Petition for Writ of Certiorari — Mark Jakob, et al., Petitioners v. Clara Cheeks

Supreme Court briefNov 29, 2023

Ask Donna

What actually matters in this document.

Text

No. __

In The

Supreme Court of the United States

________________

MARK JAKOB AND FRANK MALOY

(SUBSTITUTED FOR THE LATE ALEX MALOY),

Petitioners,

CLARA CHEEKS,

Respondent.

________________

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Eighth Circuit

________________

PETITION FOR A WRIT OF CERTIORARI

________________

PITZER SNODGRASS, P.C.

Robert T. Plunkert #311047 *

plunkert@pspclaw.com

100 South Fourth Street, Suite 400

St. Louis, Missouri 63102-1821

(314) 421-5545 – (314) 421-3144 (Fax)

Attorney for Petitioners

* Counsel of Record

QUESTIONS PRESENTED

This Court has held, “The Due Process Clause.

. . does require the responsible government agency to

provide medical care to persons. . . who have been

injured while being apprehended by the police.”

However, qualified immunity is not to be defined at a

“high level of generality,” but “must be

‘particularized’ to the facts of the case.” Here, there is

no evidence Decedent, operating a motor vehicle and

evading apprehension by law enforcement, survived

the impact of his collision with a tree or that any

alleged denial of medical care altered the outcome of

the collision. The questions presented are:

1) On August 10, 2018, did a fleeing suspect

have a clearly established right under the

Fourteenth Amendment’s Due Process

Clause to medical care where there is no

evidence any medical care could have

altered the outcome after initial onset

(impact) of the claimed physical injury?

2) As of August 10, 2018, is a plaintiff alleging

a violation of the Fourteenth Amendment’s

Due Process Clause right to medical

attention required to place verifiable

medical evidence into the record to

establish a detrimental effect of a denial of

medical care to make a submissible case?

PARTIES TO THE PROCEEDINGS AND

RELATED PROCEEDINGS

The Petitioners in this case are Frank Maloy

(substituted for the late driver Officer Alex Maloy)

and passenger Officer Mark Jakob, individuals sued

in their individual capacities. Petitioners were the

defendants and appellants below.

The Respondent is Clara Cheeks, mother of the

Decedent, Mikel Neil, Sr., who is an individual.

Respondent was the plaintiff and appellee below.

The related proceedings are:

1) Cheeks v. Belmar, No. 4:18-cv-2091-SEP

(E.D. Mo.) – Order denying qualified

immunity issued August 16, 2022; and

2) Cheeks v. Belmar, No. 22-2749 (8th Cir.) –

Judgment entered September 1, 2023.

iii

CONSTITUTIONAL AMENDMENT INVOLVED

U.S. Const. amend. XIV § 1

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.

STATUTORY PROVISIONS INVOLVED

42 U.S.C. § 1983

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding for

redress, except that in any action brought against a

judicial officer for an act or omission taken in such

officer’s judicial capacity, injunctive relief shall not be

granted unless a declaratory decree was violated or

declaratory relief was unavailable. For the purposes

of this section, any Act of Congress applicable

exclusively to the District of Columbia shall be

considered to be a statute of the District of Columbia.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......................................... i

PARTIES TO THE PROCEEDINGS AND RELATED

PROCEEDINGS ........................................................... ii

CONSTITUTIONAL AMENDMENT INVOLVED ....iii

STATUTORY PROVISIONS INVOLVED ..................iii

TABLE OF AUTHORITIES ...................................... viii

INTRODUCTION ......................................................... 1

STATEMENT OF THE CASE ...................................... 3

REASONS FOR GRANTING THE WRIT ................... 5

THE LAW WAS NOT CLEARLY

ESTABLISHED ON AUGUST 10, 2018,

THAT AN INDIVIDUAL, WHERE

THERE IS NO EVIDENCE TO

SUPPORT SURVIVAL OF THE

ORIGINAL INJURY (IMPACT), HAD A

FOURTEENTH AMENDMENT DUE

PROCESS RIGHT TO MEDICAL

ATTENTION ........................................... 5

II.

THE LAW WAS NOT CLEARLY

ESTABLISHED ON AUGUST 10, 2018,

THAT A CLAIM UNDER THE

FOURTEENTH AMENDMENT’S DUE

PROCESS CLAUSE FOR AN

ALLEGED DENIAL OF MEDICAL

CARE DID NOT REQUIRE

VERIFIABLE MEDICAL EVIDENCE

TO SHOW A DETRIMENTAL EFFECT

OF THE DENIAL .................................... 6

III.

THE CASE PRESENTS A QUESTION

OF EXCEPTIONAL IMPORTANCE ...... 9

CONCLUSION............................................................ 12

APPENDICES

APPENDIX A: OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT

(SEPTEMBER 1, 2023) ......................................... 1a

APPENDIX B: JUDGMENT OF THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

(SEPTEMBER 1, 2023) ....................................... 16a

APPENDIX C: JUDGMENT AND

MEMORANDUM OF THE UNITED

STATES DISTRICT COURT EASTERN

DISTRICT OF MISSOURI EASTERN

DIVISION (August 16, 2022) .............................. 18a

APPENDIX D: JUDGMENT OF THE

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

vii

(August 16, 2022)................................................. 48a

viii

TABLE OF AUTHORITIES

Page(s)

CASES

Bailey v. Feltmann,

810 F.3d 589 (8th Cir. 2016) ................................... 8

City of Revere v. Massachusetts Gen. Hospital,

463 U.S. 239 (1983)............................................ 5, 11

County of Sacramento v. Lewis,

523 U.S. 833 (1998)................................................ 11

Dobbs v. Jackson Women’s Health Organization,

142 S.Ct. 2228 (2022)............................................... 5

Educadores Puertorriquenos en Accion v. Hernandez,

367 F.3d 61 (1st Cir. 2004) ...................................... 6

Ford v. Moore,

237 F.3d 156 (2d Cir. 2001) ..................................... 6

Guyton v. Phillips,

606 F.2d 248 (9th Cir. 1979) ................................... 5

Hancock v. Arnott,

39 F.4th 482 (8th Cir. 2022) .................................... 8

Hill v. Dekalb Regional Youth Detention Ctr.,

40 F.3d 1176 (11th Cir. 1994) ................................. 7

Hope v. Pelzer,

536 U.S. 730 (2002).................................................. 7

TABLE OF AUTHORITIES

(continued)

Jackson v. Riebold,

815 F.3d 1114 (8th Cir. 2016) ................................. 8

Jones v. Minnesota Dep't of Corr.,

512 F.3d 478 (8th Cir. 2008) ........................... 6, 7, 8

Judge v. City of Lowell,

160 F.3d 67 (1st Cir.1998) ....................................... 6

Kisela v. Hughes,

138 S.Ct. 1148 (2018)............................................... 8

Laughlin v. Schriro,

430 F.3d 927 (8th Cir. 2005) ............................... 7, 8

Redmond v. Kosinski,

999 F.3d 1116 (8th Cir. 2021) ................................. 8

Riley v. St. Louis County of Mo.,

153 F.3d 627 (8th Cir. 1998) ................................... 6

Roe v. Wade,

410 U.S. 113 (1973).................................................. 5

Scott v. Harris,

550 U.S. 372 (2007)................................................ 10

See Hafer v. Melo,

502 U.S. 21 (1991).................................................. 10

Silkwood v. Kerr-McGee Corp.,

637 F.2d 743 (10th Cir. 1980) ................................. 5

TABLE OF AUTHORITIES

(continued)

White v. Pauly,

580 U.S. 73 (2017)............................................ 1, 7, 8

Whitehurst v. Wright,

592 F.2d 834 (5th Cir. 1979) ................................... 5

STATUTES

28 U.S.C. § 1254(1) ...................................................... 2

42 U.S.C. § 1983 ............................................... 2, 4, 8, 9

CONSTITUTIONAL AUTHORITY

U.S. Const. amend. XIV ............................................... 4

INTRODUCTION

Respondent alleged Officers Maloy and Jakob

violated the Fourteenth Amendment’s Due Process

Clause by failing to stop and render aid on August

10, 2018, to Decedent. Respondent has alleged and

argued that Officer Maloy, operating a police cruiser,

performed a “PIT” maneuver to cause a vehicle

operated by Decedent, to go “into a spin” and crash

into a tree. Officers Maloy and Jakob did not contact

911, though it is undisputed an eyewitness contacted

911 within thirty seconds of the crash. No evidence

was presented to show Decedent survived the impact

of his collision with the tree, and uncontroverted

medical expert testimony established any delay of

calling 911 (within thirty seconds) did not alter the

outcome of the subject crash.

“Qualified immunity attaches when an

official’s conduct ‘does not violate clearly established

statutory or constitutional rights of which a

reasonable person would have known.’” White v.

Pauly, 580 U.S. 73, 78–79 (2017) (internal citation

omitted). Though a case “directly on point” is not

required for a right to be clearly established,

“existing precedent must have placed the statutory or

constitutional question beyond debate.” Id. at 79

(internal citations and quotations omitted). The

benefits of qualified immunity are “effectively lost if a

case is erroneously permitted to go to trial.” Id.

(internal citation omitted).

This Court has repeatedly emphasized the

“longstanding principle that ‘clearly established law’

should not be defined ‘at a high level of generality.’”

White v. Pauly, 580 U.S. 73, 552 (2017) (internal

citation omitted). Neither this Court nor any Circuit

Court has ever held that a deceased is a “person”

within the meaning of the Fourteenth Amendment

and/or 42 U.S.C. § 1983. Where there is no evidence a

fleeing suspect survived the initial impact of the

collision with a tree, there is no clearly established

constitutional right to medical assistance from that

injury as of August 10, 2018.

This case is an ideal fact pattern to decide this

matter because: (i) it squarely presents the issue of

whether a body without life is a “person” within the

meaning of the Constitution and 42 U.S.C. § 1983;

and (ii) there are no preliminary disputed issues that

would prevent a resolution of the question presented.

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully petition this Court for

a writ of certiorari to review the judgment of the

United States Court of Appeals for the Eighth Circuit

in this case.

OPINION BELOW

The Eighth Circuit’s panel opinion is reported

at 80 F.4th 872, and is reproduced at page 1a of the

appendix to this petition. (“App.”). The Memorandum

and Order of the United States District Court for the

Eastern District of Missouri is currently unreported,

but is reproduced at page App. 18a. of the appendix

to this petition.

JURISDICTION

The judgment of the Eighth Circuit was

entered on September 1, 2023. App. 1a. This Court

has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The text of the relevant constitutional and

statutory provisions is set forth in the appendix to

this petition. App. 49a–50a.

STATEMENT OF THE CASE

Factual Background: On August 10, 2018, at

approximately 9:30 p.m., Decedent crashed into a

tree on Airport Road in St. Louis County, Missouri.

App. 2a. Decedent, who was operating a Hyundai

Elantra, violated a red-light signal. Id. Officer Maloy,

who was operating a police cruiser with Officer Jakob

as passenger, attempted to pursue the Elantra on

Airport Road before Decedent crashed into a tree.

App. 2a–3a. The parties dispute whether the crash

occurred because of a PIT maneuver or because

Decedent lost control of the vehicle. App. 2a–3a. Even

though the officers did not render aid or call for

medical assistance, an eyewitness to the accident

called 911 within 30 seconds of the crash. App. 3a.

