Tyree Bell v. Neukirch

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

TYREE BELL, )

)

Plaintiff, )

)

v. ) No. 4:17-CV-00695-DGK

)

PETER NEUKIRCH, et al., )

)

Defendants. )

ORDER GRANTING DEFENDANTS’ SUMMARY JUDGMENT MOTION

This case arises out of Plaintiff Tyree Bell’s arrest and detention for a crime he did not

commit. Plaintiff is suing members of the Kansas City, Missouri, Police Department (“KCPD”)

involved in his arrest, as well as KCPD Police Chief Richard Smith and the individual members

of the Missouri Board of Police Commissioners (“the Board”), for violating his Fourth and

Fourteenth Amendment rights. He claims these violations occurred because of the KCPD’s

policies, procedures, or customs and its negligent training and supervision of its officers. Now

before the Court is Defendants’ motion for summary judgment (Doc. 56). Because the officers

are entitled to qualified immunity, the motion is GRANTED.

Background

Around 4:10 p.m. on June 8, 2016, KCPD Officers Peter Neukirch and Jonathan Munyan

were dispatched to the corner of James A. Reed and 91st Terrace. A homeowner in the area (“the

calling party”) had reported three black juvenile males on the corner were playing with guns.

Seven minutes later, Munyan and Neukirch arrived near the street corner and saw three

black male juveniles talking to a few teenage girls in the front yard of a residence. As the officers

got closer, the three males turned away from the patrol car and quickly went around the street

corner. Seconds later, as the officers turned the street corner, they stopped their patrol car next to

the juveniles, who were—at this point—walking.

Immediately as the officers exited their patrol car, one of the juveniles, who was wearing

a white shirt and black shorts, turned toward the officers, grabbed his waist, and began running in

the opposite direction. While running away, he pulled a gun from his shorts and tossed it over a

fence. Munyan chased after him, yelling, “Come here! Drop the gun! Drop it! Drop it!”

While in pursuit, Munyan gave updated locations on dispatch radio. But by 4:19 p.m.,

Munyan had completely lost sight of the suspect, though he guessed on dispatch radio that the

suspect had run north. Munyan described the suspect as a “juvenile, black male, 17-18, about

5’10”, skinny, blue shorts, white t-shirt, shoulder-length dreads. He was taking his shoes off.

I’m not sure what kind of shoes he had on.”

A couple of minutes later, Munyan set up a perimeter around James A. Reed and 91st

Terrace and requested that other officers respond to assist in locating the fleeing suspect. Five

other officers, including Officer Chris Viesselman, responded to the area. None saw anyone

fitting the description of the fleeing suspect until 4:26 p.m.—approximately seven minutes after

Munyan started chasing the suspect—when Viesselman saw a black juvenile male with dreads, a

white t-shirt, and black and white-striped shorts walking near 87th Street and Blue Ridge

Boulevard. The juvenile would later be identified as Plaintiff Tyree Bell.

At first, because Plaintiff had his shoes on, Viesselman questioned Munyan on dispatch

radio about the suspect taking off his shoes. Munyan responded that he did not see the suspect

take his shoes off and could not find any shoes, so it was possible the fleeing suspect “held them

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and put them back on.” Munyan told Viesselman to conduct a pedestrian check of Plaintiff.

Viesselman got out of his car, summoned Plaintiff, and conducted a pedestrian check.

Plaintiff, who told the officer he was 6’3” and 155 pounds, fully complied with

Viesselman’s requests. When asked what he was doing in the area, Plaintiff told Viesselman he

was walking back to his house from his cousin’s. Plaintiff also gave Viesselman his home address

and his mother’s name, address, and phone number.

Viessleman explained to Plaintiff why he had detained him, noting, “You don’t seem like

you’re really out of breath after a foot chase or anything, so I don’t imagine it’s you, but you match

what he’s wearing so that’s why I gotta stop you until we check, okay? And you’re the right age,

too. He was a juvenile.” Plaintiff nevertheless remained handcuffed in front of the patrol car

while he and Viesselman waited for Officer Munyan to arrive and identify if Plaintiff and the

fleeing suspect were the same person.

