Allen Bloodworth, II v. Kansas City Board of Police Commissioners

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 22-3540

___________________________

Allen T. Bloodworth, II

lllllllllllllllllllllPlaintiff - Appellant

v.

Kansas City Board of Police Commissioners, through its members,

doing business as Kansas City Police Department; Mayor Quinton

Donald Lucas; Don Wagner; Mark Tolbert; Cathy Dean; Dawn Cramer

Scott Caron; Jeffrey O'Rear; Christopher Millsap; Lisa Allender;

Brad Lemon; Toby Sicks; Carter Truax; Jonathan Munyan;

Nathaniel Hurley; Chad Rives

lllllllllllllllllllllDefendants - Appellees

Police Chief Richard Smith; James Trout; Michael Hicks; Darrin Wilson

lllllllllllllllllllllDefendants

____________

Appeal from United States District Court

for the Western District of Missouri - Kansas City

____________

Submitted: September 20, 2023

Filed: December 22, 2023

____________

Before LOKEN, WOLLMAN, and BENTON, Circuit Judges.

___________

LOKEN, Circuit Judge.

Allen Thomas Bloodworth, II operates two towing businesses in Kansas City.

One tows vehicles from privately owned properties, the other does commercial

repossessions. In this action, commenced in May 2021 in Missouri state court,

Bloodworth alleges that the Kansas City Board of Police Commissioners, acting

through its five Members (“the Board”), and fourteen officers of the Kansas City

Police Department (“KCPD”) acted together to stop Bloodworth from running his

businesses and shut down his ability to conduct business in Kansas City.

After Defendants removed and the district court consolidated separate cases,

Bloodworth filed an Amended Complaint in October 2021, asserting seventeen state

and federal claims: state law claims against all Defendants for defamation, tortious

interference with contract, tortious interference with business expectancy, intentional

infliction of emotional distress, and negligent hiring, training, supervision, or

retention (Counts I, II, III, XV, and XVI); an additional state law claim against

Sergeant Brad Lemon (Count XIV); federal claims under 42 U.S.C. § 1983 against

KCPD officers for an unlawful warrant search and seizure of Bloodworth’s residence

and business, unlawful seizure by shooting his dog while executing the warrant, and

unlawful seizure of business records during the search (Counts IV, V, and VI); claims

against specific officers for failure to supervise or intervene, resulting in violations

of the Fourth and Fourteenth Amendments (Counts VII, VIII, and IX); claims of

§ 1983 municipal liability against the Board and its Members for official policies,

unlawful practice or custom, failure to train, and failure to supervise and discipline,

resulting in violations of Bloodworth’s constitutional rights (Counts X, XI, XII, and

XIII); and a § 1983 claim for intentional acts against Bloodworth and his businesses

that violated his constitutional rights (Count XVII).

In April 2022, the district court granted in part Defendants’ motion for partial

summary judgment on the pleadings, dismissing four officer defendants because the

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Amended Complaint “fails to allege any concrete action on their part that connects

to Plaintiff’s various theories of liability,” and granting judgment on the pleadings as

to Counts IV, V, VI, VII, VIII, and IX “to the extent any of these claims purports to

assert official capacity claims.” Bloodworth has appealed only the final order

dismissing the remaining claims. Therefore, this earlier order is law of the case not

subject to appellate review. See Parkhill v. Minn. Mut. Life Ins. Co., 286 F.3d 1051,

1058 (8th Cir. 2002); Fed. R. App. P. 3(c)(1)(B).

In May 2022, the district court granted a motion for partial summary judgment

dismissing the Board and its Members from Bloodworth’s state law claims in Counts

I, II, III, XV, and XVI as barred by sovereign immunity. Ambiguous arguments in

Bloodworth’s briefs appear to challenge the district court’s ruling that the Board and

its Members are entitled to sovereign immunity. But he did not designate this as an

order from which the appeal is taken. Therefore, the order and its reasoning are law

of the case not subject to our appellate review.

