“when an officer exerts objectively reasonable force which results in the aggravation of a pre-existing injury unknown to the officer, such an injury is not sufficient to indicate excessive force”
How later courts described this case
- “when an officer exerts objectively reasonable force which results in the aggravation of a pre-existing injury unknown to the officer, such an injury is not sufficient to indicate excessive force”
- finding qualified First- Amendment right of access by public to custody cases involving the Division of Youth and Family Services
- “[W]hen the threatened enforcement effort implicates First Amendment rights, the inquiry tilts dramatically toward a finding of standing.”
- mere allegations, unsupported by specific facts or evidence beyond a nonmoving party’s own conclusions, are insufficient to withstand a motion for summary judgment
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
NORMA ROGERS, ARTHUR ROGERS, )
WILLIAM HALE, )
)
Plaintiffs, )
) Case No. 6:19-cv-03346-RK
v. )
)
DOUGLAS D GASTON, IN HIS )
INDIVIDUAL AND OFFICIAL )
CAPACITIES; BOBBY DUNCAN, )
JAMES SIGMAN, JAMES REAVES, )
GLENDA CAMPBELL, JENNIFER )
TOMASZEWSKI, PAM TRIPP, TEXAS, )
COUNTY, )
)
Defendants. )
ORDER ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
Before the Court are five motions for summary judgment filed by Defendants James
Reaves (Doc. 157); Pam Tripp (Doc. 159); Glenda Campbell, Jennifer Tomaszewski, and James
Sigman (filed jointly, Doc. 161); Robert (Bobby) Duncan (Doc. 163); and Judge Douglas Gaston
(Doc. 165). The summary judgment motions are fully briefed. (Docs. 158, 160, 162, 164, 166,
194, 205, 206, 207, 208, 209, 210.) After careful consideration, and for the reasons explained
below:
(1) Defendant Reaves’ motion for summary judgment (Doc. 157) is MOOT as to Count
IV; GRANTED as to Counts I, II, III, and V;
(2) Defendant Tripp’s motion for summary judgment (Doc. 159) is GRANTED as to
Counts I, II, III, and V;
(3) Defendant Campbell’s motion for summary judgment (Doc. 161) is MOOT as to
Counts I, II, and III; and GRANTED as to Count V;
(4) Defendant Tomaszewski’s motion for summary judgment (Doc. 161) is MOOT as to
Count IV; GRANTED as to Counts I, II, III, and V;
(5) Defendant Sigman’s motion for summary judgment (Doc. 161) is GRANTED as to
Count I, III, and V;
(6) Defendant Duncan’s motion for summary judgment (Doc. 163) is MOOT as to Counts
III and IV; and GRANTED as to Counts I, II, and V; and
(7) Defendant Gaston’s motion for summary judgment (Doc. 165) is MOOT as to Counts
III and IV; and GRANTED as to Counts I and II.
Background1
Plaintiffs Arthur and Norma Rogers and William Hale (collectively, “Plaintiffs”) bring a
cause of action against James Reaves, Pam Tripp, Glenda Campbell, Jennifer Tomaszewski, James
Sigman, and Robert Duncan in their individual capacity; Judge Douglas Gaston in his individual
and official capacity; and Texas County, Missouri, pursuant to 42 U.S.C. § 1983. Plaintiffs allege
Defendants violated their First, Fourth, and Fourteenth Amendment rights when Plaintiffs were
detained, drug tested, and held at the Texas County jail. In the Third Amended Complaint,
Plaintiffs assert the following six counts against Defendants.
Ct 1 – Fourth Amendment Claims (All Plaintiffs v. Gaston, Duncan, Sigman, Reaves,
Tomaszewski, Campbell, and Tripp) – (1) unlawful seizure [Gaston, Duncan, and
Tomaszewski]; (2) unlawful warrantless search [Gaston, Reaves, Tomaszewski,
Campbell, and Tripp]; (3) excessive force [Reaves]; (4) failure to intervene in use
of excessive force [Sigman, Reaves, Tomaszewski, and Tripp]
Ct 2 – First Amendment Claim of retaliation (All Plaintiffs v. Gaston, Duncan, Reaves,
Tomaszewski, Campbell, and Tripp)
Ct 3 – Fourteenth Amendment Claim of deliberate indifference to serious medical need
(Hale v. Gaston, Duncan, Sigman, Reaves, Tomaszewski, Campbell, and Tripp)
Ct 4 – Conspiracy (All Plaintiffs v. Gaston, Duncan, Reaves, and Tomaszewski)
Ct 5 – Fourth Amendment Claim of failure to intervene (All Plaintiffs v. Duncan, Sigman,
Reaves, Tomaszewski, Campbell, and Tripp)
Ct 6 – County Liability Claim (All Plaintiffs v. Texas County, Missouri) 2
Defendant Judge Douglas Gaston is an associate circuit court judge in Texas County,
Missouri. On June 20, 2017, Plaintiffs attended a child custody hearing before Judge Gaston. The
custody hearing concerned Arthur and Norma Rogers’ granddaughter. At the time of the hearing,
1 The following facts are taken from the parties’ statements of uncontroverted material facts. The
Court has omitted (1) properly controverted facts, (2) asserted facts that are immaterial to the resolution of
the pending motion, and (3) asserted facts that are not properly supported by admissible evidence, as well
as legal conclusions and argument presented as an assertion of fact.
2 Texas County has not yet filed any dispositive motions.
the child had been placed in the custody of the child’s father’s parents. Norma and Arthur Rogers
attended the hearing at the request of the child’s mother, their daughter. William Hale had driven
the child’s parents to court.
During the custody hearing, the child’s parents asked Judge Gaston whether Arthur and
Norma Rogers (rather than the child’s father’s parents) could have custody of the child. At some
point during the hearing, the guardian ad litem requested that anyone who wanted placement of
the child be drug tested. At the conclusion of the hearing, Judge Gaston ordered the child’s parents,
Arthur and Norma Rogers, and the child’s father’s parents to be drug tested: “And I’m going to
require all parties to be drug tested here today before you leave . . . Sheriff, will you help me carry
that out?” This order included Mr. Hale after he asked for clarification of whether he was going
to be drug tested too, telling Judge Gaston that the child had recently been living on his property.
Judge Gaston also ordered that Mr. Rogers be held in contempt for “ignor[ing] commands of the
Court and us[ing] inappropriate language after repeated warnings.” Judge Gaston sentenced him
to one day in the Texas County jail.
Defendant Robert Duncan, Judge Gaston’s bailiff, escorted Plaintiffs to the Texas County
jail. Mr. Hale did not have any conversations with Bailiff Duncan about any medications he was
taking, nor did he express difficulty walking, despite his various medical issues including diabetes
with neuropathy, and a back injury. Norma and Arthur Rogers did not have any conversation with
Bailiff Duncan about Mr. Hale’s medical conditions, either.
At the jail, Defendant James Reaves, a corrections officer, handcuffed Plaintiffs to a metal
bench in the booking area (a secure, non-public area of the jail) by their wrist or ankle. (Mr. Hale
contends that at least for some duration, he was handcuffed to the bench by both his wrist and
ankle.) Plaintiffs were restrained pursuant to a jail policy at that time that required individuals
within the secure, non-public area of the jail who were neither jail employees nor law enforcement
officers to be either (1) escorted at all times, or (2) handcuffed by the ankle or wrist to the bench.
Officer Reaves administered the drug test to Mr. Rogers and Mr. Hale by observing them
provide a urine sample. Pam Tripp, the jail supervisor, administered Mrs. Rogers’ drug test in the
same manner. After Mrs. Rogers and Mr. Hale’s drug tests reportedly came back positive, jail
staff3 obtained and reviewed their pharmacy records to check whether the positive drug tests were
3 It is not immediately clear from the summary judgment record who specifically at the jail obtained
and/or reviewed the pharmacy records.
the result of having taking medications they were prescribed. Mrs. Rogers and Mr. Hale expected
they would be able to leave after their drug tests were completed.
It is undisputed Plaintiffs were not handcuffed in the courtroom or on the way to the jail
from the courtroom, and they were only handcuffed to the bench while in the jail. Plaintiffs
remained cuffed to the bench except during lunch and to use the restroom. After the drug test
results were received for Mrs. Rogers and Mr. Hale, they were taken back up Judge Gaston’s
courtroom, after which Judge Gaston told Bailiff Duncan to take them back to the jail. Plaintiffs
testified they were handcuffed and/or detained for approximately eight hours on June 20.
While handcuffed to the bench, Mr. Hale never asked to take his shoes off or for his ankle
cuff to be removed. Mr. Rogers did not tell anyone about Mr. Hale’s medical conditions. Mr.
Hale did not have any conversations with anybody in the jail about having diabetes or neuropathy
in his legs, although he did ask jail staff to retrieve medications from his truck. After some time,
Mrs. Rogers told Supervisor Tripp that Mr. Hale had diabetes; a partial amputation of his foot; and
needed to put his foot up. Supervisor Tripp then brought Mr. Hale a chair to prop up his foot.
It is also undisputed that Defendants James Sigman, the Texas County Sheriff at the time;
Jennifer Tomaszewski, a corrections officer; Glenda Campbell, the jailer; Supervisor Tripp; and
Officer Reaves were working in the jail on June 20. It is undisputed that Jailer Campbell did not
handcuff Plaintiffs, did not observe Mrs. Rogers’ drug test, and did not pat down or take any items
from Plaintiffs. Jailer Campbell did, however, identify Plaintiffs as people she saw cuffed to the
bench at the jail on that day.
Sheriff James Sigman was the final policymaker for the jail. The Texas County jail no
longer administers drug testing.
Mr. Hale’s physician, Dr. Mark Seiden, testified in a deposition that because of his multiple
amputations and surgeries, as well as his diabetes and neuropathy, Mr. Hale is predisposed to
developing ulcers. Mr. Hale testified in a deposition that he was in pain while he was restrained
to the metal bench. Following his restraint at the jail on June 20, Mr. Hale suffered a severe
diabetic ulcer, leading to further partial amputation of his foot.
Further facts are set forth as necessary.
Procedural Posture
Defendants filed their motions for summary judgment on May 18 and 19, 2021. Before
filing a response to the summary judgment motions, Plaintiffs moved to dismiss various counts
against Jailer Campbell, Bailiff Duncan, Officer Reaves, Officer Tomaszewski, and Judge Gaston.
