Opposition Brief — Fleming v. Greater St. Louis Area Major Case Squad

94-2032

No. ei,

In THE

Supreme Court of the Anited States

Octosper Term. 1995

WILLIAM FLEMING,

Petitioners,

vs.

GREATER ST. Louts AREA Masor Case SQUAD, ET AL.

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

BRIEF IN OPPOSITION

OF RESPONDENTS ROBERT LOWERY, DENNIS CORDIA

AND THE CITY OF FLORISSANT, MISSOURI

Henry D. MENGHINI

Counsel of Record

Joan B. Bernstein

EVANS & DIXON

200 North Broadway, Suite 1200

St. Louis, MO 63102-2749

(314) 621-7755

Attorneys for Respondents Robert

Lowery, Dennis Cordia and The City

of Florissant

St. Louis Law Pnnting,Inc. 13307 ManchesterRd. St Louis,MO 63131 314-231-4477

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QUESTIONS PRESENTED

1. Whether the District Court properly granted summary

judgment on Petitioner’s 42 U.S.C. § 1983 claims in favor of

Respondents Lowery and Cordia, based on their lack of personal

involvement with any of Petitioner’s alleged constitutional dep-

rivations, four months after they filed their Motion for Summary

Judgment with attached affidavits and granted summary judg-

ment in favor of the City of Florissant, Missouri almost five

months after it filed its Motion for Summary Judgment with

attached affidavits where Petitioner had the time required by

Fed.R.Civ.P. 56 and Local Rule 7(B)(2) of the United States

District Court, Eastern District of Missouri to file

“counteraffidavits.”

2. Whether the District Court properly granted summary

judgment in favor of Respondents Lowery, Cordia, and the City

of Florissant on Petitioner’s 42 U.S.C. § 1985(3) claim where

these Respondents did not deprive Petitioner of his constitu-

tional rights and Petitioner failed to offer a single piece of factual

evidence to support a § 1985 conspiracy claim against them.

LIST OF PARTIES TO THE PROCEEDING

Petitioner:

William Fleming

Respondents:

Greater St. Louis Area Major Case Squad

City of Dellwood, Missouri

City of Jennings, Missouri

City of Florissant, Missouri

Dan Chapman

Robert Lowery

Harry Slaten

Michael Yarborough

Dennis Cordia

— ni—

TABLE OF CONTENTS

Page

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REASONS FOR DENYING THE WRIT .........cccccccccsseee. 6

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TABLE OF AUTHORITIES

Cases Page(s)

Anderson v. Liberty Lobby, Inc, 477 U.S. 242 (1986)........... 7

Baker v. McCollum, 443 U.S. 137 (1979) ............csececeeeeeeeeees 8

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ......:cceceeeeees 7

City of Canton v. Harris, 489 U.S. 378 (1989) «00... 11

City of Omaha Employees Betterment Assn. v. Omaha,

BES Fe Gr CO Gs FD iceactrcinncececssncinsetisencenessacs 12

Daniels v. Williams, 474 U.S. 327 (1986) ..............cececeeeeeees 10

Griffin v. Breckinridge, 403 U.S. 88 (1971) .......eeeeeeeeeeeeees 12

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

cert.denied, 484 U.S. 986 (1987) ..........cscccessseceeseeeeeeeees 8

Harris v. Pirch, 677 F.2d 681 (8th Cir. 1982)... .......eeeeeeeee 8

Kostka v. Hogg, 560 F.2d 37 (Ast Cir. 1977) .......:ccceeeeeeeeeees 8

Malley v. Briggs, 475 U.S. 335 (1986) ......cccccseeseseeceeneeeeees 10

McClelland v. Facteau, 610 F.2d 693 (10th Cir. 1979) ........ 8

Monell v. Dept. of Social Services, 436 U.S. 658 (1978) ...... 9

Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) .......... 11

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Watson v. Interstate Fire & Casualty Co.,

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Statutes

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Federal Rules of Civil Procedure

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United States District Court of

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No.

IN THE

Supreme Court of the United States

OcToBER TERM, 1995

WILLIAM FLEMING,

Petitioners,

VS.

GREATER St. Louis AREA Major CASE SQUAD, ET AL.

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

BRIEF IN OPPOSITION

OF RESPONDENTS ROBERT LOWERY, DENNIS CORDIA

AND THE CITY OF FLORISSANT, MISSOURI

To the Honorable Supreme Court:

Respondents Robert Lowery, Dennis Cordia, and the City of

Florissant, Missouri respectfully request that this Court deny the

petition for writ of certiorari seeking review of the Eighth

Circuit’s opinion in this case.

OPINIONS BELOW

The unpublished opinion of the United States Court of Ap-

peals for the Eighth Circuit is reproduced in the Appendix to the

or, ee

Petition for Writ of Certiorari. (A.1-A.6). The Order and

Memorandum of the United States District Court, Eastern Dis-

trict of Missouri, Eastern Division filed March 15, 1994 dismiss-

ing the cause of action and removing the case from the court’s

trial docket are reproduced in the Appendix to the Petition for

Writ of Certiorari. (A.8 — A.13). The District Court’s Order and

Memorandum of August 19, 1993 granting Respondents Lowery

and Cordia’s Motion for Summary Judgment and dismissing

them from the case are reproduced in the Appendix of this Brief

in Opposition. (A.2 - A.11). Their Motion for Summary

Judgment with affidavits is reproduced in this brief. (A.12 -

A.19). The District Court’s Order and Memorandum of February

11, 1994 granting Respondent City of Florissant, Missouri’s

Motion for Summary Judgment and dismissing the City of

Florissant as a party are reproduced in Respondents’ Appendix

to the Brief in Opposition. (A.20-A.25). The City’s Motion for

Summary Judgment with an affidavit is reproduced in this brief.

(A.26 — A.30).

STATEMENT OF THE CASE

On January 27, 1987, Sergeant Kenneth Koeller of the City of

Jennings, Missouri Police Department was shot and killed after

he received acall to investigate a burglary in Jennings, Missouri.

Respondent Michael Yarborough, a Jennings police officer, also

responded to the burglary call and discovered Sergeant Koeller’s

body. Respondent Yarborough called for an ambulance and

further assistance. Within minutes, six to ten additional officers

arrived. They searched the area for suspects and witnesses. The

next day the Jennings Police Department asked for the immedi-

ate activation of the Greater St. Louis Area Major Case Squad

(“Major Case Squad”) to investigate the killing, because it had

discovered no witnesses, no suspects, and had very few leads.

The Major Case Squad is an association composed of the police

departments of municipalities located in the greater St. Louis

metropolitan region.

ale cid

Respondent Robert G. Lowery was Chief of Police for the City

of Florissant, Missouri and Chairman of the three member Board

of Directors of the Major Case Squad. After he consulted with

the other board members by telephone, the board voted to

activate the Major Case Squad and turned the investigation over

to Respondent Dan Chapman, commander for the case and an

officer with the City of Dellwood, Missouri Police Department.

The board is never involved in the day-to— day management of

an investigation. (A.15 — A.16).

Respondent Dennis Cordia, a detective with the City of

Florissant Police Department, served as Chief Report Officer for

the Major Case Squad. During the fifteen day investigation, he

compiled and organized the documents generated by Major Case

Squad officers. On February 5, 1987, following a Major Case

Squad report to the St. Louis County Police Department, officers

from the Major Case Squad applied for a warrant for Petitioner’ s

arrest. Respondent Cordia, as custodian of records for the

investigation, and at the request of Respondent Chapman, ac-

companied officers to the office of the Chief Warrant Officer for

his review of the case. Cordia referenced records in the file as

requested and performed other clerical duties. He also scheduled

the polygraph examinations for certain witnesses and made

transportation arrangements. Respondent Cordia did not partici-

pate in the administration or evaluation of these examinations.

(A.17 — A.19).

