United States District Court, Eastern District of Missouri, Eastern Division
MEMORANDUM AND ORDER
TERRY I. ADELMAN, UNITED STATES MAGISTRATE JUDGE.
This matter is before the Court on Defendants Eric Austermann (“Austermann”), Joseph Brandt (“Brandt”), Kenneth Cox (“Cox”), Colin Foppe (“Foppe”), Sean Haefeli (“Haefeli”), Timothy Harrison (“Harrison”), Jeffery Hoots, Joshua Lawrence, Christopher Most, Jason Neuman, William Ostendorf, Charlie Rodriguez, and Robert Shelvy’s Motion for Summary Judgment (Docket No. 167). Plaintiffs filed a Brief and Memorandum to All Motions for Summary Judgment (Docket No. 178). All matters are pending before the undersigned United States Magistrate Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the Motion for Summary Judgment will be granted.
On November 5, 2012, Plaintiffs Robert Horn (“Robert”) and Marian (“Marian”) Horn filed a forty-nine page Fourth Amended Complaint adding Scott Cox as a Defendant and Petition alleging violation of constitutional rights (Counts I), violation of statutory civil rights (Count II), conspiracy to violate civil rights (Count IV), assault and battery (Counts V and VI), intentional infliction of emotional distress (Counts VII and VIII), and false imprisonment (Counts XVI)stemming from the events on September 9, 2005. Plaintiff Robert Horn alleges that Defendant police officers without probable cause pulled him out of his house, handcuffed him, and assaulted and arrested him. Plaintiff Robert Horn further alleges Defendants unlawfully arrested him without probable cause or a warrant and seized the firearms from his house. Next, he alleges false charges were entered in the Municipal Court of the County of St. Louis, Missouri against him for peace disturbance, resisting arrest, assault on a police officer, and interfering with a police officer. In the Second Cause of Action stemming from events on July 15, 2006, Plaintiff Robert Horn alleges violation of constitutional rights (Counts I), violation of statutory civil rights (Count II), conspiracy to violate civil rights (Count IV), assault and battery (Counts V and VI), intentional infliction of emotional distress (Counts VII and VIII), and malicious abuse of process, false arrest, and false imprisonment (Counts XVI). Plaintiff Robert Horn alleges Defendants Foppe, Most, Shelvy, Hoots, and Harrison entered his home without probable cause or a warrant and attacked him by tasering him four times and pepper spraying him once. Thereafter, Defendants handcuffed and assaulted him and seized his guns and firearms. Plaintiff Robert Horn further alleges that Defendants falsely charged with peace disturbance and resisting arrest and had him incarcerated at the police station on the false charges.
In the Third Cause of Action stemming from the events on July 15, 2006, Plaintiff Marian Horn alleges that Defendants Foppe, Most, Shelvy, Hoots, and Harrison approached her in the yard requesting permission to enter the house. After she refused to give permission, Defendants Shelvy, Hoots, and Most handcuffed Plaintiff and placed her in a hot police car for over fifteen minutes. Only after agreeing to grant permission to enter the house, she was released from the vehicle. After videotaping the scene, one of the Defendants removed the camcorder and the video tape and memory card. Without probable cause, Defendants placed her under arrest for interfering with a police officer and thereafter she was found not guilty by a jury in the Municipal Court of St. Louis County on July 24, 2008. Plaintiff Marion Horn alleges violation of constitutional rights (Counts I), violation of statutory civil rights (Count II), conspiracy to violate civil rights (Count IV), assault and battery (Counts V and VI), intentional infliction of emotional distress (Counts VII and VIII), and malicious abuse of process, false arrest, and false imprisonment (Counts XVI).
In the Fourth Cause of Action, Plaintiff Robert Horn alleges a cause of action for slander and malicious prosecution against Defendants Haefeli and Cox. Plaintiff alleges that after he was arrested on September 9, 2005, Officer Haefeli placed a “hazard” designation on him for someone dangerous or mentally ill. In the Fifth Cause of Action, Plaintiff Robert Horn alleges causes of action for slander and malicious prosecution contending that on September 9, 2005, Defendant Scott Cox, brother of Defendant Ken Cox, called St. Louis County dispatch 911 and falsely reported seeing him shoot a firearm. This false report resulted in Robert Horn being attacked, his home invaded, and his guns seized. On February 14, 2013, Defendant Scott Cox was dismissed with prejudice.
