Phillips v. Pike

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

SOUTHWESTERN DIVISION

JESSIE S. PHILLIPS, )

)

Plaintiff, )

)

v. ) Case No. 3:20-CV-05015-MDH

)

ANDY PIKE, et al., )

)

Defendant. )

ORDER

Before the Court is Defendants Jennings’, Childers’, and Pooler’s Motion for Summary

Judgment. (Doc. 71). For the reasons set forth herein, the Motion is GRANTED.

BACKGROUND

This is a claim in which pro se Plaintiff seeks recovery solely under 42 U.S.C. § 1983.

(Doc. 17, ¶¶ 1, 2). Additionally, only individual capacity claims are asserted. Id. at ¶ 9. The named

Defendants are six members of the Newton County Sheriff’s Office. Id. at ¶ 8. The instant Motion

has been filed on behalf of three of them: Sheriff Chris Jennings, Deputy Joe Childers, and

Corporal Brandy Pooler (“Moving Defendants”). With regard to these Defendants, the claims

against them arise out of events beginning on August 4, 2017, at the residence Plaintiff owned

with her then-husband, Jeremey Phillips at 11088 Molly Drive in Newton County, Missouri (the

“residence”). Id. at ¶¶ 33, 42. On that day Deputy Childers responded to the residence on a civil

standby and with an Ex Parte Order of Protection which barred Plaintiff from being present.

Plaintiff was at the residence but retreated inside upon seeing Childers arrive. She then barricaded

herself inside a bathroom closet. After repeated attempts to have her voluntarily leave were

unsuccessful, the law enforcement officers present at the scene forced open the locked door leading

into the bathroom and placed Plaintiff under arrest and handcuffs were applied to her wrists. She

was transported by Childers to the Newton County Jail and processed inside by Defendant Pooler.

Deputy Childers prepared and submitted a Statement of Probable Cause and a Newton County

Judge issued an arrest warrant. Several days later Plaintiff was released from custody.

The pro se Amended Complaint appears to assert the following theories against each of the

Moving Defendants: (1) Fourth Amendment search and seizure; (2) Fourteenth Amendment Due

Process Clause claim concerning the wrongful seizure of personal property, a handgun, from

Plaintiff’s car following her arrest; (3) Fourteenth Amendment equal protection claim; (4) setting

of excessive bond; (5) the conditions of her confinement while detained at the Newton County Jail,

including being searched before admittance to the Jail’s population; (6) not being released within

24 hours of her arrest; (7) a “failure-to-protect” due process claim; (8) 42 U.S.C. § 1983 conspiracy

claim; (9) supervisory liability claim against Sheriff Jennings; and (10) unlawful use of excessive

force against Deputy Childers.

STANDARD

Summary judgment is proper where, viewing the evidence in the light most favorable to

the non-moving party, there are no genuine issues of material fact and the moving party is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(a); Reich v. ConAgra, Inc., 987 F.2d 1357, 1359

(8th Cir. 1993). “Where there is no dispute of material fact and reasonable fact finders could not

find in favor of the nonmoving party, summary judgment is appropriate.” Quinn v. St. Louis

County, 653 F.3d 745, 750 (8th Cir. 2011). Initially, the moving party bears the burden of

demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986). If the movant meets the initial step, the burden shifts to the nonmoving party to

“set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). To satisfy this burden, the nonmoving party must “do more than

simply show there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

A question of material fact is not required to be resolved conclusively in favor of the party

asserting its existence. Rather, all that is required is sufficient evidence supporting the factual

dispute that would require a jury to resolve the differing versions of truth at trial. Anderson v.

Liberty Lobby, Inc., 477 U.S. at 248-249. Further, determinations of credibility and the weight to

give evidence are the functions of the jury, not the judge. Wierman v. Casey’s General Stores, et

al., 638 F.3d 984, 993 (8th Cir. 2011).

DISCUSSION

The Court will analyze Plaintiff’s claims as to each individual Moving Defendant.