After a warrant was issued, Petitioner was arrested on Febru-

ary 6, 1987. The Major Case Squad closed its investigation on

February 9, 1987, and the City of Jennings Police Department

resumed its supervision of the case. On February 29, 1987,

Petitioner was indicted for the crime of murder in the first degree

by the Grand Jury of St. Louis County, Missouri. On March 5,

1987, the St. Louis County Circuit Court heard and denied

Petitioner’s Application to Set Bail. Following the bail hearing,

Petitioner remained incarcerated until September 5, 1987, when

charges against him were dropped, and he was released.

On January 31, 1992, Petitioner filed a Complaint against nine

defendants, including Respondents Lowery, Cordia, and The

City of Florissant, Missouri, in the United States District Court,

Eastern District of Missouri, Eastern Division alleging many

violations of his constitutional rights pursuant to several civil

rights statutes. Specifically, Petitioner alleged that Respondents,

while investigating the murder of Sergeant Koeller, deprived

him of his rights by seeking a warrant for his arrest without

probable cause, by presenting false testimony before the Grand

Jury which led to his indictment for the murder of Sergeant

Koeller, denial of bail, and wrongful incarceration. Count II

alleged that Respondents conspired to deprive Petitioner “and all

persons of black, Negro or Afro American heritage the equal

protection of the laws” which resulted in Petitioner’s arrest,

indictment, denial of bail, and incarceration.

The District Court disposed of this case in pieces as to the

various defendants. On June 30, 1992, it dismissed the Greater

St. Louis Major Case Squad. On August 19, 1993, it granted

summary judgment to Respondents Lowery and Cordia on

grounds that they had no personal involvement in Petitioner’s

arrest, indictment by the grand jury, denial of bail, and incarcera-

tion for seven months. (A.2 — A.11). By separate order, the

District Court granted summary judgment to Respondents

Yarborough, Slaten, and the City of Jennings. On August 24,

1993, the District Court ordered Petitioner’s pendent state law

claims for false arrest, false imprisonment, and slander be

dismissed as time barred and that Petitioner’s § 1981 claim be

dismissed for failure to state a claim. On February 11, 1994, the

District Court granted summary judgment to the City of Florissant

on both the § 1983 and § 1985(3) claims. (A.26 — A.30 ). On

March 15, 1994, the District Court granted summary judgment

in favor of Respondent Chapman and dismissed the case. The

wm eae

Court of Appeals for the Eighth Circuit, ina per curiam opinion,

affirmed the District Court’s grant of summary judgment to all

Respondents.

SUMMARY OF THE ARGUMENT

I. Petitioner presents no issue appropriate to the Court’s

exercise of its discretionary jurisdiction concerning the district

court’s grant of summary judgment to Respondents Lowery,

Cordia, and the City of Florissant either on procedural or

substantive grotinds. The District Court issued its Order and

Memorandum four months after Respondents Lowery and Cordia

submitted their motion with affidavits and to Respondent City of

Florissant almost five months after it filed its Motion for Sum-

mary Judgment. Petitioner had more time than required under

Fed.R.Civ.P. 56 and Local Rule 7(B)(2) to file “counter affida-

vits.” Furthermore, summary judgment with respect to these

three Respondents was proper. As chairman of the board of the

Major Case Squad, Respondent Lowery did not have the neces-

Sary direct and personal involvement to hold him personally

liable for deprivation of rights pursuant to 42 U.S.C. § 1983.

Respondent Cordia performed only ministerial functions when

he was assigned to the Major Case Squad investigation as Report

Officer. The City of Florissant did not have any role in the

investigation. Nor did it have any custom, practice or procedure

that could subject the municipality to § 1983 liability for

Petitioner’s alleged deprivation of constitutional rights.

Il. The district court’s grant of summary judgment on

Petitioner’s 42 U.S.C. § 1985 conspiracy claims presents no

issue appropriate for this Court’s exercise of its discretionary

jurisdiction, because the District Court and the Court of Appeals

applied the well settled law of this Court and the courts of appeal

of the various circuits when they found that Petitioner presented

no facts in support of his § 1985(3) claim against Respondents

Lowery, Cordia, and the City of Florissant and failed to state §

1985(3) claims against these Respondents.

REASONS FOR DENYING THE WRIT

Petitioner fails to satisfy the criteria traditionally applied by

this Court in determining whether to grant a writ of certiorari.

The decisions by the courts below are entirely consistent with the

decisions of other federal circuits and this Court, do not conflict

with the decisions of the Missouri Supreme Court, do not raise

an important issue of general relevance, nor do they depart from

the accepted and usual course of judicial proceedings so as to call

upon this Court to exercise its power of supervision. Petitioner

in essence asks this Court, after consideration by the District

Court and the Court of Appeals, to reconsider whether Petitioner

presented to the trial court the modicum of evidence required to

survive a motion for summary judgment.

I. Respondents Lowery, Cordia and the City of Florissant

were entitled to summary judgment as a matter of law

where Petitioner failed to show they had any direct,

personal involvement in Petitioner’s arrest, indictment

and incarceration and the District Court issued its

Order and Memorandum at least four months after

their respective motions, well within the requirements

of Fed.R.Civ.P. 56(c) and Local Rule 7(B)2.

Federal Rule of Civil Procedure 56(c) provides that a defend-

ing party may at any time move for summary judgment in the

party’s favor by serving a motion at least ten days before the time

fixed for a hearing. U.S. District Court of Missouri, Eastern

District Rule 7(B)(2) requires a party opposing a motion for

summary judgment to file any written brief or memorandum of

law or appropriate extra pleading material within twenty days

after being served with the motion. Petitioner never previously

raised his contention that the District Court erred by refusing to

allow or consider counter affidavits before granting summary

judgment as to Respondents Lowery, Cordia, or the City of

Florissant, nor could he.

nie Manis

On April 19, 1993, Respondents Lowery and Cordia moved

for summary judgment with affidavits. (A.12 — A.19). Four

months later, the district court entered an Order and Memoran-

dum granting summary judgment in favor of Respondents Lowery

and Cordia on the merits of Petitioner’s complaint and dismissed

them from the case. (A.2 — A.11). Petitioner filed a Memoran-

dum in Opposition on May 11, 1993. Previously, in July, 1992,

Petitioner had filed interrogatories and a request for admissions

but conducted no further discovery for the following year with

respect to these Respondents.

On September 24, 1993, the City of Florissant, Missouri filed

a Motion for Summary Judgment with an attached affidavit by

the City’s Mayor. (A.26 — A.30). Over four months later, on

February 11, 1994, the district court granted summary judgment

in favor of the City of Florissant. (A.20— A.25). Petitioner filed

suggestions in opposition on October 6, 1993.

Not only did the district court correctly apply Fed.R.Civ.P.

56(c) procedurally, it correctly entered judgment as a matter of

law where all of the evidence before the court demonstrated that

there was no genuine issue as to material fact. Fed.R.Civ.P.

56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

Summary judgment is an appropriate disposition of acase where

it is clear plaintiff has not or cannot present any set of facts

entitling him to the relief sought. Petitioner bore the burden of

setting forth specific facts showing that evidence existed to

allow reasonably minded jurors to draw inferences that would

result in a verdict in his favor. A mere “scintilla” of evidence,

“merely colorable” evidence, or evidence “not significantly

probative” is insufficient to avoid summary judgment. Ander-

son v. Liberty Lobby, Inc., 477 U.S. 242, 249-252 (1986).

Petitioner failed to produce the modicum of evidence required to

survive the motions for summary judgment of these Respon-

dents.

i ea

Before any 42 U.S.C. § 1983 liability can attach to a state actor

for a deprivation of rights secured by the federal constitution and

laws, the plaintiff must show his harm was caused by a constitu-

tional violation, and the state actor must have some direct

responsibility for the alleged wrongdoing.’ Baker v. McCollum,

443 U.S. 137, 140 (1979). By definition, a state actor who has

no personal role in the deprivation of constitutional rights “lacks

the bad faith required to expose him to damages liability under

§ 1983.” Harris v. City of Pagedale, 821 F.2d 499 (8th Cir.) cert.

denied, 484 U.S. 986. The federal courts uniformly hold that a

§ 1983 action will not lie against a supervisory police officer for

failure to prevent police misconduct, absent a showing of direct

responsibility for or involvement in the improper conduct. Rizzo

v. Goode, 423 U.S. 362, 377 (1976); Harris v. Pirch, 677 F.2d

681, 685 (8th Cir. 1982); Watson v. Interstate Fire & Casualty

Co., 611 F.2d 120, 123 (Sth Cir. 1980); Kosta v. Hogg, 560 F.2d

37, 40 (1st Cir. 1977). A plaintiff must show that the supervisor

breached a duty to Plaintiff which was the proximate cause of the

injury or an affirmative link between the unconstitutional acts of

a subordinate officer and the supervisor shown by participation

or acquiescence. McClelland v. Facteau, 610 F.2d 693, 695-696

(10th Cir. 1979).