On August 1, 2022, the remaining Defendants other than Sergeant Lemon filed

a motion for summary judgment on all remaining claims, and Lemon filed a separate

summary judgment motion. After extensive briefing, the district court1 granted both

motions. Bloodworth v. Kan. City Bd. of Police Comm’rs, No. 21-00194-CV-W, 21-

00488-CV-W, 2022 WL 17588490 (W.D. Mo. Nov. 15, 2022). Bloodworth appeals

this final order, presenting a single issue for our review:

Did the District Court err in granting Summary Judgment to the

Defendants because there was a genuine issue of material fact with

respect to each of the Plaintiff’s claims against the Defendants in that

the evidence adduced by the Plaintiff established that the Defendants,

while acting as police officers and ultra vires, undertook a campaign to

1

The Honorable Beth Phillips, Chief Judge of the United States District Court

for the Western District of Missouri.

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harass the Plaintiff, violate his civil rights and harm his business by

alienating his customers?

That issue is all we need consider. See Fed. R. App. P. 28(a)(5). “We review the

district court’s grant of summary judgment de novo, viewing the record in the light

most favorable to the nonmoving party.” Buschmann v. Kan. City Bd. of Police

Comm’rs through Dean, 76 F.4th 1081, 1084 (8th Cir. 2023). When the nonmoving

party bears the burden of proof, as in this case, a party moving for summary judgment

“may discharge its burden by ‘pointing out to the district court . . . that there is an

absence of evidence to support the nonmoving party’s case.’” Washington v. City of

St. Louis, 84 F.4th 770, 773 (8th Cir. 2023), quoting Celotex Corp. v. Catrett, 477

U.S. 317, 325 (1986). Concluding there was no error, we affirm.

I. Background

KCPD has investigated Bloodworth’s towing businesses since early 2016,

when Officer Chad Rives, a detective with the Property Crimes Division, conducted

a stolen auto investigation and a warrant search of Bloodworth’s lot recovered a

stolen vehicle. In late 2016 or early 2017, the KCPD Records Unit noticed that many

of Bloodworth’s Form 4669s -- a form towing companies are required to submit when

towing a vehicle from private property -- were signed by the same person, John

Speakman. Investigation revealed that Speakman initially authorized several tows

but did not authorize later tows. When KCPD put stop orders on Bloodworth’s

drivers so they could be questioned, Speakman’s name stopped appearing on Form

4669s. In October 2018, KCPD submitted 31 counts of forgery to the Jackson

County Prosecutor’s Office.

In March 2019, a Missouri state court judge issued a warrant to search

Bloodworth’s tow lot and seize “[a] red 1995 Ford Ranger pickup,” a stolen vehicle;

“[a]ny vehicles verified as reported stolen autos;” and “[a]ny documents regarding the

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towing of verified stolen autos.” Tactical teams including Officers Truax, Sicks,

Munyan, and Hurley executed the warrant on March 27, accompanied by personnel

from the City’s Neighborhoods & Housing Services Department (referred to as “City

Codes”) and the Missouri State Highway Patrol. Bloodworth maintains a residence

and stores towed cars on the lot.

After yelling “police” and entering the lot, the officers encountered Bloodworth

and another individual outside the residence and handcuffed both. Five officers

proceeded to the residence. After knocking and waiting four seconds, they forced the

door open with a ram. While Officers Munyan and Miller (not a defendant) were

clearing a room, covered by Officers Sicks and Truax, Bloodworth’s large pitbull mix

dog emerged from the kitchen and walked toward the officers, exhibiting signs of

aggression. Sicks yelled “back back back.” The dog paused then took a step forward;

Sicks and Truax fired shots at the dog, killing it. The officers then completed

clearing the residence and swept the property. Bloodworth’s business records were

seized, apparently by City Codes personnel, and KCPD recovered sixteen stolen

vehicles, including the Ford Ranger pickup.

In June 2019, KCPD Sergeant Brad Lemon called Bloodworth and demanded

the release of a towed vehicle that Lemon claimed belonged to a family member.

Lemon identified himself as law enforcement and the police union president. When

Bloodworth refused to release the car without authorization from its registered owner,

Lemon referenced the investigation of Bloodworth’s businesses and said, “it’s game

on” and “we’ll start the same routine with you then.” The recorded call was

publicized in local media. In September 2019, the Jackson County Prosecutor

charged Bloodworth with 31 counts of forgery. In December 2020, the prosecutor

dismissed the charges due to Lemon’s phone call.