However, many of Plaintiff’s claims are barred by the doctrine of qualified immunity. Plaintiff

also generally asserts an equal protection claim against all Moving Defendants. Plaintiff finally

complains that Moving Defendants were involved in a conspiracy to arrest and confine Plaintiff.

Qualified Immunity

Government officials are entitled to qualified immunity in a § 1983 claim unless the

official’s conduct violated a clearly established constitutional or statutory right of which a

reasonable official would have known. Peterson v. Kopp, 754 F.3d 594, 598 (8th Cir. 2014).

Officials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.

Avalos v. City of Glenwood, 382 F.3d 792, 798 (8th Cir. 2004). Qualified immunity “is an

immunity from suit rather than a mere defense to liability, which is effectively lost if a case is

erroneously permitted to go to trial.” Id. Application of qualified immunity to each defendant

should be analyzed separately. S.M. v. Krigbaum, 808 F.3d 335, 340 (8th Cir. 2016) (“[t]he

doctrine of qualified immunity requires an individualized analysis of each officer’s alleged

conduct’”) quoting Walton v. Dawson, 752 F.3d 1109, 1125 (8th Cir. 2014) (emphasis in original).

Qualified immunity involves a two-step analysis: “(1) whether the facts that a plaintiff has

alleged or shown make out a violation of a constitutional right, and (2) whether the right at issue

was ‘clearly established’ at the time of defendant's alleged misconduct.” Morris v. Zefferi, 601 F.

3d 805, 809 (8th Cir. 2010) (internal quotation marks omitted). A court considering the qualified

immunity defense has discretion to consider the two-step qualified immunity analysis in the order

it deems fit. Pearson v. Callahan, 555 U.S. 223, 242 (2009). However, if the first prong of the

analysis is answered in the negative, a court “need not proceed further with the qualified immunity

analysis.” Brockinton v. City of Sherwood, 503 F.3d 667, 672 (8th Cir. 2007). If the second prong

of the analysis is reached, it is important to bear in mind the law is “clearly established if it gives

the defendant official ‘fair warning’ that his conduct violated an individual’s rights when the

official acted.” McCoy v. City of Monticello, 342 F.3d 842, 846 (8th Cir. 2003).

Because Plaintiff cannot show any violation of her constitutional rights, as discussed

below, the first prong of the qualified immunity test cannot be met for any Moving Defendant.

Equal Protection Claim

In addition, Plaintiff asserts an equal protection claim against all Defendants. However,

such a claim is not viable. To state a viable equal protection claim, a plaintiff must show she was

similarly situated to others and was singled out for dissimilar treatment. City of Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 439 (1985). “Thus, the first step in an equal protection case is

determining whether the plaintiff has demonstrated that she was treated differently than others who

were similarly situated to her.” Klinger v. Department of Corrections, 31 F.3d 727, 731 (8th Cir.),

cert. denied, 513 U.S. 1185 (1995). See also Johnson v. City of Minneapolis, 152 F.3d. 859, 862

(8th Cir.) (to state equal protection claim, plaintiff must establish he was treated differently from

others similarly situated), cert. denied, 525 U.S. 1142 (1999). Here, the uncontroverted material

facts demonstrate Plaintiff cannot point to anyone in a similar situation. Plaintiff appears to be

arguing that Defendants treated her specifically differently than they would another person based

on personal reasons. This does not present an equal protection claim.

Conspiracy Claim

Plaintiff also complains defendants were involved in a conspiracy. This theory fails for

several independent reasons. First, “[t]o create a genuine issue of conspiracy, [plaintiff must] point

to at least some facts which would suggest that [defendants] ‘reached an understanding’ to violate

[his] rights.” Nelson v. City of McGehee, 876 F.2d 56, 59 (1989). “To advance past the summary

judgment stage, [plaintiff] must allege with particularity and specifically demonstrate material

facts that the defendants reached an agreement.” Reasonover v. St. Louis County, 447 F.3d 569,

582 (8th Cir. 2006). There are no facts in the record that any of the Moving Defendants had a

sufficient “meeting of the minds” to violate a constitutional right of Plaintiff.