The uncontradicted evidence demonstrated that the involve-

ment of Respondents Lowery and Cordia was limited and/or

ministerial in nature. Respondents Lowery and Cordia did not

seek a warrant for Petitioner’s arrest, did not testify before the

Grand Jury, did not seek his indictment, nor did they appear or

testify before the judge who set Petitioner’s bond.

' It is well established that later proof of innocence does not entitle a person

mistakenly charged with a crime, arrested, incarcerated, or tried to assert a

claim for unconstitutional deprivation of rights against the police officials

who conduct the investigation or mistakenly arrest a suspect. Baker, 443 U.S.

at 145.

Bae ae

Respondent Lowery’s police supervisory role as chairman of

the board of the Major Case Squad cannot subject him to § 1983

liability based upon the theory of respondeat superior. Monell v.

Department of Social Services, 436 U.S. 658, 694 (1978).

Respondent Lowery’s involvement extended only as far as

making the phone calls necessary and voting to activate the

Major Case Squad investigation. He had no personal involve-

ment in the subsequent investigation, and his preinvestigation

involvement had no causal connection to plaintiff's alleged

deprivations. (A.15 — A.16). Petitioner presented no evidence

that Respondent Lowery exhibited deliberate indifference to or

tacit authorization of a pattern of unconstitutional conduct by the

Major Case Squad or failed to train, monitor, supervise, or

control the Major Case Squad officers involved in the investiga-

tion. Petitioner failed to demonstrate either a pattern of previous

misconduct by officers of the Major Case Squad or the failure of

Respondent Lowery to take remedial steps following notice of a

pattern of unconstitutional conduct by subordinates. Cf, Wilson

v. City of North Little Rock, 801 F.2d 316, 322 (8th Cir. 1986).

Respondent Cordia, as Report Officer of the Major Case

Squad, organized the records and reports of the investigation. At

no time did he act in an investigative capacity. He had no

personal knowledge of the facts contained in the case report or

personal involvement in the investigation, interrogation, or

arrest of any suspect or witness. He accompanied a Major Case

Squad officer to the office of the chief warrant officer in his

Capacity as custodian of records and referenced documents as

requested. Respondent Cordia did not serve as a proponent of the

records. He had no reason to suspect that information in the

Major Case Squad Report was false. He scheduled some witness

polygraph tests, but he neither administered the tests nor was he

present during the examination. (A.17—A.19). The lower courts

correctly found that Respondent Cordia’s limited and Stricily

ministerial functions in the investigation did not provide he

pene Pees

requisite direct involvement or exercise of discretion to attach

any kind of liability to him for the alleged deprivation of

constitutional rights.

No § 1983 liability attaches for a negligent officer in the

performance of ministerial duties. Daniels v. Williams, 474US.

327, 328 (1986). The law differentiates between potential §

1983 liability for discretionary duties and no liability for minis-

terial duties for good reason. If a plaintiff could hold a clerk of

records liable for alleged § 1983 deprivations, Petitioner could

subject a potentially infinite number of file clerks, dispatchers,

typists and secretaries exposed to a case to §1983 suits. Respon-

dent Cordia, acting only in a ministerial capacity in his role as

Report Officer, falls within that line of cases dismissing officers

whose involvement is ministerial and not directly causally

related to plaintiff's harm.

The lowercourts never needed to address the issue of qualified

immunity for these Respondents since they had not engaged in

conduct which could potentially subject them to § 1983 liability.

Cf. Malley v. Briggs, 475 U.S. 335 (1986).

At the time the City of Florissant moved for summary judg-

ment, Respondents Lowery and Cordia, the only two Florissant

officers involved with the Major Case Squad who could have

potentially carried out the allegedly unconstitutional practices,

policies or customs of the City of Florissant, lacked direct

personal involvement and causal relation to the deprivations

claimed and had been dismissed from the case. (A.24). If

2 Petitioner mis—states Malley, 475 U.S. at 345, n. 7. What Malley said was

that a judge’s decision to issue a warrant does not break the causal chain

between the “application for a warrant and the improvident arrest”. ( Petition

for Writ of Certiorari, p. 7). The Court of Appeals spoke of the effect of an

indictment on the chain of causation between the alleged false arrest and a

violation of constitutional rights.

nh bo

Respondents Lowery and Cordia cannot be held liable under §

1983 for Petitioner’s injuries, the City of Florissant cannot be

held liable. Pembaur v. City of Cincinnati, 475 U.S. 469, 482-

483 (1986).

A municipality will not incur § 1983 liability on a theory of

respondeat superior. Municipal liability only attaches where the

municipality itself causes the constitutional violation by a city

custom, policy, procedure, regulation, or failure to train munici-

pal employees which amount to deliberate indifference to the

right of persons. City of Canton v. Harris, 489 U.S. 378, 389

(1989). The City of Florissant had no explicit or implicit policy,

ordinance, regulation, practice, or custom to arrest without

probable cause, procure false testimony, or act unconstitution-

ally in the manner asserted by Petitioner. (A.29 — A.30).

Petitioner failed to provide any evidence that the City of Florissant

condoned any unconstitutional custom, practice, policy or lack

of training. It necessarily follows that the District Court properly

granted summary judgment to the City of Florissant.

II. Petitioner cannot state a § 1985(3) conspiracy claim

against Respondents Lowery, Cordia, and the City of

Florissant where Respondents Lowery and Cordia, the

only municipal actors for the City of Florissant have

not violated Petitioner’s constitutional rights by any

acts or failure to act, because the City of Florissant

cannot carry out acts in furtherance of a conspiracy to

deprive Petitioner of his constitutional rights absent a

violation of his rights by its agents.

Petitioner attempts to paint a picture of a § 1985(3) conspiracy

claim in Count II which stood alone and unrebutted by the

Respondents. However, examination of the Complaint shows

that the factual basis for the conspiracy claim in Count II was the

same as Count I. Plaintiff's attempt to draw a distinction

between the claims is a distinction without a difference. Al-

—_).

though Counts I and II have different legal bases, the allegations

in support are identical. By putting the underlying factual

allegations in issue through affidavit and motions for summary

judgment, Respondents Lowery, Cordia, and the City of Florissant

demonstrated that there was no factual support for any of

Plaintiffs conclusory allegations against these Respondents in

either Counts I and II. The District Court concluded that the

Petitioner had made only “vague and conclusory allegations

about a conspiracy” and had “not offered a single piece of factual

evidence to support any of his conspiracy allegations.” The City

of Florissant could not act in a conspiracy to deprive Petitioner

of his rights if its “municipal actors have been judicially deter-

mined not to have violated” Petitioner’s constitutional rights.

(A.24).

Petitioner failed to plead or support his § 1985(3) conspiracy

claim with the requisite particularity, specifically demonstrating

with material facts that Respondents Lowery, Cordia, and the

City of Florissant, singly or together, reached an agreement with

others to deprive the Petitioner of the equal protection or equal

privileges and immunities under the law, that Respondents

committed an act in furtherance of the conspiracy, or that

Petitioner suffered an injury or was deprived of rights and

privileges secured by the federal constitution and the laws. Nor

did he show a pattern of conduct of these Respondents by which

he could prove some racial or class based “invidiously discrimi-

natory animus” behind the alleged conspirator’s action. Griffin

v. Breckenridge, 403 U.S. 88, 102-103 (1971); City of Omaha

Employees Betterment Assn. v. Omaha, 883 F.2d 650, 652 (8th

Cir. 1989).

