Childs v. Brummett

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

RENA M CHILDS, PERSONAL )

REPRESENTATIVE OF THE ESTATE OF )

BRYAN E. HILL, A/K/A BRIONNA HILL; )

)

Plaintiff, ) Case No. 4:20-00814-CV-RK

)

v. )

)

MATTHEW BRUMMETT, IN HIS )

OFFICIAL AND INDVIDUAL )

CAPACITY; CHARLES PRICHARD, IN )

HIS OFFICIAL AND INDIVIDUAL )

CAPACITY; THE KANSAS CITY )

BOARD OF POLICE COMMISSIONERS, )

COMMISSIONER DON WAGNER, )

PRESIDENT, IN HIS OFFICIAL )

CAPACITY; COMMISSIONER MARK )

TOLBERT, VICE PRESIDENT, IN HIS )

OFFICIAL CAPACITY; COMMISSIONER )

CATHY DEAN, TREASURER, IN HER )

OFFICIAL CAPACITY; COMMISSIONER )

NATHAN GARRETT, MEMBER, IN HIS )

OFFICIAL CAPACITY; MAYOR )

QUINTON LUCAS, MEMBER, IN HIS )

OFFICIAL CAPACITY; AND CHIEF OF )

POLICE RICHARD SMITH, IN HIS )

OFFICIAL AND INDIVIDUAL )

CAPACITY; )

)

Defendants. )

ORDER

Before the Court is Defendants’ motion to dismiss. (Doc. 35.) Plaintiff opposes the motion

and it is now fully briefed. (Docs. 36, 39, 40.) For the reasons below, the motion is GRANTED

as to Count I and DENIED as to Count II.

Background

Plaintiff’s claims in this case arise out of allegations of excessive force. Plaintiff Rena M.

Childs is the personal representative for the estate of Brionna Hill, who the complaint alleges was

injured by two Kansas City police officers during an arrest on or about May 24, 2019. Specifically,

Plaintiff alleges, inter alia, Officer Brummett and Officer Prichard struck Hill, took her to the

ground, placed their knees and elbows on her neck (restricting her airway), slammed her face and

head on hot concrete multiple times, raised and twisted her arms in unnatural positions, ignored

her calls for help, and did not render aid or call an ambulance. (Doc. 34 at 4-5.) Hill died after

her arrest due to unrelated causes, and Plaintiff filed this action on behalf of Hill’s estate.

Brummett and Prichard were charged in state court in connection with the events of May

24, 2019. See No. 2016-CR02341 (Circuit Court of Jackson County, Missouri). Similar to the

complaint at bar, the indictment states in part that Officers Brummett and Prichard caused Hill

injury by “slamming her face against the concrete sidewalk, kneeing her in the face, torso, and

ribs, and forcefully bending her arms over her head while her hands were handcuffed and she was

laying on her stomach.” (Doc. 17-4 at 5.) The criminal case is set for trial December 6, 2021.

Plaintiff’s complaint asserts two counts under 42 U.S.C § 1983. Count I asserts Brummett

and Prichard violated § 1983 by their unconstitutional use of excessive force against Hill, and

Count II asserts the Kansas City Board of Police Commissioners (the “Police Board”) and each of

its members, in their official capacities, violated § 1983 by their failure to train or supervise, or for

their role in adopting policies or customs encouraging the conduct. Count Two also names Kansas

City Chief of Police Richard Smith in his individual capacity as a defendant.

Discussion

Defendants’ motion to dismiss is brought under Rules 12(b)(1) and 12(b)(6) and argues

Plaintiff lacks standing, legal capacity, or a cause of action because the claims stated in the

complaint abated upon Hill’s death because Hill’s death was unrelated to the § 1983 Excessive

Force claim. (Doc. 35, p. 1.)