The Defendants are William Ostendorf, Robert Shelvy, Joshua Lawrence, Joseph Brandt, Jason Neuman, Sean Haefeli, Colin Foppe, Christopher Most, Jeffery Hoots, Timothy Harrison, Charlie Rodriguez, Eric Austermann, and Kenneth Cox, sued in both their individual and official capacities.
Pursuant to Rule 56(c), Federal Rules of Civil Procedure, a court may grant summary judgment if the information before the court shows that there are no material issues of fact in dispute and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The burden of proof is on the moving party to set forth the basis of the motion, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), and the court must view all facts and inferences in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). Once the moving party shows there are no material issues of fact in dispute, the burden shifts to the adverse party to set forth facts showing there is a genuine issue for trial. Id. “[T]he nonmovant must respond by submitting evidentiary materials that ‘set out specific facts showing a genuine issue for trial.’” Celotex, 477 U.S. at 323 (quoting Fed.R.Civ.P. 56(e)(2)). The non-moving party may not rest upon her pleadings, but must come forward with affidavits or other admissible evidence to rebut the motion. Id., at 324. The nonmovant must “explain the legal significance of her factual allegations beyond the mere conclusory statements importing the appropriate terms of art.” Quinn v. St. Louis Cnty., 653 F.3d 745, 752 (8th Cir. 2011).
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 inference 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. Interchange Co., 541 F.2d 207, 210 (8th Cir. 1976). At the summary judgment stage, the undersigned will not weigh the evidence and decide the truth of the matter, but rather the undersigned need only determine if there is a genuine issue of material fact for trial. Anderson, 477 U.S. at 249. Summary judgment is not appropriate unless all the evidence points one way and is susceptible to no reasonable inferences sustaining the position of the nonmoving party.” Hindman v. Transkrit Corp., 145 F.3d 986, 990 (8th Cir. 1998) (citations omitted); Bassett v. City of Minneapolis, 211 F.3d 1097, 1099 (8th Cir. 2000). Material facts are those “that might affect the outcome of the suit under the governing law, ” and a genuine material fact is one “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 at 248. Further, if the nonmoving party has failed to “make a showing sufficient to establish the existence of an element essential to that party’s case, ... there can be ‘no genuine issue as to any material fact, ’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322-23.
Nonetheless, it is clear to survive summary judgment, a plaintiff must support his/her allegations with sufficient probative evidence to permit a finding in the plaintiff’s favor based upon more than mere speculation, conjecture, or fantasy. Putnam v. Unity Health Sys., Inc., 348 F.3d 732, 733-34 (8th Cir. 2003). “Mere allegations, unsupported by specific facts or evidence beyond the nonmoving party’s own conclusions, are insufficient to withstand a motion for summary judgment.” Thomas v. Corwin, 483 F.3d 516, 526-27 (8th Cir. 2007). “Simply referencing the complaint, or alleging that a fact is otherwise, is insufficient to show there is a genuine issue for trial.” Kountze ex rel. v. Hitchcock Foundation v. Gaines, 2008 WL 2609197, at * 3 (8th Cir. 2008). “‘Only disputes over the facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.’” Bass v. SBC Commc’ns, Inc., 418 F.3d 870, 872-73 (8th Cir. 2005) (quoting Anderson, 477 U.S. at 248). Thus, Plaintiffs, even though the non-moving party for summary-judgment purposes, “must still ‘present evidence sufficiently supporting the disputed material facts [such] that a reasonable jury could return a verdict in [its] favor.’” Pope v. ESA Servs,, Inc., 406 F.3d 1001-1003-04 (8th Cir. 2005) (quoting Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992)). “[T]he mere existence of some alleged factual dispute between the parties will not defeat a motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247-48.