Decedent died at the scene. Id.

Petitioners moved for summary judgment,

arguing, among other things, qualified immunity

protected them from suit in this matter. App. 24a.

The district court denied qualified immunity. App.

47a.

Petitioners appealed, and the divided Eighth

Circuit panel held it was not required of a plaintiff to

place verifying medical evidence in the record to

establish the detrimental effect of a denial of medical

treatment. App. 12a. The panel affirmed the district

court without addressing the issue of a lack of

evidence to support Decedent survived the impact of

the collision. Id.

REASONS FOR GRANTING THE WRIT

THE LAW WAS NOT CLEARLY

ESTABLISHED ON AUGUST 10, 2018,

THAT AN INDIVIDUAL, WHERE

THERE IS NO EVIDENCE TO

SUPPORT SURVIVAL OF THE

ORIGINAL INJURY (IMPACT), HAD A

FOURTEENTH AMENDMENT DUE

PROCESS RIGHT TO MEDICAL

ATTENTION.

The Due Process Clause of the Fourteenth

Amendment states that no State shall “deprive any

person of life, liberty, or property, without due

process of law.” U.S. Const. amend. XIV § 1. This

Court has held, “The Due Process Clause. . . does

require the responsible government or governmental

agency to provide medical care to persons. . . who

have been injured while being apprehended by the

police.” City of Revere v. Massachusetts Gen. Hosp.,

463 U.S. 239, 244 (1983). However, this Court has

never held that a deceased is a “person” within the

meaning of the Fourteenth Amendment or 42 U.S.C.

§ 1983. See Roe v. Wade, 410 U.S. 113, 159 (1973)

(tracing use of the word “person” in the Constitution

and finding the word does not include the unborn)

(overruled on other grounds by Dobbs v. Jackson

Women’s Health Org., 142 S.Ct. 2228 (2022)).

Circuit Courts have found that a body without

life is not a “person” with respect to the Constitution.

Whitehurst v. Wright, 592 F.2d 834, n. 9 840 (5th Cir.

1979); Guyton v. Phillips, 606 F.2d 248, 250 (9th Cir.

1979) cert. denied, 445 U.S. 916 (1980); Silkwood v.

Kerr-McGee Corp., 637 F.2d 743, 749 (10th Cir. 1980);

Riley v. St. Louis County of Mo., 153 F.3d 627, 632

n.3 (8th Cir. 1998); Judge v. City of Lowell, 160 F.3d

67, 76 n.15 (1st Cir. 1998), overruled on other

grounds by Educadores Puertorriquenos en Accion v.

Hernandez, 367 F.3d 61 (1st Cir. 2004); Ford v.

Moore, 237 F.3d 156, 165 (2d Cir. 2001).

II.

THE LAW WAS NOT CLEARLY

ESTABLISHED ON AUGUST 10, 2018,

THAT A CLAIM UNDER THE

FOURTEENTH AMENDMENT’S DUE

PROCESS CLAUSE FOR AN ALLEGED

DENIAL OF MEDICAL CARE DID NOT

REQUIRE VERIFIABLE MEDICAL

EVIDENCE TO SHOW A

DETRIMENTAL EFFECT OF THE

DENIAL.

There was no clearly established law on

August 10, 2018, that a denial of medical care did not

require verifiable medical evidence to show a

detrimental effect of the denial.

In the appellate decision, below, the Eighth

Circuit cited one case in support of suggesting the

law was clearly established that verifiable medical

evidence to show a determinantal effect of a denial of

medical care was not required. App. 12a (citing Jones

v. Minnesota Dep't of Corr., 512 F.3d 478, 482 (8th

Cir. 2008). However, the Jones Court did not address

or decide this issue. See Jones, 512 F.3d at 482. In

Jones, a plaintiff raised a cause of action, inter alia,

under the Eighth Amendment, against the Minnesota

Department of Corrections regarding the death of his

mother while in custody. Id. at 479–80. Despite signs

of medical need and being examined by a nurse for a

medical examination, the mother was found

unresponsive and pronounced dead twelve hours

after she arrived at the prison. Id. at 480–81. The

Jones Court affirmed the trial court’s order granting

summary judgment in favor of the defendants,

holding there was no genuine dispute of material fact

that any defendant had actual knowledge of a serious

medical need. Id. at 482–84.

Jones did not address whether there was a

need to show a lack of detrimental effect regarding

the delay / denial of treatment, as qualified immunity

applied based on the lack of actual knowledge of any

serious medical need. See id. at 484. Where the

inquiry into the detrimental effect of a delay / denial

influences the Court’s decision regarding the objective

component of denial of medical care claim under the

Eighth Amendment, the Jones Court’s holding rested

on the plaintiff’s failure to meet the subjective

element of such a claim. See Laughlin v. Schriro, 430

F.3d 927, 929 (8th Cir. 2005) (citing Hill v. Dekalb

Regional Youth Det. Ctr., 40 F.3d 1176, 1188 (11th

Cir. 1994) (overruled on other grounds by Hope v.

Pelzer, 536 U.S. 730, 739 (2002))). The Jones matter

addressed a decedent who had been seen by a

medical professional. See id. at 482. The Jones matter

also addressed an individual who passed away

approximately twelve hours after taken into custody,

rather than where a scenario where there was no

evidence to support the individual died immediately

from the initial injury (upon impact with a tree,

here). Under White v. Pauly and its progeny, Jones is

not a case clearly establishing that a denial of

medical care does not require verifiable medical

evidence to show a detrimental effect of the denial.

The appellate court, below, distinguished

several cases holding that a Fourteenth Amendment

Due Process claim regarding delay in medical care

required verifiable medical evidence to show a

detrimental effect of the delay. See App. 11a. (citing

Jackson v. Riebold, 815 F.3d 1114, 1120 (8th Cir.

2016); Hancock v. Arnott, 39 F.4th 482, 487 (8th Cir.

2022); Laughlin v. Schriro, 430 F.3d 927, 929 (8th

Cir. 2005); Redmond v. Kosinski, 999 F.3d 1116,

1120–21 (8th Cir. 2021).

However, the Eighth Circuit failed to address

Bailey v. Feltmann, which pertained to a denial of

medical care and where qualified immunity was

granted, in part, where no detrimental effect of the

denial was shown by verifiable medical evidence. 810

F.3d 589, 593–94 (8th Cir. 2016). The weight of the

authority regarding the requirement for such medical

evidence in a delay claim, along with the application

of the standard in a denial claim in Bailey did not

support any clearly established law distinguishing

the difference between any such requirement—let

alone any clearly established law suggesting the

failure of officers to summon medical attention to an

already deceased individual could violate a Due

Process right.

The Eighth Circuit incorrectly found the law

was clearly established as applied to the fact pattern

present before the Court. See Kisela v. Hughes, 138

S.Ct. 1148, 1152 (2018) (“Although ‘this Court’s

caselaw does not require a case directly on point for a

right to be clearly established, existing precedent

must have placed the statutory or constitutional

question beyond debate.’”) (quoting White, 580 U.S.

73, 79 (2017)). As Jones was not “a case where an

officer acting under similar circumstances [as

Officers Jakob and Maloy were] held to have

violated” the Fourteenth Amendment’s Due Process

Clause, the appellate court, below, did not sufficiently

show clearly established law required to circumvent

the application of qualified immunity.

This Court has not addressed, much less

clearly established, that a denial of medical care

under the Fourteenth Amendment obviates any need

to present verifiable medical evidence establishing a

detrimental effect of the denial.

III.

THE CASE PRESENTS A QUESTION

OF EXCEPTIONAL IMPORTANCE.

This case presents an important question

concerning the application of the Fourteenth

Amendment Due Process Clause’s right regarding

medical assistance and, more broadly, whether a

deceased individual is encompassed in the definition

of a “person” under the Constitution and 42 U.S.C. §

1983. The scope of the application of the Constitution,

in this regard, has vast implications. For example,

any § 1983 matter alleging excessive force in the use

of lethal use of force where the injured individual

dies immediately from the initial injury could

consider invoking the Fourteenth Amendment in a

suit if no medical assistance is summoned. The

implications can be extended even further to other

rights being afforded to lifeless bodies. Such would be

an unprecedented interpretation of the Constitution.

The failure to apply qualified immunity in such

circumstances and protect officers from suit would be

injurious, in itself.

This case also presents a more focused issue of

whether a cause of action under the Fourteenth

Amendment Due Process Clause’s right to medical

assistance requires the placement of verifiable

medical evidence in the record to show a detrimental

effect of the denial. The aspect of causation is a

fundamental aspect of causes of action under § 1983.

See Hafer v. Melo, 502 U.S. 21, 25 (1991) (“[O]n the

merits, to establish personal liability in a § 1983

action, it is enough to show that the official, acting

under color of state law, caused the deprivation of a

federal right.”). Where there is no evidence that a

suspect survived an initial injury, how can a plaintiff

establish a serious medical need? Moreover, how can

a plaintiff establish the requisite Petitioners

respectfully submit that such a plaintiff cannot

establish such a serious medical need, and qualified

immunity should be addressed by this Court.

This Court “repeatedly ha[s] stressed the

importance of resolving immunity questions at the

earliest possible stage in litigation.” Scott v. Harris,

550 U.S. 372 376 (2007) (internal quotations and

citations omitted). This Court has also recognized

deliberate indifference is egregious

enough to state a substantive due

process claim in one context, that of

deliberate indifference to the medical

needs of pretrial detainees, but rules of

due process are not subject to

mechanical application in unfamiliar

territory, and the need to preserve the

constitutional proportions of substantive

due process demands an exact analysis

of context and circumstances before

deliberate indifference is condemned as

conscience shocking[.]

County of Sacramento v. Lewis, 523 U.S. 833, 834

(1998) (citing City of Revere v. Massachusetts Gen.

Hosp., 463 U.S. 239, 244 (1983)) (remainder of

internal citations omitted). Given this Court’s

emphasis of importance on addressing qualified

immunity at the earliest stage and the need to

provide an exact analysis of context and

circumstances before condemning conduct, such as

what was alleged to have taken place here, this Court

should grant Petitioners’ Petition for Writ of

Certiorari.

CONCLUSION

For all the aforementioned reasons,

petition for writ of certiorari should be granted.

the

Respectfully submitted,

PITZER SNODGRASS, P.C.

Robert T. Plunkert #311047 *

plunkert@pspclaw.com

100 South Fourth Street, Suite 400

St. Louis, Missouri 63102-1821

(314) 421-5545 -(314) 421-3144 (Fax)

Attorneys for Petitioners

* Counsel of Record

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

(Filed September 1, 2023)

___________________________

No. 22-2749

___________________________

Clara Cheeks

Plaintiff - Appellee

Jon Belmar, Individually and in his Official Capacity

as St. Louis County, Missouri, Chief of Police; Saint

Louis County, Missouri; M. Broniec, M.SGT, Trooper

of MSHP (Individually); Paul Kempke, SGT., Trooper

of MSHP (Individually); B.A. Teague, CPL., Trooper

for MSHP; Individually

Defendants

Mark Jakob, Individual capacity;

Frank L. Maloy, as Personal Representative of the

Estate of Alex Maloy

Defendants - Appellants

____________

Appeal from United States District Court

for the Eastern District of Missouri

____________

Submitted: April 13, 2023

Filed: September 1, 2023

____________

Before BENTON, GRASZ, and STRAS, Circuit

Judges.

