional misconduct by the [deputies].” McReynolds v. Schmidli, 4 F.4th 648,

656 (8th Cir. 2021); cf. Brewington v. Keener, 902 F.3d 796, 802 (8th Cir. 2018) (holding

that two instances of excessive force are not a pattern of widespread and pervasive

conduct); Smith v. Watkins, 159 F.3d 1137, 1138 (8th Cir. 1998) (noting that two specific

complaints and various rumors about an officer were not sufficient to establish a policy or

custom of condoning unconstitutional conduct).

Therefore, defendants Lincoln County and John Cottle are entitled to summary

judgment.

PLAINTIFFS’ STATE LAW CLAIMS

Counts 1-8, 13-14, 17-18, and 19

In their FAC, plaintiffs also allege state law claims for assault and battery, malicious

prosecution, false arrest, false imprisonment, negligence, and dereliction of duty.

Defendant officers argue they are shielded from liability for plaintiffs’ state law claims by

the doctrine of official immunity. Plaintiffs counter that official immunity should be

denied because while subduing and arresting plaintiffs, the defendant officers were

performing a “ministerial” rather than a “discretionary” function.

Missouri applies the doctrine of official immunity to protect “public employees

from liability for alleged acts of negligence committed during the course of their official

duties for the performance of discretionary acts.” Southers v. City of Farmington, 263

S.W.3d 603, 610 (Mo. 2008) (en banc); Letterman v. Does, 859 F.3d 1120, 1125 (8th Cir.

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2017). “The official immunity doctrine, however, does not provide public employees

immunity for torts committed when acting in a ministerial capacity.” Southers, id. “A

discretionary act requires the exercise of reason in the adaptation of means to an end and

discretion in determining how or whether an act should be done or course pursued,” id.,

while a ministerial function “is one of a clerical nature which a public officer is required

to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate

of legal authority, without regard to his own judgment or opinion concerning the propriety

of the act to be performed.” Id. Which category an act falls into is determined “on a case-

by-case basis” considering three factors: “(1) the nature of the public employee's duties;

(2) the extent to which the act involves policymaking or exercise of professional judgment;

and (3) the consequences of not applying official immunity.” Id., Letterman v. Does, 859

F.3d at 1125-26. An act is discretionary where “there is any room whatsoever for variation

in when and how a particular task can be done.” Davis v. Buchanan Cnty. (Davis II), 11

F.4th 604, 629 (8th Cir. 2021).

“An ‘officer’s decision to use force in the performance of his duties is

discretionary.’” Boude v. City of Raymore, 855 F.3d 930, 935 (8th Cir. 2017) (applying

Missouri law); Davis v. White (Davis I), 794 F.3d 1008, 1013 (8th Cir. 2015); Seiner v.

Drenon, 304 F.3d 810, 813 (8th Cir. 2002) (applying official immunity to a case involving

state law claims of battery, assault, and excessive force); Richardson v. Sherwood, 337

S.W.3d 58, 63 (Mo. Ct. App. 2011) (citing cases applying official immunity to intentional

tort claims of false imprisonment, assault, and malicious prosecution); DaVee v. Mathis,

812 S.W.2d 816, 827 (Mo. Ct. App. 1991) (officers were entitled to official immunity on

the plaintiff's assault claim).

In order to overcome official immunity, plaintiffs must present evidence that shows

the defendant officers’ conduct was "done in bad faith or with malice." State ex rel.

Twiehaus v. Adolf, 706 S.W.2d 443, 446 (Mo. 1986); State ex rel. Alsup v. Kanatzar, 588

S.W.3d 187, 190 (Mo. 2019) (official immunity protects officials who act within the course

of their official duties and without malice). Bad faith “requires ‘a dishonest purpose, moral

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obliquity, conscious wrongdoing, [or] breach of a known duty through some ulterior

motive,’” while malice “involves actions that are ‘so reckless or wantonly and willfully in

disregard of one’s rights that a trier of fact could infer from such conduct bad faith or [an]

improper or wrongful motive.’” N.S. ex rel. Lee v. Kansas City Bd. of Police Comm’s, 35

F.4th 1111, 1115 (8th Cir. 2022) (applying Missouri law). “In Missouri, a bad-faith

allegation survives summary judgment if a plaintiff states ‘facts from which it could

reasonably be inferred that [defendant] acted in bad faith or from an improper or wrongful

motive.’” Boude, 855 F.3d at 935.

Here, the defendant officers responded to plaintiffs’ disruptive conduct by verbally

warning them to stay back and then subduing and arresting them when their warnings were

not obeyed. In their opposition, plaintiffs have failed to show this response was

“ministerial” rather than “discretionary” for purposes of official immunity. Nor have they

presented the substantial evidence that any individual defendant acted with bad faith or

malice. As a result, the Court concludes each of the defendants is entitled to official

immunity and plaintiffs’ state law claims fail as a matter of law.

Motion for Reconsideration / Motion to Strike

Plaintiffs also move for reconsideration of this Court’s November 18, 2022 and

December 15, 2022 orders denying them leave to endorse an expert and engage in

discovery out of time. [Doc. 74.] They argue that any delays in endorsing an expert were

caused by defendants’ conduct. After giving careful consideration to the motion for a third

time, the motion is denied.

In response to plaintiffs’ motion for reconsideration, defendants moved to strike

plaintiff’s expert report [Doc. 80]. The Court denies the motion as moot.

III. CONCLUSION

Based on all of the foregoing,

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IT IS HEREBY ORDERED that the motion of defendants for summary judgment

[Doc. 53] is GRANTED.

IT IS FURTHER ORDERED that the motion of plaintiffs for reconsideration

[Doc. 74] is DENIED.

IT IS FURTHER ORDERED that the motion of defendants to strike plaintiffs’

expert report [Doc. 80] is DENIED as moot.

IT IS FURTHER ORDERED that the motion of plaintiffs to compel [Doc. 82] is

DENIED as moot.

IT IS FURTHER ORDERED that the trial setting of this action is vacated.

An appropriate Judgment Order dismissing this action with prejudice is filed

herewith.

/s/ David D. Noce k

UNITED STATES MAGISTRATE JUDGE

Signed on March 7, 2023.

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