(Docs. 180, 181, 184, 185, 186.) The Court granted Plaintiffs’ motions to dismiss as follows:
Jailer Campbell – dismissed as to Counts I, II, and III (Doc. 182);
Bailiff Duncan – dismissed as to Counts III and IV (Doc. 183);
Officer Reaves – dismissed as to Count IV (Doc. 187);
Officer Tomaszewski – dismissed as to Count IV (Doc. 189); and
Judge Gaston – dismissed as to Counts III and IV (Doc. 188).
As a result, Judge Gaston, Bailiff Duncan, Officer Reaves, and Officer Tomaszewski’s motions
for summary judgment as to Count IV are MOOT. Furthermore, Jailer Campbell’s motion for
summary judgment as to Counts I, II, and III is MOOT. Finally, Bailiff Duncan and Judge
Gaston’s motions for summary judgment as to Count III are MOOT.
In the Third Amended Complaint, Plaintiffs seek damages against all Defendants except
Judge Gaston, against whom they seek declaratory relief. In adjudicating a previous motion to
dismiss filed by Judge Gaston regarding Plaintiff’s initial complaint, the Court dismissed, with
prejudice, Plaintiffs’ claims for declaratory relief against Judge Gaston to the extent they sought
retrospective declaratory relief. (Doc. 16 at 10); see Rogers v. Gaston, No. 6:19-03346-CV-RK,
2020 WL 1694796 (W.D. Mo. April 7, 2020). The Court held such claims for retrospective
declaratory relief are barred by the doctrine of absolute judicial immunity, finding Judge Gaston’s
decision to order Plaintiffs be drug tested was a judicial act and was not in complete absence of
his jurisdiction in the context of a child custody case before the court. See Rogers, 2020 WL
1694796, at *3-6. Ultimately, however, the Court denied Judge Gaston’s motion to dismiss
inasmuch as Plaintiffs’ claims in the initial complaint sought prospective equitable relief against
Judge Gaston. Id. at *6. To the extent Plaintiffs seek declaratory relief against Judge Gaston in
the Third Amended Complaint, the Court accordingly construes Plaintiffs’ pleading as seeking
prospective declaratory relief against Judge Gaston and in the summary judgment proceedings.
Plaintiffs do not appear to contend otherwise.4
4 The Court notes Plaintiffs appear to suggest in their summary judgment response that they also
assert a claim for prospective declaratory relief against the individual defendants in addition to Judge
Gaston. In the Third Amended Complaint, however, Plaintiffs expressly seek declaratory relief only against
Judge Gaston and “nominal, compensatory, and punitive” damages against the remaining defendants.
Moreover, Plaintiffs have sued the remaining individual defendants only in their individual capacity and
only Judge Gaston in his individual and official capacity. Equitable relief is not a valid remedy against
defendants in a § 1983 action sued in their individual capacity. Braun v. Hanson, No. 18-cv-3355
Legal Standard
The Court “shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The Court views the evidence “in the light most favorable to the nonmoving
party and giv[es] the nonmoving party the benefit of all reasonable inferences.”
Fed. Ins. Co. v. Great Am. Ins. Co., 893 F.3d 1098, 1102 (8th Cir. 2018) (citations and quotation
marks omitted). “If the record taken as a whole could not lead a rational trier of fact to find for
the nonmoving party, summary judgment should be granted.” Smith-Bunge v. Wis. Cent., Ltd.,
946 F.3d 420, 424 (8th Cir. 2019) (citation omitted).
At the summary judgment stage, the movant must “support” its motion either by “citing to
particular parts of materials in the record” or by “‘showing’ – that is, pointing out to the district
court – that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp.
v. Catrett, 477 U.S. 317, 325 (1986); Fed. R. Civ. P. 56(c)(1).
In resisting summary judgment, the nonmoving party may not rest on the allegations in its
pleadings, but must, by affidavit and other evidence, set forth specific facts showing that a genuine
issue of material fact exists. Fed. R. Civ. P. 56(c); see also Thomas v. Corwin, 483 F.3d 516, 527
(8th Cir. 2007) (mere allegations, unsupported by specific facts or evidence beyond a nonmoving
party’s own conclusions, are insufficient to withstand a motion for summary judgment). An
“adverse party may not rely merely on allegations or denials, but must set out specific facts – by
affidavits or other evidence – showing [a] genuine issue for trial.” Tweeton v. Frandrup, 287 F.
App’x 541, 541 (8th Cir. 2008) (citing Fed. R. Civ. P. 56(e)). In so doing, the nonmoving party
“cannot create sham issues of fact in an effort to defeat summary judgment.” RSBI Aerospace,
Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 402 (8th Cir. 1995) (citation omitted).
Additionally, unless specifically controverted by the nonmoving party, all facts set forth in
the statement of the movant shall be deemed admitted for the purpose of summary judgment.
WDMO LR 56.1(b)(1); see also Fed. R. Civ. P. 56(e)(2) (allowing courts to consider a fact as
undisputed when a party “fails to properly address another party’s assertion of a fact as required
(JNE/ECW), 2020 WL 1496580, at *7-8 (D. Minn. Jan. 27, 2020) (holding that the plaintiff “may only seek
injunctive relief against Defendants in their official capacities”) (collecting cases). Individual-capacity
claims under § 1983 are for damages. The Court does not therefore construe Plaintiffs’ complaint as
asserting a declaratory judgment against the remaining individual defendants and notes that Plaintiffs seek
only equitable relief (and not monetary damages) against Judge Gaston.
by Rule 56(c)”). To controvert a factual position, the nonmoving party must “refer specifically to
those portions of the record upon which [the nonmoving party] relies.” Jones v. United Parcel
Serv., Inc., 461 F.3d 982, 990 (8th Cir. 2006) (citation omitted).
Discussion
Because they are similar in nature, the Court will address Officer Reaves, Supervisor Tripp,
Jailer Campbell, Officer Tomaszewski, Sheriff Sigman, and Bailiff Duncan’s motions for
summary judgment together, and will address Judge Gaston’s motion for summary judgment
separately in Section VI, below. In ruling on Defendants’ summary judgment motions, the Court
need only address the claims that remain after Plaintiffs’ voluntary dismissal of multiple
defendants. These remaining claims include:5
Officer Reaves – Counts I, II, III, and V;
Supervisor Tripp – Counts I, II, III, and V;
Jailer Campbell – Count V;
Officer Tomaszewski – Counts I, II, III, and V;
Sheriff Sigman – Counts I, III, and V;
Bailiff Duncan – Counts I, II, and V; and
Judge Gaston – Counts I and II.
I. Absolute Quasi-Judicial Immunity
First, Officer Reaves, Supervisor Tripp, Bailiff Duncan, Jailer Campbell, Officer
Tomaszewski, and Sheriff Sigman argue that they are entitled to summary judgment under the
doctrine of absolute quasi-judicial immunity.
“Absolute quasi-judicial immunity derives from absolute judicial immunity.” Martin v.
Hendren, 127 F.3d 720, 721 (8th Cir. 1997) (citation and quotation marks omitted). It is well-
established that “[a] judge’s absolute immunity extends to public officials for ‘acts they are
specifically required to do under court order or at a judge’s direction.’” Id. (quoting Robinson v.
Freeze, 15 F.3d 107, 109 (8th Cir. 1994) (quotation marks omitted)). Stated differently: “Judicial
immunity . . . extends to others who perform functions closely associated with the judicial process.
Judges and officials who have duties that are functionally comparable to those of judges are
entitled to absolute immunity.” Simes v. Ark. Jud. Discipline & Disability Comm’n, 2012 WL
5 Count VI is not addressed in this Order because it is asserted only against Texas County, which
has not yet filed any dispositive motions.
4469264, at *6 (E.D. Ark. Sept. 27, 2012) (citations omitted). To determine whether absolute
quasi-judicial immunity applies in any given case, courts employ a “functional approach” that
focuses on the “nature of the responsibilities of the individual officer.” Id. (citations omitted).
The defendants argue their absolute quasi-judicial immunity is derived from Judge
Gaston’s order requiring the Plaintiffs to be drug tested. As noted above, in a prior order the Court
found Judge Gaston’s decision to order Plaintiffs be drug tested was a judicial act and was not in
complete absence of his jurisdiction in the context of a child custody case before the court. Rogers,
2020 WL 1694796, at *3-6. For the same reasons stated therein, the Court finds (1) Judge Gaston’s
decision to order the drug testing of Plaintiffs in the context of a child custody case is a judicial
act, and (2) such act, even if considering Plaintiffs to be mere “observers in the courtroom,” was
not in complete absence of Judge Gaston’s jurisdiction. See id. at *3-6. In other words, Judge
Gaston is entitled to absolute judicial immunity against any claims Plaintiffs may bring against
him regarding his order to drug test Plaintiffs (except for prospective equitable relief).
A. Bailiff Duncan
It is undisputed that Bailiff Duncan was instructed by Judge Gaston to help carry out his
order that Plaintiffs be drug tested. It is also undisputed that the extent of Bailiff Duncan’s personal
involvement in this matter was, at the most, escorting Plaintiffs to and from the courtroom and the
jail. In this regard, there is no question Bailiff Duncan is entitled to absolute quasi-judicial
immunity from § 1983 liability for carrying out Judge Gaston’s order that Plaintiffs be drug tested.
Cf. Hendrick v. Knoebel, No. 4-15-cv-00045-SEB-TAB, 2017 WL 1927729, at *7 (S.D. Ind. May
10, 2017) (holding that defendants were not entitled to absolute quasi-judicial immunity because
they could not rely on judge’s “off-the-record” conversation instructing them to “locate” and arrest
plaintiff because “[s]uch an order does not bear the indicia of being a valid and enforceable order
capable of conferring absolute immunity”). During the child custody hearing and in open court,
Judge Gaston ordered that Plaintiffs be drug tested and directed that Defendant Duncan, as his
courtroom bailiff, “help me carry that out.” At the time, the Texas County jail administered drug
testing. It was to this end that Bailiff Duncan escorted Plaintiffs to the Texas County jail. Bailiff
Duncan’s motion for summary judgment (Doc. 163) is GRANTED as to the remaining Counts
against him, Counts I, II, and V.
B. Officer Tomaszewski, Supervisor Tripp, Officer Reaves, and Sheriff Sigman
Defendants Tomaszewski, Tripp, Reaves, and Sigman also argue they are entitled to
absolute quasi-judicial immunity. At a minimum, however, there is at least a disputed question of
fact whether these defendants knew they were acting under Judge Gaston’s direct order. Indeed,
it remains a question of fact in this case whether it would have had to be a judge who ordered
Plaintiffs to be drug tested (in fact, Supervisor Tripp and Officer Reaves both testified at a
deposition that probation and parole officers would also order an individual to be drug tested).
