United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW, District Judge.
This matter under 42 U.S.C. § 1983 is before the Court on a motion for summary judgment filed by defendants Francis G. Slay, Bettye Battle-Turner, Richard Gray, Jerome D. Lee and Thomas Irwin, sued in their official capacities as members of the Board of Police Commissioners of the St. Louis Metropolitan Police Department (collectively the "Board"). The motion is fully briefed and ready for decision. For the following reasons, the motion will be granted.
This action was filed on November 9, 2012 by plaintiff Stephen Jones against the members of the Board and former St. Louis Metropolitan Police Department ("SLMPD") police officers, defendants Vincent Carr and Shell Sharp. Plaintiff alleges that his federal civil rights were violated when he was arrested, convicted and imprisoned for a period of over twelve years based on false evidence manufactured by defendants Carr and Sharp. Specifically, plaintiff alleges that Carr and Sharp conspired with each other and made a false affidavit to obtain a search warrant for plaintiff's parents' apartment, falsely claimed that while executing the search warrant they observed plaintiff holding a plastic bag containing $15, 000 worth of cocaine base, stole $5, 200 belonging to plaintiff's father during the search of the residence, suppressed exculpatory evidence, arrested plaintiff and falsely testified against him at trial in order to prevent any complaints concerning the theft, as part of a pattern of illegal activity on their parts. Plaintiff alleges that as a result of Carr and Sharp's illegal conduct, he was found guilty by a jury of one count of possession with the intent to distribute cocaine base and sentenced to 240 months in prison.
During plaintiff's incarceration, the Federal Bureau of Investigation and the United States Attorney's Office for the Eastern District of Missouri began to investigate Carr and Sharp "for the same illegal activities that resulted in [plaintiff's] wrongful conviction and imprisonment." Amended Complaint at 8, ¶ 24. Plaintiff alleges that as a result of this investigation, defendant Carr pleaded guilty in February 2009 to federal criminal charges of conspiracy to commit wire fraud, wire fraud, making a false statement and obstruction of justice based on facts very similar to those in the instant case, including wrongfully accusing a third party of criminal activity in order to deflect investigation into his theft. See United States v. Carr, No. 4:08-CR-703 ERW (E.D. Mo.). Plaintiff also alleges that the investigation led to defendant Sharp leaving the SLMPD in June 2009 "under charges" of fraudulently concocting affidavits in support of search warrants.
Based on Carr's conviction, plaintiff sought permission from the Eighth Circuit Court of Appeals to file a successive habeas corpus motion seeking relief under 28 U.S.C. § 2255. The United States acquiesced in plaintiff's request and the Eighth Circuit issued an order authorizing plaintiff to proceed with his motion, which was filed in September 2010. After reviewing the evidence presented at plaintiff's trial along with new evidence concerning Carr's corrupt practices, the United States in November 2010 joined in plaintiff's motion to vacate his sentence, stating there was no credible independent evidence to corroborate Carr's testimony against plaintiff. The United States also admitted that Sharp's testimony was not reliable or credible. On November 10, 2010, this Court, the Honorable Judge Carol E. Jackson presiding, issued an order vacating plaintiff's conviction and ordering the United States Bureau of Prisons to release him from custody immediately. Plaintiff subsequently sought a Certificate of Innocence pursuant to 28 U.S.C. § 2513 which was granted by Judge Jackson on May 12, 2011. Judge Jackson found that plaintiff was actually innocent of the crime for which he was imprisoned for twelve years and eight months.
Plaintiff asserts federal civil rights claims against the Board pursuant to 42 U.S.C. § 1983. In Count III of the Amended Complaint, plaintiff alleges the existence within the SLMPD of a policy or custom and practice of officers using false testimony, planting evidence, suppressing exculpatory evidence, stealing property from alleged crime scenes, and otherwise manufacturing evidence to convict persons regardless of their guilt or innocence. In Count IV, plaintiff alleges that the Board failed to train, supervise, control, instruct or discipline the officers under its control in various respects, despite indications of ongoing corrupt and illegal activities by SLMPD officers.
II. Legal Standard
The standards applicable to summary judgment motions are well settled. Pursuant to Federal Rule of Civil Procedure 56(a), a court may grant a motion for summary judgment if all of the information before the court shows "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The initial burden is placed on the moving party. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988) (the moving party has the burden of clearly establishing the non-existence of any genuine issue of fact that is material to a judgment in its favor). Once this burden is discharged, if the record shows that no genuine dispute exists, the burden then shifts to the non-moving party who must set forth affirmative evidence and specific facts showing there is a genuine dispute on a material factual issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Once the burden shifts, the non-moving party may not rest on the allegations in his pleadings, but by affidavit and other evidence must set forth specific facts showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Herring v. Canada Life Assur. Co., 207 F.3d 1026, 1029 (8th Cir. 2000); Allen v. Entergy Corp., 181 F.3d 902, 904 (8th Cir. 1999). The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A dispute about a material fact is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Herring, 207 F.3d at 1029 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A party resisting summary judgment has the burden to designate the specific facts that create a triable question of fact, see Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1114 (8th Cir. 2004), and "must substantiate allegations with sufficient probative evidence that would permit a finding in the plaintiff's favor." Davidson & Assocs. v. Jung, 422 F.3d 630, 638 (8th Cir. 2005).