I. Legal Standard

Hills’s claims are based on federal law pursuant to 42 U.S.C. § 1983. Therefore, the

question of whether they survive Hill’s death “is a question of federal law.” Carlson v. Green,

446 U.S. 14, 23 (1980). The traditional rule is claims by an injured party are extinguished upon

the death of either party. Statutes, however, can modify the traditional rule. “Statutes allowing

the survival of actions were intended to modify the traditional rule that an injured party’s claim

was extinguished upon the death of either party.” Parkerson v. Carrouth, 782 F.2d 1449, 1451

(8th Cir. 1986) (citing Robertson v. Wegmann, 436 U.S. 584, 589 (1978); Thompson v. Estate of

Petroff, 319 N.W.2d 400, 402–06 (Minn.1982); W. Keeton, D. Dobbs, R. Keeton & D. Owen,

Prosser and Keeton on the Law of Torts § 125A (5th ed. 1984)).

To determine whether § 1983 claims survive the injured party’s death, we are first governed

by 42 U.S.C. § 1988. The Civil Rights Act does not contain a survivorship rule. However, 42

U.S.C. § 1988 recognizes that in certain areas, “federal law is unsuited or insufficient ‘to furnish

suitable remedies[.]’” Robertson, 436 U.S. at 588. As illustrated by the absence of a survivorship

rule in the Civil Rights Act, “[f]ederal law simply does not ‘cover every issue that may arise in the

context of a federal civil rights action.’” Id. (quoting Moor v. County of Alameda, 411 U.S. 693,

703, 702 (1973)). One specific area not covered by federal law is that relating to the survival of

civil rights actions under § 1983 upon the death of either the plaintiff or defendant. “When federal

law is thus ‘deficient,’ § 1988 instructs us to turn to ‘the common law, as modified and changed

by the constitution and statutes of the [forum] State,’ as long as these are ‘not inconsistent with the

Constitution and laws of the United States.’” Id. (quoting § 1988). The common law rule of

survivorship of claims has been modified by state survivorship statutes, and we are guided to

follow the state survival statute of the forum state. “State statutes governing the survival of state

actions . . . were intended to modify the simple, if harsh, 19th-century common-law rule.” Id. at

589.

In instructing us to turn to state survivorship statutes to resolve this issue, the Supreme

Court acknowledges the wide disparity across the country of the states’ survivorship laws. “These

statutes . . . vary widely with regard to both the types of claims that survive and the parties as to

whom survivorship is allowed.” Id. Even though there are inconsistencies amongst the states, the

Court found nothing in § 1983 or the underlying policies of § 1983 to require uniform survivorship

rules of § 1983 claims. Id. at 593 n.11. (“in the areas [of civil rights enforcement] to which § 1988

is applicable Congress has provided direction, indicating that state law will often provide the

content of the federal remedial rule. This statutory reliance on state law obviously means that

there will not be nationwide uniformity on these issues.”)

Robertson involved the interpretation of Louisiana’s survivorship statutes. Robertson was

the personal representative of Clay Shaw, and was the executor of Shaw’s estate. The decedent,

Shaw, did not have a surviving spouse, child, parent, or sibling. In Robertson, the Plaintiff’s

§ 1983 claim was for bad faith prosecution. Id. at 586. The Court found that, for purposes of

analyzing survival of the action applying § 1988, “[i]n actions other than those for damage to

property [], Louisiana does not allow the deceased’s personal representative to be substituted as

plaintiff; rather, the action survives only in favor of a spouse, children, parents, or siblings.” Id.

at 591 (citing Shaw v. Garrison, 391 F.Supp. 1353, 1361-1363; La. Civ. Code Ann., Art. 2315

(West 1971); J. Wilton Jones Co. v. Liberty Mut. Ins. Co., 248 So.2d 878 (La .App. 1970 and 1971)

(en banc)). Because Shaw did not have a living close relative, his claims abated under Louisiana’s

statute. If Shaw had had a living close relative, the bad faith prosecution claim would have

survived for the close relative to pursue.1 The Robertson Court concluded that “[u]nder the

circumstances presented here, the fact that Shaw was not survived by one of several close relatives

should not itself be sufficient to cause the Louisiana survivorship provisions to be deemed

‘inconsistent with the Constitution and laws of the United States’” for purposes of analysis under

§ 1988. Id. at 593. Therefore, the bad faith prosecution claim was held to have abated upon the

death of the plaintiff under Louisiana law applied in accordance with § 1988. Id. at 593-94.

