Cornell McKay v. City of St. Louis

United States Court of Appeals

For the Eighth Circuit

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No. 19-1912

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Cornell McKay

Plaintiff - Appellant

v.

City of St. Louis

Defendant - Appellee

Jennifer Joyce

Defendant

Anthony Boettigheimer, in his individual and official capacities; Christian

Stamper, in his individual and official capacities; David Rudolph, in his individual

and official capacities; Richard Gray; Thomas Irwin; Bettye Battle-Turner; Erwin

O. Switzer, in their official capacities as members of the St. Louis City Board of

Police Commissioners; Francis G. Slay, in his official capacity as an ex-officio

member of the St. Louis City Board of Police Commissioners; Joseph Spence, in

his individual capacity

Defendants - Appellees

Susan Ryan; SC Ryan Consulting, LLC

Defendants

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Appeal from United States District Court

for the Eastern District of Missouri - St. Louis

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Submitted: January 15, 2020

Filed: June 4, 2020

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Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.

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GRUENDER, Circuit Judge.

Cornell McKay appeals the district court’s 1 grant of summary judgment in

favor of police officers Anthony Boettigheimer, Christian Stamper, and David

Rudolph (“the Police Defendants”); probation officer Joseph Spence; various

members of the St. Louis City Board of Police Commissioners (“the Board

Defendants”); and the City of St. Louis (“City”). We affirm.

I.

On August 10, 2012, Jane Doe was leaving her car outside her condominium

in St. Louis when a man walked “right up” to her at arm’s distance, pointed a gun at

her, and demanded her money. The man took fifty dollars and Doe’s cell phone.

Doe reported the robbery to the St. Louis Metropolitan Police Department that

same night. She described the suspect to the police as a young, black male with a

light complexion, sixteen to twenty years of age, six feet and three inches tall, and

weighing 150 pounds. After the robbery, Doe left her stolen phone activated for the

purpose of developing potential leads. She later provided detectives with a

spreadsheet she had constructed of calls made to and from her cell phone from

August 10 to August 13, using her account records from Sprint. Police conducted

an online search of the telephone numbers on Doe’s spreadsheets. One of the

numbers was linked to addresses associated with a man named Lamont Carter.

1

The Honorable John A. Ross, United States District Judge for the Eastern

District of Missouri.

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On August 18, 2012, a man shot and killed Megan Boken during an attempted

armed robbery less than three blocks from Doe’s condominium. A day later,

homicide unit detectives assigned to the Boken case were alerted to the similar

location of the Doe and Boken robberies. The homicide detectives then met with

Officer Stamper and asked for information about the Doe robbery. A day after this

meeting, Officer Stamper assigned the Doe case to Officer Boettigheimer, whose

partner, Officer Rudolph, also assisted in the case. Officer Boettigheimer focused

his investigation on Carter, conducting searches on computerized databases of phone

numbers and addresses associated with Carter to identify Carter’s potential

associates. Through this process, he found fifteen to twenty individuals linked to

Carter, but only Cornell McKay matched Doe’s description of her robber.

Officer Boettigheimer generated a photograph lineup using the images of

McKay and five others with the same physical characteristics as McKay. He then

showed this lineup to Doe, who identified McKay as the man who robbed her. As a

result, Officer Boettigheimer issued a “wanted” notice for McKay, who surrendered

himself. Officer Boettigheimer then organized a physical lineup consisting of

McKay and three others with similar physical characteristics to McKay. Doe again

identified McKay as the robber. A grand jury subsequently charged McKay with

one count of first-degree armed robbery, see Mo. Rev. Stat. § 570.023, and one count

of armed criminal action, see Mo. Rev. Stat. § 571.015.

Meanwhile, detectives from the homicide unit had been running separate

computer searches based on Doe’s cell phone spreadsheet. These searches led them

to Kaylin Perry, whose number had been called in the days after Doe’s robbery. On

August 22 and 23, 2012, they interviewed Perry multiple times and informed

Officers Boettigheimer and Rudolph they were doing so. During the homicide

detectives’ interviews of Perry, she ultimately told them that her boyfriend, Keith

Esters, had come home one night with Doe’s phone and fifty dollars. She stated that

she believed Esters robbed someone for the phone and the money.

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When Officers Boettigheimer and Rudolph interviewed Perry, however, she

told them only that Esters had given her Doe’s cell phone to use sometime during

the week of August 13, 2012, after her cell phone had stopped working. She also

told the officers that she did not know where or how Esters obtained Doe’s cell phone

and that she and Esters had since sold the cell phone at a gas station. Officer Rudolph

later testified that he was not told of Perry’s statement to the homicide detectives

that she believed Esters committed the Doe robbery. And Officer Boettigheimer

also testified that the homicide detectives did not tell him the specific information

they received during their interviews with Perry.

