S.M. v. Lincoln County, Missouri

United States Court of Appeals

For the Eighth Circuit

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No. 16-3451

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S.M. et al.

lllllllllllllllllllll Plaintiffs - Appellees

v.

Lincoln County, Missouri

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court

for the Eastern District of Missouri - St. Louis

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Submitted: June 7, 2017

Filed: October 27, 2017

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Before LOKEN, MURPHY, and MELLOY, Circuit Judges.

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LOKEN, Circuit Judge.

Plaintiffs S.M., L.M., K.W., and K.S. are former participants in the Adult Drug

Court of Missouri’s 45th Judicial Circuit (“Drug Court”), an alternative court

established to dispose of drug cases pursuant to Mo. Rev. Stat. §§ 478.001-.006.

Plaintiffs brought this 42 U.S.C. § 1983 damage action against Lincoln County and

other defendants, asserting that Scott Edwards, then a lieutenant in the Lincoln

County Sheriff’s Department, violated their substantive due process rights by

committing repeated acts of sexual abuse while serving in his position as the

“tracker” (monitor) of Drug Court participants.

In a prior appeal, we reversed the denial of qualified immunity to individual

defendant Michael Krigbaum, who served as Sheriff of Lincoln County at the time

of Edwards’s criminal misconduct.1 S.M. v. Krigbaum, 808 F.3d 335 (8th Cir. 2015).

On remand, the claims against Lincoln County proceeded to a three-day trial. The

jury found that the Lincoln County Sheriff, a County policy maker, was deliberately

indifferent to plaintiffs’ constitutional rights in failing to supervise tracker Edwards.

The jury awarded compensatory damages of $750,000 to S.M. and $500,000 each to

K.W., K.S., and L.M. The district court2 denied Lincoln County’s renewed motion

for judgment as a matter of law or in the alternative for a new trial. Lincoln County

appeals the denial of its post-verdict motion.3 Applying the deferential standards for

review of a jury verdict and the denial of a motion for new trial, we affirm.

I.

It is undisputed that Edwards “deprived plaintiffs of a clearly established

constitutional right to substantive due process when he committed an egregious,

1

Edwards pleaded guilty to exploiting his tracker position to gain the trust of

Drug Court participants S.M., L.M., K.W., and K.S. and then coercing their

submission to sexual assaults. Edwards is serving a ten-year prison sentence.

2

The Honorable Patricia L. Cohen, United States Magistrate Judge for the

Eastern District of Missouri.

3

Lincoln County also appeals the district court’s denial of its pretrial motions

for summary judgment. Following trial on the merits, we do not consider

interlocutory rulings concerning sufficiency of the evidence. See N.Y. Marine &

General Ins. Co. v. Cont’l Cement Co., 761 F.3d 830, 838 (8th Cir. 2014).

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nonconsensual entry into the body which was an exercise of power without any

legitimate governmental objective.” Krigbaum, 808 F.3d at 340 (quotation omitted).

Edwards’s tracker duties included curfew checks at participants’ homes at 10 p.m.;

searches of their homes, refrigerators, and trash for evidence of drug use or other

Drug Court program noncompliance; conducting on-site urine analysis tests;

reporting information about participants’ compliance at Drug Court team meetings;

and taking participants who violated program requirements into custody. The Drug

Court circuit judge issued sanctions and punishments, including jail time, for program

noncompliance.

Some of Edwards’s sexual assaults occurred while plaintiffs were incarcerated

as a Drug Court sanction in a Sheriff’s Department jail. Assaults also occurred when

Edwards visited the plaintiffs’ homes in the evenings for curfew checks, or while

conducting strip searches, or while transporting participants in his patrol car. On

several occasions, Edwards required plaintiffs to remove their bras and expose their

breasts to “shake out” evidence of drug use. On another occasion, Edwards fondled

and abused a participant while feigning to look for evidence of drug use. Edwards

assaulted S.M. after moving her to a motel room. Plaintiffs did not report the assaults

because they believed Edwards held power over them at the Drug Court. He would

cover up a victim’s Drug Court violations, so she felt “he had something solid on me

that he could use against me to actively do whatever it was he was going to do.”