GRASZ, Circuit Judge.

Clara Cheeks sued under 42 U.S.C. § 1983 on

behalf of her son, Mikel Neil, who died in a vehicle

accident while fleeing St. Louis County police officers

Alex Maloy1 and Mark Jakob. Cheeks claimed the

officers failed to provide medical aid in violation of

the Due Process Clause of the Fourteenth

Amendment of the U.S. Constitution, and the officers

filed a motion for summary judgment based on

qualified immunity. The district court2 denied the

motion, concluding there were genuine disputes of

material facts that prevented it from holding the

officers were entitled to immunity at this stage of the

proceedings. We affirm.

I. Background3

On August 10, 2018, at approximately 9:30

p.m., Neil crashed into a tree and died at the scene of

the accident. The parties agree that Officers Maloy

and Jakob had pursued Neil, who was driving a

This action was initially brought against Alex

Maloy, who has since passed away. His father, Frank

Maloy, was substituted as the proper party. See Fed. R.

Civ. P. 25(a).

The Honorable Sarah E. Pitlyk, United States District

Judge for the Eastern District of Missouri.

3 We recite the background facts as set forth in the district

court’s summary judgment opinion. See Riggs v. Gibbs,

923 F.3d 518, 521 (8th Cir. 2019) (explaining we must

accept as true the facts the district court found were

adequately supported unless they are blatantly

contradicted by the record). Certain additional facts are

taken from the record.

Hyundai Elantra, for an alleged red-light violation.

But the parties dispute what led to the accident.

Officers Maloy and Jakob claim Neil simply lost

control of his car, veered off the road, and collided

with a tree. However, Cheeks maintains that Officer

Maloy, who was driving the police vehicle, performed

a “PIT” maneuver,4 causing Neil’s car to “go into a

spin” and crash into the tree. To support this claim,

Cheeks submitted evidence from an eyewitness who

stated under oath that he saw the police vehicle

bump Neil’s vehicle, which caused it to crash. The

officers deny utilizing a PIT maneuver. Cheeks

contends that video recordings capturing the

moments prior to the crash and witness testimony

demonstrates Officers Maloy and Jakob either

observed or should have observed the crash. Even

though the officers did not render aid or call for

medical assistance, an eyewitness to the accident

called 911 within 30 seconds of the crash. Neil died at

the scene.

Cheeks asserts Officers Maloy and Jakob

breached their duty to stop and attempt to render aid

in violation of the Due Process Clause of the

Fourteenth Amendment.5 The officers argue their

failure to render aid did not change the outcome of

In a PIT maneuver, a police officer will use his or

her vehicle to make intentional contact with the suspect’s

fleeing vehicle to force an end to the pursuit.

5 While there are cases analyzing police pursuits under

substantive due process, neither party briefed a

substantive due process claim. “[W]e rely on the parties to

frame the issues for decision and assign to courts the role

of neutral arbiter of matters the parties present.”

Greenlaw v. United States, 554 U.S. 237, 243 (2008).

the accident since emergency responders were called

almost immediately. The district court held that

Officers Maloy and Jakob were not entitled to

qualified immunity because a reasonable jury could

find they “were aware of the crash, and that their

failure to call for emergency medical assistance

violated Neil’s constitutional right under the

Fourteenth Amendment.”

II. Analysis

“In an interlocutory appeal raising a defense of

qualified immunity, this court has jurisdiction to

address only an order deciding a purely legal issue of

whether the facts alleged by a plaintiff show a

violation of clearly established law.” Welch v.

Dempsey, 51 F.4th 809, 812 (8th Cir. 2022). “In other

words, ‘we lack jurisdiction to consider an argument

that the plaintiff has proffered insufficient evidence

to create a genuine issue of fact, [but] we have

jurisdiction to consider an argument that the

disputed facts to which the plaintiff cites are unable

to affect the outcome of the suit.’” Torres v. City of St.

Louis, 39 F.4th 494, 502 (8th Cir. 2022) (quoting Just

v. City of St. Louis, 7 F.4th 761, 766 (8th Cir. 2021)).

We employ a de novo standard when doing so. See

Shannon v. Koehler, 616 F.3d 855, 861–62 (8th Cir.

2010).

“The qualified immunity inquiry involves two

questions: ‘(1) whether the facts, viewed in the light

most favorable to the plaintiff, demonstrate the

deprivation of a constitutional or statutory right; and

(2) whether the right was clearly established at the

time of the deprivation.’” McDaniel v. Neal, 44 F.4th

1085, 1089 (8th Cir. 2022) (quoting Jones v. McNeese,

675 F.3d 1158, 1161 (8th Cir. 2012)).

The Due Process Clause of the Fourteenth

Amendment generally does not provide an

“affirmative right to governmental aid,” but in

“certain limited circumstances,” it does “impose[]

upon the State affirmative duties of care and

protection with respect to particular individuals.”

DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.,

489 U.S. 189, 196–98 (1989). “[W]e have recognized

that an individual may be constitutionally entitled to

police assistance under the Fourteenth Amendment .

. . ‘in custodial and other settings in which the state

has limited the individuals’ ability to care for

themselves . . . .’” Gladden v. Richbourg, 759 F.3d

960, 964–65 (8th Cir. 2014) (quoting Gregory v. City

of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992) (en

banc)).

“[W]hen the State takes a person into its

custody and holds him there against his will, the

Constitution imposes upon it a corresponding duty to

assume some responsibility for his safety and general

well-being.” DeShaney, 489 U.S. at 199–200. This

“affirmative duty to protect arises not from the

State’s knowledge of the individual’s predicament . . .

but from the limitation which it has imposed on his

freedom to act on his own behalf.” Id. at 200.

Consequently, “custody is effected for purposes of the

Fourteenth Amendment only when the state ‘so

restrains an individual’s liberty that it renders him

unable to care for himself.’” Gladden, 759 F.3d at 965

(quoting DeShaney, 489 U.S. at 200). This duty also

requires a “governmental agency to provide medical

care to persons . . . who have been injured while

being apprehended by the police.” City of Revere v.

Mass. Gen. Hosp., 463 U.S. 239, 244 (1983).

We analyze failure to render medical aid

claims under a deliberate indifference standard. See

Tagstrom v. Enockson, 857 F.2d 502, 503–04 (8th Cir.

1988). “Deliberate indifference has both an objective

and a subjective component.” McRaven v. Sanders,

577 F.3d 974, 980 (8th Cir. 2009) (quoting Vaughn v.

Gray, 557 F.3d 904, 908 (8th Cir. 2009)). The plaintiff

must show (1) “an objectively serious medical need,”

and (2) “that the defendant knew of and yet

deliberately disregarded.” Reese v. Hale, 58 F.4th

1027, 1030 (8th Cir. 2023).

On appeal, the officers argue Cheeks failed to

demonstrate a violation of a constitutionally

protected right in two ways: (1) Neil was not in

custody, and (2) there was no medical evidence that

the delay in aid detrimentally altered Neil’s outcome.

We address each argument in turn.

A. Custody

We must begin by analyzing the officers’

argument—made for the first time on appeal—that

Neil was not in custody for purposes of the

Fourteenth Amendment. See Combs v. The Cordish

Cos., Inc., 862 F.3d 671, 678–79 (8th Cir. 2017)

(explaining we may “consider a newly raised

argument ‘if it is purely legal and requires no

additional factual development . . . .’” (quoting United

States v. Hirani, 824 F.3d 741, 751 (8th Cir. 2016))).

It is undisputed Neil was never apprehended by the

officers after the crash, and Officer Jakob alleges he

did not witness Neil’s accident. Therefore, the critical

question is whether Officers Maloy and Jakob “so

restrain[ed] [Neil’s] liberty” through the use of a PIT

maneuver during the police pursuit “that it

render[ed] [Neil] unable to care for himself.”

Gladden, 759 F.3d at 965 (quoting DeShaney, 489

U.S. at 200).

While the crash itself was not captured on video,

Cheeks presented testimony from Lorenzo Johnson

who said he witnessed the officers’ car bump the side

of Neil’s car, which caused Neil’s car to go into a spin.

The district court relied partly on this testimony of

contact between vehicles to conclude “[a] reasonable

juror could find, based on circumstantial evidence . . .

that [the officers] had actual knowledge of Neil’s

serious medical need and disregarded it.” We do not

have jurisdiction to second-guess this determination.

See Thompson v. Dill, 930 F.3d 1008, 1014 (8th Cir.

2019).

Officers Maloy and Jakob suggest we do have

jurisdiction to disturb the conclusion because the

video recording “blatantly contradicts” the eyewitness

testimony. While it is true there is an exception to

our normal jurisdiction limitation when a version of

the facts “is blatantly contradicted by the record, so

that no reasonable jury could believe it,” Scott v.

Harris, 550 U.S. 372, 380 (2007), this exception is not

applicable here. The video did not record the accident

itself, instead capturing a few moments of the pursuit

just prior to the crash. Because the crash itself occurs

off screen, Cheeks’s contention that Officers Maloy

and Jakob performed a PIT maneuver is not so

“blatantly contradicted by the record . . . that no

reasonable jury could believe it[.]” Id.

Nonetheless, the officers argue—again for the first

time on appeal—that even assuming such contact

between the two vehicles, this does not constitute

custody as the term is defined in Gladden. We

disagree. When the state limits an individual’s

“freedom to act on his own behalf,” DeShaney, 489

U.S. at 200, by intentionally conducting a maneuver

that causes a vehicle to spin out and collide with a

tree, the duty arises “to provide medical care to

persons . . . who have been injured while being

apprehended by the police.” City of Revere, 463 U.S.

at 244.

Case law in the context of Fourth Amendment

claims supports our conclusion. In such cases, the

Supreme Court has distinguished between the

constitutional implications of a mere police pursuit

and an intentional police-imposed accident. A police

pursuit itself does not amount to a seizure. California

v. Hodari D., 499 U.S. 621, 626 (1991). But it would

be considered a seizure if “the police cruiser had

pulled alongside the fleeing car and sideswiped it,

producing the crash” as this would have been a

“termination of the suspect’s freedom of movement[.]”

Brower v. Cnty. of Inyo, 489 U.S. 593, 596–97 (1989);

see also Scott, 550 U.S. at 381 (stating the officer

“does not contest that his decision to terminate the

car chase by ramming his bumper into respondent’s

vehicle constituted a ‘seizure’”). Conversely, “no

Fourth Amendment seizure would take place where a

‘pursuing police car sought to stop the suspect only by

the show of authority represented by flashing lights

and continuing pursuit,’ but accidentally stopped the

suspect by crashing into him.” Cnty. of Sacramento v.

Lewis, 523 U.S. 833, 844 (1998) (quoting Brower, 489

U.S. at 597). So, in the Fourth Amendment context, a

seizure arises if a police officer intentionally causes a

crash to end a police chase whereas no seizure occurs

if there is simply an accidental crash. The officers

have offered no reason the same would not be true

under the Fourteenth Amendment.

To satisfy the second prong of the qualified

immunity analysis, “[t]he contours of the right must

be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987). It is

not required that there be “a case directly on point,

but existing precedent must have placed the

statutory or constitutional question beyond debate.”