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II. The State Law Claims

The district court’s May 2022 order held that Bloodworth’s state law claims in

Counts I, II, III, XV, and XVI against the Board and its Members are barred by

sovereign immunity. In the final order being appealed, the court addressed the

individual state law claims against Sergeant Lemon and the other KCPD officer

defendants. The court dismissed these claims against the other officers as barred by

state law official immunity and alternatively on the merits. It dismissed the state law

claims against Sergeant Lemon on the merits.

A. The Non-Lemon Officer Defendants. “[P]ublic officers acting within the

scope of their authority are not liable for injuries arising from their discretionary acts

or omissions.” State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 444 (Mo. banc

1986) (quotation omitted). However, this “official immunity does not aply to

discretionary acts done in bad faith or with malice.” Davis v. White, 794 F.3d 1008,

1013 (8th Cir. 2015) (quotation omitted). In opposing summary judgment,

Bloodworth argued these Defendants “are not entitled to official immunity because

they were acting ultra vires, or beyond their lawful authority,” and their actions “were

conducted with malice or in bad faith.” The district court disagreed:

According to the Amended Complaint, all Defendants, at all relevant

times, were acting under color of law and on behalf, or under the

authority, of the Board. Further, most conduct involves standard police

activities. For example . . . investigations of potential criminal activity,

such as a failure to follow proper procedures when towing vehicles,

misuse of someone’s signature, and the whereabouts of vehicles that

were reported stolen. They also spoke to potential witnesses and

executed a search warrant . . . typical law enforcement activities. . . .

Plaintiff’s contention that the KCPD investigated his business based on

improper motives . . . is unavailing. Again, the KCPD was investigating

purported criminal conduct. Plaintiff denies wrongdoing, but some

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evidence of questionable activity exists. . . . If plaintiff was engaging in

illicit conduct, attempting to prevent such activity was a reasonable

response. The Officers had a legitimate belief there were issues with the

local towing industry and firmly believed Plaintiff was failing to follow

the law. . . . The Officers were acting within the scope of their law

enforcement duties, and they were not acting with malice or in bad faith.

Bloodworth, 2022 WL 17588490, at *5. Regarding Bloodworth’s claims in Counts

II and III that defendants tortiously interfered with his contract and business

expectancies, the court explained:

Plaintiff . . . provides no evidence of any specific statement of any

named defendant to Plaintiff’s customers. . . . If Plaintiff is relying on

the investigation into his business to support this claim, the Court has

found that the Officers engaged in a legitimate investigation into

potential illegal activity. Such conduct cannot comprise the basis of a

tortious interference claim. Further, Plaintiff has failed to demonstrate

damages attributable to the Officers’ conduct.

Bloodworth, 2022 WL 17588490, at *6.

On appeal, Bloodworth argues the district court erred in granting these

Defendants official immunity on all state law claims because they “were acting

outside the scope of their employment as Police Officers” as defined in § 84.420(1)

of the Revised Statutes of Missouri. “There is no conceivable law enforcement

purpose for” Defendants’ intentional attempts to “harass[] and persecute[] Mr.

Bloodworth,” try to shut down his business, and “harass[] and intimidate[]

Bloodworth’s customers so that his business would be harmed.” He asserts that

“Defendants’ actions were not related to any laws or the enforcement of any laws or

the investigation of any crime.” As the above-quoted portion of the district court’s

opinion makes clear, the record belies these contentions. The investigation was based

on the improper filing of forms required by law and reports of stolen cars, some of

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which were recovered from Bloodworth’s property. This resulted in the filing of

criminal charges that were ultimately dismissed voluntarily by the prosecutor as a

result of Defendant Lemon’s improper call. These actions were clearly within the

scope of Defendants’ responsibilities as police officers. For the reasons stated by the

district court, these Defendants were entitled to official immunity and the grant of

summary judgment dismissing Bloodworth’s state law claims against these

defendants is affirmed. Cf. Wealot v. Brooks, 865 F.3d 1119, 1129 (8th Cir. 2017).2

B. Sergeant Lemon: In his motion for summary judgment, Sergeant Lemon

did not argue that Bloodworth’s state law claims are barred by official immunity. The

district court granted summary judgment dismissing these claims on the merits.