An affidavit used to contest a motion for summary judgment must be “made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated, ” Fed.R.Civ.P. 56(c)(4). The court should disregard those portions of an affidavit that fail to comply with the requirements of Rule 56(c)(4). Howard v. Columbia Pub. Sch. Dist., 363 F.3d 797, 801 (8th Cir. 2004); Fed.R.Civ.P. 56(e). Nor should the court consider those portions of an affidavit that conflict with the affiant’s prior deposition testimony, unless the conflict is a product of prior confusion. City of St. Joseph v. Sw. Bell Tel., 439 F.3d 468, 476 (8th Cir. 2006). The court must exercise extreme care when evaluating whether a potential conflict exists and whether the conflict requires exclusion of the conflicting affidavit. Id.
The Undisputed Evidence before the Court on the Motion
1. Background and Underlying State Criminal Cases
Plaintiffs Robert and Marian Horn filed this instant action pursuant to 42 U.S.C. § 1983 alleging violations of their civil rights during the course of events on September 9, 2005 and July 15, 2006. Plaintiffs filed this instant action before their underlying criminal cases were tried in state court. See St. Louis County v. Robert D. Horn, Nos. I09103741 and I09103751 (Deft.’s Exhs. D-F). At the request of the parties, the undersigned entered an Order staying the proceedings in this case pending final resolution of the criminal cases then pending against Plaintiffs. In the Information in Cause No. 09103741 stemming from the events of September 9, 2005, Plaintiff Robert Horn was charged with two counts of assault by kicking a sliding screen door onto Defendants Haefeli and Brandt and a count of interference with an officer by refusing the command of Haefeli to place his hands behind his back. (Exh. D, No. 09103741). In the Information in Cause No. 09103751 stemming from the events of July 15, 2006, Plaintiff Robert Horn was with one count of peace disturbance by threats; one count of public disturbance of the peace: loud noise; one count of assault by yelling at the victim causing her fear of immediate physical injury; one count of interference with a police officer by refusing the commands of Defendant Foppe to show his hands and resisting arrest; and one count of assault by repeatedly kicking Defendant Hoots in his legs. (Exh. L).
Prior to closing argument and at the close of all the evidence, St. Louis County nolle prosequis the September 9, 2005 assault count and the July 15, 2006 peace disturbance count. (Exh. E). On April 11, 2012, the jury returned guilty verdicts on the two counts of interference of a police officer; one count of the noise disturbance; and the July 15, 2006 assault. (Defts’ Exhs. E, F, and N; Pltfs’ Exh. 1). The jury returned not guilty verdicts to the two counts of assault stemming from the events of September 9, 2005 and July 15, 2006. (Defts’ Exhs. E and N; Pltfs’ Exh. 1). On June 29, 2012, the Circuit Court of St. Louis County Municipal Court sentenced Robert Horn to a two-year suspended imposition of sentence. (Exh. G). The firearms that were seized by Haefeli were forfeited pursuant to the court order following Robert’s guilty verdict, and the court imposed a prohibition on possessing any weapons. (Id.). On June 24, 2008, the court entered a not guilty verdict as to Marian based on the jury verdict. (Pltfs’ Exh. 3). During the criminal proceedings, Robert Reinhold represented Robert Horn and filed motions to dismiss the case and to suppress evidence prior to the trial. (Exhs. H and I).
After the resolution of the state criminal actions, Defendants filed a summary judgment motion addressing Plaintiffs’ claims. Because it appeared that all criminal proceedings had been completed, the undersigned lifted the stay previously imposed. The Court has carefully reviewed the record before it and takes judicial notice of the underlying criminal cases.
2. September 9, 2005
On September 9, 2005, St. Louis County police officers Brandt, Haefeli, Neuman, Lawrence, Shelvy, and Ostendorf at around 3:00 a.m. responded to 4866 Viento Drive to investigate a call of shots being fired. (Brandt Aff. at ¶¶ 6-7; Haefeli Aff. at ¶¶ 6-8; Lawrence ¶¶ 6-8; Neuman at ¶¶ 5-7; Ostendorf at ¶¶ 5, 8; Shelvy Depo. at 7; Exh. A). Shelvy responded by himself as a watch supervisor to the scene in response to a radio call at the house, and other officers arrived before him. (Shelvy at 7-8). Ostendorf explained how a shots being fired call involves a possibility of injury to police officers or other persons by a firearm. (Ostendorf Aff. at ¶ 9). Because he had problems locating the address due to the lack of street lights, and the house not being illuminated, Ostendorf arrived after several other St. Louis County police cars. (Id. at ¶¶ 10-11). Upon arrival, Ostendorf talked to Shelvy, and they decided to make contact with anyone inside the house and Ostendorf and Lawrence approached the front door. (Id. at ¶¶ 12-14; Lawrence at ¶¶ 10-11; Neuman at ¶ 9; Haefeli at ¶12). After knocking and announcing their presence, no one answered the front door. (Ostendorf at ¶ at 15; Lawrence at ¶¶ 11-12).