Here, Plaintiff concedes (1) the applicable rule in this case is that, in determining whether

a particular §1983 claim survives the death of the plaintiff, the Court looks to the closest or most

analogous state tort equivalent, see § 1988(a), (2) the closest state tort equivalents to Plaintiff’s

§ 1983 excessive force claims here, for purposes of determining survival of the action, are assault

and battery, and (3) under Missouri statute, claims of assault and battery abate upon the death of

the Plaintiff (when the death is unrelated to the assault and battery), § 537.030, RSMo. (Doc. 39,

p. 13.)

II. Count I - Excessive Force Claim

To decide whether a state law causing abatement of a particular action is inconsistent with

federal law under § 1988, courts are to consider the particular federal statute and constitutional

provisions in question, as well as the policies they express. Robertson, 436 U.S. at 590. The

Supreme Court accords particular importance to “whether application of state law would be

inconsistent with the federal policy underlying the cause of action under consideration.” Id.

(internal quotation marks omitted). The Robertson Court applied § 1988(a) to decide whether a

claim under § 1983 survived the death of the plaintiff, concluding Louisiana survival law was not

inconsistent with the Constitution and laws of the United States. 436 U.S. 584, 585, 594-95.

1 In this case, we need not be concerned with the distinction between “representative” and “close

relative.” Missouri’s survivorship statute does not treat a decedent’s personal representative differently

than a decedent’s close relative as Louisiana’s statute does. Missouri simply allows survival only to the

“personal representative,” and there is no mention of relatives in Missouri’s survivorship statute. § 537.020,

RSMo. Here, Plaintiff Childs is the personal representative of decedent Brionna Hill.

The Robertson Court was careful to express the narrowness of its holding, providing it is

“limited to situations in which no claim is made that state law generally is inhospitable to survival

of § 1983 actions and in which the particular application of state survivorship law, while it may

cause abatement of the action, has no independent adverse effect on the policies underlying

§ 1983.” Id. at 594. The Court further noted, “[a] different situation might well be presented . . .

if state law did not provide for survival of any tort actions or if it significantly restricted the types

of actions that survive.” Id. (internal quotation marks and citations omitted).

The question here, whether claims brought pursuant to 42 U.S.C. § 1983 survive Plaintiff’s

death when (1) the claim is excessive force, and (2) Plaintiff’s death was unrelated to the excessive

force appears to be one of first impression in the Eighth Circuit.

An analogous case is Parkerson, in which the Eighth Circuit applied the Robertson analysis

to claims of malicious prosecution and intentional injury to the plaintiff’s medical practice. 782

F.2d at 1450-51. The Parkerson case “arose out of an unsuccessful criminal prosecution charging

Dr. Parkerson with violating 21 U.S.C. § 841(a)(1) by distributing scheduled drugs not in the usual

course of medical practice and for which there was no legitimate medical need.” Id. at 1450. Dr.

Parkerson was acquitted on all counts. Id. Dr. Parkerson filed suit against a pharmacist, alleging

he maliciously reported false information about his prescribing practices to the state Pharmacy

Board and others, leading to a conspiracy that resulted in Dr. Parkerson’s indictment, arrest,

imprisonment, and coercion into surrendering his medical license and Controlled Substance

Registration Certificate. Id. He alleged the that the defendant pharmacist conspired with

employees of the pharmacy he managed, the state Pharmacy Board, the state Diversion

Investigation Unit, and the Federal Drug Enforcement Administration to deprive Dr. Parkerson of

his medical license and Controlled Substance Registration Certificate (CS registration) in violation

of his civil rights under 42 U.S.C. §§ 1983, 1985, and 1986. Id.