1. Defamation (Count I). Bloodworth claims that Sergeant Lemon made

false, defamatory statements in his June 2019 phone call to Bloodworth seeking

release of a towed vehicle. To prevail on this claim, Bloodworth must prove “1)

publication, 2) of a defamatory statement, 3) that identifies the plaintiff, 4) that is

false, 5) that is published with the requisite degree of fault, and 6) damages the

plaintiff’s reputation.” Smith v. Humane Soc’y of the U.S., 519 S.W.3d 789, 798

(Mo. banc 2017) (quotation omitted). The district court granted summary judgment

dismissing this claim because, while the allegedly defamatory statements were aired

on local news, they were not published by Lemon. Bloodworth, 2022 WL 17588490,

at *10.

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Bloodworth also argues that Defendants violated his federal constitutional

rights by telling his customers not to do business with him. The argument is based

on the same facts as his tortious interference state law claims and fails for the same

reasons. He has not established any deprivation of the alleged property interest.

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On appeal, Bloodworth argues the district court erred because, viewed in the

light most favorable to the plaintiff, the evidence established that there is a genuine

issue of material fact. We disagree. “Communication of defamatory matter only to

the plaintiff who then discloses to third parties ordinarily does not subject defendant

to liability,” unless the defendant “intends, or has reason to suppose, that in the

ordinary course of events the matter will come to the knowledge of some third

person.” Overcast v. Billings Mut. Ins. Co., 11 S.W.3d 62, 70 (Mo. banc 2000)

(quotation omitted). Bloodworth cites no evidence in the summary judgment record

tending to show that Lemon either published the statements himself, or “intend[ed],

or ha[d] reason to suppose” they would be communicated to any third party. There

was no error.

2. Tortious Interference with Contract and Business Expectancy (Counts

II and III). Bloodworth claims that statements in Sergeant Lemon’s June 2019

phone call -- “it’s on then” and “we’ll start the same routine with you then” --

tortiously interfered with Bloodworth’s contract and business expectancies because

they demonstrate Lemon was responsible for the forgery charges filed three months

later. The district court concluded Bloodworth had not stated a viable claim because

“he provides no evidence that Lemon played a role in the initiation of the forgery

charges [and] has not identified any specific contracts or business expectancies that

were harmed.” Bloodworth, 2022 WL 17588490, at *10.

On appeal, Bloodworth argues the district court erred because a jury could infer

tortious interference from the fact that “31 baseless counts of forgery” were filed

three months later. But he points to no specific evidence establishing the elements

of these claims against this defendant -- “(1) a contract or valid business expectancy;

(2) defendant’s knowledge of the contract or relationship; (3) a breach induced or

caused by defendant’s intentional interference; (4) absence of justification; and (5)

damages.” Bishop & Assoc., LLC v. Ameren Corp., 520 S.W.3d 463, 472 (Mo. banc

2017) (quotation omitted). There was no error.

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3. Assault (Count XIV). Bloodworth claims that Lemon committed assault

when he threatened Bloodworth during the phone call by saying that “the same

routine” (an investigation), “it’s on.” “Assault is any unlawful offer or attempt to

injure another with the apparent present ability to effectuate the attempt under

circumstances creating a fear of imminent peril.” Devitre v. Orthopedic Ctr. of St.

Louis, LLC, 349 S.W.3d 327, 335 (Mo. banc 2011) (quotation omitted). The district

court granted summary judgment on this claim because “assault requires a connection

to bodily harm or offensive contact. Plaintiff’s allegations cannot support an assault

claim.” Bloodworth, 2022 WL 17588490, at *11.

On appeal, Bloodworth argues the district court erred because assault includes

an “offer or attempt to injure” and “the call demonstrates that Lemon offered to injure

Bloodworth.” We disagree. “To plead an assault, [Bloodworth] must allege: (1)

defendant’s intent to cause bodily harm or offensive contact, or apprehension of

either; (2) conduct of the defendant indicating such intent, and (3) apprehension of

bodily harm or offensive contact.” Devitre, 349 S.W.3d at 335. Lemon’s statements,

made in a phone call, did not evidence intent to cause bodily harm or offensive

contact, and Bloodworth points to no evidence in the summary judgment record

supporting a claim that they “creat[ed] a fear of imminent peril.” There was no error.

4. Intentional Infliction of Emotional Distress (Count XV). Bloodworth

claims that Sergeant Lemon intentionally inflicted emotional distress (“IIED”) when

he identified his law enforcement position in the phone call, asked Bloodworth to

engage in illegal activity by releasing a vehicle without the owner’s authorization,

and then threatened further police action and investigation when Bloodworth refused.