Moreover, none of these Defendants have established as an uncontroverted fact that they knew
Judge Gaston ordered these specific individuals to be drug tested. These Defendants point to no
evidence in the record that establishes this material fact. Thus, the Court cannot say Officer
Tomaszewski, Supervisor Tripp, Officer Reaves, and Sheriff Sigman have satisfied their burden
on summary judgment to show they are entitled to absolute quasi-judicial immunity as to
Plaintiffs’ claims against them. Accordingly, and considering the requirement that the evidence
be viewed in a light most favorable to Plaintiffs as non-movants, the Court finds Officer
Tomaszewski, Supervisor Tripp, Officer Reaves, and Sheriff Sigman are not entitled to absolute
quasi-judicial immunity as to the drug testing of Plaintiffs.
II. Count I – Fourth Amendment
In Count I, Plaintiffs assert four specific Fourth Amendment claims.6 Specifically,
Plaintiffs assert (1) that Officer Tomaszewski7 unlawfully seized Plaintiffs without a warrant or
probable cause, taking them into custody to conduct a warrantless drug test; (2) that Officer
Reaves, Officer Tomaszewski, and Supervisor Tripp conducted an unlawful warrantless drug test;
(3) that Officer Reaves subjected Plaintiffs to excessive force in restraining them to the bench
inside the jail; and, (4) that Sheriff Sigman, Officer Tomaszewski, and Supervisor Tripp failed to
intervene in Officer Reaves’ use of excessive force.8
6 Although Jailer Campbell, Bailiff Duncan, and Judge Gaston were also charged in Count I, they
are not discussed in this section as Jailer Campbell was dismissed by Plaintiff as to Count I, Bailiff Duncan
is entitled to absolute-quasi-judicial immunity as discussed above, and Plaintiffs’ claims against Judge
Gaston are discussed in Section VI, below.
7 Plaintiffs also bring this specific claim against Judge Gaston and Bailiff Duncan. As explained
above, however, Bailiff Duncan is entitled to absolute quasi-judicial immunity. Additionally, Plaintiffs’
claims against Judge Gaston are analyzed separately, below.
8 The only allegation in the Third Amended Complaint of excessive force is that Officer Reaves
“subjected Plaintiffs to excessive force . . . when he handcuffed them by ankle and wrist to a bench and
forced them to stay seated on a hard metal bench for hours[.]” (Doc. 154 at 14, ¶ 98.) For purposes of
A. Legal Standard
1. Fourth Amendment Claims, generally
Generally, the Fourth Amendment protects against unreasonable searches and seizures.
U.S. Const. amend. IV (“the right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated”). “It is clearly
established that a warrantless arrest, unsupported by probable cause, violates the Fourth
Amendment.” Baribeau v. City of Minneapolis, 596 F.3d 465, 478 (8th Cir. 2010) (citation
omitted). Law enforcement officials detaining an individual, even briefly, can constitute a seizure
for Fourth Amendment purposes. See Brown v. Texas, 443 U.S. 47, 50 (1979) (holding that “When
officers detained appellant for the purpose of requiring him to identify himself, they performed a
seizure of his person subject to the requirements of the Fourth Amendment,” although the
reasonableness of such seizure is “less intrusive than a traditional arrest”). “Whenever a [law
enforcement officer] accosts an individual and restrains his freedom to walk away, he has ‘seized’
that person.” Terry v. Ohio, 392 U.S. 1, 16 (1968). It is clear that Plaintiffs were “seized” for
purposes of the Fourth Amendment when they were escorted from the courtroom by Defendant
Duncan and when they were delivered to the jail where they were held for around eight hours and
secured to a metal bench by handcuffs.
Additionally, the Supreme Court has held that urine drug tests are searches within the
context of the Fourth Amendment. Ferguson v. City of Charleston, 532 U.S. 67, 76 (2001); see
also Hess v. Ables, 714 F.3d 1048, 1052 (8th Cir. 2013) (noting that a urine drug test is a search
under the Fourth Amendment); Am. Fed’n of Teachers-W. Va., AFL-CIO v. Kanawha Cty. Bd. of
Educ., 592 F. Supp. 2d 883, 892 (S.D.W.V. 2009) (recognizing as “well-established,” that the
Fourth Amendment’s protections apply to “urinalysis drug testing, conducted by state actors”)
(citations omitted).
As part of the protection against unreasonable seizures, the Fourth Amendment secures a
right to be free from excessive force. Claims of excessive force are analyzed under the Fourth
Amendment’s reasonableness standard. Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th
Cir. 2009). “To establish a constitutional violation under the Fourth Amendment’s right to be free
summary judgment, it is undisputed that Officer Reaves handcuffed Plaintiffs. Plaintiffs make no allegation
in Count I that any defendant other than Officer Reaves handcuffed Plaintiffs to the bench or otherwise
restrained them. The Court construes Plaintiffs’ claim for excessive force and failure-to-intervene in Count
I, accordingly.
from excessive force, the test is whether the amount of force used was objectively reasonable under
the particular circumstances.” Id. (citations and quotation marks omitted).
Finally, it is well-established in this circuit that “an officer who fails to intervene to prevent
the unconstitutional use of excessive force by another officer may be held liable for violating the
Fourth Amendment.” Hollingsworth v. City of St. Ann, 800 F.3d 985, 991 (8th Cir. 2015) (citation
and quotation marks omitted). “To establish a failure to intervene claim, . . . the plaintiff must
show that the officer observed or had reason to know that excessive force would be or was being
used.” Id. (citation and quotation marks omitted).
2. Qualified Immunity
Defendants Sigman, Reaves, Tomaszewski, and Tripp argue they are entitled to summary
judgment on claims against them in Count I because they are entitled to qualified immunity. “The
defense of qualified immunity gives government officials engaged in discretionary activities
immunity from liability unless their conduct violates ‘clearly established statutory or constitutional
rights.’” Gorman v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). “Officials are entitled to qualified immunity only to the extent that ‘their
conduct does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.’” Hedges v. Poletis, 177 F.3d 1071, 1074 (8th Cir. 1999) (quoting
Harlow, 457 U.S. at 818). “Qualified immunity balances two important interests – the need to
hold public officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties reasonably.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009). It protects government officials from “a mistake
of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Id. (quotation
omitted). Put another way, “[q]ualified immunity gives government officials breathing room to
make reasonable but mistaken judgments and protects all but the plainly incompetent or those who
knowingly violate the law.” Stanton v. Sims, 571 U.S. 3, 6 (2013) (citation and quotation marks
omitted). “Officials are not liable for bad guesses in gray areas; they are liable for transgressing
bright lines.” Id. (quoting Davis v. Hall, 375 F.3d 703, 712 (8th Cir. 2004)) (internal quotation
marks omitted).
The Court uses a two-part test to determine whether a government official is entitled to
qualified immunity. See Branch v. Gorman, 742 F.3d 1069, 1072 (8th Cir. 2014). The first part
of this test is to determine “whether the facts alleged, construed in the light most favorable to
[Plaintiffs], established a violation of a constitutional or statutory right.” Id. The second part of
this test is to determine “whether that right was clearly established at the time of the alleged
violation, such that a reasonable officer would have known his actions were unlawful.” Id.
Generally, officers are entitled to qualified immunity if they “reasonably but mistakenly
conclude that probable cause is present.” Anderson v. Creighton, 483 U.S. 635, 641 (1987).
Qualified immunity “protect[s] all but the plainly incompetent or those who knowingly violate the
law.” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (citation and quotation marks omitted). There
is no question Plaintiffs were detained and drug tested without a warrant having issued.
Nonetheless, Officer Tomaszewski, Supervisor Tripp, Officer Reaves and Sheriff Sigman believed
they were directed by either a judge or probation and parole to drug test Plaintiffs. These facts do
not establish a violation of a constitutional or statutory right nor do these facts establish a
reasonable officer would have known his actions were unlawful.
B. Unlawful Search and Seizure
It is undisputed that Judge Gaston ordered that Plaintiffs be drug tested, that Judge Gaston
asked Bailiff Duncan to help him carry out that order, and that Bailiff Duncan escorted Plaintiffs
to the Texas County jail which, at that time, administered drug tests. It is similarly uncontroverted
that Plaintiffs were drug tested while at the jail and were detained for some period of time during
that process. Supervisor Tripp testified at a deposition that a “certified police officer, probation
officer, [and] judges” could order that an individual be drug tested. (Doc. 162-8 at 33.) Officer
Reaves similarly testified that a probation officer or judge could order a drug test. (Doc. 162-6 at
26-27.)
In a similar context, the Eighth Circuit has held that, as a matter of law, “an assisting officer
is entitled to rely on the probable cause determination of the arresting officer and may receive
qualified immunity as long as the reliance is reasonable.” Ehlers v. City of Rapid City, 846 F.3d
1002, 1010 (8th Cir. 2017) (citations omitted). Similarly, regarding unlawful searches, assisting
or subsidiary officers “ha[ve] a right to rely on the issuance of the warrant [even if no probable
cause existed in fact] unless it is shown ‘that no reasonably competent officer would have
concluded that a warrant should issue.’” Doran ex rel. Doran v. Condon, 5 F. Supp. 2d 1067, 1073
(D. Neb. 1998) (holding officers entitled to qualified immunity where reasonably competent
officers could objectively conclude the issuance of the warrant was supported by sufficient
probable cause) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Of course, an officer is not
entitled to qualified immunity “just because [an officer’s] superior told him to engage in
unconstitutional conduct.” Ortega v. City of St. Louis, 4:18 CV 1576 DDN, 2021 WL 3286703,
at *12 (E.D. Mo. Aug. 2, 2021) (slip op.). Nevertheless, “it can be objectively reasonable for one
officer to rely on an assurance of probable cause from another officer.” Id. (citing Bell v. Neukirch,
979 F.3d 594, 609 (8th Cir. 2020); Ehlers, 846 F.3d at 1010).
As applied in this case, at a minimum, it was reasonable for Officer Reaves, Supervisor
Tripp, and Officer Tomaszewski to rely on the determination by a judge, probation officer, or
certified police officer, that a drug test at the jail was warranted. In the context of a drug test as a
Fourth-Amendment search, the Fourth Amendment requires either a search warrant based on
probable cause or a “special need” that makes the warrant and probable cause requirement
impracticable. Jakubowicz v. Dittemore, No. 05-4135-CV-C-NKL, 2006 WL 2623210, at *4-5
(W.D. Mo. Sept. 12, 2006) (collecting cases). Defendants’ reliance in this case is even more
objectively reasonable where Plaintiffs were brought from the courtroom to the jail by Bailiff
Duncan. Without something more, it was objectively reasonable for Officer Reaves, Supervisor
Tripp, and Officer Tomaszewski – all of whom worked in the Texas County jail and not the court
– to rely on another’s determination that a drug test was properly warranted. Officer Reaves,
Supervisor Tripp, and Officer Tomaszewski are therefore entitled to qualified immunity as to
claims of unlawful search in Count I.