While Plaintiff and Viesselman were waiting for Munyan, another officer recovered the

gun at the original scene and asked the dispatcher to run its serial number. The dispatcher found

no records for the gun.

At 4:41 p.m., Munyan arrived at 87th Street and Blue Ridge Boulevard, parked on the

opposite side of the two-lane street, within seconds identified Plaintiff as the fleeing suspect, and

radioed, “We have our party down here at 87th.” A minute later, Munyan got out of his vehicle

and walked across the street to where Plaintiff and Viesselman were waiting. Munyan told

Viesselman that he “noticed the red on his shoes when he was running and started to take them

off.”

After agreeing that the officers should transport Plaintiff back to the original scene,

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Viesselman put Plaintiff in his patrol car and headed back to the of corner James A. Reed and 91st

Terrace. While in route, Plaintiff told Viesselman that he was not the fleeing suspect.

Around 4:46 p.m., Viesselman and Plaintiff arrived back at the original scene, where

Neukirch and the two other juveniles were waiting. Unlike the fleeing suspect, the two other

juveniles had not tried to run, and Neukirch had quickly detained them. They remained

handcuffed and sat along a fence, while Plaintiff remained in the patrol car.

Viesselman exited the patrol car to talk with another officer at the scene. At the same

time, Munyan and Neukirch, along with Sergeant Luis Ortiz, reviewed patrol car video of the

fleeing suspect to “double-verify” the identification. The log file on the patrol car reported that

the officers played the video at least twice.

Around 4:50 p.m., Neukirch called and discussed the case with Detective John Mattivi,

reporting that he and Munyan saw a juvenile suspect flee from them with a gun, Munyan chased

him on foot, lost sight of him, minutes later another officer found Plaintiff who fit the fleeing

suspect’s description, and Munyan identified Plaintiff as the fleeing suspect. Neukirch also

reported to Mattivi that he, Munyan, and Ortiz reviewed the patrol car video to confirm that

Plaintiff was indeed the fleeing suspect. Based on this information, Mattivi told Neukirch to put

Plaintiff on a twenty-four-hour investigative hold and to take him to the Juvenile Justice Center

(“JJC”). He also told Neukirch to release the two other juveniles.

From 4:54 p.m. to 4:56 p.m., Munyan asked the other juveniles for information about

Plaintiff. On the patrol car video, Munyan is heard asking the juveniles, “So you don’t know

where he lives?” And then, “Jay? What’s his real name?” Though the juveniles’ response cannot

be heard, Munyan reported back to Ortiz that Plaintiff’s street name was “Jay.” He also reported

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that when he asked the juveniles, “You know we got him, right?” (referring to the fleeing suspect),

one of the juveniles responded, “Yeah, I seen you when you pulled up.” No one directly asked

either of the juveniles whether Plaintiff was the fleeing suspect. The officers also did not ask the

calling party, who lived three houses away, to confirm whether Plaintiff was the person he saw

with the gun. Around 5:00 p.m., Ortiz left the scene. He did not return or go to JJC.

Meanwhile, Neukirch went to the calling party’s house but decided against having him

come to the scene because earlier, while waiting for Plaintiff to return to the scene, the calling

party yelled at the two juveniles and threatened them. Neukirch arrived back at the scene around

5:10 p.m. and took Plaintiff’s photograph just outside the patrol car. At 5:22 p.m., Munyan played

back the patrol car video two more times.

Ten minutes later, Neukirch and Munyan, with Plaintiff, left the original scene and went to

JJC. During the approximately twenty-minute ride to JJC, Plaintiff had a calm demeanor and

indicated he knew one of the two other juveniles involved.

Once at JJC, Munyan took Plaintiff inside. Neukirch watched the patrol video again in

his car. The file log indicates the video was played back four times. Munyan and Neukirch again

assured Mattivi they had reviewed the video footage and identified Plaintiff. The officers then

wrote a report regarding Plaintiff’s arrest, and, once they were done with the report, left. They

had no further involvement with his case.

