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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 819

## Text

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

EBEST AVAILABLE COPY

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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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LIST OF PARTIES TO THE PROCEEDING ................... ll
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SUMMARY OF THE ARGUMENT ....0......ccccccccscececeecees 5
REASONS FOR DENYING THE WRIT .........cccccccccsseee. 6

ais Wiad

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
Reisen v, Gem, GES UD. Fae CIID ccnccccccnsiccsctncscasesenssssnesss 8
Watson v. Interstate Fire & Casualty Co.,

eR gr 16 fe A, RRR On anenremner nT ETE 8
Wilson v. City of North Little Rock, 801 F.2d 316

Ce UE scares sencseteicdnt pestered strsnenscincndnaiacenestinieniads 9
Statutes
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BF Ue Pe ictccsticxteeninsion #3, Ut, 32.33

Federal Rules of Civil Procedure

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United States District Court of
Eastern Missouri Local Rule 7(B)(2) ...............::000ee 5,6

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1907%3A3. Public record. Not legal advice.