The district court granted summary judgment because Lemon’s actions, while “ill-

advised and questionable . . . were not ‘so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.’” Bloodworth, 2022 WL

17588490, at *11, quoting Gibson v. Brewer, 952 S.W.2d 239, 249 (Mo. banc 1997).

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On appeal, Bloodworth argues the district court erred because a reasonable jury

could conclude that Lemon’s conduct was extreme and outrageous. Like the district

court, we disagree. “Missouri case law reveals very few factual scenarios sufficient

to support a claim for IIED.” Bailey v. Bayer CropScience L.P., 563 F.3d 302, 310

(8th Cir. 2009) (citations omitted), a case in which we affirmed the grant of summary

judgment dismissing an IIED claim. “[T]he plaintiff must plead extreme and

outrageous conduct by a defendant who intentionally or recklessly causes severe

emotional distress that results in bodily harm.” K.G. v. R.T.R., 918 S.W.2d 795, 799

(Mo. banc 1996) (citations omitted). The claim “will not lie where the alleged

conduct is intended to invade other legally protected interests.” Id. This “relative

newcomer to the common law . . . was intended to supplement existing forms of

recovery, not swallow them.” Id. Bloodworth points to no specific evidence in the

summary judgment record that meets these rigorous criteria. There was no error.

III. The Federal Law Claims

The district court divided Bloodworth’s federal law claims into three

categories, those relating to conduct of individual KCPD officers, claims of failure

to intervene or supervise, and municipal liability claims. The court granted summary

judgment dismissing these claims, agreeing with Defendants that “there is an absence

of evidence to support the nonmoving party’s case.” Washington, 84 F.4th at 773

(quotation omitted).

A. Individual Officer Conduct Claims (Counts IV, V, VI, and XVII). These

§ 1983 claims allege Fourth Amendment violations against specific KCPD officer

defendants arising out of the warrant search on March 27, 2019 (Count IV), the

seizure (killing) of Bloodworth’s dog (Count V), the seizure of his business records

(Count VI), and “intentional acts against Plaintiff and his businesses” (Count XVII).

In granting officers other than Lemon summary judgment dismissing these Fourth

Amendment claims, the district court held they were entitled to qualified immunity.

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Qualified immunity insulates government officials from liability “unless (1) the

evidence, viewed in the light most favorable to [Bloodworth], establishes a violation

of a constitutional or statutory right, and (2) the right was clearly established at the

time of the violation, such that a reasonable official would have known that his

actions were unlawful.” Ackerman v. State of Iowa, 19 F.4th 1045, 1058 (8th Cir.

2021) (quotation omitted). A federal court may exercise discretion in determining

which prong of the qualified immunity analysis to address first. Ryno v. City of

Waynesville, 58 F.4th 995, 1005 (8th Cir. 2023).

The district court noted that the claims regarding interfering with Bloodworth’s

business, Defendants’ conduct during the search, and the seizure of business records

are “general assertions, largely without referencing any individual defendant’s

specific conduct. . . . Thus, a constitutional violation has not been established.”

Bloodworth, 2022 WL 17588490, at *8. This was clearly correct. We have

repeatedly emphasized that “[t]he doctrine of qualified immunity requires an

individualized analysis of each officer’s alleged conduct.” S.M. v. Krigbaum, 808

F.3d 335, 340 (8th Cir. 2015) (emphasis in original; quotation omitted); see Ashcroft

v. Iqbal, 556 U.S. 662, 677 (2009) (a government official is “only liable for his or her

own misconduct.”). In their scatter-gun briefs, counsel for Bloodworth repeatedly

assert that Bloodworth presented sufficient evidence that “Defendants” violated his

rights to avoid summary judgment. This will not do. There are 17 separate claims

and 14 individual defendants. “Judges are not like pigs, hunting for truffles buried

in briefs.” Brown v. City of Jacksonville, 711 F.3d 883, 888 n.5 (8th Cir. 2013),

quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). We summarily

affirm every § 1983 claim against a defendant whose conduct was not specifically

linked to that particular alleged violation.

On appeal, Bloodworth argues the summary judgment record supports two

violations of his clearly established Fourth Amendment rights: (1) the “years-long

campaign against” Bloodworth and his businesses, which “depriv[ed] him of his

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property interest in his business,” and (2) Defendants’ use of excessive force and their

unreasonable search and seizure of his property.