Second, to present a viable § 1983 conspiracy claim, Plaintiff must demonstrate the

violation of a constitutional right. Askew v. Millerd, 191 F.3d 953, 957 (8th Cir. 1999). Here, as

discussed below, the record establishes plaintiff did not suffer a constitutional deprivation.

Accordingly, Plaintiff’s conspiracy claim fails.

A. Deputy Childers

Deputy Childers’ involvement in this case begins with his interaction with Plaintiff at her

residence on the day of her seizure and arrest, August 4, 2017. Childers arrived at the residence

that afternoon in a law enforcement uniform and drove up in a marked patrol car. He was there to

perform a civil standby and had an Ex Parte Order of Protection with him. That Order prohibited

Plaintiff’s presence at the residence. As soon as Plaintiff saw Deputy Childers, she ran from the

area of the garage and retreated inside the residence, ultimately barricading herself behind a closet

door in a locked bathroom. Prior to entering the residence, Childers was provided with information

that a gun in the residence could not be located. Further, after he saw her run inside, Childers asked

for and received permission from Plaintiff’s then-husband to enter the residence. After Childers

was inside, Plaintiff was repeatedly warned that if she did not voluntarily come out, she would be

arrested. She failed to comply. As a result, after the bathroom door was forced open, Plaintiff was

seized and placed in handcuffs. Deputy Childers is entitled to qualified immunity on this initial

entry and seizure claim because his conduct was objectively reasonable and did not violate clearly

established law. The initial entry was clearly permissible, because given the Ex Parte Order the

only individual with the right to be present at the residence was Jeremy Phillips, and he voluntarily

consented to the entry. United States v. Brandwein, 796 F.3d 980, 984-86 (8th Cir. 2015) (consent

to enter residence by suspect’s wife sufficient).

Further, the arrest and seizure of Plaintiff after she repeatedly failed to comply with the

orders to voluntarily come was also proper and not in violation of clearly established precedent.

“A warrantless arrest complies with the Fourth Amendment when the available facts and

circumstances are sufficient to warrant a person of reasonable caution to believe that an offense

was being or had been committed by the person to be arrested.” United States v. Houston, 548 F.3d

1151, 1154 (8th Cir. 2008). Here, Childers observed Plaintiff in the residence when the Ex Parte

Order specifically barred her presence. Further, she failed to comply with repeated commands to

exit the residence. Under these circumstances, there was at least arguable probable cause to believe

Plaintiff had violated the Ex Parte Order, resisted arrest, and interfered with the legal process by

refusing to accept the Ex Parte Order. Chevallier v. Hand, 722 F.3d 1101, 1104 (8th Cir. 2013)

(“Because the qualified immunity privilege extends to a police officer who is wrong, so long as he

is reasonable, the governing standard for a Fourth Amendment unlawful arrest claim is not

probable cause in fact but arguable probable cause ... that is, whether the officer should have known

that the arrest violated plaintiff's clearly established right”) (internal quotation marks omitted).

Plaintiff claims Childers unlawfully used excessive force when arresting her. “The question

whether an officer has used excessive force requires careful attention to the facts and circumstances

of each particular case, including 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.” Kisela v. Hughes, U.S. 138 S. Ct. 1148, 1152, 200 L.Ed.2d

449 (2018). “The reasonableness of a particular use of force must be judged from the perspective

of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” and “[t]he

calculus of reasonableness must embody allowance for the fact that police officers are often forced

to make split-second judgments - in circumstances that are tense, uncertain, and rapidly evolving

- about the amount of force that is necessary in a particular situation.” Id. (quoting Graham v.

Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). In other words, courts do

not sit in second-guessing judgment of moment-to-moment police conduct but review the conduct

for objective reasonableness in view of the facts as a whole, “without regard to [the officers']

underlying intent or motivation.” Graham, 490 U.S. at 396, 109 S.Ct. 1865 (“Not every push or

shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth

Amendment.”) (internal citations omitted).