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). In other

words, “a general constitutional rule already

identified in the decisional law may apply with

obvious clarity to the specific conduct in question,

even though ‘the very action in question has [not]

previously been held unlawful.’” Hope v. Pelzer, 536

U.S. 730, 741 (2002) (quoting United States v. Lanier,

520 U.S. 259, 269 (1997)).

As discussed above, it is clearly established that a

custodial relationship is formed when law

enforcement officers limit an individual’s “freedom to

act on his own behalf.” DeShaney, 489 U.S. at 200.

This is a “general constitutional rule already

identified in the decisional law” that can be applied

“with obvious clarity to the specific conduct in

question” today. Hope, 536 U.S. at 741. If law

10a

enforcement officers intentionally force a suspect to

crash his car to facilitate the end of a pursuit, the

suspect no longer has the liberty “to care for himself.”

Gladden, 759 F.3d at 965 (quoting DeShaney, 489

U.S. at 200). When the state limits an individual’s

“freedom to act on his own behalf,” DeShaney, 489

U.S. at 200, by purposely causing a car accident, a

clearly established duty arises “to provide medical

care to persons . . . who have been injured while

being apprehended by the police.” City of Revere, 463

U.S. at 244. The state of the law gave the officers fair

warning that failing to render aid or call for medical

assistance for an accident they caused was

unconstitutional.

B. Detrimental Effect

Next, Officers Maloy and Jakob argue that they

did not violate Neil’s constitutional right because

their failure to summon medical aid had no

detrimental effect on the outcome of the accident. We

disagree. The first prong of the deliberate

indifference test, which is utilized in failure to render

medical aid claims, asks whether a plaintiff

demonstrated an objectively serious medical need.

Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997).

“A serious medical need is ‘one that has been

diagnosed by a physician as requiring treatment, or

one that is so obvious that even a layperson would

easily recognize the necessity for a doctor’s

attention.’” Id. (quoting Camberos v. Branstad, 73

F.3d 174, 176 (8th Cir. 1995)). But if a plaintiff

“alleges that a delay in medical treatment constituted

constitutional

deprivation,

‘the

objective

seriousness of the deprivation should also be

11a

measured by reference to the effect of delay in

treatment.’” Id. (emphasis added) (quoting Crowley v.

Hedgepeth, 109 F.3d 500, 502 (8th Cir. 1997)). In

other words, if a plaintiff is relying on a delay in

treatment theory, there is an additional requirement

to place verifying medical evidence in the record to

show there was a detrimental effect caused by the

delay. A plaintiff’s “failure to place verifying medical

evidence in the record to establish the detrimental

effect of delay in medical treatment precludes a claim

of deliberate indifference to medical needs.” Id.

The officers rely on a series of cases applying this

principle to argue Cheeks’s failure to offer evidence of

a detrimental impact is fatal to her case. See Jackson

v. Riebold, 815 F.3d 1114, 1120 (8th Cir. 2016)

(holding evidence of a detrimental effect was

necessary because the plaintiff relied on a delay in

treatment theory); Hancock v. Arnott, 39 F.4th 482,

487 (8th Cir. 2022) (concluding the plaintiff’s failure

to establish the detrimental effect of the delay

through medical evidence was fatal to his claim);

Laughlin v. Schriro, 430 F.3d 927, 929 (8th Cir. 2005)

(holding a plaintiff alleging delay in medical

treatment must demonstrate a detrimental effect

of the delay with medical evidence); and Redmond v.

Kosinski, 999 F.3d 1116, 1120–21 (8th Cir. 2021)

(determining it was necessary to demonstrate the

effect of the deprivation because the plaintiff did “not

allege the defendants delayed all treatment, but that

they failed to provide the proper treatment at the

proper time”). But these cases are distinguishable

because they all involve a theory that the officials

delayed treatment. Cheeks does not argue that the

officers simply delayed calling for medical assistance.

12a

Instead, she argues the officers never called for

medical assistance—thus denying medical aid

altogether. In such cases, where no medical aid was

provided, there is no need to provide evidence

demonstrating the detrimental effect of the lack of

aid. See Jones v. Minnesota Dep’t of Corr., 512 F.3d

478, 482 (8th Cir. 2008) (analyzing a claim where no

medical aid was provided without requiring the

plaintiff to also demonstrate the detrimental effect).

Because the officers failed to render any aid, rather

than simply delaying in providing it, our precedent

does not require Cheeks to demonstrate the

detrimental effect of the lack of aid. Thus, we agree

with the district court that, viewed in the light most

favorable to Cheeks, she has shown a clearly

established constitutional violation. Id. at 481.

III. Conclusion

We affirm the district court’s denial of summary

judgment to Officers Maloy and Jakob.

STRAS, Circuit Judge, dissenting.

Not every tort is a constitutional violation. See

DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.,

489 U.S. 189, 202 (1989) (emphasizing that “the Due

Process Clause of the Fourteenth Amendment . . .

does not transform” one into the other). The officers

may well have had a clear duty to try to save Mikel

Neil’s life after causing the crash. The only problem

is that, if they did, it arose under state tort law

rather than the United States Constitution. Cf.

Restatement (Third) of Torts § 39 (Am. L. Inst. 2012)

13a

(describing the duty to provide aid after “creat[ing] a

continuing risk of physical harm”).

As the court recognizes, the Constitution only

creates a duty to aid once officers “take[] a person

into . . . custody and hold[] him there against his

will.” DeShaney, 489 U.S. at 199–200 (emphasis

added). But I could not locate a single case, much less

a “robust consensus” of them, that extends it to

someone they have seized by force but have not taken

into custody. District of Columbia v. Wesby, 583 U.S.

48, 63 (2018) (citation omitted) (explaining what it

takes to “clearly establish[]” a constitutional rule); cf.

Scott v. Harris, 550 U.S. 372, 381 (2007) (suggesting

that a police-initiated crash counts as a seizure under

the Fourth Amendment); Brower v. County of Inyo,

489 U.S. 593, 597 (1989) (same). We can debate

whether we should extend it to cover this situation,

but no officer would be “on notice” that the

Constitution does. Saucier v. Katz, 533 U.S. 194, 202

(2001). Qualified immunity applies in just these

circumstances. See id.

The court, on the other hand, thinks it is

“obvious” that Neil was in custody. Hope v. Pelzer,

536 U.S. 730, 741 (2002) (explaining that sometimes

all it takes is “a general constitutional rule” that

“appl[ies] with obvious clarity to the specific conduct

in question” (citation omitted)). In its view,

“rendering [Neil] unable to care for himself” was

enough. Gladden v. Richbourg, 759 F.3d 960, 965

(8th Cir. 2014) (quoting DeShaney, 489 U.S. at 200).

The problem with relying on “general” rules is that

they often fail to “answer the specific and

particularized question[s]” that arise in other

14a

situations. Dean v. Bearden, — F.4th —, 2023 WL

5421629, at *4 (8th Cir. Aug. 23, 2023) (citation

omitted). Here, the question is whether something

short of custody creates a duty to aid.

Gladden, the case that allegedly established

the duty, never answered that question. It involved

an alcoholic who voluntarily accepted a ride from

officers and died of hypothermia several hours later.

See Gladden, 759 F.3d at 963. We held that, on those

facts, there was no Fourth Amendment seizure, much

less the “something more” required for custody. Id. at

965. Gladden simply could not have answered the

“specific and particularized question” presented in

this case. Dean, 2023WL 5421629, at *4 (citation

omitted). No seizure meant no holding on whether it

created a duty to aid.

Notably, Gladden relied on DeShaney, which

held only that “incarceration, institutionalization,

[and] other similar restraint[s] of personal liberty”

trigger the duty to provide aid. DeShaney, 489 U.S. at

200 (“The affirmative duty to protect arises not from

the State’s knowledge of the individual’s predicament

. . . , but from the limitation which it has imposed on

his freedom . . . .”); Gladden, 759 F.3d at 965; see also

City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244

(1983) (recognizing a duty “to provide medical care”

to an injured suspect after he was “apprehended by

the police”). It is not obvious that leaving someone in

a crashed car is similar to incarceration or

institutionalization. See Wesby, 583 U.S. at 64 (noting

that “obvious case[s]” are “rare” (citation omitted)).

And by Gladden’s logic, the “fleeting” nature of a

seizure by force, Torres v. Madrid, 141 S. Ct. 989, 999

15a

(2021), makes it unlikely. See Gladden, 759 F.3d at

965 (explaining why seizures are different from

custody).

As the Supreme Court has often reminded us,

defeating

qualified

immunity

requires

constitutional rule that was “clearly established,” not

just “suggested by . . . precedent.” City of Tahlequah

v. Bond, 142 S. Ct. 9, 11 (2021) (per curiam); accord,

e.g., Wesby, 583 U.S. at 63. This one was not.

16a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

(Filed September 1, 2023)

___________________

No: 22-2749

___________________

Clara Cheeks

Plaintiff - Appellee

Jon Belmar, Individually and in his Official Capacity

as St. Louis County, Missouri, Chief of Police; Saint

Louis County, Missouri; M. Broniec, M.SGT, Trooper

of MSHP (Individually); Paul Kempke, SGT., Trooper

of MSHP (Individually); B.A. Teague, CPL., Trooper

for MSHP; Individually

Defendants

Mark Jakob, Individual capacity;

Frank L. Maloy, as Personal Representative of

the Estate of Alex Maloy

Defendants - Appellants

_________________________________________________

Appeal from U.S. District Court for the

Eastern District of Missouri - St. Louis

(4:18-cv-02091-SEP)

_________________________________________________

JUDGMENT

Before BENTON, GRASZ and STRAS, Circuit

Judges.

17a

This appeal from the United States District

Court was submitted on the record of the district

court, briefs of the parties and was argued by

counsel.

After consideration, it is hereby ordered and

adjudged that the judgment of the district court in

this cause is affirmed in accordance with the opinion

of this Court.

September 01, 2023

Order Entered in Accordance with Opinion:

Clerk, U.S. Court of Appeals, Eighth Circuit.

____________________________________

/s/ Michael E. Gans

18a

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

(Filed August 16, 2022)

CLARA CHEEKS,

Plaintiff,

Case No. 4:18-cv-2091-SEP

JON BELMAR, et al.,

Defendants.

MEMORANDUM AND ORDER

Before the Court are motions for summary

judgment filed by Defendants Mark Jakob and Frank

K. Maloy, Doc. [218], and Defendants Jon Belmar

and St. Louis County, Doc. [242].6 The motions are

fully briefed. For the reasons set forth below, Jakob

and Maloy’s motion is denied, and Belmar and St.

Louis County’s motion is granted.

BACKGROUND

Plaintiff Clara Cheeks filed this action on

December 17, 2018, alleging several claims on behalf

The Court will refer to Defendants Maloy and

Jakob as “Officer Defendants” and Defendants Belmar

and St. Louis County as “County Defendants.”

19a

of her son, Mikel Neil, who died on August 10, 2018,

from injuries sustained in a motor vehicle incident

allegedly involving St. Louis County police officers

Alex Maloy and Mark Jakob.7 See Docs. [1], [250] ¶¶

1, 2. After the Court’s September 17, 2020,

Memorandum and Order, the following federal claims

remain:8 (1) Count I against Defendants Jakob and

Maloy for failure to provide emergency aid under 18

U.S.C. § 1983;9 (2) Count III against Defendants

Belmar and St. Louis County for negligent hiring,

training, and supervision under 18 U.S.C. § 1983;

and (3) Count VII against Defendants Belmar and St.

Louis County, alleging liability under Monell v.