1. Alleged Campaign Against Bloodworth’s Businesses. In addition to

rejecting this claim because Bloodworth did not reference any Defendant’s specific

conduct, the district court concluded that Bloodworth’s general assertions are

unconvincing. “[T]he KCPD investigated Plaintiff regarding alleged criminal

activity; it was not simply trying to shut down Plaintiff’s business due to improper

motivations.” Bloodworth, 2022 WL 17588490, at *8. We agree. On appeal,

Bloodworth points to a statement by an individual Defendant referring to his

“problem business” and to deposition testimony referring to “the propensity for the

continuous criminal enterprise part of [the business].” But such statements confirm

that alleged criminal activity brought to KCPD’s attention, not personal animus,

motivated the investigation. A licensed business that does not conform to its

licensing obligations and refuses demands that it come into compliance at some point

faces license revocation (being shut down).

2. Excessive Force and Unreasonable Search and Seizure of Property.

Bloodworth argues that Defendants violated his Fourth Amendment rights on March

27, 2019, by: (a) failing to knock and announce before breaking into his residence,

(b) handcuffing Plaintiff, (c) shooting and killing his dog, and (d) taking business

records.3 To the extent that Bloodworth identified specific conduct of individual

defendants, the district court found these arguments unpersuasive.

(a) The Fourth Amendment usually requires police officers to knock and

announce their presence before executing a warrant to search a dwelling. See Wilson

v. Arkansas, 514 U.S. 927, 936 (1995). Here, the KCPD tactical teams yelled

3

The warrant explicitly authorized search for and seizure of “[a]ny documents

regarding the towing of verified stolen vehicles.”

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“police” before entering the tow lot property, detained Bloodworth and his employee

outside the residence, reached the door of the residence some 30 seconds after

entering the property, knocked and announced, and broke into the residence only four

seconds later. Bloodworth argues this violated the Fourth Amendment because

Defendants Sicks and Truax testified that KCPD policy requires officers to wait 15

seconds before forcefully entering a home. The district court disagreed, noting the

Fourth Amendment reasonableness inquiry is flexible and Bloodworth “offers no

explanation as to why the knock and announce was unreasonable here.” Bloodworth,

2022 WL 17588490, at *8. Bloodworth’s briefs on appeal do not provide the needed

explanation. Moreover, it is well-established “that police department guidelines and

policies do not create rights that give rise to a § 1983 action.” Christiansen v. Eral,

52 F.4th 377, 379 (8th Cir. 2022) (citation omitted).

(b) Bloodworth argues that Defendants subjected him to an unreasonable

search and seizure that violated his Fourth Amendment rights when they handcuffed

him in the tow lot and broke into a residence that was not described in the warrant.

These contentions are without merit. As the district court explained, “officers are

allowed to detain individuals present on a property being searched,” citing Muehler

v. Mena, 544 U.S. 93, 98 (2005). Bloodworth, 2022 WL 17588490, at *8. The

warrant “referenced the entire property” and authorized a search for and seizure of

“[a]ny documents regarding the towing of verified stolen vehicles.”

(c) In Count V, Bloodworth alleges that Defendants Sicks and Truax violated

the Fourth Amendment when they shot and killed Bloodworth’s dog Rocky while

executing a warrant search of his residence. The district court recognized that “[a]

dog is considered property for Fourth Amendment purposes,” and killing a family pet

is a seizure. Andrews v. City of W. Branch, 454 F.3d 914, 918 (8th Cir. 2006). “[A]

police officer may justify shooting a dog in order to protect life and property only

when it presents an objectively legitimate and imminent threat to him or others.”

LeMay v. Mays, 18 F.4th 283, 287 (8th Cir. 2021). The district court noted that

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“Sicks and Truax were tasked with covering Munyan and Miller, who were focused

on clearing a room.” Bloodworth, 2022 WL 17588490, at *9. The dog “exhibited

some signs of aggression,” moved toward the officers, and paused, “then began to

move forward and was immediately shot.” Id. The court concluded that “Plaintiff

has not demonstrated Sicks and Truax violated his Fourth Amendment rights by

engaging in an unreasonable seizure through killing Rocky.” Id. The court found the

cases on which Bloodworth relied to support this claim “readily distinguishable.” Id.