The plaintiff, Dr. Parkerson, died before trial, the executrix of the plaintiff’s estate was

substituted, and upon motion, the District Court dismissed the action on the ground that the action

did not survive the plaintiff’s death. Id. at 1450-51. The Eighth Circuit affirmed, noting,

“Arkansas law broadly permits actions to survive when they are based on ‘wrongs done to the

person or property of another.’” Id. at 1451 (quoting Ark. Stat. Ann. § 27–901.4).2 However, the

2 At the relevant time in Parkerson, Arkansas’s section 27–901 provided in full:

Parkerson Court also observed that state courts had interpreted such statutory language to mean

“injuries of a physical character to actual, visible, and tangible property, and not to property rights

or interests which in their nature are invisible and intangible” and “not to include such injuries as

malicious prosecution or conspiracies to injure another’s business where no tangible personal

property is affected.” Id. at 1452 (internal quotation marks omitted). The Eighth Circuit further

agreed with the concern set forth in state precedent that allowing a malicious prosecution action to

survive the victim’s death “would create the need at trial to inquire into the personal character of

a dead man and his innocence or guilt of a criminal offense.” Id. (internal quotation marks

omitted). The Parkerson court held that Arkansas law barred the survival of the plaintiff’s claims

of malicious prosecution and intentional injury to the plaintiff’s medical practice. Id. at 1453.

Further, the Eighth Circuit reasoned that the Arkansas law barring survival of the plaintiff’s

claims was not inconsistent with the purposes of the federal civil rights laws, in that Arkansas state

law (1) did not foster discrimination, (2) provided adequate state remedies for wrongs that also are

federal rights violations, (3) assured a remedy for the violation of a federally protected right, (4) did

not encourage intentional wrongdoing or official illegality, and (5) did not negatively affect the

goal of compensating victims of civil rights violations. Id. at 1454 (evaluating the state law in

question against the purposes of the federal civil rights laws as articulated by the United States

Supreme Court in Monroe v. Pape, 365 U.S. 167, 174, 180-83 (1961), overruled in part on other

grounds by Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 673-74, 683 (1978); and Robertson, 436

U.S. at 592).

Here, Plaintiff’s arguments for survival of the cause of action focus on (1) the restriction

of Missouri’s survivorship statute on the types of § 1983 claims that survive; (2) the purpose of

deterrence of intentional official wrongdoing; and (3) court rulings following Robertson

distinguishing between physical injury and non-physical injury torts as related to the deterrent

purpose of § 1983.

For wrongs done to the person or property of another, an action may be maintained against

the wrongdoers, and such action may be brought by the person injured, or, after his death,

by his executor or administrator against such wrongdoer, or, after his death, against his

executor or administrator, in the same manner and with like effect in all respects as actions

founded on contracts.

Parkerson, 782 F.2d at 1451.

A. Missouri’s Survivorship Statute

Missouri statute provides that “[c]auses of action for personal injuries, other than those

resulting in death, . . . shall not abate by reason of [the injured party’s] death” and allows the action

to survive “to the personal representative of such injured party.” § 537.020(1), RSMo. Missouri

state law does “not extend [survival] to actions for slander, libel, assault and battery or false

imprisonment.” § 537.030, RSMo.

Plaintiff argues the Missouri survivorship statute “restricts NEARLY ALL types of § 1983

claims from surviving[,]” so under Robertson, it should not apply. (Doc. 18 at 13) (emphasis in

original.) To the contrary, however, the Eighth Circuit has expressly concluded:

The Missouri statutes provide that most causes of action for personal injuries

survive the death of either party. Mo. Ann. Stat. § 537.020 (Vernon). Only certain

torts are not covered by the general rule of survivorship: slander, libel, assault and

battery or false imprisonment. Mo. Ann. Stat. § 537.030 (Vernon). The Missouri

Supreme Court has construed these two statutory provisions as follows:

We think the conclusion is inescapable that when the effect of Section

537.030 is considered, Section 537.020 must be read as though it said in

part, “Causes of action for personal injuries, other than those resulting in

death, whether such injuries be to the health or to the person of the injured

party (except actions for slander, libel, assault and battery or false

imprisonment), shall not abate by reason of his death * * *.”