The same is true as to Count I’s claim of unlawful seizure against Officer Tomaszewski.
There is no evidence Officer Tomaszewski was involved in the decision to detain Plaintiffs for
purposes of a drug test. Without something more, it was objectively reasonable for Officer
Tomaszewski to rely on the Plaintiffs’ having been brought to the jail by Bailiff Duncan and
detained for a drug test. Officer Tomaszewski is therefore entitled to qualified immunity as to the
claim of unlawful seizure in Count I.
Therefore, Officer Reaves, Supervisor Tripp, and Officer Tomaszewski’s motions for
summary judgment are GRANTED as to Count I’s claim of unlawful search, and Officer
Tomaszewski’s motion for summary judgment is GRANTED as to Count I’s claim of unlawful
seizure.
C. Excessive force
In Count I, Plaintiffs also assert a claim of unconstitutional excessive force used against
them by Officer Reaves. Plaintiffs allege Officer Reaves used excessive force against them when
he handcuffed them to the bench in the jail. Specifically, it appears that Plaintiffs’ claim of
excessive force against Officer Reaves is that no amount of force against Plaintiffs was reasonable
because there was no probable cause or other basis to seize or detain Plaintiffs. Officer Reaves
argues he is entitled to qualified immunity because he did not apply excessive force against
Plaintiffs in handcuffing them to the bench.
Claims of excessive force are analyzed in the context of the Fourth Amendment’s
reasonableness standard. Henderson v. Munn, 439 F.3d 497, 502 (8th Cir. 2006). The
reasonableness standard under the Fourth Amendment requires “a careful balancing of the nature
and quality of the intrusion on the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396 (1989)
(citation and quotation marks omitted). As the Supreme Court has instructed, “[T]he
‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether
the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting
them, without regard to their underlying intent or motivation.” Id. at 397 (citations omitted).
Although Plaintiffs do not otherwise bring a claim of unlawful seizure against Officer
Reaves, it is clear that had they done so, Officer Reaves would be entitled to qualified immunity
for the same reason as Officer Tomaszewski: it would have been objectively reasonable to detain
Plaintiffs when they were brought to the jail for a drug test by Bailiff Duncan and Plaintiffs were
held in a non-public, secure area of the jail. Plaintiffs’ claim of excessive force against Officer
Reaves must be considered in this context.
Officer Reaves argues he is entitled to qualified immunity because none of the Plaintiffs
have established that he used excessive force in handcuffing them to the metal bench. Officer
Reaves argues first that Arthur and Norma Rogers do not claim to have suffered any injuries as a
result of being handcuffed and that, as a result, they do not have an excessive force claim.
Officer Reaves relies on Stepnes v. Ritschel, 663 F.3d 952 (8th Cir. 2011), in which the
Eighth Circuit affirmed a district court decision granting summary judgment on a claim of
excessive force based on a theory that the plaintiffs suffered only de minimis injury:
We turn next to Stepnes’s contention that Sergeant Ritschel used excessive
force when conducting the May 28 arrest by placing handcuffs so tightly that he
suffered bruising, numbness, and soreness. The district court determined that these
injuries were de minimis and thus could not give rise to an excessive force claim.
Stepnes correctly noted at oral argument that we have recently rejected the
contention that the presence of only de minimis injury forecloses an excessive force
claim. Chambers, 641 F.3d at 906. In the handcuff context, however, Chambers
simply reaffirmed our previous holdings that “[f]or the application of handcuffs to
amount to excessive force, there must be something beyond minor injuries.” Id. at
907 (quoting Hanig v. Lee, 415 F.3d 822, 824 (8th Cir. 2005)). Stepnes has
produced no evidence that he suffered anything beyond minor injuries due to the
handcuffing and thus cannot demonstrate a Fourth Amendment violation.
Id. at 961. Officer Reaves argues that a claim of excessive force must rest on “something that is
beyond minor injuries.” (Doc. 207 at 6.) The Eighth Circuit recently explained, however, that
lack of a de minimis injury does not, by itself, preclude an excessive force claim:
Officer Marzolf argues that a claim for excessive force requires more than
a de minimis injury. Not so. We “held in Chambers v. Pennycook, 641 F.3d 898
(8th Cir. 2011), that it is possible for the use of excessive force to result only in a
de minimis injury. But we explained that the ‘degree of injury’ is still ‘certainly
relevant insofar as it tends to show the amount and type of force used.’” Robinson
v. Hawkins, 937 F.3d 1128, 1136 n.3 (8th Cir. 2019) (cleaned up) (quoting
Chambers, 641 F.3d at 906). So, in our circuit, the degree of injury is relevant to
the excessive-force inquiry, but there is no minimum-injury requirement.
Pollreis v. Marzolf, __ F.4th __, 2021 WL 3610875, at *7 n.4 (8th Cir. Aug. 16, 2021).
While Arthur and Norma Rogers assert in their complaint that they experienced pain and
numbness while handcuffed on the bench, Plaintiffs do not attempt to support this assertion on
summary judgment. And it appears such contention would be wholly without support in the
record. Arthur and Norma Rogers’ argument simply appears to be that no amount of force was
reasonable because there was no probable cause to support their arrest or the use of handcuffs.
But, as explained above, it was objectively reasonable for the jailers to rely on Plaintiffs’ having
been brought to the jail by a courtroom bailiff to undergo a drug test. And in this case, it does not
appear that Arthur and Norma Rogers suffered any injury whatsoever.
Nevertheless, the inquiry here is whether the use of force was “objectively reasonable.”
There is no evidence Arthur and Norma Rogers suffered any injury, de minimis or otherwise, from
being handcuffed. Moreover, to the extent Arthur and Norma Rogers argue it was not reasonable
for Officer Reaves to use more than de minimis force against them, there is simply no allegation
or facts in the summary judgment record that Officer Reaves did in fact use anything more than de
minimis force against them.9 See Shannon v. Koehler, 616 F.3d 855, 863-65 (8th Cir. 2010)
9 Potential relief for any constitutional violation Plaintiffs may have suffered in this regard is more
properly sought (as they have done) against Texas County itself. Plaintiffs’ claim is that the act of being
handcuffed itself (without regard to the amount of force used to do so) was unconstitutional. This is really
(holding an officer not entitled to qualified immunity where, assuming plaintiff’s version of the
facts were true such that it was not objectively reasonable for the officer to use more than de
minimis force and the officer caused a partially collapsed lung, multiple fractured ribs, a head
laceration, and various contusions).
In contrast to Arthur and Norma Rogers, Mr. Hale testified that he was in pain while
restrained to the bench. Mr. Hale’s claim of excessive force is based, in part, on the undisputed
fact he later developed an ulcer on his partially amputated foot resulting in further amputation.
Mr. Hale argues the ulcer was caused by his being restrained to the bench in the manner and for
the duration as he was on June 20. Officer Reaves argues Mr. Hale’s restraint was reasonable and
thus was not excessive force. The evidence, in a light most favorable to Mr. Hale, shows that
Officer Reaves handcuffed Mr. Hale so that he was seated on the bench for several hours. Mr.
Hale was secured to the bench by his ankle for at least some portion of the time. Mr. Hale’s
treating physician later testified because of his prior medical and surgical history including
amputation and diagnosis of diabetes and neuropathy, having his foot in an abnormal position with
excessive pressure makes him predisposed to developing ulcers. (Doc. 194-18 at 34-35, 39.)
“What would ordinarily be considered reasonable force does not become excessive force
when the force aggravates (however severely) a pre-existing condition the extent of which was
unknown to the officer at the time.” Rodriguez v. Farell, 280 F.3d 1341, 1353 (11th Cir. 2002)
(citation omitted). Generally, courts in Missouri have found no excessive force where pre-existing
condition was not objectively manifested or known to the officer. See Copeland v. Locke, 613
F.3d 875, 882 (8th Cir. 2010) (“when an officer exerts objectively reasonable force which results
in the aggravation of a pre-existing injury unknown to the officer, such an injury is not sufficient
to indicate excessive force”) (citing Cavataio v. City of Bella Villa, 570 F.3d 1015, 1020 (8th Cir.
2009)); Minor v. City of Chesterfield, Mo., No. 4:05CV00586 ERW, 2007 WL 1610507, at *5-6
(E.D. Mo. 2007) (holding officer was reasonable in handcuffing plaintiff despite plaintiff’s
warning he had had back surgery because “Plaintiff did not display any objective indicia of injury
to alert Officer Barron that handcuffing Plaintiff beyond his back may aggravate his pre-existing
injuries,” and plaintiff did not complain about back pain while he was handcuffed); cf. Guite v.
Wright, 147 F.3d 747, 750 (8th Cir. 1998) (finding genuine issue of whether force was excessive
a challenge to the constitutionality of the jail’s policy of handcuffing persons when in the non-public secure
area of the jail. At this time, this claim against Texas County remains pending.
where arresting officers held plaintiffs wrist and held him against the door when plaintiff was
wearing a sling on his left arm because he was recovering from surgery); Eason v. Anoka-Hellepin
E. Metro Narcotics & Violent Crimes Task Force, 2002 WL 1303023, at *6 (D. Minn. June 6,
2002) (finding genuine issue of fact whether officers used reasonable amount of force when
handcuffing plaintiff’s arms behind his back where plaintiff repeatedly told the officers about his
recent heart surgery and that his sternum was wired together and the officers had difficulty placing
plaintiff’s arms behind his back).
The question in this circumstance is what if anything was known to Officer Reaves when
he handcuffed Mr. Hale to the bench. See Minor, 2007 WL 1610507, at *6; Foster v. Cerro Gordo
Cty., 2016 WL 11641710, at *8 (N.D. Iowa May 10, 2016) (finding “[t]here was no objective
information known to the arresting officers that plaintiff suffered from any injury or medical
condition that would lead a reasonable officer to believe that handcuffing her behind her back
would have caused her injury”).