Respondents Lowery and Cordia had already shown that they

had committed no acts in respect to the issuance of a warrant,

arrest, indictment, bail hearing, or incarceration of Petitioner and

did not violate Petitioner’s constitutional rights. Petitioner’s

belief that Respondents participated in a racially motivated

ee, eae

conspiracy to harass African-Americans is not evidence. There-

fore, Petitioner could not state a § 1985(3) conspiracy claim

against Respondents Lowery, Cordia, and the City of Florissant.

Petitioner merely recast his unsubstantiated allegations in his

Complaint into overheated rhetoric on appeal and in his Petition

to this Court.

Summary Judgment on Petitioner’s § 1985(3) claims was

required where the record submitted by Petitioner could not lead

a rational trier of fact to find for the nonmoving party and

Petitioner did not produce facts to show there was a genuine issue

for trial. Petitioner failed to offer any evidence of acts by

Respondents Lowery, Cordia, and the City of Florissant which

deprived Petitioner of his constitutional rights in furtherance of

a conspiracy or a pattern of race based invidious discrimination.

CONCLUSION

For these reasons, the petition for a writ of certiorari should be

denied.

Respectfully submitted,

HENRY D. MENGHINI

Counsel of Record

JOAN B. BERNSTEIN

EVANS & DIXON

200 North Broadway, Suite 1200

St. Louis, MO 63102-2749

(314) 621-7755 (fax) 621-3136

Attorneys for Respondents

Lowery, Cordia, and The City of

Florissant, Missouri

vee

ie

RESPONDENTS’ APPENDIX-TABLE OF CONTENTS

Order and Memorandum of

United States District Court, August 19, 1993 ........ wee A-2

Motion of Defendants Robert Lowery and

Dennis Cordia for Summary Judgment and

Affidavits of Robert Lowery and Dennis Cordia ....... A-12

Order and Memorandum of

United States District Court, February 11, 1994 ........ A-20

City of Florissant’s Motion for Summary Judgment

and Affidavit of Mayor James J. Eagan ..............000.... A-26

eee tl, pee

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 4:92CV185SNL

WILLIAM FLEMING,

Plaintiff,

vs.

GREATER ST. LOUIS AREA MAJOR CASE SQUAD, ET AL.,

Defendants.

ORDER

[Filed: August 19, 1993]

In accordance with the memorandum filed herein this day,

IT IS HEREBY ORDERED that the defendants Lowery and

Cordia’s motion for summary judgment (#61), filed September

24, 1993 be and is GRANTED.

IT IS FURTHER ORDERED that judgment is entered for

defendants Lowery and Cordia and against the plaintiff on the

merits of the plaintiff's complaint. This cause of action is hereby

DISMISSED as to defendants Lowery and Cordia.

ITIS FINALLY ORDERED that plaintiff’ s Motion for Rule

11 sanctions is DENIED as moot.

Dated this 19th day of August, 1993.

/s/ Stephen N. Limbaugh

UNITED STATES

DISTRICT JUDGE

cake eee

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 4:92CV185SNL

WILLIAM FLEMING,

Plaintiff,

VS.

GREATER ST. LOUIS AREA MAJOR CASE SQUAD, ET AL.,

Defendants.

MEMORANDUM

[Filed: August 19, 1993]

This matter comes before the Court on defendants Lowery and

Cordia’s motion for summary judgment and plaintiff's motion

for sanctions. Plaintiff brings this action against several named

defendants, including defendants named herein, for alleged

violations of plaintiff's constitutional rights pursuant to 42

U.S.C. Sections 1981, 1983, 1985, 1988 and 4th, 5th, 8th and

14th Amendments. Specifically, plaintiff alleges that the defen-

dants, while investigating the murder of a Jennings police officer

in January of 1987, presented false and untrue testimony before

the grand jury and further falsely and unlawfully indicted and

arrested plaintiff for the murder of the officer and further caused

plaintiff to be falsely incarcerated without reasonable bail.

Courts have repeatedly recognized that summary judgment is

a harsh remedy that should be granted only when the moving

party has established his right to judgment with such clarity as

not to give rise to controversy. New England Mut. Life Ins Co.

v. Null, 554 F.2d 896, 901 (8th Cir. 1977). Summary judgment

motions, however, “can be a tool of great utility in removing

factually insubstantial cases from crowded dockets, freeing

courts’ trial time for those that really do raise genuine issues of

nite Died si

material fact.” Mt. Pleasant v. Associated Elec. Coop. Inc., 838

F.2d 268, 273 (8th Cir. 1988).

Pursuant to Fed.R.Civ.P. 56(c), a district court may grant a

motion for summary judgment if all of the information before the

court demonstrates that “there is no genuine issue as to material

fact and the moving party is entitled to judgment as a matter of

law.” Poller v. Columbia Broad-casting System, Inc., 368 U.S.

464, 467, 82 S. Ct. 486, 7 L.Ed.2d 458 (1962). The burden is on

the moving party. Mt. Pleasant, 838 F.2d at 273. After the

moving party discharges this burden, the nonmoving party must

do more than show there is some doubt as to the facts. Matsushita

Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586,

106 S. Ct. 1348, 89 L.Ed.2d 538 (1986). Instead, the nonmoving

party bears the burden of setting forth specific facts showing that

there is sufficient evidence in its favor to allow a jury to return

a verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v.

Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L.Ed.2d 265

(1986). The nonmoving party must submit “sufficient probative

evidence [that] would permit a finding in [their] favor on more

than mere speculation, conjecture, or fantasy.” Barnes v. Arden

Mayfair, Inc., 759 F.2d 676, 681 (9th Cir. 1985). A mere scintilla

of evidence is insufficient to avoid summary judgment. Ander-

son, 477 U.S. at 252. If the evidence the nonmoving party puts

forward “is merely colorable,” or “is not significantly proba-

tive,” the movant is entitled to summary judgment as a matter of

law. Id. at249-50. With these principles in mind, the Court turns

to an examination of the facts.

On January 27, 1987, Sergeant Kenneth Koeller of the Jennings

Police Department was shot and killed while responding to a

burglary call at the Northland Shopping Center in Jennings,

Missouri. Defendant Yarbrough, a Jennings police officer, also

responding to the burglary call, discovered Sergeant Koeller’s

body. Defendant Yarbrough and fellow Jennings Police Officer

ici IM ccs

Bensing secured the scene and called for an ambulance and

further assistance from the Jennings Police Department. Within

minutes of his call, six (6) to ten ( 109) additional officers arrived.

Yarbrough directed them to search the area for suspects and

witnesses. Forty minutes later, Detective Steve Burnett of the St.

Louis County Police Department Identification Unit arrived at

the crime scene and took command of the officers at the crime

scene. After Burnett took control of the crime scene, defendant

Yarbrough participated in a foot search of the immediate area

and later filed his report with his superiors at the Jennings Police

Department.

On January 28, 1987, the St. Louis Area Major Case Squad

(hereinafter “MCS”) was asked by the Jennings Police Depart-

ment to begin an investigation of the murder. There is some

dispute about who in the Jennings Police Department requested

the assistance of MCS. Defendant Slaten’s affidavit states he

was out of town and Colonel Orr, acting Chief of Police for

Jennings, called MCS, but MCS Chairman of the Board, defen-

dant Robert Lowery, states that defendant Slaten requested the

activation of MCS. Despite the dispute over who requested the

activation of MCS, it is clear that the request was made by the

Jennings Police Department and defendant Lowery consulted

with three members of the MCS Board of Directors and ordered

the activation of MCS, which began its investigation of Koeller’s

death on January 28, 1987. Once the MCS was activated to

investigate the murder of Sergeant Koeller, the Jennings Police

Department ceased its active investigation of the shooting.