This action was originally brought against Alex

Maloy. Some time after filing, Alex Maloy passed away

and his father, Frank Maloy, was substituted as the

proper party. See Fed. R. Civ. P. 25(a).

8 In addition to the three remaining federal claims, the

Court stayed Plaintiff’s state law wrongful death claims,

Counts VIII and IX, pending an outcome in the state court

wrongful death action, in which Plaintiff has intervened.

Doc. [186] at 5, 13.

9 Although Officer Defendants fault Plaintiff for failing to

amend her Complaint after the September 17, 2020, see

Doc. [219] at 2019, Memorandum and Order, the Court

finds that Plaintiff was not required to do so in order to

maintain her Count I. In its previous Order, the Court

clarified the constitutional basis of Plaintiff’s Count I and

identified the Fourteenth Amendment’s deliberate

indifference standard as the proper basis for Plaintiff’s

claim. Doc. [186] at 23-25. The Court did not require

Plaintiff to file an amended complaint; rather, it “call[ed]

to the parties’ attention” that the Fourteenth Amendment

recognizes a claim as alleged in Count I. Id. at 25.

20a

Department of Social Services of City of New York,

436 U.S. 658 (1978).

On August 10, 2018, at approximately 9:30

PM, Mikel Neil crashed into a tree on Airport Road in

St. Louis County, Missouri. Doc. [250] ¶ 1. Neil died

at the scene of the accident from blunt trauma caused

by the crash. Id. ¶ 2. The parties dispute the

circumstances that led to the accident and Neil’s

death. Plaintiff contends that Maloy and Jakob

performed a “PIT” maneuver on Neil’s car, which

caused Neil to “go into a spin” and crash into the tree.

Doc. [248] ¶ 1. The Officer Defendants deny that a

PIT maneuver was used, see Doc. [254] at 9-10, and

that Defendant Jakob observed the crash.10 Doc.

[248] ¶ 6. Plaintiff believes that evidence— including

video footage from a nearby liquor store and

testimony from Lieutenant O’Neill and Defendant

Belmar about the incident—suggests that Maloy and

Jakob were or should have been aware of the crash.

Id.

Although the officers did not render aid or call

for medical assistance, emergency responders did

arrive at the scene after a witness, Ryane Vann,

The Statement of Uncontroverted Material Facts

does not explicitly state whether Maloy observed the

crash. Doc. [248] ¶ 6 (Defendants stating only that Jakob

did not observe Neil’s vehicle crash). This is presumably

due to Maloy’s death early in this litigation. Based on

Maloy’s termination letter, Doc. [244- 3] at 4, he also

denied witnessing the crash.

21a

called 911.11 See id. ¶ 4; Doc. [219-4] at 27:7-21.

According to Ms. Vann, she called for assistance no

later than 30 seconds after the crash. Doc. [219] at 11

(citing Doc. [219-4] at 51:17-52:8). Officer Defendants

contend that, because emergency responders were

called to the scene within 30 seconds of the incident

regardless of their failure to render aid, there was

nothing more the officers could have done to “change

the outcome” of the accident (i.e., to save Neil’s life).

Docs. [248] ¶ 4; [250] ¶ 3. They argue that

approaching the vehicle at the time of the crash

would not have “changed the outcome” either, as

Maloy and Jakob were not “equipped with anything”

that could have saved Neil. Doc. [248] ¶ 5. Plaintiff

asserts that Maloy and Jakob did observe the crash,

id. ¶ 6, and that “there [was] no way” for them to

determine, at the time of the crash, whether

rendering aid would have been futile. Id. ¶ 5; Doc.

[250] ¶ 3. Moreover, Plaintiff contends that, despite

how terrible the car accident may have appeared—

and even if it gave the officers reason to believe the

passengers were deceased—they still had an

obligation to stop and attempt to render aid. Doc.

[248] ¶ 5.

In Counts III and VII, Plaintiff brings claims

against Jon Belmar and St. Louis County (County

Defendants). County Defendants contend that they

were not aware of previous instances in which Maloy

or Jakob failed to provide emergency medical care

before the incident on August 10, 2018. Doc. [250] ¶

Plaintiff contends that it took approximately five

minutes for responders to arrive. Doc. [248] ¶ 4.

Defendants do not respond to that allegation.

22a

4. Moreover, County Defendants note—and Plaintiff

does not deny—that St. Louis County had a policy

that officers were required to render emergency aid.

Id. ¶ 6; see Docs. [244-3] at 4, [244-4] at 4. County

Defendants further argue that Maloy and Jakob were

terminated from the St. Louis County Police

Department, in part for failing to render aid to Neil

after the crash. Id. ¶ 5. In response, Plaintiff levels a

series of accusations against County Defendants,

primarily directed at Defendant Belmar’s and other

St. Louis County Police Department officials’ actions

at the scene of the crash and during the investigation

of the incident. See id. ¶¶ 4-6. Specifically, Plaintiff

describes the County’s attempt to “cover-up” Jakob’s

and Maloy’s actions and claims that they were

terminated “only after efforts were made to create a

narrative that the officers . . . were unaware of the

crash, thus obviating the need to render aid[.]” Id. ¶

LEGAL STANDARD

Under Federal Rule of Civil Procedure 56, a

court must grant summary judgment if it finds, based

on the factual record, that “there is no genuine issue

as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). Material

facts are those that “might affect the outcome of the

suit under the governing law,” and there is a genuine

dispute where “a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).

23a

The moving party bears the initial burden of

“informing the district court of the basis for its

motion, and identifying those portions of the

pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if

any, which it believes demonstrate the absence of a

genuine issue of material fact.” Celotex Corp., 477

U.S. at 323 (quotation marks omitted). The burden

then shifts to the non-movant to “present specific

evidence, beyond ‘mere denials or allegations

[that] . . . raise a genuine issue for trial.’” Farver v.

McCarthy, 931 F.3d 808, 811 (8th Cir. 2019)

(alteration in original) (quoting Wingate v. Gage

Cnty. Sch. Dist., No. 34, 528 F.3d 1074, 1079 (8th Cir.

2008)).

Motions for summary judgment in qualified

immunity cases are “unique in that the court should

not deny summary judgment any time a material

issue of fact remains on the constitutional violation

claim . . . .” Jones v. McNeese, 675 F.3d 1158, 1161

(8th Cir. 2012) (cleaned up) (quoting Brockinton v.

City of Sherwood, Ark., 503 F.3d 667, 671 (8th Cir.

2007)). “Because qualified immunity ‘is an immunity

from suit rather than a mere defense to liability[,] . . .

it is effectively lost if a case is erroneously permitted

to go to trial.’” Id. (citing Mitchell v. Forsyth, 472 U.S.

511, 526 (1985)). Therefore, in a qualified immunity

case, the court must “take a careful look at the

record, determine which facts are genuinely disputed,

and then view those facts in a light most favorable to

the non-moving party so long as those facts are not so

blatantly contradicted by the record that no

reasonable jury could believe them.” Id. at 1161-62

(cleaned up) (quoting O’Neil v. City of Iowa City,

24a

Iowa, 496 F.3d 915, 917 (8th Cir. 2007)); see also

Tolan v. Cotton, 572 U.S. 650, 657 (2014) (“Our

qualified-immunity cases illustrate the importance of

drawing inferences in favor of the nonmovant . . . .”);

see also, e.g., Estate of Walker v. Wallace, 881 F.3d

1056, 1060 (8th Cir. 2018) (construing the facts in the

light most favorable to plaintiffs on review of a

district court’s summary judgment denial of qualified

immunity).

DISCUSSION

Defendants Jakob and Maloy are

not entitled to qualified immunity

from Count I.

The Officer Defendants argue that they are

entitled to qualified immunity from Plaintiff’s Count

I for failure to render aid pursuant to § 1983. Doc.

[219] at 12. “Qualified immunity shields government

officials from liability in a § 1983 action unless their

conduct violates a clearly established right of which a

reasonable official would have known.” Burnikel v.

Fong, 886 F.3d 706, 709 (8th Cir. 2018) (citing

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

Thus, a “[q]ualified immunity analysis requires a

two-step inquiry: (1) whether the facts shown by the

plaintiff make out a violation of a constitutional or

statutory right, and (2) whether that right was

clearly established at the time of the defendant’s

alleged misconduct.” Morgan v. Robinson, 920 F.3d

521, 523 (8th Cir. 2019) (en banc) (quoting Nord v.

Walsh Cnty., 757 F.3d 734, 738 (8th Cir. 2014))

(quotation marks omitted). “Unless both of these

questions are answered affirmatively, [a defendant]

25a

is entitled to qualified immunity.” Id. at 523 (quoting

Nord, 757 F.3d at 738

A reasonable jury could find that

Defendants violated Neil’s

constitutional right.

Section 1983 of Title 42 of the United States

Code provides in relevant part:

Every person who, under the color of any

statute, ordinance, regulation, custom, or

usage, of any State . . . subjects, or causes to be

subjected, any citizen of the United States . . .

to the deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured in an

action at law[.]

42 U.S.C. § 1983. Section 1983 “is not itself a source

of substantive rights,” but affords “a method for

vindicating federal rights elsewhere conferred.”

Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting

Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).

Thus, in considering a § 1983 claim, a court must

“identify the specific constitutional right allegedly

infringed.” Id. (quoting Graham v. Connor, 490 U.S.

386, 394 (1989)).

The constitutional basis for Plaintiff’s Count I

arises under the Due Process Clause of the

Fourteenth Amendment. Doc. [186] at 23-25. The

Due Process Clause does not provide an “affirmative

right to governmental aid, even where such aid may

be necessary to secure life, liberty, or property

interests of which the government itself may not

26a

deprive the individual.” DeShaney v. Winnebago

Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989)

(collecting cases). The Constitution does, however, “in

certain limited circumstances . . . impose[] upon the

State affirmative duties of care and protection with

respect to particular individuals.” Id. at 198. For

example, “the Eighth Amendment’s prohibition

against cruel and unusual punishment . . . requires

the State to provide adequate medical care to

incarcerated prisoners.” Id. (citing Estelle v. Gamble,

429 U.S. 97, 103-04 (1976)). That principle has been

extended to apply, through the Fourteenth

Amendment, to pretrial detainees and suspects in

police custody who have been injured while being

apprehended by the police. Id.; see City of Revere v.

Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (citing

Bell v. Wolfish, 441 U.S. 520, 535 (1979)) (“[T]he due

process rights of [an individual apprehended by the

police] are at least as great as the Eighth

Amendment protections available to a convicted

prisoner.”); Davis v. Oregon Cnty., Mo., 607 F.3d 543,

548 (8th Cir. 2010) (quoting Kahle v. Leonard, 477

F.3d 544, 550 (8th Cir. 2007)) (“Pretrial detainees are

entitled to the same protection under the Fourteenth

Amendment as imprisoned convicts receive under the

Eighth Amendment.”).

The Eighth Circuit has analyzed failure to

render medical aid claims under a deliberate

indifference standard. See, e.g., Tagstrom v.