At most, and viewed in the light most favorable to Mr. Hale, the evidence shows at some
point Mrs. Rogers told “somebody” (she could not identify who) at the jail that Mr. Hale had
diabetes complications and needed to put his foot up; that Mr. Hale asked Officer Reaves to get
medication from his truck and, specifically asked Supervisor Tripp to get his “pain pills” from his
truck; and, finally, that the jail received a list of his prescription medications following the positive
result of his drug test. At the same time, it is undisputed that Mr. Hale did not tell anyone at the
jail – let alone Officer Reaves – about his diabetes or neuropathy, and he did not ask for his ankle
cuff be removed or to take his shoe off. Mrs. Rogers did tell Supervisor Tripp that Mr. Hale had
diabetes, a partial amputation of his foot, and needed to put his foot up, after which Supervisor
Tripp brought a chair so Mr. Hale could prop up his foot.
Asking for medication (even broadly for “pain” medication) and that his prescriptions were
identified by somebody at the jail “d[oes] not necessarily serve as objective evidence of a special
vulnerability to injury.” Brown v. FBI Fugitive Task Force Officers, 2013 WL 5954684, at *8 (D.
Minn. Nov. 7, 2013). Moreover, Mr. Hale did not tell anyone let alone Officer Reaves specifically
about his diabetes or neuropathy and did not ask for accommodation specifically related to that
diagnosis and his medical needs.
Under these facts, even when viewed in the light most favorable to Mr. Hale, qualified
immunity protects Officer Reaves from Mr. Hale’s excessive force claim. It was not clearly
established when Officer Reaves restrained Mr. Hale to the bench that doing so in the manner that
he did would exacerbate or otherwise complicate any preexisting injury or medical need. No
evidence in the summary judgment record establishes Officer Reaves had knowledge of Mr. Hale’s
preexisting injuries or medical needs or any objective manifestation of such injury or medical
needs at the time Mr. Hale was handcuffed to the bench. Mr. Hale does not raise an excessive
force claim in the manner the handcuffs were actually applied such as the tightness or that he was
restrained to the bench in an abnormal or twisted way. Therefore, Officer Reaves’ motion for
summary judgment is GRANTED as to Count I’s excessive force claim.
D. Failure to Intervene
The final claim in Count I asserts a failure-to-intervene claim against Defendants Sigman,
Tomaszewski, and Tripp. The Third Amended Complaint alleges that these Defendants failed to
intervene in Officer Reaves’ unconstitutional use of excessive force.
It is well-established that:
an officer who fails to intervene to prevent the unconstitutional use of
excessive force by another officer may be held liable for violating the Fourth
Amendment. To establish such a claim, however, a plaintiff must show . . . that the
officer observed or had reason to know that excessive force would be or was being
used.”
Hicks v. Norwood, 640 F.3d 839, 843 (8th Cir. 2011) (citation and quotation marks omitted).10
The finding that Officer Reaves is not liable for excessive force is necessarily fatal to any claim
that any defendant unconstitutionally failed to intervene as to that alleged use of unconstitutional
excessive force. See id. In other words, for the same reasons as above, Sheriff Sigman, Officer
Tomaszewski, and Supervisor Tripp are entitled to qualified immunity from suit on the claim
alleging that they failed to intervene in Officer Reaves’ use of excessive force. See Hollingsworth
v. City of St. Ann, 800 F.3d 985, 991 (8th Cir. 2015) (“[B]ecause it was not clearly established that
McCallum’s actions constituted excessive force, a reasonable officer was not on fair notice that
his failure to intervene when McCallum deployed the Taser violated Hollingsworth’s Fourth
Amendment rights.”). Sheriff Sigman, Officer Tomaszewski, and Supervisor Tripp’s motions for
summary judgment are GRANTED as to Count I’s claim alleging failure-to-intervene.
10 The Third Amended Complaint also asserts this claim in Count I against Officer Reaves.
Plaintiffs’ only claim of excessive force, however, is made against Officer Reaves. To the extent Plaintiffs
assert a failure-to-intervene claim in Count I against Officer Reaves, then, Officer Reaves is entitled to
summary judgment.
III. Count II – First Amendment Claim
In Count II, Plaintiffs assert a First Amendment claim against Defendants Reaves,
Tomaszewski, and Tripp.11 Plaintiffs allege these three Defendants violated their First
Amendment rights by unlawfully detaining, restraining, and drug testing them because they
participated as members of the public in observing court or associating with litigants before the
court.
To prevail under their First Amendment claim, Plaintiffs must show “(1) they engaged in
protected activity; (2) [Defendants] caused an injury to [Plaintiffs] that would chill a person of
ordinary firmness from continuing the activity; (3) and a causal connection between the retaliatory
animus and injury.” Quraishi v. St. Charles Cty., Mo., 986 F.3d 831, 837 (8th Cir. 2021) (citation
omitted). “A citizen’s right to exercise First Amendment freedoms without facing retaliation from
government officials is clearly established.” Id. at 838 (citation and quotation marks omitted).
Defendants argue they are protected by qualified immunity because it was not clearly
established Plaintiffs were engaging in a First-Amendment-protected activity by attending the
child custody proceeding; a civil rather than criminal proceeding.
As the Supreme Court has explained, in the context of qualified immunity:
[t]o be clearly established, a legal principle must have a sufficiently clear
foundation in then-existing precedent. The rule must be “settled law,” which means
it is dictated by “controlling authority” or “a robust consensus of cases of persuasive
authority.” It is not enough that the rule is suggested by then-existing precedent.
The precedent must be clear enough that every reasonable official would interpret
it to establish the particular rule the plaintiff seeks to apply.
D.C. v. Wesby, 138 S. Ct. 577, 589-90 (2018) (citations omitted). A right may be clearly
established “in the absence of binding precedent” upon a showing of “‘a robust consensus of
persuasive authority’ constituting settled law.” Graham v. Barnette, 5 F.4th 872, 887 (8th Cir.
2021) (quoting De La Rosa v. White, 852 F.3d 740, 745 (8th Cir. 2017)).
11 In the Third Amended Complaint, Plaintiffs also charge Judge Gaston, Bailiff Duncan, and Jailer
Campbell in Count II. They are not discussed in this section, however, because the Court will address
Plaintiffs’ claims against Judge Gaston separately in Section VI, below, Bailiff Duncan is entitled to
absolute quasi-judicial immunity as discussed above, and Jailer Campbell was dismissed by Plaintiff as to
Count II.
Defendants argue they are entitled to qualified immunity because it was not clearly
established that Plaintiffs have a First Amendment right to attend or to be present in a child custody
hearing/civil proceeding. The Court agrees.
Plaintiffs point to no controlling precedent from either the Eighth Circuit Court of Appeals
or the United States Supreme Court that clearly establishes a First Amendment right of access to
civil proceedings let alone a child custody hearing. In Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 (1980), the Supreme Court held “that the right to attend criminal trials is implicit in
the guarantees of the First Amendment.” Id. at 580 (footnote omitted). The Court explicitly
recognized that “[w]hether the public has a right to attend trials of civil cases is a question not
raised by this case,” although it noted that “historically” all trials “have been presumptively open.”
Id. at n.17. And the Eighth Circuit itself has recognized that neither the Supreme Court nor the
Eighth Circuit has held that access to civil trials or proceedings is a First Amendment right.
Webster Groves Sch. Dist. v. Pulitzer Pub. Co., 898 F.2d 1371, 1374 (8th Cir. 1990); see N. States
Power Co. v. Westinghouse Elec. Co., 156 F.R.D. 168, 171-72 (D. Minn. 1994) (noting “[t]he
Eighth Circuit has expressly left open the question of First Amendment or common law right of
public access to [civil] judicial proceedings”) (citation omitted).
At most, the Eighth Circuit has recognized a First Amendment right of access to contempt
proceedings as a “hybrid” of criminal and civil proceedings. In re Iowa Freedom of Info. Council,
724 F.2d 658, 661 (8th Cir. 1983). Moreover, the Court recognizes that the majority of circuit
courts that have specifically addressed the issue have held the First Amendment applies equally to
civil trials (generally) and criminal trials alike. New York Civil Liberties Union v. New York City
Transit Auth., 684 F.3d 286, 298 (2d Cir. 2012) (noting, in addition to the Second Circuit, “all the
other circuits that have considered the issue have come to the same conclusion” that the First
Amendment protects a right of access to both criminal and civil trials); Publicker Indus., Inc. v.
Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984); see Doe v. Sante Fe Indep. Sch. Dist., 933 F. Supp.
647, 649-50 (S.D. Tex. 1996) (collecting cases); see also United States v. Thompson, 713 F.3d
388, 399 (J. Gruender, concurring) (noting “Although the Supreme Court has yet to recognize a
First Amendment right to attend civil proceedings, a majority of the Justices have implied as
much.”) (Citation omitted). Here, though, this case does not involve a run-of-the-mill civil trial or
proceeding – rather, it involves a child custody proceeding. Courts have recognized in this context,
“such proceedings have been historically closed to the public.” Briggman v. Burton, No.
5:15CV00076, 2016 WL 5462840, at *5 (W.D. Va. Sept. 27, 2016) (quotation marks omitted)
(collecting cases); see In re T.R., 556 N.E.2d 439, 450 (Ohio 1990) (holding “no qualified right of
public access to juvenile court proceedings . . . to determine custody of a minor child”); but see
N.J. Div. of Youth & Fam. Serv. v. JB, 576 A.2d 261, (N.J. 1990) (finding qualified First-
Amendment right of access by public to custody cases involving the Division of Youth and Family
Services); Anonymous v. Anonymous, 158 A.D.2d 296 (N.Y. App. Div. 1990) (recognizing
qualified right of access to custody cases) (holding court properly exercised discretion in declining
to grant request to exclude all persons from custody dispute).
Therefore, the Court cannot say as a matter of “settled law” Plaintiffs had a First
Amendment right (qualified or not unqualified) to attend the child custody proceeding in this case.
Accordingly, Officer Reaves, Officer Tomaszewski, and Supervisor Tripp’s motions for summary
judgment are GRANTED as to Count II.
IV. Count III – Fourteenth Amendment Claim
In Count III of the Third Amended Complaint, Mr. Hale brings a claim of deliberate
indifference of his medical needs under the Fourteenth Amendment12 against Defendants Sigman,
Reaves, Tomaszewski, and Tripp.13 It is clearly established that a pretrial detainee or arrestee “has
a right to be free from deliberately indifferent denials of emergency medical care.” Bailey v.