We agree that dogs are considered “effects” within the meaning of the Fourth

Amendment, and therefore shooting a dog is a seizure that must be objectively

reasonable or it violates the owner’s Fourth Amendment property interest. Hansen

v. Black, 872 F.3d 554, 558 (8th Cir. 2017), cert. denied 138 S. Ct. 2010 (2018). This

inquiry “turns on the facts and circumstances of each particular case,” viewed from

“the perspective of a reasonable officer on the scene.” Id. at 558 (quotation omitted).

We also agree that the cases on which Bloodworth relies, primarily Andrews and

LeMay, are distinguishable.

In Andrews, a police officer looking for a loose dog running in the

neighborhood shot another dog that was inside a fenced yard showing no signs of

aggression, with his owner just a few feet away. 454 F.3d at 916. Our divided panel

reversed the grant of summary judgment for the officer. Id. at 918-19. In LeMay, an

officer responding to a home security alarm jumped over a fence, walked into the

back yard, and shot two service dogs that approached the officer, one “in a friendly

manner,” the other “in a non-threatening manner.” 18 F.4th at 286. We affirmed the

district court’s denial of defendant’s motion to dismiss. Id. at 288.

By contrast, in Buschmann v. Kansas City Board of Police Commissioners,

officers responding to a domestic violence call walked through a dark wooded area

and drew their weapons as they approached plaintiffs’ house. 76 F.4th 1081, 1083-84

(8th Cir. 2023). When they knocked on the door, they heard barking and growling.

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When the door opened, a dog ran directly at one officer, who shot it, then shot it again

when it turned toward the other officer. Id. Noting the officer faced a “split-second

decision,” and distinguishing Andrews and LeMay, we affirmed the grant of qualified

immunity because it was reasonable to believe that an uncontrolled dog barking and

growling and advancing toward the officers was “an imminent threat.” Id. at 1085;

accord Bailey v. Schmidt, 239 F. App’x 306, 308 (8th Cir. 2007) (“defendants did not

act unreasonably . . . given the uncontested evidence that all of the dogs either

advanced or acted aggressively toward the officers.”).

Here, Officers Sicks and Truax encountered Bloodworth’s large pitbull mix

dog after they lawfully entered the residence not knowing who might be present.

Officers Munyan and Miller were clearing a room while Sicks and Truax covered

them. The dog’s owner was not present to control the animal. The uncontrolled dog

came out of another room and approached the officers, barking and not showing signs

of friendliness. The dog was within six feet of Munyan and Miller when Sicks yelled

“back.” When the dog instead moved forward, both Sicks and Truax fired their

weapons. Defendant Truax testified that he believed the dog was a danger to his

colleagues and that it was “blocking our avenue to get safely to the other side of the

house to clear the rest of the residence.”

In these circumstances, a reasonable officer could conclude that the dog posed

an imminent danger to Officers Munyan and Miller. The size and breed of an

uncontrolled dog that advances aggressively on officers performing police duties are

clearly relevant to the objective reasonableness of their split-second decision to

forcefully seize the animal. See Kendall v. Olsen, 727 F. App’x 970, 974-75 (10th

Cir. 2018); Lee v. Town of Fort Mill, 725 F. App’x 214, 218-19 (4th Cir. 2018);

Altman v. City of High Point, 330 F.3d 194, 206-07 (4th Cir. 2003).

(d) Bloodworth claims that the tow lot search violated his Fourth Amendment

property rights when business records outside the scope of the warrant were seized.

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Defendants denied having possession of the seized documents. Major Caron testified

that City Codes employees accompanying the KCPD officers examined and took

business documents from the residence. The district court rejected this claim

“[b]ecause Plaintiff has not linked the potential constitutional violation to the named

defendants.” As explained, we uphold that ruling. Bloodworth argues that City

Codes personnel “had no authority to be there” and letting them take records not

reflected on the inventory of seized items “was a violation of his clearly established

property interest in those records.” We agree with the district court that “none of this

conduct is directly attributed to the Officers.” Defendants cannot be liable under

§ 1983 for seizures by other personnel.

3. Alleged Intentional Acts Fourth Amendment Violations (Count XVII).

Bloodworth alleged in Count XVII that Defendants violated the Fourth Amendment

by maliciously acting together, without justification, to render him unable to conduct

his businesses. The Non-Lemon Officer Defendants did not reference this claim in

their motion to dismiss. The district court concluded it “essentially repackages other

theories and largely relies on the same purported misconduct” and dismissed it

because it fails for the same reasons. Bloodworth, 2022 WL 17588490, at *10 n.12.