Enockson, 857 F.2d 502, 503-04 (8th Cir. 1988). A

deliberate indifference claim “has both an objective

and a subjective component.” McRaven v. Sanders,

577 F.3d 974, 980 (8th Cir. 2009) (quoting Vaughn v.

Gray, 557 F.3d 904, 908 (8th Cir. 2009)). “The

27a

objective component requires a plaintiff to

demonstrate an objectively serious medical need”;

“the subjective component requires a plaintiff to show

that the defendant actually knew of, but deliberately

disregarded, such need.” Id. (quoting Vaughn, 557

F.3d at 908). “A serious medical need is one that has

been diagnosed by a physician as requiring

treatment, or one that is so obvious that even a

layperson would easily recognize the necessity for a

doctor’s attention.” Holden v. Hirner, 663 F.3d 336,

342 (8th Cir. 2011) (quoting Coleman v. Rahija, 114

F.3d 778, 784 (8th Cir. 1997)). The subjective

component—whether a defendant was deliberately

indifferent to a serious medical need—requires more

than mere negligence. Rather, it requires a state of

mind similar to criminal recklessness. Nur v.

Olmsted Cnty., 563 F. Supp. 3d 946, 965 (D. Minn.

2021) (quoting Barton v. Taber, 820 F.3d 958, 965

(8th Cir. 2016)). “Such a mental state can be inferred

from facts that demonstrate the response to the

medical need was obviously inadequate” or by

showing that a defendant “intentionally den[ied] or

delay[ed] access to medical care or intentionally

interfere[d] with prescribed treatment . . . .” Id.

(citing Estelle, 429 U.S. at 104-05) (internal quotation

marks omitted).

Defendants argue that their conduct cannot

have violated Neil’s constitutional rights for two

reasons: (1) Plaintiff cannot demonstrate that the

subjective component of her deliberate indifference

claim is satisfied because there is no evidence that

Maloy or Jakob witnessed Neil’s vehicle crash, and

(2) Maloy and Jakob could not have violated Neil’s

right where the alleged deliberate indifference “did

28a

not cause any detrimental effect.” Doc. [219] at 3-4.

Those arguments rely heavily on factual claims that

the parties dispute—specifically, whether Maloy and

Jakob were aware of the crash and whether they

could have done anything to prevent Neil’s death.

In support of her account that the Officer

Defendants were aware of the crash, Plaintiff points

to the depositions of Jon Belmar, Lorenzo Johnson,

and Lieutenant O’Neill. See Doc. [248] ¶ 6. Belmar

testified that Maloy and Jakob “either did or should

have seen the accident,” and “did not stop.” Doc. [2502] at 55:10-56:3. Johnson testified that he witnessed

Jakob and Maloy’s police car bump the side of Neil’s

car, causing it to go into a spin. Doc. [250-7] at 15:2317:1.12 O’Neill testified that video footage from a

nearby liquor store showed a county police car

driving by without its lights on in the distance right

after people came out of the store in response to

hearing the crash, Doc. [250-6] at 52:3-56:23; that he

asked Maloy and Jakob only questions “that would

not violate their due process because [he] suspected

them of wrongdoing,” id. at 44:2-14; and that the car

in which Maloy and Jakob arrived at the scene about

an hour and fifteen minutes after the crash was not

Whether Defendants performed a PIT maneuver on

Neil’s vehicle is not itself the basis of any remaining

claim. Still, Plaintiff cites evidence that the Officer

Defendants performed such a maneuver as probative of an

element of the failure to render aid claim—viz., whether

or not the Officer Defendants knew that Neil’s vehicle had

crashed. The Court considers evidence relating to whether

such a maneuver was performed for that limited purpose

only.

29a

the vehicle they had used to pursue Neil, id. at 46:312.

Defendants deny that Maloy and Jakob

performed a PIT maneuver on Neil’s vehicle.13 Doc.

[254] at 8. They point to Sergeant Paul Kempke’s

testimony, video evidence from a school on the

roadway where the alleged maneuver occurred, and

the opinion of Fred Semke, an accident

reconstructionist, all indicating that there was no

PIT maneuver or other contact between the officers’

vehicle and Neil’s vehicle. Id. (citing Docs. [254-5],

[254-6], [255]). That evidence, they contend, directly

contradicts the testimony of Plaintiff’s purported

eyewitness, Lorenzo Johnson, who claims that he saw

such a maneuver. Defendants also deny that the

officers witnessed the crash. Doc. [248] ¶ 6. Jakob

denies observing the crash, witnessing anything that

indicated a crash, or hearing anything that sounded

like a crash. Doc. [219-6] at 79:7-80:6, 211:11-23,

226:5-14. And Defendants claim Plaintiff has

produced no evidence demonstrating that Maloy or

Jakob had actual knowledge of the crash.14 Doc. [254]

at 10.

Defendants object to Plaintiff’s reliance on the

testimony of Geoffrey Alpert in relation to the alleged PIT

maneuver. Doc. [254] at 8. Because the Court finds that

Plaintiff has made a submissible case for a constitutional

violation even without Alpert’s testimony, the

admissibility of that testimony will be addressed

separately in response to Defendants’ motions to exclude.

Docs [229], [232].

14 The Court rejects Defendants’ argument that Plaintiff

has produced no evidence of “actual knowledge” that could

30a

Viewing the facts in the light most favorable to

Plaintiff, there is a genuine dispute of material fact

as to whether Maloy and Jakob were aware of the

crash as it happened. See Anderson, 477 U.S. at 248.

Plaintiff’s factual allegations “are not so blatantly

contradicted by the record . . . that no reasonable jury

could believe them.” O’Neil, 496 F.3d at 917 (cleaned

up) (quoting Scott v. Harris, 550 U.S. 372, 380

(2007)). Accordingly, the Court may not resolve the

disputed factual questions on summary judgment.

See Anderson, 477 U.S. at 249 (“[A]t the summary

judgment stage the judge’s function is not [herself] to

weigh the evidence and determine the truth of the

matter but to determine whether there is a genuine

issue for trial.”).

satisfy the subjective component of a deliberate

indifference claim. See Docs. [219] at 11, [254] at 10. A

reasonable juror could find, based on the circumstantial

evidence presented by Plaintiff— including an eye-witness

account of the officers’ car coming into contact with Neil’s

car—that Maloy and Jakob had actual knowledge of Neil’s

serious medical need and disregarded it. Jones, 512 F.3d

at 481-82 (citing Farmer v. Brennan, 511 U.S. 825, 842

(1994)) (“The determination that prison officials had

actual knowledge of a serious medical need may be

inferred from circumstantial evidence or from the very

fact that the risk was obvious.”); see also Ryan v.

Armstrong, 850 F.3d 419, 425 (8th Cir. 2017) (quoting

Thompson v. King, 730 F.3d 742, 746-47 (8th Cir. 2013))

(the subjective component of a deliberate indifference

claim “may be established through circumstantial

evidence, as ‘a factfinder may determine that a defendant

was actually aware of a serious medical need but

deliberately disregarded it, from the very fact that the

[medical need] was obvious’”).

31a

Defendants’ second argument for summary

judgment—i.e., that Maloy and Jakob did not violate

Neil’s constitutional right because their failure to call

911 did not have any detrimental effect in light of

Ms. Vann’s call for medical assistance within 30

seconds of the crash—fails as a matter of law. Doc.

[219] at 11. According to Defendants, even if Maloy or

Jakob witnessed the crash and could have called for

help immediately, the fact that only 30 seconds

elapsed before someone else called for such assistance

means that the Officer Defendants cannot have

violated Neil’s right to be rendered medical aid. Id.

That argument rests on a misreading of Eighth

Circuit precedent.

Defendants point to Laughlin v. Schriro, 430

F.3d 927, 929 (8th Cir. 2005). Doc. [219] at 9. In

Laughlin, the plaintiff called for prison officials at

7:30 AM because he believed he was having a heart

attack, but no one responded to his call. Id. at 928.

He called again at 8:15 AM, and a guard responded

at 8:35 AM but did not call for assistance, despite the

plaintiff’s assertions that he was having a heart

attack. Id. Twenty minutes later, the plaintiff

informed a different guard that he was having a

heart attack, and that guard called for help, which

did not arrive for 15 more minutes. Id. The plaintiff

was given an antacid and returned to his cell. Id.

Later that afternoon, the plaintiff was admitted to

the prison infirmary, and then to the hospital, where

he was diagnosed with myocardial infarction and

received an angioplasty. Id. The Eighth Circuit

affirmed summary judgment in favor of the prison

officials, finding that, to prevail on a delay in medical

treatment claim, the plaintiff must show that “the

32a

deprivation alleged was objectively serious” and that

“the prison official was deliberately indifferent to the

inmate’s health or safety.” Id. at 929 (citing

Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th Cir.

1995), abrogation on other grounds recognized by

Reece v. Groose, 60 F.3d 487, 492 (8th Cir. 1995)). In

that context, the Eighth Circuit noted that “the

objective seriousness of the deprivation should also

be measured ‘by reference to the effect of delay in

treatment.’” Id. (quoting Hill v. Dekalb Reg’l Youth

Det. Ctr., 40 F.3d 1176, 1188 (11th Cir. 1994),

abrogation on other grounds recognized by Hope v.

Pelzer, 536 U.S. 730, 739 n.9 (2002)). The court found

that the plaintiff “offered no evidence establishing

that any delay in treatment had a detrimental effect”

on his treatment, and therefore he failed to “raise a

genuine issue of fact on an essential element of his

claim.” Id.

The Eighth Circuit recently applied this

principle in Redmond v. Kosinski, 999 F.3d 1116 (8th

Cir. 2021), in which a prisoner alleged that prison

medical officials were deliberately indifferent to his

serious medical needs by delaying treatment of a sore

on his foot, resulting in the amputation of his leg

below the knee. Id. at 1118-19. The plaintiff argued

that the defendants “delayed his treatment . . . and

that the detrimental effect [was] . . . ‘obvious to the

layperson[.]’” Id. at 1120 (citing Moore v. Jackson,

123 F.3d 1082, 1086 (8th Cir. 1997)). As an initial

matter, the Eighth Circuit appeared to make a

distinction between situations in which defendants

have allegedly done nothing to treat a serious

medical need and situations, as in Redmond, where

the plaintiff alleges conduct akin to negligent medical

33a

treatment. See id. at 1120-21 (“Redmond does not

allege the defendants delayed all treatment, but that

they failed to provide the proper treatment at the

proper time to prevent his wound from becoming

infected and his condition from worsening.”). In the

latter context, the Court confirmed that “the objective

seriousness of the deprivation should also be

measured ‘by reference to the effect of delay in

treatment,’” id. at 1121 (quoting Laughlin, 430 F.3d

at 929) (emphasis in original), and that the prisoner

bears the burden of presenting evidence that “the

prison officials ignored an acute or escalating

situation or that these delays adversely affected his

prognosis.” Id. (quoting Holden, 663 F.3d at 342).

Applying that standard, the court found that the

plaintiff’s “records reflect[ed] a complex medical

situation with an unfortunate result.” Id. Specifically,

the Court noted that the plaintiff’s injury was not “so

obvious that a layperson would easily recognize” his

medical need, and that a jury could not find that the

officials’ conduct was “grossly incompetent or

inadequate” without additional medical evidence

demonstrating causation. Id.

Defendants’

argument

that

such

“detrimental effect” standard applies here is

unpersuasive.