Feltmann, 810 F.3d 589, 593 (8th Cir. 2016) (citations omitted). To establish a due process
12 Plaintiff Hale cites Hope v. Pelzer, 536 U.S. 730 (2002), a case brought under § 1983 by a prison
inmate and decided under the Eighth Amendment. Id. at 733. There is no question that the claim Plaintiff
Hale asserts here for deliberate indifference falls under the Fourteenth Amendment as applies to pre-trial
detainees. While the same “deliberate indifference” standard applies to such claims brought by pre-trial
detainees and prisoners, alike, claims of deliberate indifference by pre-trial detainees are “governed by the
Fourteenth Amendment which extends to detainees at least the same protections that convicted prisoners
receive under the Eighth Amendment.” Perry v. Adams, 993 F.3d 584, 587 (8th Cir. 2021) (citation
omitted). To the extent there is overlap between the Eighth- and Fourteenth-Amendment deliberate
indifference analytical rubric, the overlap is in the right to be protected from “deliberate indifference to a
serious medical need” and not the right of protection from cruel and wanton punishment which the Eighth
Amendment affords to prisoners, and which was the focus of the Supreme Court in Hope. See also Chaney
v. Smith, 2020 WL 7034558, at *11 (E.D. Ark., Nov. 30, 2020) (“The Eighth Amendment has no application
until there has been a formal adjudication of guilt,” although recognizing at the same time “[t]he protection
that an inmate be provided with adequate medical care extends to pretrial detainees,” under the Fourteenth
Amendment.) (Citation omitted).
13 Plaintiff Hale also asserted Count III against Judge Gaston, Bailiff Duncan, and Jailer Campbell.
They are not discussed in this section, however, because Plaintiff voluntarily dismissed his claims against
these defendants as to Count III.
violation for deliberate indifference, a plaintiff must show (1) he suffered from an objectively
serious medical need, and (2) defendants had actual knowledge of that need but deliberately
disregarded it. Id. Defendants do not attack the first prong that Mr. Hale suffered from an
objectively serious medical need. Instead, Defendants argue Count III fails under the second
prong.
The second prong, however, involves the subjective component of showing a deliberate
disregard. This prong requires a plaintiff to “establish a mental state akin to criminal recklessness:
disregarding a known risk to the [detainee]’s health.” Thompson v. King, 730 F.3d 742, 746 (8th
Cir. 2013) (citation and quotation marks omitted). This is an “onerous standard” that requires
“more than negligence, more even than gross negligence,” although “less than purposefully
causing or knowingly bringing about a substantial risk of serious harm to the [detainee].” Id.
(citation and quotation marks omitted).
Defendants argue they are entitled to judgment as a matter of law because Mr. Hale cannot
show Sheriff Sigman, Officer Reaves, Officer Tomaszewski, or Supervisor Tripp had any actual
knowledge of Mr. Hale’s serious medical need. Thus, Mr. Hale cannot show Defendants
deliberately disregarded Mr. Hale’s serious medical need.
Knowledge can be established through circumstantial evidence, including the obviousness
of the risk or injury. Coleman v. Parkman, 349 F.3d 534, 538 (8th Cir. 2003). And a plaintiff
must show “the official must both be aware of facts from which the inference could be drawn that
a substantial risk of serious harm exists, and he must also draw that inference.” Kulkay v. Roy,
847 F.3d 637, 644 (8th Cir. 2017) (citation and quotation marks omitted).
The undisputed facts viewed in the light most favorable to Mr. Hale show that he was
cuffed to the bench by his ankle at least for some portion of the time. At some point, he asked
Officer Reaves and Supervisor Tripp to get his medication, including “pain pills” from his truck.
Additionally, Mr. Hale’s pharmacy records were obtained that showed his prescription
medications. Finally, Mrs. Rogers testified she told Supervisor Tripp that Mr. Hale had diabetes,
a partial amputation of his foot, and needed to put his foot up, at which point Supervisor Tripp got
a chair so Mr. Hale could prop up his foot. Mrs. Rogers testified this was “probably the second
time” she had told somebody Mr. Hale was in pain. It is undisputed that Mr. Hale never told
anyone at the jail about his diabetes or neuropathy.
Mr. Hale argues that Defendants had actual knowledge of his serious medical needs
because he asked for his medication or pain pills and the jail received his pharmacy records
showing his prescription medications. The evidence shows that Mr. Hale asked Officer Reaves
and Supervisor Tripp to get his medications from his truck – not anyone else. Moreover, neither
the pharmacy records nor Mr. Hale asking for his pain medication, alone, lead to the inference that
his being cuffed to the bench by his ankle (for part of the time) would cause an ulcer on his foot to
develop.
As to Sheriff Sigman and Officer Tomaszewski, there is no evidence (other than the jail
having received a list of Mr. Hale’s prescription medications) to support a finding that they knew
of the ulcer risk to Mr. Hale by being seated on and cuffed to the bench by his ankle for some
unknown period of time. Without something more, there is similarly no basis to find that Officer
Reaves or Supervisor Tripp actually knew that by being seated on and cuffed to the bench, Mr.
Hale was at a serious risk of developing an ulcer on his foot. At the most, Mr. Hale asked for pain
medication from his truck but never told anyone about his diabetes making him prone to
neuropathy, his partial amputation, or that he was at risk of developing ulcers. And when Mrs.
Rogers told Supervisor Tripp that Mr. Hale had diabetes and needed to put his foot up, Supervisor
Tripp retrieved a chair to allow Mr. Hale to prop up his foot. Mr. Hale cannot show on this
summary judgment record Defendants had actual knowledge that his being seated on the bench
with an ankle cuff for some of the time placed him, with a diagnosis of diabetes, at a serious risk
of developing an ulcer. Neither can Mr. Hale show Supervisor Tripp, or any other Defendant,
deliberately disregarded any known risk of serious harm to Mr. Hale.
Therefore, Sheriff Sigman, Officer Reaves, Officer Tomaszewski, and Supervisor Tripp’s
motions for summary judgment are GRANTED as to Count III.
V. Count V: Fourth Amendment Failure-to-Intervene Claim
In the Fifth Count, Plaintiffs allege Defendants Sigman, Reaves, Tomaszewski, Campbell,
and Tripp failed to intervene in the use of excessive force.14 As the Court noted above in Count
I’s failure-to-intervene claim, it appears Plaintiffs’ argument is the use of handcuffs was excessive
force per se, and accordingly, these Defendants failed to intervene in this use of unconstitutional
force by removing the handcuffs.
14 Plaintiffs also asserted Count V against Bailiff Duncan. The Court does not address Bailiff
Duncan in this section, however, because he is entitled to absolute qualified-judicial immunity.
As stated above, a failure to intervene claim requires (1) the unconstitutional use of
excessive force by another officer, and (2) that the defendant observed or had reason to know that
excessive force would be or was being used. Hollingsworth, 800 F.3d at 991. Again, Plaintiffs’
only claim of excessive force is explicitly brought against Officer Reaves alone. The force used
against Plaintiffs, if any, was not more than de minimis. Moreover, to the extent Mr. Hale claimed
injury in the exacerbation or development of an ulcer, this claim does not support a claim for
excessive force because his injury – and the risk inherent in the use of handcuffs in the particular
circumstances here – was not objectively evident. Without excessive force, Sheriff Sigman,
Officer Reaves, Officer Tomaszewski, Jailer Campbell, and Supervisor Tripp are entitled to
qualified immunity under any such Fourth Amendment failure-to-intervene claim. As noted
above, to the extent Plaintiffs’ claims are more appropriately brought as a claim against the County
itself for the allegedly unconstitutional policy of the Texas County jail to handcuff and secure all
non-employee and non-law enforcement persons to the bench when not escorted, Plaintiffs have
asserted this claim in Count VI of the Third Amended Complaint. Without a finding of excessive
force – which is a separate and independent claim from an unconstitutional policy or custom to
challenge the constitutionality of the policy itself – Defendants cannot be held liable under the
Fourth Amendment for failing to intervene.
Accordingly, Sheriff Sigman, Officer Reaves, Officer Tomaszewski, Jailer Campbell, and
Supervisor Tripp’s motions for summary judgment are GRANTED as to Count V.
VI. Claims Against Judge Gaston
In the Third Amended Complaint, Plaintiffs seek prospective declaratory relief against
Judge Gaston in two claims brought under § 1983: (1) a Fourth Amendment claim for unlawful
search and seizure in Count I, and (2) a First Amendment retaliation claim in Count II. Plaintiffs
bring these claims against Judge Gaston in both his individual and official capacity. While it is
not immediately clear from the Third Amended Complaint itself, Plaintiffs do not contest they
only bring a claim for prospective declaratory judgment against Judge Gaston.15 The declaratory
relief Plaintiffs seek against Judge Gaston is not clear, either. In reading the relief sought as
prospective declaratory relief, the Court thus construes Plaintiffs’ declaratory judgment action as
declaring that Judge Gaston’s policy of detaining and ordering warrantless drug tests without
15 As noted above this is consistent with the Court’s prior order dismissing with prejudice any claim
for retrospective declaratory relief against Judge Gaston. See Gaston, 2020 WL 1694796.
probable cause and only based on one exercising a First Amendment right to observe a civil
proceeding is unconstitutional. Judge Gaston argues he is entitled to summary judgment because
Plaintiffs lack standing, their claims against Judge Gaston are moot, and Plaintiffs failed to
establish that Judge Gaston has a policy or custom of drug testing court observers.
The Declaratory Judgment Act, consistent with the requirement of Article III standing for
federal courts, requires “a case of actual controversy.” 28 U.S.C. § 2201(a). “A declaratory
judgment is meant to define the legal rights and obligations of the parties in anticipation of some
future conduct, not simply to proclaim liability for a past act.” Justice Network Inc. v. Craighead
Cty., 931 F.3d 753, 764 (8th Cir. 2019). Each claim for declaratory relief must independently
satisfy the requirements for standing. Town of Chester v. Laroe Est., Inc., 137 S. Ct. 1645, 1650
(2017) (“[A] plaintiff must demonstrate standing for each claim he seeks to press and for each
form of relief that is sought.”) (citation and quotation marks omitted). “The party invoking federal
jurisdiction bears the burden of establishing standing – and, at the summary judgment stage, such
party can no longer rest on mere allegations, but must set forth by affidavit or other evidence
specific facts.” Clapper v. Amnesty Internat’l USA, 568 U.S. 398, 411-12 (2013) (citation and
quotation marks omitted); accord Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
“The irreducible constitutional minimum of standing is that a plaintiff show (1) an injury-
in-fact that (2) is fairly . . . traceable to the challenged action of the defendant and (3) is likely . . .
to be redressed by a favorable decision in court.” Carlsen v. GameStop, Inc., 833 F.3d 903, 908
(8th Cir. 2016) (cleaned up) (quoting ABF Freight Sys. v. Int’l Bhd. of Teamsters, 645 F.3d 954,
958 (8th Cir. 2011)). “A plaintiff has suffered an injury-in-fact if he has experienced ‘an invasion
of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent,
not conjectural or hypothetical.’” Id. (quoting Lujan, 504 U.S. at 560). The threat of future harm
will satisfy the injury-in-fact requirement “as long as there is a ‘substantial risk’ that the harm will
occur. . . . ‘[A]llegations of possible future injury are not sufficient.’” Kanuszewski v. Mich.