Plaintiff admits that she began to comply with the instructions given to her by law

enforcement once she was found in her residence. She acknowledges that she was not thrown to

the ground but got on the ground under her own power. The handcuffs were not excessively tight.

Plaintiff admits that “once [Childers] put handcuffs on me and I stood up…the cuffs were loose,

and I put my arms up against the back up this way instead of down because I thought they were

going to fall off.” (Doc. 87, p. 5). Furthermore, Plaintiff testified that her transport to the Newtown

County Jail was without incident and that Childers treated her in a professional manner. Id. There

is no evidence that Childers used any unreasonable force at all, let alone force that could rise to a

constitutional deprivation.

After placing her under arrest, the only other thing Childers did on scene which Plaintiff is

critical of is to seize a handgun from her vehicle. To the extent this is a theory of recovery, it may

not be maintained under § 1983. The Due Process Clause of the 14th Amendment provides that no

state shall deprive any person of life, liberty or property without due process of law. “Procedural

due process claims require a two-step analysis. Initially, a plaintiff must demonstrate that the state

deprived him of some life, liberty, or property interest. If successful, the plaintiff must then

establish that the state deprived him of that interest without sufficient process.” Krentz v.

Robertson, 228 F.3d 897, 902 (8th Cir. 2000) (internal quotation marks omitted). “When a state

employee’s unauthorized, random acts deprive a person of property, the state employee’s acts do

not violate the procedural requirements of the due process clause of the Fourteenth Amendment if

a meaningful postdeprivation remedy for the loss is available.” Clark v. Kansas City, Mo., School

Dist., 375 F.3d 698, 702 (8th Cir. 2004). Missouri provides an adequate post-deprivation remedy

in the form of replevin. Id. at 703. Moreover, Plaintiff admits that after meeting with Sheriff

Jennings, this property was returned to her before this suit was even filed.

Plaintiff also makes allegations that question the validity of the probable cause statement

written by Deputy Childers which led to issuance of the arrest warrant. Potential § 1983 liability

in this context was addressed in Mueller v. Tinkham, 162 F.3d 999 (8th Cir. 1998). The issue in

that case was whether the officers had probable cause to seek issuance of a warrant for plaintiff’s

arrest.

Clearly established Fourth Amendment law requires a warrant application to

contain a truthful factual showing of probable cause – “truthful in the sense that the

information put forth is ‘believed or appropriately accepted by the affiant as true.’”

Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th Cir. 1994) (quoting Franks

v. Delaware, 438 U.S. 154, 165 (1978). To preclude a grant of qualified immunity,

a “warrant application [must be] so lacking in indicia of probable cause as to render

official belief in its existence unreasonable.” George v. City of St. Louis, 26 F.3d

55, 57 (8th Cir. 1994) (citing Malley v. Briggs, 475 U.S. 335, 344-45 (1986)). For

purposes of qualified immunity, “[t]he issue is not whether the affidavit actually

establishes probable cause, but rather whether the officer had an objectively

reasonable belief that it established probable cause.” Thompson v. Reuting, 968

F.2d 756, 760 (8th Cir. 1992).

Id. at 1003.

Given the uncontroverted material facts of this case—namely that Plaintiff was present in

a location forbidden by the Ex Parte order and Plaintiff’s refusal to comply with officers’ verbal

commands—the Court finds that the probable cause statement submitted by Childers was not “so

lacking in indicia of probable cause” to give rise to a viable claim.

In conclusion, Deputy Childers is immune from Plaintiff’s claims related to the entry

search of Plaintiff’s residence, Plaintiff’s arrest, the taking of Plaintiff’s firearm, and the probable

cause statement for the arrest warrant pursuant to the doctrine of qualified immunity. Plaintiff has

not shown that there was any violation of her constitutional rights.

With respect to Deputy Childers, Plaintiff also complains that her initial bond of $75,000

was excessive. It was later reduced to $5,000. Deputy Childers was responsible for writing down

the original bond amount. The long-standing practice allowed by the Newton County Circuit Court

was that initial bond amounts for probable cause arrests (as opposed to arrests made per an arrest

warrant) was for the law enforcement officers to decide the bond amount. Because this is a judicial

function delegated to these officers, judicial immunity shields Childers from liability. Hamilton v.