Mattivi interviewed Plaintiff after reading him his Miranda rights. Plaintiff’s mother and

aunt, along with Deputy Juvenile Officer Michael Grimes, were also present. Plaintiff told

Mattivi he walked home from school by himself, realized he had locked himself out of the house,

and therefore walked to his cousin’s house. When he arrived, no one was home, so he started

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walking back to his house by himself. That is when Viesselman stopped him.

Plaintiff denied any involvement in the crime, and his mother also insisted he was not

involved. Therefore, with Plaintiff’s consent, Mattivi took a DNA sample to compare to the DNA

found on the gun. Mattivi did not make any further investigation that night. He did not call the

other two juveniles or their parents, did not call the calling party, and did not review the patrol car

videos. Plaintiff remained in custody.

On June 9, 2016, the Juvenile Officer of Jackson County, Missouri, filed a petition with

the Family Court Division, alleging Plaintiff carried a firearm in violation of Mo. Rev. Stat.

§ 571.030 and fled from officers in violation of Mo. Rev. Stat. § 575.150. The next day, the

Jackson County Juvenile Court conducted a probable cause hearing pursuant to Rule 127.081.1

Counsel represented Plaintiff at the hearing, and the juvenile court determined probable cause

supported Plaintiff’s continued detention. Plaintiff had a second hearing on June 22, 2016, and

the juvenile court ordered Plaintiff’s continued detention and set a trial date for August 4, 2016.

During this time, Plaintiff’s mother had made frequent attempts to talk with Mattivi, and

she had repeatedly requested he review the patrol car videos and photographs to determine if

Plaintiff was in fact the fleeing suspect.

On June 29, 2016, Mattivi watched the patrol car videos from Plaintiff’s arrest for the first

time. After watching these videos, Mattivi believed that Plaintiff and the fleeing suspect were

different people because they had on different shorts and socks. He sought and received a second

and third opinion from his sergeant and the prosecutor, who agreed both with his initial

determination. Mattivi immediately released Plaintiff from detention. This civil action followed.

1 Rule 127.08 provides the procedure to be followed at a juvenile’s detention hearing.

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Standard of Review

Summary judgment is appropriate if, viewing all facts in the light most favorable to the

non-moving party, there is no genuine dispute as to any material fact and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S.

317, 322–23 (1986). The party seeking summary judgment bears the burden of showing that there

is no genuine dispute as to any material fact. Celotex Corp, 477 U.S. at 323. When a party is

asserting qualified immunity, “[t]he party asserting immunity always has the burden to establish

the relevant predicate facts, and at the summary judgment stage, the nonmoving party is given the

benefit of all reasonable inferences.” White v. McKinley, 519 F.3d 806, 813 (8th Cir. 2008).

Qualified immunity protects a police officer from liability in a 42 U.S.C. § 1983 action

unless the officer’s conduct violated a clearly established constitutional or statutory right.

Winslow v. Smith, 696 F.3d 716, 730 (8th Cir. 2012) (citing Brown v. City of Golden Valley, 574

F.3d 491, 495 (8th Cir. 2009)). Whether an officer is entitled to qualified immunity depends on

two questions: “‘(1) whether the facts shown by the plaintiff make out a violation of a

constitutional or statutory right, and (2) whether that right was clearly established at the time of

the defendant’s alleged misconduct.’” Id. at 730–31 (quoting Brown, 574 F.3d at 496). The

court may address the questions in any order, but the officer will be found immune unless both are

answered affirmatively. Id. at 731 (citation omitted).

“Qualified immunity gives government officials breathing room to make reasonable but

mistaken judgments about open legal questions.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085

(2011). “When properly applied, it protects ‘all but the plainly incompetent or those who

knowingly violate the law.’” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341(1986)). “To

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overcome qualified immunity, a plaintiff must be able to prove that ‘every reasonable official

would have understood that what he is doing violates’ a constitutional right[.]” Story v. Foote,

782 F.3d 968, 970 (8th Cir. 2015) (quoting al–Kidd, 131 S. Ct. at 2083). A right is clearly

established when “[t]he contours of the right [are] sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640

(1987).