Gray v. Wallace, 319 S.W.2d 582, 584-585 (Mo. 195[8]).

In Gray, the Missouri Supreme Court ruled that a plaintiff’s cause of action for

malicious prosecution did not abate by reason of the death of the named defendant.

The court reasoned that Missouri’s general rule of survivorship extended to all

actions for injuries to the person “whether to the person’s rights or to his body.” Id.

at 583. The court concluded that since the actual tort sued upon was not specifically

listed in the statutory section excepting certain torts from the general rule, the cause

of action survived the death of the defendant. Id. at 585.

White v. Walsh, 649 F.2d 560, 562 n.4 (8th Cir. 1981) (emphasis added) (holding plaintiff’s cause

of action alleging that defendant and two other actors conspired together to deny him a fair trial

by purposefully impaneling an all-white jury survived the death of defendant during the litigation);

see also Andrews v. Neer, 253 F.3d 1052, 1056-58 (8th Cir. 2001) (permitting § 1983

unconstitutional use of force claims under Missouri’s wrongful death statute); Roedder v. Callis,

375 S.W.3d 824, 827 (Mo. Ct. App. 2012).

Applying the Eighth Circuit Parkerson civil rights purposes analysis to Missouri’s

survivorship statute leads the Court to conclude Missouri law (1) does not foster discrimination,

(2) provides adequate state remedies for wrongs that also are federal rights violations, (3) assures

a remedy for the violation of a federally protected right, (4) does not encourage intentional

wrongdoing or official illegality, and (5) does not negatively affect the goal of compensating

victims of civil rights violations. Id. at 1454.

B. Deterrence

Plaintiff’s arguments express a particular concern that officers will be not be deterred from

committing similar conduct if excessive force claims abate upon death in Missouri. In that regard,

the Court finds the following reasoning from Robertson is equally applicable here:

given that most [Missouri] actions survive the plaintiff’s death, the fact that a

particular action might abate surely would not adversely affect § 1983’s role in

preventing official illegality, at least in situations in which there is no claim that the

illegality caused the plaintiff’s death. A state official contemplating illegal activity

must always be prepared to face the prospect of a § 1983 action being filed against

him. In light of this prospect, even an official aware of the intricacies of

[Missouri’s] survivorship law would hardly be influenced in his behavior by its

provisions.

436 U.S. at 592. Furthermore,

[i]n order to find even a marginal influence on behavior as a result of [Missouri’s]

survivorship provisions, one would have to make the rather farfetched assumptions

that a state official had both the desire and the ability deliberately to select as

victims only those persons who would die before conclusion of the § 1983 suit (for

reasons entirely unconnected with the official illegality)[.]

Id. at 592 n.10.

Accordingly, having considered the concerns set forth by the Eighth Circuit in Parkerson,

the Court is unable to conclude that the Missouri survival is inconsistent with the federal civil

rights laws under § 1988(a), Robertson, or Monroe.

C. Physical Injury

Plaintiff’s concern as to the distinction between physical injury and non-physical injury

torts as related to the deterrent purpose of § 1983 is reflected in the Eighth Circuit’s statement in

Parkerson that:

[in cases] in which the alleged civil rights violations were not committed for the

purpose of inflicting physical injury, we do not believe that the possibility that

injured parties will die and their actions abate is likely to give any encouragement

to potential wrongdoers. After all, those who libel, slander, or maliciously

prosecute others, or who participate in any activity that would injure the reputation,

psyche, profession, or business of another rather than cause bodily injury, have no

means of knowing their victim will die during the pendency of the victim’s action

for redress of those wrongs. Thus, we see in the Arkansas survival law no

impairment of the deterrent purpose of the federal civil rights laws.