The Court must view the facts in the light most favorable to the non-moving party, give the non-moving party the benefit of any inferences that can logically be drawn from those facts, Matsushita, 475 U.S. at 587, and resolve all conflicts in favor of the non-moving party. Robert Johnson Grain Co. v. Chemical Interchange Co., 541 F.2d 207, 210 (8th Cir. 1976).
Any legal action against the St. Louis Metropolitan Police Department must be brought by naming the members of the Board of Police Commissioners in their official capacities as defendants. Best v. Schoemehl, 652 S.W.2d 740, 742 (Mo.Ct.App. 1983). Plaintiff's claims against the Board are treated as claims against the municipality. See, e.g., S.L. ex rel. Lenderman v. St. Louis Metropolitan Police Dep't Bd. of Commr's, 2012 WL 3564030, at *9 (E.D. Mo. Aug. 17, 2012).
Municipalities cannot be liable under § 1983 on the basis of respondeat superior. Monell v. Department of Social Servs. of City of New York, 436 U.S. 658, 691 (1978). "A plaintiff may establish municipal liability under § 1983 by proving that his or her constitutional rights were violated by an action pursuant to official municipal policy' or misconduct so pervasive among non-policymaking employees of the municipality as to constitute a custom or usage with the force of law.'" Ware v. Jackson Cnty., Mo., 150 F.3d 873, 880 (8th Cir. 1998) (quoting Monell, 436 U.S. at 691) (internal quotation marks omitted). A municipality may also be liable under § 1983 if it failed to properly supervise or train an offending employee who caused a deprivation of constitutional rights, but only if the failure to train or supervise rises to the level of deliberate indifference to the rights of others or tacit authorization of the offensive acts. See City of Canton, Ohio v. Harris, 489 U.S. 378, 380 (1989) (failure to train); Liebe v. Norton, 157 F.3d 574, 579 (8th Cir. 1998) (failure to supervise).
A. Count III - Policy and Custom Claims
In Count III, plaintiff asserts § 1983 claims against the Board based both on policy and custom. These claims are analytically distinct and will be discussed separately. The Board moves for summary judgment arguing there is no evidence to support its liability based on either a policy or custom.
i. Official Policy
In the context of municipal liability under § 1983, "a policy' is an official policy, a deliberate choice of a guiding principle or procedure made by the municipal official who has final authority regarding such matters." Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999). With respect to plaintiff's claim based on an unconstitutional policy, the Board asserts that the SLMPD did not have a policy instructing officers to lie, plant or suppress evidence, steal property from crime scenes, or in any other way manufacture evidence. The Board states the evidence is the opposite, as Rule 7, Section 7.004 of the SLMPD Police Manual dictates that all officers "shall conduct themselves in such a manner that no discredit will be brought upon the Department in general or themselves in particular." Board Ex. S. The Board asserts that this language would include conviction of a crime, neglect of duty, conduct detrimental to the public peace or welfare, failing to conduct a proper investigation, and accepting bribes.
In opposing the Board's motion, plaintiff does not distinguish between his policy and custom claims, making it difficult to discern exactly what his arguments are. With respect to the existence of an official policy, plaintiff does argue that the Board failed to have a written policy governing the use of confidential informants even though "the use of confidential informants is an invitation to officers to manufacture evidence, " Pl.'s Mem. Opp. at 7, and that the Board's written policies failed to "clearly address the problem of false reporting and the manufacture of evidence, or provide clear disciplinary consequences for such conduct." Id.
Plaintiff does not identify an official policy of the Board that affirmatively sanctions unconstitutional actions. As a result, the Board has established that its policy is lawful on its face, is not unconstitutional, and therefore cannot be the "moving force" of any constitutional violation. See Szable v. City of Brooklyn Park, Minn., 486 F.3d 385, 390-91 (8th Cir. 2007) (en banc). The Eighth Circuit has held that a "written policy that is facially constitutional, but fails to give detailed guidance that might have averted a constitutional violation by an employee, does not itself give rise to municipal liability." Id. at 392. The Board is therefore entitled to summary judgment to the extent plaintiff's claims are based on the existence of an official policy.
ii. Municipal Custom
Municipal liability under § 1983 based on the existence of a "custom ...