Discussion

Plaintiff alleges he was falsely arrested and wrongfully detained for three weeks based on

misidentification. He brought this lawsuit under 42 U.S.C. § 1983, which creates a “species of

tort liability,” Imbler v. Pachtman, 424 U.S. 409, 417 (1976), for the “deprivation of any rights,

privileges, or immunities secured by the Constitution,” 42 U.S.C. § 1983. Count I alleges an

unlawful arrest and detention claim under the Fourth and Fourteenth Amendment against Officers

Neukirch and Munyan, Detective Mattivi, and Sergeant Ortiz. Count II alleges a substantive due

process wrongful arrest and detention claim under the Fourteenth Amendment against Officers

Neukirch and Munyan, Detective Mattivi, and Sergeant Ortiz. Count III alleges a negligent

training claim against the Board, Chief Smith, and Sergeant Ortiz; Count IV alleges a negligent

supervision claim against the Board, Chief Smith, and Sergeant Ortiz; and Count V alleges a

deprivation of constitutional rights directly caused by official policies, procedures, practices,

customs, and usages against the Board, Chief Smith, and Sergeant Ortiz.

I. Officers Neukirch and Munyan, Sergeant Ortiz, and Detective Mattivi are entitled to

qualified immunity on Plaintiff’s Fourth and Fourteenth Amendment wrongful

arrest claims.

Wrongful arrests implicate both the Fourth Amendment right not to be arrested without

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probable cause and the Fourteenth Amendment protection against deprivations of liberty without

due process of law. In the Eighth Circuit, the analysis for unlawful arrest claims brought under

the Fourteenth Amendment is identical to those brought under the Fourth Amendment. See

Walker v. City of Pine Bluff, 414 F.3dd 989, 992 (8th Cir. 2005); see also Cnty. of Sacramento v.

Lewis, 523 U.S. 833, 849 (1998) (holding that if a constitutional claim is covered by a specific

constitutional provision, such as the Fourth Amendment, the claim must be analyzed under that

standard, not under the rubric of substantive due process). Thus, the Court analyzes Plaintiff’s

claims under the Fourth Amendment.

A warrantless arrest is consistent with the Fourth Amendment if it is supported by probable

cause. See U.S. Const. amend. IV; United States v. Watson, 423 U.S. 411 (1976). A law

enforcement officer is entitled to qualified immunity if he has “arguable” probable cause—that is,

if he reasonably (but wrongly) believes probable cause exists. Amrine v. Brooks, 522 F.3d 823,

832 (8th Cir. 2008). The mistake must be objectively reasonable. Id.

Probable cause exists when the totality of the circumstances shows that a prudent person

would believe that the arrested has committed a crime. See Illinois v. Gates, 462 U.S. 213, 238–

39 (1983); United States v. Washington, 109 F.3d 459, 465 (8th Cir. 1997). In determining

whether an officer had probable cause, a court must “examine the events leading up to the arrest,

and then decide whether the facts, viewed from the standpoint of an objectively reasonable …

officer amount to probable cause.” Maryland v. Pringle, 540 U.S. 366, 370 (2003) (internal

quotations and citation omitted). Therefore, a court must give officers “substantial latitude in

interpreting and drawing inferences from factual circumstances.” Washington, 109 F.3d at 465.

But that latitude is not without limits. For example, “[a]n officer contemplating an arrest is not

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free to disregard plainly exculpatory evidence, even if substantial inculpatory evidence (standing

by itself) suggests that probable cause exists.” Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999).

And “law enforcement officers have a duty to conduct a reasonably thorough investigation prior

to arresting a suspect, at least in the absence of exigent circumstances.” Id.

Given the totality of the circumstances, the officers could reasonably believe probable

cause existed to arrest Plaintiff, so they are entitled to qualified immunity. Here, the fleeing

suspect and Plaintiff were physically similar: they both were black, juvenile males who had a

similar height, weight, body build, hair color, hair style, and hair length. They also both wore

unstained white t-shirts and black and red shoes. Although Plaintiff’s and the fleeing suspect’s

shorts and socks were different, the officers’ experience told them that fleeing suspects frequently

wear more than one pair of shorts or socks and will shed clothing in a foot pursuit.