After learning that L.M. had relapsed, Edwards told her she could “earn it back”

(avoid sanction) through sexual favors.

At issue is Lincoln County’s liability for these egregious violations. The jury

found that Lincoln County was deliberately indifferent to an obvious risk that the

County’s failure to supervise Edwards would result in these violations of plaintiffs’

rights. Lincoln County argues that plaintiffs presented legally insufficient evidence

to support this finding, which is a prerequisite to imposing § 1983 municipal liability.

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We must uphold the verdict unless it has no legally sufficient evidentiary basis.

Jackson v. City of St. Louis, 220 F.3d 894, 896 (8th Cir. 2000).

A. A municipality (or County) “may not be found liable unless action pursuant

to official municipal policy of some nature caused a constitutional tort.” Szabla v.

City of Brooklyn Park, MN., 486 F.3d 385, 389 (8th Cir. 2007) (en banc), quoting

Monell v. Dep’t of Social Servs., 436 U.S. 658, 691 (1978). It “cannot be held liable

on a respondeat superior theory, that is, solely because it employs a tortfeasor” such

as Edwards. Id. Where municipal action “itself violates federal law, or directs an

employee to do so, resolving [] issues of fault and causation is straightforward.” Bd.

of Cty. Comm’rs v. Brown, 520 U.S. 397, 404-05 (1997). But where the claim is that

municipal action lawful on its face caused an employee to inflict constitutional injury,

“rigorous standards of culpability and causation must be applied to ensure that the

municipality is not held liable solely for the actions of its employee.” Id. at 405. In

City of Canton v. Harris, 489 U.S. 378, 388 (1989), the Court held that municipal

liability for a claim such as failure to supervise employee Edwards -- plaintiffs’

theory in this case -- requires proof that the failure “amounts to deliberate indifference

to the rights of persons with whom the [employee] come[s] into contact.” Municipal

inaction must be the “moving force [behind] the constitutional violation.” Id. at 389

(alteration in original) (quotation omitted); see Szabla, 486 F.3d at 390-91.

Deliberate indifference in this context “is a stringent standard of fault,

requiring proof that a municipal actor disregarded a known or obvious consequence

of his action.” Brown, 520 U.S. at 410. The issue is whether, “in light of the duties

assigned to specific officers or employees the need for more or different training [or

supervision] is so obvious, and the inadequacy so likely to result in the violation of

constitutional rights, that the policymakers of the city can reasonably be said to have

been deliberately indifferent to the need.” Canton, 489 U.S. at 390, quoted in Liebe

v. Norton, 157 F.3d 574, 579 (8th Cir. 1998); cf. Cash v. Cty. of Erie, 654 F.3d 324,

337 (2d Cir. 2011) (failure-to-supervise claim), cert. denied, 565 U.S. 1259 (2012).

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“A pattern of similar constitutional violations by untrained employees is ordinarily

necessary to demonstrate deliberate indifference for purposes of failure to train.”

Connick v. Thompson, 563 U.S. 51, 62 (2011) (quotation omitted). “In resolving the

issue of a city’s liability, the focus must be on adequacy of the [supervision] in

relation to the tasks the particular officers must perform.” Canton, 489 U.S. at 390.

“When the issue is qualified immunity from individual liability for failure to

train or supervise, deliberate indifference is a subjective standard” that requires

personal knowledge of the constitutional risk posed by inadequate supervision, the

basis for our conclusion that Sheriff Krigbaum was entitled to qualified immunity in

Krigbaum, 808 F.3d at 341. But an objective standard of deliberate indifference

applies to plaintiffs’ failure-to-supervise claims against the County. Id. at n.3; see

Farmer v. Brennan, 511 U.S. 825, 840-42 (1994); Canton, 489 U.S. at 390.