Dep’t of Health & Human Servs., 927 F.3d 396, 405 (6th Cir. 2019) (quoting Clapper, 568 U.S.
at 414 n.5 & 409). Rather, “threatened injury must be certainly impending to constitute injury in
fact.” Clapper, 568 U.S. at 410 (quoting Whitmore v. Ark., 495 U.S. 149, 158 (1990)) (emphasis
in original).
A. Count I – Fourth Amendment Claim
The Court finds that Plaintiffs have not satisfied their burden to show standing to assert a
Fourth Amendment claim seeking declaratory judgment and, therefore, Judge Gaston is entitled to
summary judgment on Count I.
Plaintiffs argue the evidence establishes a sufficient impending threat that Judge Gaston
will order them to be detained and drug tested without probable cause or a warrant again. Plaintiffs
rely on (1) Judge Gaston ordering another court observer to be drug tested around the same time
he ordered Plaintiffs to be drug tested, and (2) they live in or near Texas County, Missouri (Judge
Gaston being the sole associate circuit judge having initial jurisdiction over all civil matters in
Texas County). Plaintiffs argue Mr. Hale lives in Texas County and Norma and Arthur Rogers
live in a neighboring county. Norma and Arthur Rogers also argue they have six children, and
thus there is a substantial risk that the harm will occur again.
None of these facts or circumstances, however, establish a “certainly impending” threat (1)
that Plaintiffs will appear in Judge Gaston’s courtroom in Texas County and (2) that Judge Gaston
will order they be detained and drug tested based on their mere presence in the courtroom. As to
the Rogers’ six children, Norma and Arthur Rogers do not allege, for instance, (1) that any of their
five other children have children of their own that are or will be involved in a child custody
proceeding before Judge Gaston, or (2) that any of their children will somehow necessarily be
involved as parties in a civil action proceeding before Judge Gaston.16
Moreover, Plaintiffs do not contest that Judge Gaston has formally recused himself from
the case involving Arthur and Norma’s grandchild and Judge Gaston has attested he will recuse
himself from any case in which they are a party in the future. Additionally, because Norma and
Arthur Rogers live in a neighboring county – not Texas County – there is no evidence or
supportable assertion they will certainly attend, or be involved with, a proceeding before Judge
Gaston.
As to Judge Gaston ordering other courtroom observers to be detained and drug tested,
Plaintiffs have identified only one other instance occurring around the same time in 2017. This is
far from showing Judge Gaston requires every courtroom observer to be drug tested any time they
are in his courtroom. Judge Gaston attested, after informal counseling by the Missouri
16 To the extent one of the Rogers’ children had a criminal proceeding before Judge Gaston in 2018,
Plaintiffs acknowledge her case is no longer before Judge Gaston.
Commission on Retirement, Removal and Discipline, that he has agreed not to order drug tests of
non-party court observers and “ha[s] no intention of ever doing so.”
Finally, as to Texas County jail’s administering drug tests in the future, it is undisputed
that the Texas County jail no longer administers drug tests.
Plaintiffs’ theory to establish standing as to their Fourth Amendment declaratory judgment
action against Judge Gaston is no less attenuated and speculative than in City of Los Angeles v.
Lyons, 461 U.S. 95 (1983), where the Supreme Court held that the plaintiff lacked standing to seek
an injunction after he was injured from the use of a chokehold by police officers during a traffic
stop:
[T]hat Lyons “may have been illegally choked by the police . . . [that fact]
does nothing to establish a real and immediate threat that he would again be stopped
for a traffic violation, or for any other offense, by an officer or officers who would
illegally choke him into unconsciousness without any provocation or resistance on
his part. The additional allegation in the complaint that the police in Los Angeles
routinely apply chokeholds in situations where they are not threatened . . . falls far
short of the allegations that would be necessary to establish a case or controversy
between these parties.
. . .
But even assuming that Lyons would again be stopped for a traffic or other
violation in the reasonably near future, it is untenable to assert, and the complaint
made no such allegation, that strangeleholds are applied by the Los Angeles police
to every citizen who is stopped or arrested regardless of the conduct of the person
stopped. We cannot agree that the “odds” that Lyon would not only again be
stopped for a traffic violation but would also be subjected to a chokehold without
any provocation . . . are sufficient to make out a federal case for equitable relief.
Id. at 105 & 108. The same is true here. Plaintiffs do not establish a real and immediate threat
they would again find themselves in Judge Gaston’s courtroom and that Judge Gaston would again
order them detained and drug tested without probable cause or a warrant. Plaintiffs do not contest
that Judge Gaston has affirmatively recused himself from the case involving Arthur and Norma’s
granddaughter and that he has attested, under penalty of perjury, that he would recuse from any
case involving Plaintiffs. “[B]ecause there is no allegation that [Judge Gaston] will once again
[order they be detained and drug tested if they appear in his courtroom as observers] in the future,
[plaintiffs] lack standing to pursue a claim for . . . declaratory relief.” Kanuszewski, 927 F.3d at
408 (citation omitted). Because Plaintiffs have not established standing to assert a Fourth
Amendment claim for prospective declaratory relief, Judge Gaston’s motion for summary
judgment is GRANTED as to Count I.
B. Count II – First Amendment Retaliation Claim17
“In the First Amendment context, ‘two types of injuries may confer Article III standing to
seek prospective relief.’” Missourians for Fiscal Accountability v. Klahr, 830 F.3d 789, 794 (8th
Cir. 2016) (quoting Ward v. Utah, 321 F.3d 1263, 1267 (10th Cir. 2003)). “The first is the injury
caused by the threat that the speaker will be . . . punished for his or her speech. A second injury-
in-fact occurs when a plaintiff foregoes expression in order to avoid a sanction or penalty.” Stamm
v. Cty. of Cheyenne, Neb., 326 F. Supp. 3d 832, 859 (D. Neb. 2018) (citation and quotation marks
omitted). Stated differently, a plaintiff demonstrates an injury-in-fact by establishing “an intention
to engage in a course of conduct arguably affected with a constitutional interest . . . and there exists
a credible threat of prosecution [or retaliation] thereunder.” Klahr, 830 F.3d at 794 (quoting
Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979)). A plaintiff also demonstrates an injury-in-
fact for standing purposes in self-censorship. Id.; Mangual v. Rotger-Sabat, 317 F.3d 45, 57 (1st
Cir. 2003) (“The second type of injury is when a plaintiff is chilled from exercising her right to
free expression or forgoes expression in order to avoid enforcement consequences.”) (citing Va. v.
Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988)) (other citations and quotation marks
omitted omitted).
It is well-established, however, Article III standing to pursue prospective relief, whether in
the First Amendment context or not, cannot be established simply based on prior harm. “‘Past
exposure to illegal conduct’ is insufficient to demonstrate an injury in fact that warrants declaratory
or injunctive relief unless the past injury is accompanied by ‘continuing, present adverse effects.’”
Sullivan v. Benningfield, 920 F.3d 401, 408 (6th Cir. 2019) (quoting O’Shea v. Littleton, 414 U.S.
488, 495-96 (1974); other citation omitted); accord Defs. of Wildlife v. Everson, 984 F.3d 918, 946
(10th Cir. 2020) (“past exposure to illegal conduct does not in itself show a present case or
17 A First Amendment retaliation claim under § 1983 requires proof, generally, that a plaintiff
“(1) engaged in a protected activity, (2) the government officials took adverse action against him that would
chill a person of ordinary firmness from continuing the activity, and (3) the adverse action was motivated
at least in part by the exercise of the protected activity.” O’Toole v. City of Walnut Grove, Mo., 275 F.
Supp. 3d 1114, 1118-19 (W.D. Mo. 2017) (citation and quotation marks omitted). At this stage, Judge
Gaston does not seek summary judgments on the merits of Plaintiffs’ First Amendment claim and thus the
Court need not decide affirmatively whether Plaintiffs were engaged in a protected activity under the First
Amendment in this case.
controversy regarding injunctive or declaratory relief as here if unaccompanied by any continuing,
present adverse effects”) (citation and quotation marks omitted). At the same time, evidence of
past wrongs certainly does “bear[] on whether there is a real and immediate threat of repeated
injury.” O’Shea, 414 U.S. at 495-96. In other words, a plaintiff must establish a “real and
immediate threat that he [or she] would again be the victim of the allegedly unconstitutional
conduct.” Jackson v. Fed. Bureau of Prisons, No. 4:19-cv-00287, 2019 WL 8752339, at *3 (M.D.
Pa. Dec. 9, 2019), adopted by 2020 WL 1243198 (M.D. Pa. March 16, 2020). Article III standing
when a plaintiff is seeking declaratory relief requires proof of “facts from which it appears there
is a substantial likelihood that [plaintiff] will suffer injury in the future” and that such future injury
is not “conjectural, hypothetical, or contingent,” but is “real and immediate” with a “definite, rather
than speculative threat of future injury.” Rogers v. Gaston, 2020 WL 1694796, at *6 (quoting
Bauer v. Texas, 341 F.3d 352, 358 (5th Cir. 2003)).
As multiple courts have recognized, standing requirements are “somewhat relaxed in the
First Amendment context.” Cooksey v. Futrell, 721 F.3d 226, 235 (5th Cir. 2013) (cited with
approval by Klahr, 830 F.3d at 794); Ariz. Right to Life Political Action Comm. v. Bayless, 320
F.3d 1002, 1006 (9th Cir. 2003) (“[W]hen the threatened enforcement effort implicates First
Amendment rights, the inquiry tilts dramatically toward a finding of standing.”) (quoted by Klahr,
830 F.3d at 794). Nonetheless, as the Eighth Circuit has explained in the context of evaluating a
plaintiff’s standing to assert a First Amendment claim, evidence of subjective “chilling” is not by
itself sufficient to establish an injury sufficient to create standing. “[S]elf-censorship based on
mere allegations of a ‘subjective’ chill resulting from [an unconstitutional act] is not enough to
support standing. . . . The relevant inquiry is whether a party’s decision to chill his speech in
light of the [First Amendment violation] was ‘objectively reasonable,’” which can include plaintiff
showing an “intention to engage in a course of conduct arguably affected with a constitutional
interest” but choosing not to, so long as such a reaction is objectively reasonable. 281 Care Comm.
v. Arneson, 638 F.3d 621, 627 (8th Cir. 2011) (citations and quotation marks omitted); see also
Garcia v. City of Trenton, 348 F.3d 726, 729 (8th Cir. 2003) (in applying the objective “ordinary
firmness” test in the First Amendment context, “[t]he question is not whether the plaintiff herself
was deterred, though how plaintiff acted might be evidence of what a reasonable person would
have done. . . . [But w]hat would a person of ‘ordinary firmness’ have done in reaction to the”
unconstitutional act?) Simply put, as the Eighth Circuit has most recently explained, “the question
is whether the plaintiffs have an objectively reasonable fear of [an unconstitutional] action that
chills their speech.” Animal Legal Def. Fund v. Vaught, __ F.4th __, 2021 WL 3482998, at *3
(8th Cir. Aug. 9, 2021) (citation omitted). In the First Amendment context, the injury-in-fact
requirement is “tempered” in that standing can be established by showing that “the plaintiff intends
to engage in a ‘course of conduct arguably affected with a constitutional interest’ and that there is
a credible threat” that unlawful retaliation or enforcement action will be taken against the plaintiff.