When they were unable to make contact with anyone inside the house, the police officers went to the back of the house. (Ostendorf at ¶ 16). By the time Ostendorf arrived at the back of the house, Robert Horn was already handcuffed on the wooden deck and acting belligerently by yelling and screaming at the officers causing him to believe Robert was under the influence of alcohol and drugs. (Ostendorf at ¶¶ 18-20). Ostendorf observed an older man and Robert Horn’s sister either on the deck or in the family room off the deck, and Marion Horn was asking why they were there. (Ostendorf at ¶ 22).
Lawrence and Neuman went around to the back of the house but they did not recall if Robert was already handcuffed when they arrived. (Lawrence at ¶¶ 13-14; Neuman at ¶¶ 10-11).
Brandt and Haefeli went the backyard to see if any persons were inside the house and observed a patio with a partially open sliding glass door and an older man lying on a coach inside the residence. (Brandt Aff. at ¶¶ 10-12; Haefeli at ¶¶ 11, 13-14). While standing outside the sliding glass door, Haefeli and Brandt identified themselves as police officers, and the older man on the couch appeared to wake up and get off the couch. (Brandt at ¶¶ 13-14; Haefeli at ¶¶15-16). Haefeli and Brandt observed another man quickly come out of the hallway holding a small black dog in his arms. (Haefeli at ¶ 17; Brandt at ¶ 15). The man, later identified to be Plaintiff Robert Horn, stood inside the house and started screaming at the officers saying “what the fuck do you guys want, ” and “get the fuck out of here.” (Haefeli at ¶ 18; Brandt at ¶ 17). After Brandt and Haefeli identified themselves as police officers, they directed Robert to come outside on the patio, but Robert continued to stand inside the house and continued to yell and curse. (Brandt at ¶ 19; Haefeli at ¶ 20). After they directed Robert to calm down and come outside to talk, he continued to yell at them. (Haefeli at ¶¶ 21-22; Brandt at ¶¶ 20-21).
As Robert stepped outside onto the patio, he continued to curse loudly and yelled “you guys are fucking assholes, ” and then he kicked the sliding screen door off its track and hitting the officers. (Haefeli at ¶¶ 22-23; Brandt at ¶¶ 22-24). Robert failed to cooperate with their requests to calm down, and he appeared to be intoxicated. (Haefeli at ¶ 24, 34; Brandt at ¶ 25). Haefeli informed Robert that he was under arrest for peace disturbance and assault third degree because of his kicking the screen door at the officers. (Haefeli at ¶ 25; Brandt at ¶ 26). Robert refused Haefeli’s requests to place his hands behind his back and to put his dog down so he could be handcuffed. (Haefeli at ¶ 26; Brandt at ¶¶ 26, 28). His sister Marian Horn came outside. (Brandt at ¶ 27). Haefeli then grabbed the dog out of Robert’s arms and placed him under arrest and handcuffed him. (Haefeli at ¶ 27; Brandt at ¶ 29; Shelvy at 9). Haefeli then told Robert that he was also being charged with interfering with the duties of a police officer due to his uncooperative behavior. (Haefeli at ¶ 28; Brandt at ¶ 30). Haefeli and Brandt advised Robert that they were at his residence to investigate a report of shots being fired, and he denied having any guns. (Haefeli at ¶ 29; Brandt at ¶¶ 31-32). Robert appeared to be under the influence of alcohol. (Haefeli at ¶ 34; Brandt at ¶ 25; Ostendorf at ¶ 20). While Brandt secured the perimeter of the house by staying on the patio, Haefeli and other officers entered the house to conduct a protective sweep of the residence because the call was for shots fired. (Haefeli at ¶ 30; Brandt at ¶ 33, 38). Haefeli entered Robert’s bedroom and saw several semi-automatic rifles and rounds of ammunition out in plain view. (Haefeli at ¶ 31; Brandt at ¶ 34). Marion followed the officers inside the house and when asked if Robert had been shooting any guns, she indicated that she did not know because she was sleeping. (Haefeli at ¶¶ 35-36). Haefeli seized five firearms, four magazine clips, and several .22 caliber and .12 gauge rounds of ammunition. (Haefeli at ¶ 37, Exh. A). Haefeli informed Robert of his Miranda rights, and Robert indicated that he understood. (Haefeli at ¶ 32; Brandt at ¶ 35). When Haefeli asked Robert if he had been shooting any guns, he responded, “that’s your job to find out.” (Haefeli at ¶ 33; Brandt at ¶ 36).