Officers Boettigheimer and Rudolph tracked down the person who had

purchased the phone at the gas station, and that person confirmed that he had bought

the phone from Esters. In February 2013, Doe was shown a photographic lineup

that included Esters, but she did not identify him as the robber. Esters later confessed

to the Boken murder but repeatedly denied involvement in the Doe robbery.

In December 2013, during McKay’s trial, Doe again identified McKay as the

man who robbed her. A jury convicted McKay of both the armed-robbery and

armed-criminal-action counts. State v. McKay, 459 S.W.3d 450, 452 (Mo. Ct. App.

2014). The court sentenced him to 12 years’ imprisonment. Id. The Missouri Court

of Appeals reversed the convictions on the ground that the trial court erred by

granting the prosecution’s motion to exclude any reference to Esters and remanded

the case for a new trial. Id. at 459-60. Because Doe did not want to testify at another

trial, the State declined to retry the case, and McKay was released in May 2015.

McKay filed suit against the Police Defendants, Spence (his former probation

officer), the Board Defendants, and the City (collectively, “the Appellees”), among

others. He asserted claims under 42 U.S.C. § 1983 against the Police Defendants (in

their individual and official capacities) for violating his constitutional rights by

(1) suppressing and/or destroying evidence; against the Police Defendants (in their

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individual and official capacities) and Spence2 (in his individual capacity) for

violating his constitutional rights by (2) fabricating evidence, (3) failing to

investigate, and (4) conspiring to deprive him of his constitutional rights; and against

the Board Defendants (in their official capacities) and the City for (5) imposing

certain policies, customs, or practices in violation of his constitutional rights.

The district court granted summary judgment for the Appellees. McKay

appeals the grant of summary judgment on all five claims.

II.

A § 1983 claim requires “(1) that the defendant(s) acted under color of state

law[] and (2) that the alleged wrongful conduct deprived the plaintiff of a

constitutionally protected federal right.” Schmidt v. City of Bella Villa, 557 F.3d

564, 571 (8th Cir. 2009). We review de novo the district court’s grant of summary

judgment on a § 1983 claim. LaCross v. City of Duluth, 713 F.3d 1155, 1157 (8th

Cir. 2013). We also review de novo a grant of summary judgment on a municipal

liability claim under § 1983. Moyle v. Anderson, 571 F.3d 814, 817 (8th Cir. 2009).

A motion for summary judgment is properly granted when “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).

2

McKay argued before the district court that his probation officer, Spence,

filed a fabricated probation revocation report that falsely stated that a photograph of

McKay appeared on Doe’s phone. On appeal, McKay mentions Spence only once,

when describing the claims he brought in the district court. He also includes only

one passing sentence obliquely referencing the probation revocation report. “Since

there was no meaningful argument on this claim in his opening brief, it is waived.”

Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th Cir. 2004).

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A.

McKay first argues that the Police Defendants violated his due process rights

by suppressing or destroying evidence. Suppression of material exculpatory

evidence is a violation of a person’s due process rights. Brady v. Maryland, 373

U.S. 83, 87 (1963). To demonstrate a Brady violation, a plaintiff must show that (1)

the prosecution suppressed evidence (2) that was favorable to the defendant and (3)

that the evidence was material. Stewart v. Wagner, 836 F.3d 978, 982 (8th Cir.

2016). To establish a claim under § 1983 for a Brady violation, a plaintiff must

allege and demonstrate bad faith or, in other words, that “a law enforcement officer

other than the prosecutor intended to deprive [him] of a fair trial.” See id. at 982

(emphasis omitted).

McKay asserts that the Police Defendants: (1) failed to preserve Doe’s phone

in such a way that evidence could be gathered from it; (2) “suppressed the true

nature” of Perry’s statements by making it appear that the Police Defendants did not

know that Perry had implicated Esters in the Doe robbery; and (3) lost or destroyed

an alleged video of the interview that Officers Boettigheimer and Rudolph

conducted with Perry. He implies that the Police Defendants must have been acting

in bad faith by suppressing or destroying evidence in order to “cover up their

shocking negligence in failing to investigate the Jane Doe robbery before Megan

Boken’s murder.”

The district court correctly granted summary judgment to the Police

Defendants on this § 1983 Brady claim.