B. A unique aspect in applying these established municipal-liability principles

to this case is the central role played by the multi-agency Drug Court. Though

generally authorized by state statute, the Drug Court was established by a lengthy

August 2006 Memorandum of Understanding (“MOU”) between the Forty-Fifth

Circuit Court, “the local Defense Bar, The Sheriffs of Lincoln and Pike Counties,

Department of Corrections District Office of Probation and Parole, and designated

substance abuse treatment providers.” Sheriff Krigbaum’s predecessor signed the

MOU as Lincoln County Sheriff, thereby undertaking to be a “team member” and “to

enhance interagency communication to provide an effective treatment team for the

Drug Court participants” through this “linkage of services.” In a section of the MOU

entitled “SHERIFFS,” the Lincoln County Sheriff agreed to a list of eight “core

competencies,” including:

1. Participates fully as a Drug Court team member, committing him or

herself to the program mission and goals, and works as full partner to

insure their success.

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7. Provides a monitoring function to the team (along with supervision

and treatment): i.e. going on joint home visits, reporting on a

participant’s activities in the community, and supervising participation

in community service.

The Drug Court Policies and Procedures Manual states that the Lincoln County

Sheriff’s Department provides the monitoring tracker. The Manual explains:

The role of the tracker is to conduct home visits and other participant

contact . . . . The duties of tracker will be, but not limited to, conduct

home visits, inspect participants’ homes for indications of drug and/or

alcohol use, curfew compliance, conduct breathalyzer tests, on-site UA

[urine analysis] tests and employment verification. If the tracker finds

that the participant has violated drug court policy, he will contact the

judge to determine if the participant should be taken into custody as a

sanction.

In Krigbaum, we noted that “[t]he Drug Court’s multi-agency membership

resulted in significant confusion and ignorance regarding who was supervising

Edwards on a day-to-day basis when he served as tracker.” 808 F.3d at 341. The

evidence at trial bore this out. Two Circuit Court judges assigned to the Drug Court,

the Drug Court Administrator, and Drug Court team members from the Lincoln

County Circuit Clerk, the Drug Court’s counseling service, and Probation and Parole

testified that they did not supervise Edwards, believing the Sheriff’s Department was

his supervisor. Judge Burkemper testified: “If we had issues with any of the team

members, we would try to talk to them first. And if that wasn’t successful, we went

to . . . his or her boss. . . . I’ve never seen the Drug Court team as having any

supervisory authority over . . . any team members.” Edwards testified by deposition

that he worked alone and considered the Drug Court Administrator to be his

supervisor.

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When Krigbaum was elected Lincoln County Sheriff in 2008, the Drug Court

was operating with Edwards serving as tracker. The tracker position was “secondary”

to Edwards’s regular Sheriff’s Department duties; his tracker pay came from a

separate County fund. Circuit Judge Burkemper contacted Krigbaum regarding the

Drug Court and advised him of the MOU. Krigbaum said he would support the Drug

Court by continuing to provide a tracker and his vehicle and to pay his salary.

Krigbaum retained Edwards in the tracker position but thereafter paid no attention to

the Drug Court. He did not attend team meetings with Edwards. He did not monitor

or inquire about Edwards’s performance as tracker. Edwards submitted time sheets

for hours spent working as tracker; Krigbaum approved the time sheets without

attempting to verify the information, which Edwards under-reported. The Sheriff’s

Department policy requiring officers to call in their location and mileage when

transporting a juvenile or member of the opposite sex was not applied to Edwards

when serving as tracker. Krigbaum discussed the Drug Court with County

Commissioners only “when it came to money.” He first saw the Drug Court MOU

and Policies and Procedures Manual at his deposition in this lawsuit.

C. Lincoln County argues the evidence was insufficient to show that the

County is liable for failing to supervise Edwards while he worked as Drug Court

tracker because Sheriff Krigbaum thought the Drug Court supervised Edwards when

serving as tracker, Krigbaum lacked actual knowledge of Edwards’s misconduct, and

no testimony connected the Sheriff’s Department to knowledge of Edwards’s

misdeeds. But this argument fails to take into account the failure-to-supervise

instructions submitted to the jury without objection. For each plaintiff, the jury was

instructed that its verdict will be against Lincoln County if it finds:

First: The Lincoln County Sheriff, as policy maker for Defendant

Lincoln County, was responsible for supervising Scott Edwards as Drug

Court Tracker; and

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Second: Defendant Lincoln County’s supervision of Scott

Edwards as Drug Court Tracker was inadequate; and

Third: The need for supervision by Defendant Lincoln County

was so obvious, and the inadequacy so likely to result in the violation of

[each Plaintiff’s] constitutional rights, that the policy maker for

Defendant Lincoln County can reasonably be said to have been

“deliberately indifferent” to the need for such supervision; and

Fourth: The failure of Defendant Lincoln County to supervise

Scott Edwards as Drug Court Tracker was the cause of the injuries to

[each Plaintiff].