782 F.2d at 1454-55.

This same reasoning is just as applicable in cases involving claims of physical injury that

are unrelated to the claimant’s death. This is true because those who participate in activity that

causes bodily injury have no means of knowing whether their victim will die before or during the

pendency of the victim’s action for redress of those wrongs when the victim’s claim of physical

bodily injury is unrelated to the victim’s death. In cases where the civil rights violation involves

physical bodily injury that results in death, this Court finds Missouri’s wrongful death statute

adequately redresses the § 1983 wrongdoing. See Andrews v. Neer, 253 F.3d 1052, 1057-58 (8th

Cir. 2001).

Moreover, as the Robertson Court noted, “A state statute cannot be considered

“inconsistent” with federal law merely because the statute causes the plaintiff to lose the

litigation.” 436 U.S. at 593. “If success of the § 1983 action were the only benchmark, there

would be no reason at all to look to state law, for the appropriate rule would then always be the

one favoring the plaintiff, and its source would be essentially irrelevant.” Id. “But § 1988 quite

clearly instructs us to refer to state statutes; it does not say that state law is to be accepted or

rejected based solely on which side is advantaged thereby.” Id.

Relatedly, this Court has also considered the importance of uniformity of survival of

actions to the purpose of deterrence as emphasized by the Supreme Court in Carlson v. Green, 446

U.S. 14, 25 (1980). However, as explained in Robertson, “the survivorship rules in areas where

the courts are free to develop federal common law—without first referring to state law and finding

an inconsistency [as in Carlson dealing with Bivens claims)]—can have no bearing on our decision

here.” 436 U.S. at 593. “Similarly, whatever the value of nationwide uniformity in areas of civil

rights enforcement where Congress has not spoken, in the areas to which § 1988 is applicable[,]

Congress has provided direction, indicating that state law will often provide the content of the

federal remedial rule.” Id. “This statutory reliance on state law obviously means that there will

not be nationwide uniformity on these issues.” Id.

Having concluded that Missouri survival law is not inconsistent with the federal civil rights

laws, that the closest state tort equivalents to Plaintiff’s § 1983 claims here are assault and battery,

and that under Missouri statute, claims of assault and battery abate upon the death of the Plaintiff

(when the death is unrelated to the assault and battery), the Court holds Plaintiff’s excessive force

claim against Brummett and Prichard in Count I abated upon Hill’s death. Accordingly,

Defendants’ motion to dismiss the excessive force claim against Brummett and Prichard is granted

as to Count I.

III. Count II - Claims Against the Board and Smith

In Count II, Plaintiff claims the Board and Smith violated § 1983 by their failure to train,

and failure to supervise employees as to proper use of force, and by ratification of unconstitutional

use of force through their policies, practices, customs, and patterns of conduct and procedure.

Defendants argue because the claims against the Board and Smith “derive from the excessive force

allegations in Count I,” “assume the same constitutional violation as Count I,” and “seek redress

for the same injuries,” that these claims therefore also abated upon Hill’s death. Plaintiff argues

“no vicarious liability exists under § 1983 and that the Board and Smith are not sued for excessive

force[,]” so “Plaintiff can bring her claims against them whether she brings her claims against the

officers or not.” (Doc. 39 at 19.)

“A municipality or other local government may be liable under [§ 1983] if the

governmental body itself ‘subjects’ a person to a deprivation of rights or ‘causes’ a person ‘to be

subjected’ to such deprivation.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (quoting Monell

v. New York City Dept. of Social Servs., 436 U.S. 658, 692 (1978)). The focus of the inquiry is

thus on the conduct of the body itself or the individual official himself or herself. As to which

bodies or individuals may incur such liability, “[o]fficial municipal policy includes the decisions

of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent

and widespread as to practically have the force of law.” Id. Policymaking officials, such as the

Board, however, are responsible only for “their own illegal acts” as giving rise to potential liability

under § 1983 and are not vicariously liable for the actions of employees. Id. (quoting Pembaur v.

Cincinnati, 475 U.S. 469, 479 (1986)); Monell, 436 U.S., at 665-683. Likewise, a chief of police

“may be held liable in his personal capacity if he directly participated in, or if his failure to train

or supervise caused, a constitutional violation.” Wilson v. Spain, 209 F.3d 713, 717 (8th Cir.

2000).