First, McKay concedes there is no evidence that Doe’s phone was

intentionally destroyed, let alone destroyed in bad faith by or on behalf of the Police

Defendants. “Bad faith can be shown by proof of an official animus or a conscious

effort to” destroy exculpatory evidence. See Jimerson v. Payne, --- F.3d ---, 2020

WL 2050657, at *6 (8th Cir. Apr. 29, 2020). McKay states only that the phone is

“now destroyed and no one can provide any explanation as to how or when the phone

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was destroyed.” Without some indication of bad faith or that the phone contained

exculpatory evidence, McKay’s Brady claim regarding the destruction of Doe’s

phone necessarily fails. See United States v. Leisure, 844 F.2d 1347, 1361 (8th Cir.

1988) (declining to infer bad faith from the “sole circumstance of destruction” of

evidence).

Second, McKay asserts that the Police Defendants failed to disclose to McKay

that Perry had made statements implicating Esters in the Doe robbery. Although it

is unclear from McKay’s brief which specific statements he alleges were suppressed,

McKay proffers no evidence that the Police Defendants were ever told about Perry’s

statement to the homicide detectives that she believed Esters committed the Doe

robbery. Regarding other statements made by Perry, McKay admitted that his

counsel was given “[t]wo DVDs . . . of statements given by Kaylin [P]erry.” As the

district court noted, McKay was given these statements by March 2013, more than

eight months before his trial. Thus, the record does not provide any support for the

claim that the Police Defendants suppressed Perry’s statements, let alone suppressed

them in bad faith.

Third, McKay asserts that a video of an interview of Perry by Officers

Boettigheimer and Rudolph conducted in the homicide unit was either suppressed or

destroyed. Although Officer Rudolph testified as to his “understanding” that every

interview in the homicide unit is automatically recorded, McKay proffers no other

evidence that a video of this particular interview existed, let alone that it was

destroyed or suppressed in bad faith. In addition, we agree with the district court

that testimony of a robbery detective like Officer Rudolph about video-recording

protocol in the homicide unit is not particularly persuasive without additional

evidence that Officer Rudolph had past experience or special knowledge of that

unit’s video-recording protocol. Because McKay does not offer evidence that such

a video ever existed beyond conjecture and speculation, let alone any evidence that

it was suppressed or destroyed in bad faith, McKay’s claim on this point cannot

survive summary judgment. See Helmig v. Fowler, 828 F.3d 755, 762 (8th Cir.

2016) (stating that, “[w]ithout any evidence of intent or bad faith,” a § 1983 claim

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based on a Brady violation must fail); see also Zayed v. Associated Bank, N.A., 913

F.3d 709, 720 (8th Cir. 2019) (noting that “a party must provide more than conjecture

and speculation” to survive a summary judgment motion).

For these reasons, McKay has failed to establish a genuine dispute of material

fact about whether the Police Defendants violated McKay’s “constitutionally

protected federal right[s],” see Schmidt, 557 F.3d at 571, by suppressing or

destroying evidence in bad faith. Thus, the district court did not err in granting

summary judgment to the Police Defendants on this claim. See id. at 574 (affirming

summary judgment on § 1983 claim without addressing “issues of qualified

immunity” by finding “no constitutional violation”).

B.

McKay next argues that the district court erred in granting summary judgment

to the Police Defendants on his claim that they fabricated evidence in violation of

his due process rights. Specifically, he asserts that the Police Defendants improperly

persuaded Doe to choose McKay’s image in a photograph lineup and excluded the

statements made by Perry to the homicide detectives from a police report. “If

officers use false evidence, including false testimony, to secure a conviction, the

defendant’s due process is violated.” Wilson v. Lawrence Cty., 260 F.3d 946, 954

(8th Cir. 2001). We have recognized that a plaintiff can demonstrate a violation of

substantive due process by “offer[ing] evidence of a purposeful police conspiracy to

manufacture, and the manufacture of, false evidence.” Moran v. Clarke, 296 F.3d

638, 647 (8th Cir. 2002) (en banc) (abrogated on other grounds by Manuel v. City

of Joliet, 580 U.S. ---, 137 S. Ct. 911 (2017)).

A lineup that deprives the accused of a fair trial offends due process and can be

actionable under § 1983. Pace v. City of Des Moines, 201 F.3d 1050, 1055 (8th Cir.

2000). To determine whether an identification procedure violated due process, we

consider: (1) whether the identification was impermissibly suggestive; and (2)

whether, under the totality of the circumstances, the suggestive procedures created

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“a very substantial likelihood of irreparable misidentification.” United States v.

Murdock, 928 F.2d 293, 297 (8th Cir. 1991).

All McKay offers to support his claim that the Police Defendants improperly

coached Doe is McKay’s assertion that he was not the robber, and therefore Doe’s

unprompted identification of him is “implausible.” But no evidence supports this

speculative argument. To the contrary, Doe consistently identified McKay as the

man who robbed her, first in a photograph lineup and later in an in-person lineup,

and she articulated differences between Esters’s features and those of the man who

robbed her. Moreover, Doe testified that she had a “good look” at the man who

robbed her on the night of the incident and that that person was McKay. Because

McKay’s claim of witness coaching is mere supposition, we agree with the district

court that this claim cannot survive summary judgment. See Zayed, 913 F.3d at 720.