Colonel Dan Chapman of the Dellwood Police Department,

MCS Commander, was assigned as Commander of the case,

designated as MCS Number 141. In addition, defendant Officer

Dennis Cordia of the Florissant Police Department was assigned

to MCS as Report Officer for MCS Number 141.

pete nee

During the fifteen (15) day investigation, officers from MCS

interviewed possible witnesses and suspects at or near the scene

of the crime and conducted polygraph examinations on two

individuals at the St. Charles Police Department. The polygraph

examinations were scheduled by defendant Cordia, but defen-

dant Cordia did not participate in the execution or evaluation of

these examinations. On February 5, 1987, following an MCS

report to the St. Louis County Police Department, Lieutenant

Jack Oliver of MCS applied for a warrant for plaintiff’s arrest. At

the request of defendant Chapman, defendant Cordia accompa-

nied Lieutenant Jack Oliver to Chief Warrant Officer Tom

DePriest’s office. As acting custodian of records for the inves-

tigation of Sergeant Koeller’s murder, defendant Cordia brought

with him certain files for Chief Warrant Officer DePriest to

review. A warrant for plaintiff's arrest was issued and plaintiff

was arrested for the crime of Murder in the first degree on

February 6, 1987. MCS closed investigation Number 141 on

February 9, 1987.

Although MCS closed its investigation of Sergeant Koeller’s

murder upon the arrest of plaintiff, the Jennings Police Depart-

ment resumed its supervision of the case and preceded to review

the MCS’s findings. The officer in charge of the Jennings Police

Department’s supervision of the case was Officer Hager of the

Jennings Police Department. Hager was assisted by Officer

Pratt, also of the Jennings Police Department. Defendant Jennings

Police Chief Slaten reviewed MCS files and Jennings Police

Department reports about the case. He did not authorize or direct

any acts which plaintiff complains of and had no knowledge of

any such acts.

On February 29, 1987, plaintiff was indicted for the crime of

murder in the first degree by the Grand Jury of St. Louis County. |

Defendants Cordia and Lowery did not appear before the Grand

Jury to testify with respect to plaintiff. On March 5, 1987, |

en a my

ce BdT nits

plaintiff's application to set bail was heard before Honorable

Robert McAllister, St. Louis County Circuit Judge. Defendants

Cordia and Lowery did not appear before Judge McAllister to

testify with respect to the setting of plaintiff's bond. Following

the bail hearing, plaintiff remained incarcerated until September

5, 1987, when charges against him were dropped and he was

released.

Defendant Lowery

A Section 1983 action against police supervisor officers

cannot be based upon the theory of respondeat superior. Monell

v. Department of Social Services, 436 U.S. 658, 694,-98 S.Ct.

2018, 2087, 56 L.Ed.2d 611 (1978). Moreover, “[A] section

1983 action will not lie against police supervisory officers for

failure to prevent police misconduct, absent a showing of direct

responsibility for the improper action”. Harris v. Pirch, 677

F.2d 681, 685 (8th Cir. 1982) (citing Rizzo v. Goode, 423 U.S.

362, 96 S.Ct. 598; Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977)).

See also, Wilson v. City of North Little Rock, 801 F.2d 316, 322

(8th Cir. 1986) (quoting Watson v. Interstate Fire & Casualty

Co., 611 F.2d 120, 123 (Sth Cir. 1980)). “What is required is a

causal connection between the misconduct complained of and

the official sued”. Pirch, 677 F.2d at 685. To meet this burden

the plaintiff must establish an “affirmative link” between

defendant’s action and the alleged deprivation of Constitutional

rights. See Rizzo, 423 U.S. at 377.

The evidence submitted by plaintiff fails to establish “per-

sonal involvement” that constitutes an “affirmative link” be-

tween defendant Lowery as Chairman of The Board for the

Major Case Squad and plaintiff's alleged deprivation of Consti-

tutional rights. Plaintiff concedes that the direct personal in-

volvement of defendant Lowery only extended as far as the

activation of MCS and that he took no part in the day to day

management of the MCS investigation.

dine Halll Sinn

As aresult, plaintiff argues that defendant Lowery’s failure to

train, monitor, supervise or control the officers involved in the

investigation caused his alleged mistreatment. In support of this

charge, plaintiff alleges that defendant Lowery was deliberately

indifferent to Fleming’s unconstitutional treat—ment, knew or

should have known of the misconduct and failed to stop the

alleged mistreatment.

“A cause of action based on such a theory may be maintained

only if [plaintiff] can demonstrate deliberate indifference or tacit

authorization of the offensive acts by failing to take remedial

steps following notice of a pattern of such acts by his subordi-

nates”. Wilson, 801 F.2d at 322. Affidavits submitted by

‘ defendant Lowery establish that he did not participate, super-

vise, organize or execute the investigation of plaintiff. Further-

more, defendant Lowery states that he was never consulted about

or knew of the arrest of plaintiff until after his arrest and did not

cause or direct the indictment, imprisonment or holding without

bond of plaintiff.

The evidence submitted by plaintiff does not raise a material

issue of fact as to defendant Lowery’s stated level of participa-

tion in MCS’s investigation, whether defendant Lowery was

deliberately indifferent or whether defendant Lowery gave tacit

approval of the alleged mistreatment. None of the evidence

submitted by plaintiff indicates that defendant Lowery had

knowledge of, approved of, acquiesced in or participated in the

alleged misconduct of the investigating officers. Furthermore,

the record does not show a pattern of previous misconduct by

officers of MCS that would indicate that defendant Lowery

knew or should have known about any lack of training, monitor-

ing, supervising or control that would lead to unconstitutional

acts by subordinates.

Therefore, having found no genuine issue of material fact, this

Court finds that defendant Lowery is entitled to judgment as a

matter of law.

site: el cacia

Defendant Cordia

In Section 1983 actions, “Only persons who [are] directly

involved in the wrongdoing may be held liable.” Kostka v. Hogg,

560 F.2d 37 (1st Cir. 1977). See also, Rizzo, 423 U.S. at 377.

“Liability may only be found if there is personal involvement of

the officer being sued.” Wilson v. City of North Little Rock, 801

F.2d 316, 322 (8th Cir. 1986) (quoting Watson v. Interstate Fire

& Casualty Co., 611 F.2d 120, 123 (Sth Cir. 1980)). “What is

required is a causal connection between the misconduct com-

plained of and the official sued.” Pirch, 677 F.2d at 685. To meet

this burden, plaintiff must establish an “affirmative link” be-

tween the defendant’s action and the alleged deprivation of

Constitutional rights. See Rizzo, 423 U.S. at 377.

Plaintiff alleges that defendant Cordia’s personal involve-

ment in the investigation was significant enough to create an

affirmative link between the alleged mistreatment of plaintiff

and defendant Cordia’s actions. Plaintiff avers that defendant

Cordia’s presence during the warrant application meeting placed

a duty upon defendant Cordia, as Record Officer, to prevent the

request for the warrant if Cordia believed the request was not

based on probable cause. Defendant Cordia admits that, at the

request of his commander, he did accompany the officer who

requested plaintiff's arrest warrant and pulled files for the

Warrant Officer to review. However, defendant Cordia’s affida-

vit states that he did not present information which he knew to be

false and he had no reason to suspect that information he

referenced in the Squad report was false. Plaintiff has not

supplied any factual evidence that suggests that defendant Cordia

knew or should have known the information in the file was false

or that defendant Cordia, contrary to his statement, acted in bad

faith.

Plaintiff also alleges that defendant Cordia’s role in schedul-

ing polygraph tests for the MCS investigation of plaintiff estab-

— A-10 —

lishes a sufficient causal link between defendant Cordia and the

alleged mistreatment. Plaintiff’ s assertion is based on two letters

signed by defendant Cordia that indicate he scheduled, on behalf

of MCS, polygraph tests to be performed on two possible

suspects. Defendant Cordia admits that he, at the request of MCS

Commander Dan Chapman, did schedule the administration of

these polygraph tests. However, defendant Cordia claims that he

did not administer the polygraph tests, was not present at any of

the examinations and did not work in any investigatory capacity

during the MCS investigation.

Again, the evidence supplied by plaintiff fails to establish a

material issue of fact as to the existence of an affirmative link

between the constitutional deprivation alleged and defendant

Cordia’s personal involvement. Plaintiff has failed to show that

defendant Cordia did anything more than schedule the polygraph

tests of potential suspects, which is not sufficient evidence to

establish an affirmative link between the alleged mistreatment of

plaintiff and defendant Cordia.