Moreover, Plaintiff was the only juvenile in the area fitting the suspect’s description, and

he was found about a mile north of the original scene approximately seven minutes after the chase

began, a distance he could have covered given that he outran Munyan, who can run a six-and-a-

half-minute mile without his gear. Further, not only did Munyan and Neukirch personally observe

the fleeing suspect and Plaintiff, but they also reviewed the video evidence multiple times. Given

the similarities between the two juveniles, the officers reasonably—but wrongly—believed they

were the same person.

Hill v. California, 401 U.S. 797 (1971), is instructive. In Hill, officers had probable cause

to arrest Hill, and when they arrived at his residence to arrest him, they found a man who fit Hill’s

description and was in Hill’s home. Id. at 799-801. The man, however, identified himself as

Miller and produced identification in that name. Id. at 799. The officers, finding Miller not

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credible and believing Miller was Hill, searched the residence and arrested Miller. Id. The Court

upheld the arrest because “when the police have probable cause to arrest one party, and when they

reasonably mistake a second party for the first party, then the arrest of the second party is a valid

arrest.” Id. at 802.

So too here, the officers had probable cause to arrest the fleeing suspect, and they

reasonably mistook Plaintiff for the fleeing suspect because of the similarities between the two

juveniles and the fact that Plaintiff was found so close to the original scene. See United States v.

Oakley, 153 F.3d 696, 697 (8th Cir. 1998) (finding probable cause existed where race, height,

weight, pants, and hat matched the suspect’s description, and the suspect was found twelve blocks

from the crime scene less than an hour after the crime); Hill v. Scott, 349 F.3d 1068, 1073 (8th Cir.

2003) (finding that arrest of wrong person was not unreasonable given the remarkably similar

descriptions of the arrestee and the suspect). The arrest, therefore, is valid.

Plaintiff claims that, regardless of any inculpatory evidence, the officers ignored

exculpatory evidence and failed to conduct a “minimal further investigation,” which would have

exonerated him. Kuehl, 173 F.3d at 650 (citations omitted). He argues that had the officers

conducted a closer inspection of the patrol car video, they would have seen the differences between

him and the fleeing suspect. Namely, they would have noticed that the fleeing suspect’s shorts

were blue, while Plaintiff’s were black with a white stripe on each side, and that the juveniles were

different heights. He also claims the officers ignored other exculpatory evidence, like the fact

that it would have been unlikely for Plaintiff to have run a mile in seven minutes without losing

his breath. Finally, he argues the officers should have questioned the calling party and the two

other juveniles (or at least their mothers) to ask if Plaintiff was the fleeing suspect. Had they done

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so, Plaintiff claims he would have been exonerated.

Plaintiff relies on Kuehl, a case in which the Eighth Circuit held there was no probable

cause to arrest the defendant because the officers failed to conduct a thorough investigation and

ignored exculpatory evidence. 173 F.3d at 651. That case, however, is factually inapposite.

There, a store clerk inadvertently struck a customer with her hand. Id. at 648-49. After

arriving at the scene, an officer arrested the store clerk for assault. Id. at 649. The officer relied

solely on the customer’s account of events and refused to believe the store clerk’s version, even

though he observed a sizeable bruise over her left eye. Id. at 651. The officer also ignored a

witness’s efforts to retract her statement that the store clerk slapped the customer, and he also

failed to interview other witnesses who saw the entire altercation and thoroughly question both the

store clerk and the customer. Id.

Unlike the officer in Kuehl, here the officers investigated and considered all of the

evidence, both inculpatory and exclupatory. The officers personally observed the fleeing suspect

and did not simply rely on another’s eyewitness identification. They also reviewed the patrol car

video more than eight times. Despite the differences between the fleeing suspect’s and Plaintiff’s

shorts and socks, the officers still had probable cause because their training and experience led

them to believe the fleeing suspect could have easily shed a pair of shorts in the time gap when no

officer was near. See Hannah v. City of Overland, Mo., 795 F.2d 1385, 1290 (8th Cir. 1986)

(finding officers are entitled to rely on their training and experience).