McKay also argues cursorily that the Police Defendants fabricated a police

report by refusing to include Perry’s statement that she believed Esters had

committed the robbery. But, as we noted above, McKay fails to proffer any evidence

that the Police Defendants were told of such a statement by the homicide unit

detectives. Therefore, this claim must also fail because McKay’s argument is

speculation. See Zayed, 913 F.3d at 720.

Because the record evidence does not create a genuine dispute of material fact

regarding McKay’s fabrication-of-evidence claims, the district court did not err in

granting summary judgment to the Police Defendants.

C.

McKay also argues that the Police Defendants violated his constitutional

rights by recklessly or intentionally failing to investigate Esters as a suspect in the

Doe robbery. We have recognized that a constitutional violation occurs when

officers’ “failure to investigate was intentional or reckless, thereby shocking the

conscience.” Cooper v. Martin, 634 F.3d 477, 481 (8th Cir. 2011); see also Amrine

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v. Brooks, 522 F.3d 823, 833 (8th Cir. 2008) (“The test for whether state officers’

actions violate this protected liberty interest is whether those actions shock the

conscience.”). Allegations of negligence, even of “gross negligence,” do not give

rise to a constitutional violation. Amrine, 522 F.3d at 833, 835 (noting that officers’

failure to “follow through on investigating other leads” did not rise to the level of

recklessness).

McKay’s assertion that the Police Defendants failed to “even consider” Esters

as a suspect in the Doe robbery is contradicted by the record. After learning of

Esters, Officers Boettigheimer and Rudolph interviewed Perry about Esters’s

connection to Doe’s phone and then included Esters’s photograph in a lineup for

Doe to identify. During this photographic lineup, Doe pointed out physical

differences between Esters and her attacker, like Esters’s “too thick” eyebrows and

“too dark” skin tone. Moreover, Doe consistently identified McKay as the robber,

and Esters admitted to the Boken murder but repeatedly denied any involvement in

the Doe robbery. Considering this evidence, we agree with the district court that the

Police Defendants did not fail to investigate, let alone fail to do so in a reckless or

intentional manner so as to “shock the conscience.” See id. at 833. Thus, the district

court did not err in granting summary judgment to the Police Defendants on this

claim.

D.

McKay next argues that the Police Defendants engaged in a conspiracy to

deprive him of his constitutional rights. To prove a § 1983 conspiracy claim, McKay

must demonstrate that the defendants “(1) conspired with others to deprive

him . . . of a constitutional right; (2) at least one of the alleged co-conspirators

engaged in an overt act in furtherance of the conspiracy; and (3) the overt act injured”

him. See Helmig, 828 F.3d at 763. McKay “is additionally required to prove a

deprivation of a constitutional right or privilege in order to prevail on a § 1983 civil

conspiracy claim.” See White v. McKinley, 519 F.3d 806, 814 (8th Cir. 2008).

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For the reasons stated above, we agree with the district court that the Police

Defendants are entitled to summary judgment on McKay’s conspiracy claim because

McKay has failed to create a genuine dispute of material fact concerning whether he

was deprived of a constitutional right. See Robbins v. Becker, 794 F.3d 988, 997

(8th Cir. 2015) (“Absent a constitutional violation, there is no actionable conspiracy

claim.” (internal quotation marks omitted)).

E.

Lastly, McKay argues that the district court erred in granting summary

judgment to the Board Defendants in their official capacities and to the City of St.

Louis on his municipal liability claim. “A suit against a government officer in his

official capacity is functionally equivalent to a suit against the employing

governmental entity.” Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th

Cir. 2010). “Under Monell, section 1983 liability for a constitutional violation may

attach to a municipality if the violation resulted from . . . an official municipal

policy.” Whitney v. City of St. Louis, 887 F.3d 857, 860 (8th Cir. 2018) (brackets

and internal quotation marks omitted); see generally Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 694 (1978). Therefore, “absent a constitutional violation by a city

employee, there can be no § 1983 or Monell liability for the City.” Whitney, 887

F.3d at 861.

As summary judgment was proper on McKay’s claims against the Police

Defendants because they did not violate his constitutional rights, his Monell claim

against the City and Board Defendants in their official capacities also fails. See

Keefe v. City of Minneapolis, 785 F.3d 1216, 1227 (8th Cir. 2015). Therefore, the

district court did not err in granting summary judgment on his Monell claim.

III.

For the foregoing reasons, we affirm.

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