Therefore, finding that there is no genuine issue as to material

fact, this Court finds that defendant Cordia is entitled to sum-

mary judgment as a matter of law.

The Court further finds plaintiff's motion for sanctions to be

meritless. This case was recently transferred to the under—signed

from Judge Clyde S. Cahill. While pending before Judge Cahill,

defendants filed a motion for summary judgment similar to the

present one. Judge Cahill denied the motion because factual

issues remained in dispute due to lack of adequate time to

conduct discovery. Over one year has passed since Judge Cahill

denied the defendants’ first motion for summary judgment. The

defendants have conducted additional discovery, while the plain-

tiff has done nothing to advance his claims. Judge Cahill’s ruling

on the defendants’ prior summary judgment motion does not

— A-l1l—

preclude the filing of the present motion nor restrict this Court’s

review of the motion.

Dated this 19th day of August, 1993.

/s/ Stephen N. Limbaugh

UNITED STATES

DISTRICT JUDGE

— A-12 —

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 4:92CV 185SNL

WILLIAM FLEMING,

Plaintiff,

VS.

GREATER ST. LOUIS AREA MAJOR CASE SQUAD, ET AL.,

Defendants.

MOTION OF DEFENDANTS ROBERT LOWERY AND

DENNIS CORDIA FOR SUMMARY JUDGMENT

(Filed: April 19, 1993]

Comes now defendants Robert Lowery and Dennis Cordia,

and pursuant to Rule 56, F.R.C.P., move this court to enter

summary judgment in favor of defendants Robert Lowery and

Dennis Cordia for the reason that the pleadings and affidavits on

file show that there is no genuine issue as to any material fact and

that these defendants are entitled to judgment as a matter of law.

For the grounds of this motion, the defendants Robert Lowery

and Dennis Cordia state:

1. Plaintiff William Fleming has brought this action against

Robert Lowery and Dennis Cordia claiming said officers have

violated his federally protected rights under 42 U.S.C. § 1983,

1981, 1988; and the Fourth, Fifth, Eighth and Fourteenth Amend-

ments of the United States Constitution. In Count I, Paragraphs

10—23, plaintiff claims the above listed rights were violated as a

result of the defendants’ actions in procuring false testimony for

issuance of a warrant, causing him to be wrongfully indicted,

arrested, held without bond, and imprisoned. Count Ii alleges a

conspiracy on the part of defendants to do the same.

— A-13 —

2. It is a well established principle of law that for 42 U.S.C.

§ 1983 liability to attach, the defendant must have been person-

ally involved in the act or acts causing harm to the plaintiff.

3. It is a well established principle of law that for 42 U.S.C.

§ 1983 liability to attach, the defendants’ act must be so causally

related such that there exists'an affirmative link between the

defendants’ act and the plaintiff's harm.

4. Defendants, Robert Lowery and Dennis Cordia, had no

personal involvement in those acts which plaintiff claims caused

him damage. At no time did defendants Cordia or Lowery

procure false testimony, know of or cause issuance of a warrant

based on false testimony, indict, arrest, cause plaintiff to be held

without bond or cause plaintiff to be imprisoned. (See attached

Affidavits of Lowery and Cordia incorporated herein by refer-

ence as defense Exhibits A and B in support of Motion for

Summary Judgment.)

5. Furthermore, the limited involvement of each defendant

cannot, as a matter of law, be said to have a causal connection

such that there is an affirmative link between those acts and the

harm suffered by plaintiff.

6. Where defendants’ actions do not amount to personal

involvement, nor is there a causal connection between these acts

and the harm suffered, defendants, Lowery and Cordia, are

entitled to judgment as a matter of law.

EVANS & DIXON

/s/Henry D. Menghini

Henry D. Menghini #17076

Kurt E. Wolfgram #43013

Attorneys for Defendants City of

Florissant, Lowery and Cordia

an A

CERTIFICATE OF SERVICE

A copy of the foregoing was mailed this 19th day of

April, 1993, to: Helton Reed, Jr., Attorney for Plaintiff, and

Stephen H. Gilmore, Attorney for Plaintiff . . . .

/s/ Henry D. Menghini

se Sigh Sane

DEFENDANT’S EXHIBIT A

STATE OF MISSOURI )

)SS

COUNTY OF ST.LOUIS _)

AFFIDAVIT

Robert Lowery, being duly sworn, upon his oath, states:

1. Iam Chief of Police for the City of Florissant and serve

as Chairman of the Board of Directors of the Major Case Squad

of Greater St. Louis.

2. On January 28, 1987, I received a call from Chief Harry

Slaten of the Jennings Police Department. He informed me that

his sergeant, Kenneth Koeller, was shot and killed while inves-

tigating a burglary at No. 22 Northland Shopping Center in

Jennings, Missouri. Chief Slaten indicated that they had no

witnesses, no suspects and very few leads, and was therefore

requesting activa— tion of the Major Case Squad of Greater St.

Louis.

3. After being apprised of this situation, I consulted with

three other board members and with their approval, activated the

Major Case Squad.

4. The name William Fleming and his identity was never

mentioned or considered in my decision to activate the Major

Case Squad.

5. Upon activation, the entire investigation was turned over

to the MCS Commander, Dan Chapman. Thereafter, I took no

part in the supervision, organization, or execution of the inves-

tigation.

\

6. My sole duty as Chairman of the Board of Directors of

the Major Case Squad, was to consult with other board members

— A-16—

in deciding whether activation of the Squad was proper under

these circumstances.

7. Atnotime did] interview, interrogate or otherwise speak

with any witnesses or suspects in this case.

8 Atnotime did I direct or cause the request or issuance of

a warrant for William Fleming.

9. At no time did I arrest or cause the arrest of William

Fleming.

10. At no time did I cause or direct the indictment or

imprisonment of William Fleming, nor did I cause or direct that

he be held without bond.

11. I was never consulted, nor did I know of the arrest of

William Fleming in connection with this investigation until after

Mr. Fleming had been arrested.

/s/Robert Lowery

Subscribed and sworn to before me this 16th day of April,

1993.

/s/Notary Public

My commission expires: May 11, 1995

om on

DEFENDANT?’S EXHIBIT B

STATE OF MISSOURI )

) SS

COUNTY OF ST. LOUIS _)

AFFIDAV!T

Dennis Cordia, being duly sworn, upon his oath, states:

1. On January 28, 1987, I was called to serve as Report Officer

in Major Case Squad Investigation No. 141 activated to investi-

gate the homicide of Sergeant Kenneth Koelier of the Jennings

Police Department.

2. Iam a full time employee of the City of Florissant Police

Department and was on loan to the Major Case Squad for the

period of its activation that time being from January 28, 1987

through February 9, 1987.

3. As Report Officer, it is my primary responsibility to

maintain the Squad case file at the command post. All other

duties center around this primary directive. As Repori Officer,

my other duties include:

a. Require each investigator to use and properly com-

plete the forms provided for reporting.

b. Require reports in triplicate or as required. Additional

copies may be made if necessary to assist the investigation staff

in its duties. One copy each shall be designated to the Squad,

requesting agency and the prosecutor.

c. Require investigators to submit individual reports for

each lead assigned.

d. Upon termination of the Squad’s participation in the

investigation, prepare a general report of the findings, which is

— A-18 —

indexed and divided according to chronology of events and

categories of investigation as approved by the Board of Direc-

tors.

e. Upon successful solution of a case by the Squad,

prepare an indexed prosecutive summary listing the facts of the

crime, the criminal history of the defendant and the evidence to

be presented and by whom.

f. Should exercise discretion in preventing disclosures

possibly hampering future investigation or endangering wit-

nesses.

g. Maintain file of case news clippings for use as

required and file with the report.

h. Serve as liaison officer between the Squad Com-—

mander and the Officer in Charge relative to press releases and

suggest means of using press facilities to assist the investigators.

i. Prepare information for press releases, which shall be

released to the various news media only by the Squad Com-

mander and the Officer in Charge, or their designates, who shall

only release information agreed upon between the Squad Com-

mander and the Officer in Charge.

j. Maintain the Squad case file at the Command Post.