If a government body or individual official’s conduct caused Plaintiff to be subjected to a

deprivation of rights, the focus then shifts to whether such claim survives a plaintiff’s death. Thus,

we must turn again to Missouri’s survival statute.

When “[i]nterpreting state statutes, this court applies that state’s rules of statutory

construction. Behlmann v. Century Sur. Co., 794 F.3d 960, 963 (8th Cir. 2015). In Missouri,

“[t]he primary rule of statutory interpretation is to give effect to the General Assembly’s intent as

reflected in the plain language of the statute at issue.” Ben Hur Steel Worx, LLC. v. Dir. of

Revenue, 452 S.W.3d 624, 626 (Mo. 2015) (en banc). When the words of a statute are clear, “there

is nothing to construe beyond applying the plain meaning of the law.” Young v. Boone Elec. Coop.,

462 S.W.3d 783, 791 (Mo. App. 2015) (quoting State ex rel. Valentine v. Orr, 366 S.W.3d 534,

540 (Mo. 2012) (en banc)). As discussed above, Missouri’s survival statute provides that “[c]auses

of action for personal injuries, other than those resulting in death, . . . shall not abate by reason of

[the injured party’s] death” and allows the action to survive “to the personal representative of such

injured party.” § 537.020(1), RSMo. Missouri state law does “not extend [survival] to actions for

slander, libel, assault and battery or false imprisonment.” § 537.030, RSMo. The parties do not

meaningfully address the effect of Missouri’s survival statute on the abatement of the claims

against the Board and Chief Smith that are not rooted in vicarious liability, but rather rooted in the

conduct of the Board and Smith themselves. The Court has not found through its own research

any authority for the proposition that these Monell type claims against the Board and Smith abate

under Missouri’s survival statute.3

Because § 1983 liability of policymaking officials and supervisors is not derivative in

nature, but rather is based entirely on the acts of those particular individuals, and because there is

3 The cases Defendants cite are inapposite. In City of Los Angeles v. Heller, the Supreme Court

held that the municipality could not be liable where the police officer had been found not to have committed

a constitutional violation. 475 U.S. 796, 799 (1986). Heller does not stand for the proposition that the

municipality cannot be liable if the involved police officer was dismissed for reasons not involving the

merits. In Wilson v. Spain, the municipality was dismissed because the officer was dismissed on qualified

immunity grounds based on the officer’s conduct being objectively reasonable – thus not unconstitutional.

209 F.3d 713, 717 (8th Cir. 2000). In Abbott v. City of Crocker, the district court granted judgment as a

matter of law in the plaintiff’s favor on his claims that a law enforcement officer violated his constitutional

rights by pursuing him beyond city limits for the purpose of arresting him and by striking him with a

flashlight and on his claims that the municipality violated the plaintiff’s constitutional rights by its

inadequate training of its police officers on the use of force and by allowing them to go outside the city

limits to make arrests. 30 F.3d 994, 996-97. The Eighth Circuit remanded the case for trial for the jury’s

determination, because it found the plaintiff had not been entitled to judgment against the police officer

defendant since the question of whether the arrest was objectively reasonable under all the circumstances

was a question the jury should have been allowed to determine. Id. at 998. Therefore, the Eighth Circuit

concluded the district court’s grant of judgment against the municipality, absent such jury determination as

to the officer’s liability on the merits of the constitutional claim against him, was also erroneous. Id. None

of these cases hold that where unconstitutional conduct is not disposed of on the merits, the decisionmaker

or policymaker is somehow released from potential Monell liability.

no authority for the principle that a Monell claim abates upon the death of the Plaintiff, Defendants’

arguments to the contrary fail, and their motion to dismiss Count II is denied.

Conclusion

Accordingly, Defendants’ motion to dismiss (Doc. 35) is GRANTED as to Count I and

DENIED as to Count II.

IT IS SO ORDERED.

/s/ Roseann A. Ketchmark

ROSEANN A. KETCHMARK, JUDGE

UNITED STATES DISTRICT COURT

DATED: December 1, 2021