Although the officers did not ask the two other juveniles if Plaintiff was the fleeing suspect,

the juveniles implied the officers had arrested the correct person. And even if the officers had

asked them, nothing suggests they would have told the truth or that the officers would have

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believed the juveniles over their own observations after reviewing the patrol car video. Similarly,

nothing put the officers on notice that the calling party would have been able to identify the fleeing

suspect better than the officers had.

The qualified immunity doctrine “allows officers to make reasonable errors,” Habiger v.

City of Fargo, 80 F.3d 289, 295 (8th Cir. 1996), and allows considerable room for “mistaken

judgments,” Borgman v. Kedley, 646 F.3d 518, 522 (8th Cir. 2011). Unfortunately, that is exactly

what happened in this case. Based on the totality of the circumstances, the officers acted

objectively reasonable in believing they had probable cause to arrest Plaintiff. Neukirch,

Munyan, and Ortiz are entitled to qualified immunity.

Likewise, Mattivi placed Plaintiff on an investigative hold in reliance on the information

Neukirch and Munyan provided him. Because the information provided was itself based on

probable cause, qualified immunity bars Plaintiff’s unlawful arrest claim against Mattivi as well.

United States v. Hensley, 469 U.S. 221, 231 (1985) (finding police officers are entitled to rely on

information from fellow officers, so long as that information was itself based on probable cause).

II. Officers Neukirch and Munyan, Sergeant Ortiz, and Detective Mattivi are entitled to

qualified immunity on Plaintiff’s wrongful detention claims.

A. Plaintiff’s Fourteenth Amendment claims fail.

The Fourteenth Amendment does not guarantee that only the guilty will be arrested and

detained. Rather, it protects against the deprivation of liberty without due process of law. To

establish a substantive due process violation, Plaintiff must show that the officers “intentionally

and recklessly failed to investigate, thereby shocking the conscience.” Akins v. Epperly, 588 F.3d

1178, 1184 (8th Cir. 2009) (quotations omitted). “An officer’s negligent failure to investigate

inconsistencies or other leads is insufficient to establish conscious-shocking misconduct.” Id.

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Instead, the Eighth Circuit has held that “(1) evidence that the state actor attempted to coerce or

threaten the defendant, (2) evidence that investigators purposefully ignored evidence suggesting

the defendant’s innocence, [and] (3) evidence of systematic pressure to implicate the defendant in

the face of contrary evidence” all indicate conscience-shocking behavior. Id. (quotation omitted).

“Conduct intended to injure will generally rise to the conscience-shocking level, but negligent

conduct falls beneath the threshold of constitutional due process.” Id. at 1183 (internal quotation

and citation omitted).

Neukirch, Munyan, and Ortiz were only personally involved in Plaintiff’s twenty-four-hour

investigative hold, not his three-week detention. Therefore, any claim against these Defendants

predicated on Plaintiff’s detention fails. See Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir.

1985) (finding an officer can only be liable for conduct in which he has personal involvement).

Moreover, Plaintiff’s twenty-four-hour hold was based on probable cause, and therefore does not

shock the conscience. Neukirch, Munyan, and Ortiz are entitled to judgment.

Unlike the other officers, Mattivi was personally involved in Plaintiff’s three-week

detention. Plaintiff claims that Mattivi’s failure to watch the patrol car videos for three weeks

violated his substantive due process rights. But Plaintiff has not shown that Mattivi’s conduct

was conscience-shocking. There is no evidence that Mattivi ever coerced or threatened Plaintiff

or that there was a systematic pressure to implicate him. And contrary to Plaintiff’s position,

there is also no evidence that Mattivi purposefully ignored exculpatory evidence once he became

aware of its existence.

This is not a case where Mattivi knew the videos would be exculpatory yet ignored them.