4. On February 5, 1987, I was requested by Commander

Dan Chapman to accompany him and Lieutenant J ack Oliver to

the St. Louis County Prosecutor’ s Office to request a warrant for

the arrest of William Fleming. To the meeting, I brought the

Squad report.

5. Atthe February 5, 1987 meeting, I, at the request of my

Commander, Dan Chapman, pulled documents from the MCS

file for the review of Chief Warrant Officer, Tom DePriest.

— A-19 —

6. Atno time did I present information which I knew to be

false. Nor did I have information causing me to suspect that

information I referenced in the Squad report was false.

7. I did not appear before the Honorable Robert McAllister

on March 5, 1987 to offer or endorse any testi-mony with respect

to William Fleming’s bail hearing.

8. Idid not appear on or about February 29, 1987 to offer or

endorse any testimony before the Grand Jury of St. Louis County

in the matter of William Fleming.

9. At the request of Major Case Squad Commander Dan

Chapman, I set up an appointment for the polygraph examination

of those individuals referenced in what has been attached as

Affidavit Exhibit 1.

10. I arranged for the examination of these individuals by

calling Detective Miller of the St. Charles Police Department. I

made this call in my role as report officer for Major Case Squad

investigation 87-141.

11. Idid not administer nor was I present during the exami-

nation of these individuals.

12. Atno time did I have first hand knowledge of any of the

facts or circumstances relating to any witness or suspect in this

investigation. At no time did I work in an investigative capacity

on Major Case Squad Investigation No. 141. Atnotime did I talk

with any suspect or witness, or gather any evidence in this case.

It was my sole duty as Report Officer to keep the Squad file in

an organized and presentable fashion.

/s/Dennis Cordia 241

Subscribed and sworn to before me this 6thday of April, 1993.

/s/Notary Public

My commission expites: May 11, 1995

— >

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 4:92CV 185SNL

WILLIAM FLEMING,

Plaintiff,

VS.

GREATER ST. LOUIS AREA MAJOR CASE SQUAD, ET AL..,

Defendants.

I

(Filed: February 11, 1994]

In accordance with the memorandum filed herein this

day,

IT IS HEREBY ORDERED that the defendant City of

Florissant’s motion for summary judgment (#61), filed Septem-

ber 24, 1993 be and is GRANTED. Judgment is entered for the

defendant and against the plaintiff on the merits of the plaintiff’ s

complaint, including both the §1983 and the §1985(3) claims.

Defendant City of Florissant is hereby DISMISSED from this

cause of action.

Dated this //th day of February, 1994.

/s/ Stephen N. Limbaugh

UNITED STATES

DISTRICT JUDGE

— A-21 —

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 4:92CV185SNL

WILLIAM FLEMING,

Plaintiff,

vs.

GREATER ST. LOUIS AREA MAJOR CASE SQUAD, ET AL.,

Defendants.

MEMORANDUM

(Filed: February 11, 1994]

Plaintiff has filed this action alleging violations of his

constitutional rights in connection with his arrest and pre-trial

incarceration for the murder of a Jennings police officer. This

matter is before the Court on the defendant City of Florissant’ s

motion for summary judgment (#61), filed September 24, 1993.

Responsive pleadings have been filed.

Courts have repeatedly recognized that summary judg-

ment is a harsh remedy that should be granted only when the

moving party has established his right to judgment with such

clarity as not to give rise to controversy. New England Mut. Life

Ins. Co. v. Null, 554 F.2d 896, 901 (8th Cir. 1977). Summary

judgment motions, however, “can be a tool of great utility in

removing factually insubstantial cases from crowded dockets,

freeing courts’ trial time for those that really do raise genuine

issues of material fact.” Mt. Pleasant v. Associated Elec. Coop.

Inc., 838 F.2d 268, 273 (8th Cir. 1988).

Pursuant to Fed.R.Civ.P. 56(c), adistrict court may grant

a motion for summary judgment if all of the information before

the court demonstrates that “there is no genuine issue as to

— A-22 —

material fact and the moving party is entitled to judgment as a

matter of law.” Poller v. Columbia Broadcasting System, Inc.,

368 U.S. 464, 467, 82 S. Ct. 486, 7 L.Ed.2d 458 (1962). The

burden is on the moving party. Mt. Pleasant, 838 F.2d at 273.

After the moving party discharges this burden, the nonmoving

party must do more than show that there is some doubt as to the

facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp. ,475

U.S. 574, 586 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986). Instead,

the nonmoving party bears the burden of setting forth specific

facts showing that there is sufficient evidence in its favor to allow

a jury to return a verdict for it. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986);

Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91

L.Ed.2d 265 (1986).

In passing on a motion for summary judgment, the court

must review the facts in a light most favorable to the party

opposing the motion and give that party the benefit of any

inferences that logically can be drawn from those facts. Buller

v. Buechler, 706 F.2d 844, 846 (8th Cir. 1983). The court is

required to resolve all conflicts of evidence in favor of the

nonmoving party. Robert Johnson Grain Co. v. Chem. Inter-

change Co., 541 F.2d 207, 210 (8th Cir. 1976).

Defendant City of Florissant (hereinafter referred to as

simply “Florissant’”) contends that the plaintiff’ s claim of liabil-

ity against it is one based upon a theory of respondeat superior,

which is not cognizable under §1983. Florissant further con-

tends that even plaintiff’ s vague allegation of an unconstitutional

governmental practice, policy or custom is not actionable be-

cause the only two Florissant municipal officers involved in this

cause of action have been dismissed. Plaintiff contends that

summary judgment should be denied because Florissant was a

direct participant in allegedly violating plaintiff s constitutional

rights by voluntarily associating with the Major Case Squad and

failing to train and supervise its officers. Plaintiff buttresses his

— A-23 —

position by stating “[t]here is no question that Plaintiff Fleming

was improperly arrested and imprisoned and there is no question

that the Chief of Police of the City of Florissant set into motion

the investigation which brought about that result.” Plaintiff’ s

Suggestions in Opposition to Florissant’s Motion for Summary

Judgment, pg. 2.

The plaintiff's position is totally meritless. Firstly, the

only two Florissant municipal offers allegedly involved in vio-

lating the plaintiff's constitutional rights, Police Chief Robert

Lowery and Officer Dennis Cordia, were summarily dismissed

from this case on August 19, 1993. The plaintiff bases his claim

against Florissant on the theories that its law enforcement officer

violated the plaintiff's constitutional rights because of inad-

equate training and from fol— low—ing municipal custom or

policy. Since the Court has deter—-min- ed that the Florissant law

enforcement officers did not violate the plaintiff’ s constitutional

rights, plaintiff cannot pursue a §1983 claim against Florissant

on either one of his theories. See, City of Los Angeles v. Heller,

475 U.S. 796, 799 (1986); Garner Gregory, Administrator of the

Estate of Joe Edwin Gregory, et al. v. City of Rogers, Ark., 974

F.2d 1006, 1012 (8th Cir. 1992); Robinson v. City of St. Charles,

Mo., 972 F.2d 974, 977 (8th Cir. 1992). Secondly, the doctrine

of respondeat superior is inapplic—able in § 1983 actions. Givens

v. Jones, 900 F.2d 1229, 1233 (8th Cir. 1990); Wilson v. City of

Little Rock, 801 F.2d 316, 322 (8th Cir. 1986); Martin v. Sargent,

780 F.2d 1334, 1338 (8th Cir. 1985). Municipalities cannot be

held liable under a respondeat superior theory. Monell v.

Department of Social Services, 436 U.S. 658 (1978).

Although Florissant’s summary judgment motion does

not particularly address the §1985(3) claim still pending, plain-

tiff does refer to it in his response; thus, the Court believes it is

relevant to address it now. It is this Court’s considered opinion

that since Florissant’s agents are no longer defendants in this

case, plaintiff cannot maintain a conspiracy claim against it.