City of Hayti, Missouri, 948 F.3d 921, 928 (8th Cir. 2020) (concluding that clerk who exercised

authority delegated by Judge was entitled to absolute immunity “because their judgments are

functionally comparable to those of judges - that is, because they, too, exercise a discretionary

judgment as a part of their function”); John Chism Bail Bonds, Inc. v. Pennington, 411 Fed.Appx.

927, 930 (8th Cir. 2011) (“We hold quasi-judicial absolute immunity protects the sheriff and jail

administrator in their joint decision to require a sheriff’s bond before releasing Williams”).

Childers is additionally immune from the excessive bond claim.

B. Brandy Pooler

Plaintiff’s claims against Pooler revolve around her confinement in the Newton County

Jail after her arrest. They involve: (1) a strip search prior to being placed in population; (2) the

conditions of confinement; and (3) Plaintiff was not released within 24 hours after her warrantless

arrest. The Supreme Court has recognized the importance of making sure contraband is not injected

into a jail’s population. “Correctional officials have a legitimate interest, indeed a responsibility,

to ensure that jails are not made less secure by reason of what new detainees may carry in on their

bodies.” Florence v. Bd. of Chosen Freeholders of County of Burlington, 566 U.S. 318, 322 (2012).

In that case, the Court noted the Constitution would allow jailers to strip search – without

individualized suspicion – all detainees entering the jail. Id. at 330 (“The question here is whether

undoubted security imperatives involved in jail supervision override the assertion that some

detainees must be exempt from the more invasive search procedures at issue absent reasonable

suspicion of a concealed weapon or other contraband. The Court has held that deference must be

given to the officials in charge of the jail unless there is ‘substantial evidence’ demonstrating their

response to the situation is exaggerated”).

With regard to the conditions of confinement claim, Plaintiff explained in her deposition

this claim is based on her contention that she should not have been housed in a cell containing

three other people. She described the conditions as “just disgusting and crowded.” The conditions

alleged clearly to not rise to the level of a constitutional deprivation. “The Constitution does not

mandate comfortable prisons, but neither does it permit inhumane ones.” Brown v. Nix, 33 F.3d

951, 955 (8th Cir. 1994). To establish that a prisoner's conditions of confinement violate the Eighth

Amendment, the prisoner must show that (1) the alleged deprivation is, “objectively, sufficiently

serious,” resulting “in the denial of the minimal civilized measure of life's necessities,” and (2)

that the prison officials were deliberately indifferent to “an excessive risk to inmate health or

safety,” meaning that the officials actually knew of and disregarded the risk. Williams v. Delo, 49

F.3d 442, 445 (8th Cir. 1995) (citations omitted). Plaintiff’s complaints here clearly do not meet

this standard and Plaintiff has not shown that there was any violation of her constitutional rights.

Another claims to relief against Pooler is that she did not release Plaintiff from custody

within 24 hours after her arrest. “The fourth amendment requires prompt judicial determination of

probable cause as a prerequisite to an extended restraint on liberty following an arrest without a

warrant.” Wayland v. City of Springdale, 933 F.2d 668, 670 (8th Cir. 1991). “A defendant may be

detained only as long as it takes to process ‘the administrative steps incident to arrest.’” Id. (quoting

Gerstein v. Pugh, 420 U.S. 103, 114 (1975). The Supreme Court has held that “judicial

determinations of probable cause within 48 hours of arrest will, as a general matter, comply with

the promptness requirement of Gerstein.” County of Riverside v. McLaughlin, 500 U.S. 44, 56

(1991). The arrest warrant here was issued on August 5, 2017, at 3:58 p.m., just three minutes after

the initial 24 hours of Plaintiff’s arrest had passed. A constitutional violation does not exist under

these circumstances. Therefore, the Court finds that Plaintiff has not established any constitutional

violation stemming from Defendant Pooler’s actions and so Defendant Pooler is entitled to

qualified immunity.