Rather, Mattivi relied on multiple assurances from Neukirch and Munyan that they reviewed the

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patrol car video and confirmed that Plaintiff was the fleeing suspect. Mattivi had no reason to

believe Plaintiff’s claims that the video was exculpatory in light of his fellow officers’ assurances.

Hensley, 469 U.S. at 231; see also United States v. Washington, 108 F.3d 459, 465 (8th Cir. 1997)

(“An officer is not required to believe the statements of a suspect.”). Rather, Mattivi believed

Plaintiff’s innocence would be determined by DNA testing, and he therefore took Plaintiff’s DNA

to compare it to the DNA evidence on the gun. In other words, Mattivi did not purposefully ignore

exculpatory evidence, but rather reasonably believed the patrol car videos would not prove

Plaintiff’s innocence.

This is also not a case where Mattivi knew Plaintiff was wrongfully detained yet held him

regardless. Once Mattivi determined the video evidence to be exculpatory, he immediately

released Plaintiff. Hence, Mattivi’s actions cannot be said to shock the conscience. Mattivi is

entitled to qualified immunity.

B. Plaintiff’s Fourth Amendment rights were not violated.

“The Fourth Amendment requires a judicial determination of probable cause as a

prerequisite to extended restraint of liberty following arrest.” Gerstein v. Pugh, 420 U.S. 103,

114 (1975). This determination must occur within forty-eight hours of the arrest. Atwater v. City

of Lago Vista, 532 U.S. 318, 364 (2001). Thus, the reasonableness of pretrial detention is based

on whether there is probable cause to hold a suspect prior to trial. Manuel v. City of Joliet, Ill.,

137 S.Ct. 911, 918 (2017).

The Supreme Court has also recognized that a state actor can be liable for wrongful

detention over protests of innocence after the passage of an unreasonable amount of time. Baker

v. McCollan, 443 U.S. 137, 145 (1979) (finding a three-day detention did not amount to a due

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process violation). This liability “depend[s] on what procedures the State affords defendants

following arrest and prior to actual trial,” and “repeated protests of innocence will after the lapse

of a certain amount of time deprive the accused of liberty ... without due process of law.” Id.

(internal quotations and citation omitted).

As the Court noted above, probable cause supported Plaintiff’s arrest. And within

forty-eight hours, the juvenile court judge held a probable cause hearing—a significant procedural

protection—before ultimately determining Plaintiff should remain detained. The court’s order

stated that “the court, receiving evidence relevant to the necessity for detention of the juvenile …

and considering the information and evidence presented at the hearing, finds detention of the above

named juvenile is required” (Doc. 56-32). Thereafter, Plaintiff was no longer detained simply on

the investigative hold but was held in custody pursuant to a court order. See, e.g., Rivera v. Cnty.

of Los Angeles, 745 F.3d 384, 391-92 (9th Cir. 2014) (finding due process was not violated when

the plaintiff had an initial hearing before a judge within a day of his arrest and then was detained

for two weeks before being released). Moreover, Plaintiff had another judicial hearing on June

22, 2016, and the judge again decided to continue to detain Plaintiff.

Under the circumstances, Plaintiff was not detained for a prolonged amount of time without

the proper procedures, and, thus, his Fourth Amendment claim fails.

III. The Board, Chief Smith, and Sergeant Ortiz are not liable in their official capacities.

Plaintiff alleges the Board, Smith, and Ortiz—acting in their official capacities—failed to

adequately train and supervise Neukirch, Munyan, and Mattivi. He also claims the KCPD’s

official policies and customs resulted in Plaintiff’s wrongful arrest and detention.

The Eighth Circuit has held that “[a] suit against a public official in his official capacity is

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actually a suit against the entity for which the official is an agent.” Elder-Keep v. Aksamit, 460

F.3d 979, 986 (8th Cir. 2006). Plaintiff’s claims against the KCPD are treated as claims against

a municipality. Gorman v. Easley, 257 F.3d 738, 743 (8th Cir. 2001). “A municipality can only

be liable for a § 1983 violation if the execution of the municipality’s official policy or custom

inflicts a constitutional injury.” Green v. Missouri, 734 F. Supp. 2d 814, 853 (E.D. Mo. 2010)

(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). To establish liability, a plaintiff

must show a constitutional violation resulted from “(1) an official policy, (2) an unofficial custom,

or (3) a deliberately indifferent failure to train or supervise.” Corwin v. City of Independence,

Mo., 829 F.3d 695, 699 (8th Cir. 2016).