Two aspects of this instruction are of critical importance to this appeal. In the first

instruction, the person identified as Lincoln County policy maker was not Sheriff

Michael Krigbaum; it was “The Lincoln County Sheriff.” Thus, in determining

supervisory responsibilities, the jury was instructed that it could consider, as plaintiffs

argued, that “the Sheriff” signed an MOU agreeing to be a fully participating Drug

Court team member, whether or not Krigbaum ever understood the Sheriff’s Drug

Court responsibilities or even read the MOU. The Third instruction, which exactly

tracked the above-quoted liability standard from Canton as quoted by this court in

Liebe, permitted the jury to find that the need for supervision was “so obvious”

because of danger signals that were apparent to other Drug Court team members but

were never conveyed to Sheriff Krigbaum, who ignored Drug Court activities

altogether. In a “no supervision” case involving a municipal-liability claim against

one agency participant, a novel and potentially critical legal issue is whether a need

for supervision that became obvious to other agencies’ officials can establish the

deliberate indifference of a Lincoln County Sheriff who was unaware of the danger

signals. However, as Lincoln County failed to object to the district court’s verdict

director, the only issue before us is whether the trial evidence permitted a reasonable

jury to find for the plaintiffs on the elements of the claim as instructed.

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D. Turning to the specific sufficiency issues, the County’s principal defense

at trial was that Sheriff Krigbaum was not responsible for supervising Edwards as

Drug Court tracker. But the trial evidence was clearly sufficient to permit a

reasonable jury to find, as they were instructed, that the Lincoln County Sheriff, as a

Lincoln County policy maker, was responsible for supervising Scott Edwards as Drug

Court Tracker. The terms of the MOU, standing alone, support this finding. And the

testimony of Judge Burkemper that the Drug Court considered the agency providing

a particular team member to be that person’s “supervisor” gave the jury a common-

sense basis for resolving an issue that, in hindsight, was left unresolved when the

Drug Court was established, with disastrous results.

One of the two critical fact issues at trial was whether the need to supervise

Edwards as tracker was, in the words of the jury instruction, “so obvious . . . that the

policy maker for Defendant Lincoln County can reasonably be said to have been

‘deliberately indifferent’ to the need for such supervision.” Though this instruction

followed the language of the deliberate indifference test articulated in Canton, it

arguably did not give the jury an accurate sense of how rigorously the standard must

be applied “to ensure that the municipality is not held liable solely for the actions of

its employee.” Brown, 520 U.S. at 405. But as there was no objection to the

instruction, that issue is not before us and we do not consider it.

At trial, plaintiffs contended that specific evidence demonstrated a pattern of

activity by tracker Edwards that made obvious the inadequacy of his supervision “in

relation to the tasks the particular officer[] must perform.” Canton, 489 U.S. at 390.

Some of the evidence related to misconduct by Edwards that should have been

obvious to Sheriff Krigbaum and the Sheriff’s Department jail staff. Edwards visited

K.W., S.M., and L.M. while incarcerated and took them out of jail for smoke breaks

or to a McDonald’s. These were clear violations of jail policies, and Edwards and

plaintiffs walked past jail staff as they exited the prison. S.M. testified that Edwards

used these occasions to initiate sexual contact “in the detective side [of the facility]

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where it would be dark . . . . [T]hat’s where he would grope or touch or do whatever

it was he wanted to do with us.” More generally, Krigbaum testified that there is a

risk of misconduct when law enforcement officers are alone with females, and

Edwards told Krigbaum that he had the authority to report facts as tracker that could

make a participant go to jail.