Despite

Defendants’

apparent

attempts to construe Plaintiff’s claim as a “delay in

treatment” claim, the Court has already determined

that her claim arises from Defendants’ failure to

render aid. Doc. [186] at 58. Both Laughlin and

Redmond note that “the objective seriousness of the

deprivation should also be measured by reference to

the effect of delay in treatment” when an inmate

asserts a claim that a delay in medical care violates

34a

his constitutional rights. Laughlin, 430 F.3d at 929

(quotation marks omitted); Redmond, 999 F.3d at

1121 (quotation marks omitted). Here, Plaintiff does

not allege that Maloy and Jakob “ignored an acute or

escalating situation,” as did the plaintiffs in both

Laughlin and Redmond. Redmond, 999 F.3d at 1121

(quoting Holden, 663 F.3d at 342). Rather, she

alleges that they did nothing in response to a

manifestly serious medical need.

Moreover, the upshot of Laughlin and

Redmond appears to be that delay-of-treatment

claims involving “sophisticated medical question[s],”

which are not “within the common understanding of

the jury or the court” or are not “so obvious that a

layperson would easily recognize” the need for

medical treatment, require additional evidence of

causation or a “detrimental effect” resulting from the

official’s misconduct. Id. at 1121; see Laughlin, 430

F.3d at 929. The facts of this case are much different

than those of Laughlin and Redmond. Here, Maloy

and Jakob allegedly witnessed a vehicle crash into a

tree at a high speed, which resulted in the death of

two passengers. Whether emergency medical

assistance was needed under such circumstances is

far from a “sophisticated medical question.” It is

difficult to imagine in what circumstances one’s

medical needs would be “so obvious that even a

layperson would easily recognize the necessity for a

doctor’s attention,” if a high-speed car crash does not

qualify. McRaven, 577 F.3d at 982 (quoting Jones v.

Minnesota Dep’t of Corr., 512 F.3d 478, 481 (8th Cir.

2008)).

35a

Viewing the facts in the light most favorable to

Plaintiff, a reasonable jury could conclude that Maloy

and Jakob were aware of the crash, and that their

failure to call for emergency medical assistance

violated Neil’s constitutional right under the

Fourteenth Amendment. See Anderson, 477 U.S. at

248. Accordingly, Plaintiff has satisfied the first

prong of the qualified immunity inquiry for purposes

of summary judgment. See Morgan, 920 F.3d at 523.

Neil’s right to be rendered aid was

clearly established at the time of the

crash.

Although “[q]ualified immunity is an affirmative

defense for which the defendant carries the burden of

proof,” the “plaintiff . . . must demonstrate that the

law is clearly established.” Sparr v. Ward, 306 F.3d

589, 593 (8th Cir. 2002) (citing Johnson-El v.

Schoemehl, 878 F.2d 1043, 1048 (8th Cir. 1989)). “A

right is clearly established when it is ‘sufficiently

clear that every reasonable official would have

understood that what he is doing violates that right.’”

Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 7 (2021)

(per curiam) (quoting Mullenix v. Luna, 577 U.S. 7,

11 (2015) (per curiam)). Although case law directly on

point is not necessary to demonstrate that a right is

clearly established, “existing precedent must have

placed the statutory or constitutional question

beyond debate.” Id. at 8 (quoting White v. Pauly, 137

S. Ct. 548, 551 (2017)). In the context of qualified

immunity, clearly established rights “should not be

defined at a high level of generality.” White, 137 S.

Ct. at 552 (quoting Ashcroft v. al-Kidd, 563 U.S. 731,

742 (2011)) (quotation marks omitted). Rather, “[t]he

36a

dispositive question is whether the violative nature of

particular conduct is clearly established . . . in light

of the specific context of the case[.]” Mullenix, 577

U.S. at 12 (quoting Ashcroft, 563 U.S. at 742

(quotation marks omitted); Brosseau v. Haugen, 543

U.S. 194, 198 (2004) (per curiam) (quotation marks

omitted)). Thus, to satisfy the second prong of the

qualified immunity analysis, Plaintiff must point to

existing precedent that places it beyond debate that

the Officer Defendants’ particular conduct—

construed in the light most favorable to her—violated

a clearly established right in light of the specific

context of this case.

Plaintiff points to a 1988 case in which the

Eighth Circuit held that an officer had not failed to

render sufficient medical care to someone injured in

an accident after a high-speed chase where the officer

had “called an ambulance . . . immediately upon

seeing the accident . . . and other officers involved in

the chase were on the scene quickly and watched

over” the injured person. Tagstrom, 857 F.2d at 50304. According to Plaintiff, Tagstrom stands for the

proposition that “[a]n officer performs his or her duty

regarding first aid by ‘immediately calling an

ambulance.’” Doc. [249] at 8 (quoting Tagstrom, 857

F.2d at 504). Therefore, Plaintiff argues, Maloy’s and

Jakob’s failure to call 911 immediately after the

crash violated Neil’s clearly established right.

Defendants respond that Maloy and Jakob

were not required by Eighth Circuit precedent to

provide medical aid to Neil themselves. Doc. [254] at

4. That appears to be true. See Tagstrom, 857 F.2d at

504 (an officer has no “affirmative duty to render

37a

medical assistance himself, such as giving mouth-tomouth resuscitation or CPR”). But Tagstrom makes

clear that, under very similar circumstances, an

officer does have an obligation to render aid, which is

satisfied “so long as he has summoned the necessary

medical help.” Teasley v. Norler, 548 F. Supp. 2d 694,

709 (E.D. Mo. 2008) (citing Tagstrom, 857 F.2d at

504; Tatum v. City & Cnty. of San Francisco, 441

F.3d 1090, 1099 (9th Cir. 2006); Wilson v. Meeks, 52

F.3d 1547, 1556 (10th Cir. 1995); Rich v. City of

Mayfield Heights, 955 F.2d 1092, 1097 (6th Cir.

1992)). That principle is consistent with other Eighth

Circuit cases, which, under varying circumstances,

hold that an officer runs afoul of the Eighth or

Fourteenth Amendment where she does nothing in

response to a manifestly serious medical need. See,

e.g., Tlamka v. Serrell, 244 F.3d 628, 633 (8th Cir.

2001) (“Based on the obvious and serious nature of

[the plaintiff’s] condition, the corrections officers’

alleged failure to even approach [plaintiff] during the

maximum 10-minute period would rise to a showing

of deliberate indifference.”). And it is also consistent

with the Supreme Court’s admonition that an officer

who “intentionally den[ies]” medical care to inmates

violates the Eighth Amendment. Estelle, 429 U.S. at

105.

Viewing the facts in the light most favorable to

Plaintiff, Maloy and Jakob witnessed Neil’s car crash

into a tree and then fled the scene without calling for

medical aid. Based on the precedent discussed above,

Plaintiff has made a sufficient showing that a

reasonable officer in the officers’ position would have

been on notice that the failure to call for medical

assistance was a violation of Neil’s right to be

38a

rendered aid. See Rivas-Villegas, 142 S. Ct. at 7.

Accordingly, Plaintiff has satisfied the second prong

of the qualified immunity analysis.

Because Plaintiff has made a sufficient

showing on both steps of the qualified immunity

inquiry, Morgan, 920 F.3d at 523, the Officer

Defendants are not entitled to qualified immunity

from Count I.

II. Defendants Jon Belmar and St. Louis

County are entitled to summary judgment

as to Counts III and VII.

Defendants Belmar and St. Louis County

(County Defendants) move for summary judgment on

Count III, which alleges negligent hiring, training,

and supervision, and Count VII, which alleges

municipal liability under Monell v. Department of

Social Services of City of New York, 436 U.S. 658

(1978), for the alleged constitutional violations

committed by Maloy and Jakob. Plaintiff argues that

the “core” of her claims is that “an unofficial custom,

pattern/practice was the moving force behind [County

Defendants’] unconstitutional conduct of excessive

force, deliberate indifference to obvious medical need,

failure to train or supervise, [and] negligence per se

against [Plaintiff].” Doc. [251] at 9. The precise

nature of Plaintiff’s claims is difficult to discern. The

Court understands her to be alleging supervisory

liability against Belmar under § 1983 for failure to

train or supervise and Monell liability against the

County based on an unconstitutional policy and/or

39a

custom and failing to train or supervise its

employees.15

At the outset, it should be noted that Plaintiff

can maintain claims under § 1983 only for

deprivations of rights secured by federal law or the

United States Constitution. See 42 U.S.C. § 1983.

Thus, Plaintiff’s state law negligence per se claim

cannot be a basis for liability against County

Defendants; nor can any of her dismissed

constitutional allegations. The Eighth Circuit “has

consistently recognized a general rule that, in order

for municipal liability to attach, individual liability

first must be found on an underlying substantive

claim.”16 Mahn v. Jefferson Cnty., Mo., 891 F.3d 1093,

A claim for failure to supervise “require[s] the

same analysis” as a claim for failure to train. Liebe v.

Norton, 157 F.3d 574, 579 (8th Cir. 1998)). The Eighth

Circuit employs a slightly different standard for § 1983

claims related to the hiring of an offending officer. See

Conner v. St. Louis Cnty., Mo., 2016 WL 4538534, at *3

(E.D. Mo. Aug. 31, 2016) (citing Atkinson v. City of

Mountain View, Mo., 709 F.3d 1201, 1216 (8th Cir. 2013)).

Because Plaintiff’s memorandum refers only to

Defendants’ “failure to train and supervise,” Doc. [251] at

9, and there is no indication that Plaintiff challenges

Belmar’s hiring decisions with respect to Jakob and

Maloy, the Court will consider only the failure to train and

supervise claims.

16 “There need not be a finding that a municipal employee

is liable in his or her individual capacity” to find a

municipality liable for the employee’s underlying conduct.

Webb v. City of Maplewood, 889 F.3d 483, 488 (8th Cir.

2018) (cleaned up) (quoting Moyle v. Anderson, 571 F.3d

814, 818 (8th Cir. 2009)). But an employee must have

committed an unconstitutional act. Id. at 488 (quoting

40a

1099-1100 (8th Cir. 2018) (quoting Moore v. City of

Desloge, Mo., 647 F.3d 841, 849 (8th Cir. 2011)).

Thus, the only question before the Court is:

Assuming arguendo that Maloy and Jakob committed

unconstitutional acts by failing to render aid at the

time of the crash, may County Defendants may be

held liable for those acts under § 1983?

A. Supervisory Liability under § 1983

claim as to Defendant Belmar

Plaintiff appears to argue that Belmar is liable

in a supervisory capacity for his officers’ failure to

render aid based on his failure to adequately train or

supervise them in his capacity as Chief of Police.

Belmar may not be held liable for Maloy’s and

Jakob’s actions based on respondeat superior. Livers

v. Schenck, 700 F.3d 340, 355 (8th Cir. 2012) (citing

Wagner v. Jones, 664 F.3d 259, 275 (8th Cir. 2011));

see also Madewell v. Roberts, 909 F.2d 1203, 1208

(8th Cir. 1990) (citing Rizzo v. Goode, 423 U.S. 362,

370-71 (1976)) (“Liability under § 1983 requires a

causal link to, and direct responsibility for, the

deprivation of rights.”). He may be held liable for

failure to train or supervise Maloy and Jakob only if

he: “(1) had ‘notice of a pattern of unconstitutional

Russell v. Hennepin Cnty., 420 F.3d 841, 846 (8th Cir.

2005)). The Court already determined that Officer

Defendants are not entitled to qualified immunity but left

for the fact finder to determine whether Neil’s

constitutional rights were violated. Without taking a

position as to the constitutionality of Maloy’s and Jakob’s

actions, the Court will assume, for purposes of evaluating

municipal liability, that the officers’ underlying conduct

amounted to an unconstitutional act.