Bayless, 320 F.3d at 1006.
The key to any standing inquiry – and particularly in the context of a First Amendment
claim seeking prospective declaratory relief – is whether a plaintiff has demonstrated “the
existence of a credible threat” that engaging in the expressive conduct will result in
unconstitutional retaliation. If a plaintiff’s injury-in-fact is the quieting of their protected speech,
the additional inquiry must be whether this outcome is objectively reasonable.
In the Third Amended Complaint, Plaintiffs allege that because of Judge Gaston’s violation
of their constitutional rights they are “afraid to return to court for any reason.” No Plaintiff presents
evidence to establish standing to bring a prospective declaratory judgment claim against Judge
Gaston, however. First, Mr. Hale fails to satisfy his burden to establish, on summary judgment,
that he has standing to pursue a First Amendment claim for prospective declaratory relief against
Judge Gaston. In fact, Mr. Hale testified he has no reason to return to the Texas County Courthouse
and it “wouldn’t bother me” to go back to the Texas County Courthouse and denied there has been
“any other proceedings in Texas County Courthouse that [he] wanted to attend but didn’t.”
Further, there is no evidence (and Plaintiffs do not argue) that Mr. Hale engaged in self-censorship.
Therefore, Mr. Hale does not have standing to bring a First Amendment declaratory judgment
action against Judge Gaston.
Next, while Mrs. Rogers testified she “won’t go there” and “do[es]n’t go there,” she did
not testify – and no other evidence supports – she engaged in self-censorship. In other words,
there is no evidence that Judge Gaston’s actions “chilled her speech” such that she modified her
desired behavior (i.e., to attend a court proceeding before Judge Gaston or to attend any court
proceeding in Texas County or otherwise) but did not because of Judge Gaston’s actions on June
20, 2017. Even if she did, subjective chill is not sufficient to establish an injury in fact for purposes
of standing. Each plaintiff has the burden to establish facts on summary judgment as to each
individual claim, in this context, of a credible threat of future injury. Mrs. Rogers has failed to
establish she has standing to assert a First Amendment retaliation claim against Judge Gaston for
prospective declaratory relief. “Past exposure to illegal conduct does not in itself show a present
case or controversy regarding [equitable] relief . . . if unaccompanied by any continuing, present
adverse effects.” O’Shea, 414 U.S. at 495-96.
Finally, Mr. Rogers testified the June 20 custody hearing was the “[f]irst time” he had been
to the Texas County Courthouse and the “last time, if I have anything to do about it.” (Doc. 162-
3 at 10.) Mr. Rogers also testified that although he was not aware of any court proceedings he
wanted to attend but could not, “if there had been, I wouldn’t go to them anyway” and that “you
won’t catch me over there in that county.” Id. at 21. Mr. and Mrs. Rogers’ vague testimony does
not sufficiently demonstrate that Judge Gaston’s allegedly unconstitutional actions in ordering they
be drug tested in retaliation for Plaintiffs exercising their First Amendment rights to attend a child
custody hearing even subjectively chilled their exercise of a First Amendment right to attend a
civil child custody proceeding.
Even if it did, Plaintiffs present no evidence that the threat of unconstitutional conduct –
here, an unconstitutional search and seizure of Plaintiffs by detaining them and ordering that they
be drug tested in retaliation for exercising a First Amendment right to attend and/or participate in
the child custody hearing – is adequately real or imminent. As the Supreme Court has explained:
Of course, past wrongs are evidence bearing on whether there is a real and
immediate threat of repeated injury. But here the prospect of future injury rests on
the likelihood that respondents will again be arrested for and charged with
violations of the criminal law and will again be subjected to bond proceedings, trial,
or sentencing before petitioners.”
O’Shea, 414 U.S. at 496. To show standing to sue a state-court judge for prospective declaratory
relief, a “plaintiff must demonstrate a substantial likelihood [they] will encounter the same judge,
in sufficiently similar circumstances, and with sufficiently similar results to establish an
immediate, rather than speculative, threat of repeated injury.” Serafine v. Crump, 800 F. App’x
234, 237 (5th Cir. 2020) (citing Bauer v. Texas, 341 F.3d 352, 358 (5th Cir. 2003); Soc’y of
Separationists, Inc. v. Herman, 959 F.2d 1283, 1285-86 (5th Cir. 1992); Adams v. Mcilhany, 764
F.2d 294, 299 (5th Cir. 1985)).
Plaintiffs present no facts that they are even likely to be required to appear before Judge
Gaston or that they will want to appear before Judge Gaston at any point in the future. At the most,
Plaintiffs present nothing more than mere speculation of such appearance, based on their
neighboring county of residence, the presence of their children in Texas County, and that Judge
Gaston is the sole associate circuit judge. Plaintiffs do not show or even allege that appearing at a
subsequent hearing where they are merely observing the proceedings will result in Judge Gaston
ordering that they be detained and drug tested. Indeed, Judge Gaston attested by affidavit that after
receiving informal counseling from the Missouri Commission on Retirement, Removal and
Discipline, he has “agreed to not order drug tests of non-parties (including court observers) and
ha[s] no intention of ever doing so.” (Doc. 166-1.) Moreover, it is undisputed that Texas County
jail no longer administers drug tests. In sum, “[t]o conclude that these events are likely or
immediate would take us into the area of speculation and conjecture.” Webb ex rel. K.S. v. Smith,
936 F.3d 808, 815 (8th Cir. 2019) (citation and quotation marks omitted). In light of these
undisputed facts, the past wrong Plaintiffs may well have suffered at the order of Judge Gaston
does not establish standing to assert a claim for prospective declaratory relief against Judge Gaston.
Plaintiffs have failed to satisfy their burden to demonstrate standing to bring a claim for
declaratory relief under Count II. Judge Gaston’s motion for summary judgment is GRANTED
as to Count II.
C. Failure to Prove Policy or Custom
Finally, even if Plaintiffs did have standing to bring a claim seeking prospective declaratory
relief action against Judge Gaston, Judge Gaston would be entitled to summary judgment for a
separate reason.18 Judge Gaston argues he would otherwise be entitled to summary judgment
because Plaintiffs cannot show he acted pursuant to a policy or custom. Plaintiffs provide no
response to this argument.
Official capacity claims brought under § 1983 generally “require proof that a policy or
custom of the entity violated the plaintiff’s [constitutional] rights.” Gorman v. Bartch, 152 F.3d
907, 914 (8th Cir. 1998) (citing Hafer v. Melo, 502 U.S. 21, 24-27 (1991)). Plaintiffs have
presented no evidence of any “policy” or “custom” of detaining and drug testing courtroom
18 Although Plaintiffs sued Judge Gaston in his individual and official capacity, the Third Amended
Complaint only seeks prospective declaratory relief against Judge Gaston. Generally, equitable relief in a
§ 1983 civil action is not proper in an individual-capacity lawsuit. Braun v. Hanson, 2020 WL 1496580,
at *7-8 (holding that the plaintiff “may only seek injunctive relief against Defendants in their official
capacities”) (citing Brown v. Montoya, 662 F.3d 1152, 1161 n.5 (10th Cir. 2011) (“Section 1983 plaintiffs
may sue individual-capacity defendants only for money damages and official-capacity defendants only for
[equitable] relief”) (other citations omitted) (collecting cases). Nonetheless, because the Court finds that
Plaintiffs failed to establish standing – and Judge Gaston does not seek summary judgment on the merits as
to his individual capacity claim specifically – the Court need not decide this issue here.
observers by Judge Gaston, the state, the circuit court, or any other entity. Plaintiffs have identified
only one other instance when Judge Gaston ordered an individual who was a courtroom observer
to be drug tested. Two instances of unconstitutional conduct do not support an inference of a
“policy” or “custom” for purposes of establishing official-capacity § 1983 liability. See, e.g.,
Thomas v. Cook Cty. Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir. 2010); Henderson v. City & Cty.
of Denver, No. 12-cv-0625-WJM-BNB, 2014 WL 222761, at *9 (D. Colo. Jan. 21, 2014); Nicosia
v. Town of Hempstead, No. 16-cv-1176 (SJF)(SIL), 2017 WL 3769246, at *3 (E.D.N.Y. Aug. 28,
2017). Thus, even if one or more Plaintiffs had established standing to bring a claim against Judge
Gaston, the Court finds that Judge Gaston would nonetheless be entitled to summary judgment.
VII. Conclusion
Accordingly, it is ORDERED as follows:
(1) Defendant Reaves’ motion for summary judgment (Doc. 157) is MOOT as to Count
IV; GRANTED as to Counts I, II, III, and V;
(2) Defendant Tripp’s motion for summary judgment (Doc. 159) is GRANTED as to
Counts I, II, III, and V;
(3) Defendant Campbell’s motion for summary judgment (Doc. 161) is MOOT as to
Counts I, II, and III; and GRANTED as to Count V;
(4) Defendant Tomaszewski’s motion for summary judgment (Doc. 161) is MOOT as to
Count IV; GRANTED as to Counts I, II, III, and V;
(5) Defendant Sigman’s motion for summary judgment (Doc. 161) is GRANTED as to
Count I, III, and V;
(6) Defendant Duncan’s motion for summary judgment (Doc. 163) is MOOT as to Counts
III and IV; and GRANTED as to Counts I, II, and V; and
(7) Defendant Gaston’s motion for summary judgment (Doc. 165) is MOOT as to Counts
III and IV; and GRANTED as to Counts I and II.
Accordingly, the only remaining count in the Third Amended Complaint is Count VI
against Texas County, Missouri (for which no dispositive motion has been filed as of this date).
IT IS SO ORDERED.
s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: October 22, 2021