Much of plaintiffs’ “so obvious” evidence concerned Edwards’s conduct as

tracker that was known to Drug Court team members but not to Sheriff Krigbaum

because he ignored the Sheriff’s role as defined in the Drug Court MOU. For

example, despite the MOU’s explicit reference to “joint” visits, Edwards worked

alone “almost exclusively” when performing tracker duties, including night visits to

female participants’ homes, and Judge Burkemper testified he’d “never known two

people to go out.” There was also evidence that Edwards made derisive sexual

comments at Drug Court team meetings about females under his supervision, under-

reported hours and trips in his patrol car to the plaintiffs’ homes, and was widely

perceived as devoting attention to younger women. A male Drug Court participant

testified that it was common knowledge that Edwards spent a disproportionate

amount of time supervising female participants who were “attractive, young, and new

to the Drug Court program and kind of naive.”

Viewed in toto, we conclude that this evidence, while not overwhelming, was

sufficient to permit a reasonable jury to find that (i) it was so obvious to Drug Court

team members that failing to provide any supervision of Edwards as Drug Court

tracker would result in the violation of sexually vulnerable participants’ constitutional

rights as to constitute deliberate indifference to the need for supervision, and (ii) this

deliberate indifference was attributable to the Sheriff of Lincoln County as the Drug

Court team member responsible for supervising tracker Edwards.

Lincoln County further argues the evidence was insufficient to prove the other

essential element of municipal liability -- that a lack of supervision was the “moving

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force” behind Edwards’s constitutional violations. See Parrish v. Ball, 594 F.3d 993,

1000 (8th Cir. 2010) (quotation omitted). As Sheriff Krigbaum acknowledged, there

is always a risk of sexual assaults when male police officers exercise official authority

over females. Edwards’s extensive authority and responsibilities to monitor Drug

Court participants provided an ideal environment for an officer to coerce sexually

vulnerable females into unwanted sexual contact, and the danger signals Edwards’s

conduct provided to jail staff and Drug Court team members made that specific risk

obvious. Compare Harris v. City of Pagedale, 821 F.2d 499, 508 (8th Cir. 1987),

with Andrews v. Fowler, 98 F.3d 1069, 1076 (8th Cir. 1996). Though plaintiffs failed

to identify specific supervisory procedures that should have been instituted, the jury

could reasonably infer that even a modest level of active supervision would have

successfully deterred Edwards’s repeated misuse of his authority for the purpose of

sexual abuse. This is not an “isolated incident” case, even though Edwards was the

only Drug Court tracker. Szabla, 486 F.3d at 393 (quotation omitted). Viewing the

trial evidence as a whole, as we must, a reasonable jury could find that the County’s

inadequate supervision was the moving force that enabled Edwards to sexually

assault the plaintiffs.

II.

Lincoln County argues the district court abused its discretion in denying the

County’s motion for a new trial because the jury awarded substantial compensatory

damages but “no evidence of a financial nature or detailed testimony about the basis

for any such damage award was presented at trial.”

“A compensatory damage award for emotional distress may be based on a

plaintiff’s own testimony. Such an award must be supported by competent evidence

of genuine injury, but medical or other expert evidence is not required.” Bennett v.

Riceland Foods, Inc., 721 F.3d 546, 552 (8th Cir. 2013) (quotation omitted), citing

Kim v. Nash Finch Co., 123 F.3d 1046, 1065 (8th Cir. 1997). Here, plaintiffs

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testified at length about the sexual acts they endured and the impact Edwards’s

actions as tracker had on them, including interfering with their ability to overcome

drug addictions. The evidence included Edwards’s plea agreement, in which he

admits to acts of aggravated sexual abuse, as well as an audio recording of Edwards’s

assault of S.M. in a motel room. “A motion for new trial based on sufficiency of the

evidence should be granted only if the verdict is against the weight of the evidence.”

Bennett, 721 F.3d at 552-53 (quotation omitted). As in Bennett, the district court did

not clearly abuse its discretion in denying a new trial based on the jury’s damage

awards.

The judgment of the district court is affirmed.

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