As an initial matter, there can be no supervisory liability because there is no individual

liability on the underlying substantive claims. See Webb v. City of Maplewood, 889 F.3d 483,

487 (8th Cir. 2018) (“‘there must be an unconstitutional act by a municipal employee’ before a

municipality can be held liable”) (citation omitted).

Moreover, Plaintiff’s conclusory argument alleges only that the “record is rife with

evidence of awareness of and inadequate training … and poor policies, procedures, and practices”

(Doc. 71 at 101). He does not identify any official policy. Nor does he identify a pattern of

constitutional violations similar to the incident in this case, which would evidence an unofficial

custom. Plaintiff’s failure to show an official policy or a pattern of similar constitutional

violations forecloses his claim. See Ulrich v. Pope Cty., 715 F.3d 1054, 1061 (8th Cir. 2013)

(finding “an isolated incident of alleged police misconduct cannot, as a matter of law, establish a

municipal policy or custom creating liability under § 1983”).

For this same reason, the Court finds Plaintiff’s claim that KCPD failed to train or supervise

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its officers is without merit. To be liable under this theory, the failure must amount to “deliberate

indifference.” Perkins v. Hastings, 915 F.3d 512, 528 (8th Cir. 2019) (citing Connick v.

Thompson, 563 U.S. 51, 61 (2011)); Tilson v. Forrest City Police Dep’t, 28 F.3d 802, 807 (8th Cir.

1994) (“The standard of liability for failure to supervise is demonstrated deliberate indifference or

tacit authorization of the offensive acts.”) (internal quotations and citation omitted). A pattern of

similar constitutional violations by untrained or unsupervised employees is ordinarily necessary to

demonstrate a deliberate indifference. Perkins, 915 F.3d at 523. As discussed, Plaintiff has not

established a pattern of similar constitutional violations.

The Board, Smith, and Ortiz are entitled to judgment.

IV. Sergeant Ortiz is not liable in his individual capacity.

“A supervisor may be held liable if a failure to properly supervise and train the offending

employee caused a deprivation of constitutional rights.” Id. at 524 (internal quotation and citation

omitted). The plaintiff must show that the supervisor “(1) had notice of a pattern of

unconstitutional acts committed by subordinates; (2) was deliberately indifferent to or tacitly

authorized those acts; and (3) failed to take sufficient remedial action; (4) proximately causing

injury to [the plaintiff].” Brewington v. Keener, 902 F.3d 796, 803 (8th Cir. 2018) (internal

quotation marks omitted) (quoting Livers v. Schenck, 700 F.3d 340, 355 (8th Cir. 2012)). To

prove deliberate indifference, the plaintiff must show that the supervisor “had notice that the

training procedures were inadequate and likely to result in a constitutional violation.” Livers, 700

F.3d at 356.

Plaintiff claims Ortiz should have questioned Munyan about his eyewitness identification,

looked more closely at the patrol car videos, and asked other witnesses about the fleeing suspect.

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Plaintiff, however, presents no evidence that Ortiz knew of a pattern of unconstitutional acts

committed by his subordinates, much less that he was deliberately indifferent to or tacitly approved

those acts. Again, Plaintiff does not allege any other incidents of similar misconduct and does

not show an unconstitutional policy or custom. On this record, Plaintiff has failed to show a

failure to train or supervise, and Ortiz is entitled to qualified immunity.

Conclusion

This is a difficult case, and the Court is sympathetic to the difficulties Plaintiff faced during

his arrest and detention. However, under Eighth Circuit precedent, Defendants are entitled to

summary judgment. Defendants’ motion is GRANTED.

IT IS SO ORDERED.

Date: March 21, 2019 /s/ Greg Kays

GREG KAYS, JUDGE

UNITED STATES DISTRICT COURT

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