41a

acts committed by subordinates’; (2) was deliberately

indifferent to or tacitly authorized those acts; and (3)

failed to take ‘sufficient remedial action’; (4)

proximately causing injury to [Neil].” Livers, 700 F.3d

at 355 (quoting Andrews v. Fowler, 98 F.3d 1069,

1078 (8th Cir. 1996)). The standard is a “rigorous”

one and “requires proof that the [defendant] had

notice of a pattern of conduct by the subordinate that

violated a clearly established constitutional right.”

Davis v. Buchanan Cnty., Mo., 11 F.4th 604, 624 (8th

Cir. 2021) (quoting S.M. v. Krigbaum, 808 F.3d 335,

340 (8th Cir. 2015)). Moreover, the misconduct the

supervisor was aware of “must be very similar to the

conduct giving rise to liability.” Id. (quoting

Krigbaum, 808 F.3d at 340)).

Construing the facts in the light most

favorable to Plaintiff, the record contains no grounds

for a reasonable inference that Belmar had notice of,

or was deliberately indifferent to, a pattern of

unconstitutional conduct Maloy or Jakob. Belmar

satisfies his burden of pointing to evidence in the

record demonstrating an absence of genuine dispute

as to whether he was aware of instances in which

Maloy or Jakob failed to provide emergency medical

care before August 10, 2018. Celotex Corp., 477 U.S.

at 323. Specifically, he cites letters he sent to Maloy

and Jakob on November 23, 2018, describing the

reasons for their termination, including their failure

to “take appropriate action” by rendering aid to Neil

or calling for emergency responders. Docs. [244-3] at

4; [244-4] at 4. Belmar’s letter to Maloy also describes

an instance of “previous discipline” related to an offduty incident involving alcohol. Doc. [244-3] at 4.

Plaintiff is correct that the letters do not state that

42a

Belmar did not have prior knowledge of

unconstitutional acts, but the fact that the letters

reference previous disciplinary action without noting

any previous instances of failure to render aid does

support Belmar’s claim that he lacked knowledge of

any such conduct. Doc. [257] ¶ 4. Belmar also notes

that the letters informed Maloy and Jakob that their

termination was based, in part, on failing to provide

medical care to Neil, supporting an inference that the

officers would have been disciplined for earlier

instances of similar failures, and that such

disciplinary history would have been discussed in the

letter as a basis for their termination. See id.

In response to Belmar’s showing, based on the

termination letters, that he had no notice of the

officers’ previous failures to render appropriate

emergency aid, Plaintiff cites 36 factual allegations

relating to the conduct of Belmar and other County

employees following the crash. Doc. [250] ¶ 4. None of

the cited allegations is relevant to Plaintiff’s § 1983

claim for failure to train or supervise. Evidence of

Belmar’s conduct after the crash—even if it was

wrongful—is not probative of whether he had prior

notice of Maloy or Jakobfailing to render aid, and if

so, whether he acted with deliberate indifference to

such failures. See Livers, 700 F.3d at 355 (quoting

Andrews, 98 F.3d at 1078). Plaintiff does not even

attempt such an argument in her memorandum in

opposition to the Motion for Summary Judgment.

Plaintiff has not met her burden to “present

specific evidence, beyond ‘mere denials or allegations

[that] . . . raise a genuine issue for trial,’” Farver, 931

F.3d at 811 (quoting Wingate, 528 F.3d at 1079), as to

43a

whether Belmar had notice that his training or

supervision of the Officer Defendants was

inadequate, Atkinson v. City of Mountain View, Mo.,

709 F.3d 1201, 1216-17 (8th Cir. 2013). Therefore,

Belmar is entitled to summary judgment as to

Plaintiff’s § 1983 claim for failure to supervise or

train.

B. Municipal liability under § 1983 as to

St. Louis County under Monell.

Plaintiff’s Count VII alleges that the County is

liable for Officer Defendants’ violation of Neil’s rights

because the violation was the result of an

unconstitutional County policy or unofficial custom.

See Docs. [251] at 9; [142] ¶ 152. Count III for failure

to train or supervise is also asserted against the

County.

“To establish municipal liability under § 1983,

a plaintiff must show that a constitutional violation

was committed pursuant to an official custom, policy,

or practice of the governmental entity.” Moyle, 571

F.3d at 817 (citing Monell, 436 U.S. at 690-92).

Showing an official policy or an unofficial custom is

not the only method of proving municipal liability;

even if a plaintiff cannot show a widespread custom,

the government might be liable for its failure to act.

See City of Canton, Ohio v. Harris, 489 U.S. 378, 388

(1989) (local government may be liable for failure to

train or supervise police use of force if the city’s

failure to act demonstrated “deliberate indifference to

the rights of persons with whom the police come into

contact”). Thus, three methods for establishing

municipal liability have emerged: “[P]laintiff must

44a

show that a constitutional violation resulted from (1)

an official policy, (2) an unofficial custom, or (3) a

deliberately indifferent failure to train or supervise.”

Aldridge v. City of St. Louis, 2019 WL 1695982, at * 9

(E.D. Mo. Apr. 17, 2019) (citing Mick v. Raines, 883

F.3d 1075, 1089 (8th Cir. 2018)).

“Policy” refers to an “official policy, a

deliberate choice of a guiding principle or procedure

made by the municipal official who has final

authority regarding such matters.” Corwin v. City of

Independence, Mo., 829 F.3d 695, 700 (8th Cir. 2016);

see also Russell v. Hennepin Cnty., 420 F.3d 841, 847

(8th Cir. 2005) (quoting Hayes v. Faulkner Cnty.,

Ark., 388 F.3d 669, 674 (8th Cir. 2004)) (“A ‘policy’ is

a deliberate choice to follow a course of action . . .

made from among various alternatives by the official

or officials responsible . . . for establishing final policy

with respect to the subject matter in question.”). For

a policy that is unconstitutional on its face, a plaintiff

does not need to adduce other evidence beyond “a

statement of the municipal policy and its exercise.”

Szabla v. City of Brooklyn Park, Minn., 486 F.3d 385,

389 (8th Cir. 2007) (citing City of Oklahoma City v.

Tuttle, 471 U.S. 808, 822-23 (1985)). However, when

“a policy is constitutional on its face, but it is

asserted that a municipality should have done more

to prevent constitutional violations by its employees,

a plaintiff must establish the existence of a ‘policy’ by

demonstrating that the inadequacies were a product

of deliberate or conscious choice by policymakers.” Id.

at 390.

45a

A plaintiff may establish municipal

liability

through

“custom”

demonstrating:

1) The existence of a continuing,

widespread,

persistent

pattern

unconstitutional misconduct by the

governmental entity’s employees;

2) Deliberate indifference to or tacit

authorization of such conduct by the

governmental

entity’s

policymaking

officials after notice to the officials of that

misconduct; and

3) That plaintiff was injured by acts

pursuant to the governmental entity’s

custom, i.e., that the custom was a

moving force behind the constitutional

violation.

Johnson v. Douglas Cnty. Med. Dep’t, 725 F.3d 825,

828 (8th Cir. 2013) (quoting Thelma D. ex rel. Delores

A. v. Bd. of Educ. of City of St. Louis, 934 F.2d 929,

932-33 (8th Cir. 1991)).

Finally, to establish deliberate indifference

sufficient for a failure to train or supervise claim, a

plaintiff must show “[a] pattern of similar

constitutional violations by untrained employees[.]”

S.M. v. Lincoln Cnty., 874 F.3d 581, 585 (8th Cir.

2017).

Any claim against the County for failure to

train or supervise fails for the same reason that it

fails against Belmar. The record is devoid of evidence

46a

that the County had notice that its training or

supervision of its officers was inadequate, much less

that it would result in a constitutional violation. See

Aldridge, 2019 WL 1695982, at *11 (quoting

Brewington v. Keener, 902 F.3d 796, 803 (8th Cir.

2018)); see also Atkinson, 709 F.3d at 1216-17

(quoting Brown, 520 U.S. at 411) (“Absent some form

of notice, the city cannot be deliberately indifferent to

the risk that its training or supervision of [an officer]

would result in ‘a violation of a particular

constitutional or statutory right.’”).

Nor can the Court find any evidence in the

record that St. Louis County had an official policy or

unofficial

custom

that

resulted

Neil’s

constitutional rights being violated. Plaintiff has

adduced no evidence that St. Louis County had a

policy or custom that explicitly instructed or

encouraged officers not to provide aid. In fact,

Plaintiff agrees that the opposite is true: St. Louis

County’s official policy requires that officers provide

emergency medical care, and Maloy and Jakob were

terminated, in part, for failing to do so. Doc. [243] at

8; Doc. [250] ¶ 6 (citing Docs. [244-3] at 4, [244-4] at

4, [244-5] at 102:23-103:3). Plaintiff argues that

“every effort was made to create a narrative that

[Jakob and Maloy] were unaware of the crash, thus

obviating the need to render aid.” Id. But again,

events that took place after the incident are not

relevant, as they do not bear on whether a

preexisting policy or custom led to the alleged

constitutional violation. The only constitutional

violation still at issue in this case is the Officer

Defendants’ alleged failure to render aid, and

Plaintiff points to no evidence that any such failure

47a

was caused by a County policy or custom. See Doc.

[251] at 9-10. Therefore, Plaintiff has failed to raise a

genuine issue of material fact for trial, and St. Louis

County is entitled to summary judgment on

Plaintiff’s Count III and Count VII.

CONCLUSION

Plaintiff has demonstrated that Neil’s right to

be rendered aid was clearly established at the time of

the incident, and a reasonable jury could conclude

that Officer Defendants’ conduct violated that right.

Therefore, the Officer Defendants are not entitled to

qualified immunity on summary judgment. But

Plaintiff points to no record evidence that could

support holding County Defendants liable for a

constitutional violation under § 1983. Accordingly,

County Defendants are entitled to judgment as a

matter of law. Plaintiff’s remaining state law

wrongful death claims will remain stayed until the

resolution of the state case involving the same

claims.

Accordingly,

IT IS HEREBY ORDERED that Defendants

Mark Jakob and Frank K. Maloy’s Motion for

Summary Judgment, Doc. [218], is DENIED.

FURTHER

ORDERED

that

Defendants Jon Belmar’s and St. Louis County’s

Motion for Summary Judgment, Doc. [242], is

GRANTED.

48a

IT IS FINALLY ORDERED that this case is

set for trial on Monday, September 26, 2022, at 9

am, in Courtroom 16N.

A separate Judgment shall accompany this

Memorandum and Order.

Dated this 16th day of August, 2022.

SARAH E. PITLYK

UNITED STATES DISTRICT JUDGE

49a

APPENDIX D

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

(Filed August 16, 2022)

CLARA CHEEKS,

Plaintiff,

Case No. 4:18-cv-2091-SEP

JON BELMAR, et al.,

Defendants.

JUDGMENT

In accordance with the Memorandum and

Order entered this date and incorporated herein,

IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that Defendants Mark Jakob and

Frank K. Maloy’s Motion for Summary Judgment,

Doc. [218], is DENIED.

IT IS FURTHER ORDERED, ADJUDGED

AND DECREED that Defendants Jon Belmar’s and

St. Louis County’s Motion for Summary Judgment,

Doc. [242], is GRANTED.

Dated this 16th day of August 2022.

SARAH E. PITLYK

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.