On appeal, without citation to any authority, Bloodworth argues “[t]his was surely an

abuse of discretion.” We disagree. There was no error.4

Sergeant Lemon did expressly include Count XVII in his motion to dismiss,

arguing Bloodworth adduced no evidence that he took any action in an official

capacity or engaged in unconstitutional conduct. The district court agreed there is no

evidence “Lemon was involved in the investigation and charging of Plaintiff” with

4

Bloodworth does not challenge the district court’s dismissal of Count XVII

on the merits, so any objection is waived. See XO Missouri, Inc. v. City of Maryland

Heights, 362 F.3d 1023, 1025 (8th Cir. 2004); Mahler v. First Dakota Title Ltd.

P’ship, 931 F.3d 799, 807 (8th Cir. 2019).

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the forgery charges that were ultimately dismissed. Bloodworth, 2022 WL 17588490,

at *11. On appeal, Bloodworth argues that, based on Lemon’s threat of an

investigation in the phone call and the fact charges were later filed, “a jury could infer

that Mr. Lemon . . . was involved in the persecution of Mr. Bloodworth.” We agree

with the district court that the investigation and filing of forgery charges against

Bloodworth did not violate his Fourth Amendment rights. Bloodworth fails to

respond to the district court’s conclusion that Lemon’s inappropriate phone call,

without more, is insufficient to establish that Lemon was involved in the investigation

and charging. There was no error.

B. Failure to Intervene or Supervise Claims (Counts VII, VIII, and IX).

Bloodworth argues the district court erred in dismissing his failure to intervene and

failure to supervise claims against Defendants Sicks, Caron, and Millsap.5 To prevail

on a claim of failure to intervene and failure to supervise, Bloodworth must prove an

underlying constitutional violation. See Zubrod v. Hoch, 907 F.3d 568, 580 (8th Cir.

2018) (failure to intervene); Malone v. Hinman, 847 F.3d 949, 955-56 (8th Cir.)

(failure to supervise), cert. denied 583 U.S. 870 (2017). Because we have upheld the

district court’s grant of summary judgment dismissing Bloodworth’s claims of

constitutional violations by KCPD officers, there can be no § 1983 supervisor

liability. See Sanders v. City of Minneapolis, 474 F.3d 523, 527 (8th Cir. 2007).

C. Monell Claims (Counts X, XI, XII, and XIV). Municipalities may be

held liable under § 1983 when a constitutional violation results from an official

custom or policy of the municipality. Monell v. N.Y.C. Dep’t of Soc. Servs., 436

U.S. 658 (1978). Bloodworth asserted four Monell claims against the Board and its

Members, arguing that the Board’s (1) official policy; (2) unlawful practice or

5

“We have held there is no clearly established law regarding a duty to intervene

outside of the excessive force context.” Andrews v. Schafer, 888 F.3d 981, 984 n.4

(8th Cir. 2018) (citation omitted).

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custom; (3) failure to properly train officers; and (4) failure to properly retain,

supervise or discipline officers led to constitutional violations. The district court

granted summary judgment dismissing these claims because “Plaintiff has either

failed to (1) develop his claims, (2) establish individual liability because conduct was

constitutional, or (3) demonstrate the Board has authority over the entities, such as

City Codes, allegedly engaging in unconstitutional conduct.” Bloodworth, 2022 WL

17588490, at *10. We agree.

On appeal, Bloodworth first argues the district court erred because Defendants

did not move for summary judgment on these claims. Our review of the record

persuades us that Defendants did move for summary judgment on these Counts. It

appears that Bloodworth misinterprets footnote 12 in the district court order as

applying to these Counts, rather than to Count XVII. But the record is confusing.

On the merits, these claims clearly fail because, as we have explained,

Bloodworth failed to establish a constitutional violation resulting from official policy,

unlawful practice or custom, or failure to properly train, retain, supervise, or

discipline KCPD officers. “Because there is no cognizable constitutional violation,

there is no basis for Monell liability.” Brabit as Tr. for Bild v. Capra, 59 F.4th 349,

354 (8th Cir. 2023).

For the foregoing reasons, the judgment of the district court is affirmed.

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