—_

42 U.S.C. §1985(3) prohibits conspiring to deprive individu-

als of their civil rights because of race. The elements of a cause

of action for civil conspiracy under §1985 are 1) conspiracy; 2)

for the purpose of depriving, either directly or indirectly, any

person or class of persons of the equal protection of the laws, or

equal privileges and immunities under the laws; 3) an act in

furtherance of the conspiracy; 4) whereby a person is either

injured in his person or property or deprived of any right or

privilege of a citizen of the United States. Carpenters v. Scott,

463 U.S. 825, 828-29 (1983) citing, Griffin v. Breckinridge, 403

U.S. 88 (1971). The complaint must allege specific facts

“suggesting that there was a mutual understanding among the

conspirators to take actions directed toward an unconstitutional

end.” Duvall v. Sharp, 905 F.2d 1188, 1189 (8th Cir. 1990).

Conspiracy allegations must contain “sufficient specifity and

factual support to suggest a ‘meeting of the minds’”. O’Dell v.

McSpadden, 780 F.Supp. 639, 644-45 (E.D.Mo. 1991) quoting

Deck v. Leftridge, 771 F.2d 1168, 1170 (8th Cir. 1985) (citations \

omitted).

In the present case, plaintiff has made only vague and

conclusionary allegations about aconspiracy. He has not offered

a single piece of factual evidence to support any of his conspiracy

allegations. Furthermore, as a municipality, Florissant can only

act through its agents. Florissant cannot carry out any acts in

furtherance of a conspiracy to deprive the plaintiff of his consti-

tutional rights if its only municipal actors have been judicially

determined not to have violated the plaintiff's constitutional

rights. Florissant cannot carry out any overt acts reasonably

related to the promotion of the alleged conspiracy without

human actors. Since its law enforcement officers have been

dismissed out of this case, it is axiomatic that Florissant cannot

be held liable for taking action in furtherance of a conspiracy to

deprive the plaintiff of his civil rights on account of his race.

Plaintiff's §1985(3) claim against defendant City of Florissant

must fail.

— A-25 —

Summary judgment will be granted for defendant City of

Florissant on plaintiff’s § 1983 claim; as well as on the plaintiff's

§1985(3) claim.

Dated this //th day of February, 1994.

/s/ Stephen N. Limbaugh

UNITED STATES

DISTRICT JUDGE

— A-26 —

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 4:92CV 185SNL

WILLIAM FLEMING,

Plaintiff,

VS.

GREATER ST. LOUIS AREA MAJOR CASE SQUAD, ET AL.,

Defendants.

CITY OF FLORISSANT’S

MOTION FOR SUMMARY JUDGMENT

[Filed: September 13, 1993]

COMES NOW Defendant, City of Florissant, and pursuant to

Rule 56, F.R.C.P., moves this Court to enter summary judgment

in favor of Defendant City of Florissant for the reason that there

is no genuine issue as to any material fact and that this defendant

is entitled to judgment as a matter of law. For the grounds of this

motion, Defendant City of Florissant states as follows:

1. Plaintiff William Fleming has brought this action against

City of Florissant claiming said defendant violated his federally

protected rights under 42 U.S.C. § 1983, 1981, 1988; and the

Fourth, Fifth, Eighth and Fourteenth Amendments of the United

States Constitution. Plaintiff's claims against City of Florissant

are based on the theory of respondeat superior. See, Plaintiff's

Complaint specifically, Paragraphs 7 and 24.

2. Byorderdated August 19, 1993, Defendants Lowery and

Cordia’s Motion for Summary Judgment was granted and said

defendants dismissed from the case. See Order of Court attached

as Exhibit A.

snes MF vs

3. Where the only persons who acted on behalf of the City

of Florissant have been dismissed from the lawsuit, so should the

City of Florissant be dismissed.

4. Not only is there no respondeat superior liability, but

Plaintiff states no cause of action under any other recognized

theory of recovery against a municipality.' It is well settled that

amunicipality can only be held liable for § 1983 violations where

the action alleged to be unconstitutional includes a policy,

statement, ordinance, regulation, or decision officially adopted

and promulgated by the municipality’s officers. See, Monell v.

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

690-91 (1978). Where only municipal officers of the City of

Florissant have been dismissed from the suit, there is no conduct

upon which to base a suit under § 1983. Further, see Affidavit

of Mayor James J. Eagan that no policy, official or otherwise,

exists which condones or permits the treatment alleged by

Plaintiff. (Exhibit B.)

5. A plaintiff might maintain an action where the alleged

unconstitutional action occurred pursuant to govern—mental

custom. Jd. 436 U.S. at 690-691. However, Plaintiff Fleming’s

claim, if any, of an unconstitutional governmental custom is

irrelevant where Lowery and Cordia (the only potential persons

to effect the alleged custom) have been dismissed from the suit

and found to be neither sufficiently personally involved nor

causally related to the actions which form the basis of Plaintiff’ s

Complaint.

6. Amunicipality might be sued under § 1983 if it failed to

adequately train or supervise its law enforcement officials. See,

Canton v. Harris, 489 U.S. 378 (1989). However, where defen—

' Although Plaintiff’ s claim against the City of Florissant appears to be based

solely on the theory of respondeat superior, there are vague references in the

Complaint to unconstitutional customs or policies.

pon

— A-28 —

dants Lowery and Cordia’s actions did not constitute personal

involvement having an affirmative link with Plaintiff Fleming’s

alleged deprivation of constitutional rights; and where the affi-

davits of Lowery and Cordia, previously submitted, show they

took no part in the day-to-day management of the investigation,

there is no action or person upon which to base liability against

the City of Florissant and therefore, any claims based on training

or super— vision must be denied.

7. For the City of Florissant to have respondeat superior

liability, there must be actionable conduct to serve as the basis

for the City’s liability. Where Defendants Lowery and Cordia

have been dismissed from the lawsuit, there is no one upon which

to base the liability claims against the City of Florissant, and

Defendant City of Florissant should be dismissed.

WHEREFORE, Defendant City of Florissant prays this Court

enter a judgment finding no genuine issue of material fact exists

and that the City of Florissant is entitled to summary judgment

as a matter of law.

EVANS & DIXON

/s/ Kurt E. Wolfgram

Henry D. Menghini #17076

Kurt E. Wolfgram #43013

Attorneys for Defendants City of

Florissant, Lowery and Cordia

CERTIFICATE OF SERVICE

A copy of the foregoing was mailed this 13th day of

September, 1993, to: Helton Reed, Jr., Attorney for Plaintiff, and

Stephen H. Gilmore, Attorney for Plaintiff... .

/s/ Kurt E. Wolfgram

— A-29 —

DEFENDANT?’S EXHIBIT B

STATE OF MISSOURI )

) SS

COUNTY OF ST.LOUIS _)

AFFIDAVIT OF MAYOR JAMES J. EAGAN

I, James J. Eagan, having been duly sworn upon my oath

state as follows:

1. Lam the Mayor of the City of Florissant and was Mayor

at the time of the incidents alleged in the complaint of plaintiff,

William Fleming.

2. I have knowledge of the organization of the various

departments of the City of Florissant.

3. The Police Department is one of the departments in the

City of Florissant. Members of the Police Department do not

have authority to establish the official policy of the City of

Florissant with respect to the matters alleged in the petition filed

by plaintiff.

4. The Mayor and Council decide any policy questions.

The City has no written or unwritten policy statement, ordi-

nance, regulator or practice authorizing or permitting the kind of

activity described in the petition filed by plaintiff, William

Fleming, including the alleged arrest without cause, the procur-

ing of false testimony, or any other associated mistreatment of

the plaintiff as detailed in the complaint.

— A-30 —

5. The City does not now and has not in the past ever

knowingly permitted any such acts to be performed by its Police

Department.

6. The only Police Officer of the City of Florissant who

worked on the Major Case Squad Investigation No. 141 was

Dennis Cordia, who acted only as a Report Officer. Colonel

Lowery had no involvement other than to vote with officers from

other municipalities in activating the Major Case Squad.

/s/Mayor James J. Eagan

Subscribed and sworn to before me this 31st day of

August, 1993.

/s/Notary Public

My commission expires: April 6, 1997.