In his affidavit, Robert Horn averred how he went to his room around 11:00 in the evening of September 8, 2005 and, he was awakened in the early morning on September 9, 2005 by the barking of his dog, Lucy. ®. Horn at ¶ 4). Robert further avers that when he entered the family room, he saw someone pointing a gun at his father and yelling at him to “get up” and “come outside.” (Id.). Robert questioned the persons he saw on the deck outside the family room and asked “who are you, and what the fuck are you doing here?” and “get out of here.” (Id. at ¶ 5). As he exited the house, he recognized the persons to be police officers and moved toward the screen door while Haefeli was unsuccessfully attempting to open the closed screen door. (Id. at ¶ 6). Robert averred as he tried to come out the screen door, Haefeli grabbed his right arm and pulled him through the door thereby causing the screen door to come off its track and fall onto Brandt who said “now I got you for assault.” (Id. at ¶ 8). Horn watched as a couple of officers rushed into the house through the open sliding door while other officers remained outside with Robert and his father. (Id. at ¶ 9). Robert further averred that no one gave permission to enter the house. Robert explained how Haefeli pushed him into a large dog kennel and directed him to put down Lucy. (Id. at ¶ 10). When Marian entered the family room, an officer gave Lucy to her, and Robert was handcuffed and placed under arrest, but he was never apprised of his charges or how the officers were investigating shots being fired. (Id. at ¶¶ 11-12).
In his affidavit, Robert further averred that he consumed some beers on September 8, 2005, and he believed he had no residual effects from the alcohol consumption by early morning September 9, 2005. (Id. at ¶ 14). He contends that he was not unruly or uncooperative except when he did not comply with the directive to put Lucy down, because she would run away from the unfenced yard. (Id. at ¶¶ 10, 14).
In her affidavit, Marian Horn averred she was asleep at her home when she was awakened by a commotion in the family room and on the back deck. (M. Horn at ¶ 4).
After being transported to St. Louis County Jail, Robert was booked. (Haefeli at ¶ 38). Haefeli packaged the seized firearms and logged them into the system. (Id. at ¶ 39). In the History and Physical Report, a nurse completed a routine general medical examination and noted observing Robert for possible ethanol withdrawal. (Exh. B). Robert admitted to having consumed six beers at his house that night. (Horn Interrogatory Answers, Exh. C). He did not complain of any beating during this incident and did not seek any medical treatment after the incident. (R.Horn Depo. at 118-19).
Haefeli wrote St. Louis County Police investigative report 5-79780 regarding the September 9, 2005 incident. (Haefeli at 46; Exh. A). Based on the discovery of the firearms in the house, the nature of the call, and his observations of Robert’s mental state, Haefeli had a safety alert, a Computer Aided Dispatching (“CAD”) alert, placed on the address following the September 9, 2005 incident. (Id. at ¶ 42; Cox Depo. at 8, 11). A CAD alert is used for law enforcement purpose and allows a police officer to enter a computer alert on an address so in the future police officers are aware of any safety issues or possible hazards when police officers are called to respond to that address. (Haefeli at ¶¶ 44-45).
Police officers Austermann, Hoots and Captain Cox were not at 4866 Viento Drive on September 9, 2005. (Cox Depo. at 20; Austermann at ¶ 18; Hoots at ¶ 68). During her deposition, Marian testified that she did not recall any specific ...