C. Chris Jennings

Plaintiff acknowledges Sheriff Jennings was not involved in and not present at her

residence when she was arrested on August 4, 2017. In fact, the record establishes he was out of

state and did not return until the Sunday following Plaintiff’s Friday arrest. She is suing him for

“lack of leadership; moral compass in the acceptance and participation in conspired transgressions

of [his deputies]; failure to establish policies and procedures, and meaningful supervision to

appropriately guide and monitor the actions of Defendants and other law enforcement officers.”

(Doc.17, ¶ 12).

For a supervisor, such as a sheriff, to be liable for the acts of a subordinate, “something

more must be shown than merely the existence of the supervisor-subordinate relationship.” Clay

v. Conlee, 815 F.2d 1164, 1170 (8th Cir. 1987). See also Ripson v. Alles, 21 F.3d 805, 809 (8th

Cir. 1994) (same). If a supervisor is not directly involved in the constitutional deprivation,

supervisory liability for § 1983 claims can be established only with a showing of deliberate

indifference. “In section 1983 actions, supervisory liability is limited. A supervisor cannot be held

liable for an employee's unconstitutional actions based on a theory of respondeat superior. Rather,

a supervisor incurs liability for a violation of a federally protected right when the supervisor is

personally involved in the violation or when the supervisor's corrective inaction constitutes

deliberate indifference toward the violation. The supervisor must know about the conduct and

facilitate it, approve it, condone it, or turn a blind eye for fear of what [he or she] might see.”

Ottman v. City of Independence, 341 F.3d 751, 761 (8th Cir. 2003) (internal citations and quotation

marks omitted).

The uncontroverted facts of this case demonstrate summary judgment in favor of Jennings

is clearly warranted under both prongs of qualified immunity. First, the facts are that Sheriff

Jennings never received any prior complaint of similar misconduct against any of the defendants

named in this lawsuit. And without prior notice, deliberate indifference does not exist. Further, it

was certainly not clearly established law that without prior notice that corrective steps had to be

anticipated and taken. Thus, neither prong of qualified immunity has been satisfied and Sheriff

Jennings is entitled to summary judgment here.

Plaintiff also asserts there were two instances after August 4, 2017, that Sheriff Jennings

failed to provide assistance to Plaintiff. (Doc.17, ¶ 86) (alleging Jennings failed to allow a civil

standby for Plaintiff) and ¶ 91 (alleging Jennings did not assist Plaintiff in locating her children

during her scheduled visitation period). While the facts are disputed as to whether or not these

allegations are even true, in any event there is no constitutional obligation for Jennings to have

intervened in this type of a “failure-to-protect” claim. These types of claims are viable in this

Circuit in only two situations: (1) where there exists a “special relationship,” such as a custodial

setting, DeShaney v. Winnebago County Dep’t of Social Services, 489 U.S. 189, 199-200 (1989),

and; (2) where the danger was created by the state actor, the “state-created-danger” situation.

Fields v. Abbott, 652 F.3d 886, 891 (8th Cir. 2011). Neither of those situations applies to this case.

Further, what Plaintiff is essentially claiming is that Jennings should have intervened on her behalf

on both of these occasions. However, the Eighth Circuit has previously recognized the duty to

intervene is limited to situations involving excessive force. Hess v. Ables, 714 F.3d 1048, 1052

(8th Cir. 2013) (“outside of the excessive force context, there is no clearly established law

regarding a duty to intervene to prevent constitutional violations”). As a result, this theory fails

both prongs of the qualified immunity analysis and summary judgment is appropriate.

CONCLUSION

For the foregoing reasons, Defendants Jennings’, Childers’, and Pooler’s Motion for

Summary Judgment (Doc. 71) is GRANTED.

IT IS SO ORDERED.

Dated: September 7, 2021 /s/ Douglas Harpool______

DOUGLAS HARPOOL

United States District Judge