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Ellingson v. Piercy

United States District Court, W.D. Missouri, Central Division

July 27, 2016

CRAIG E. ELLINGSON, et al., Plaintiffs,
v.
ANTHONY C. PIERCY, et al., Defendants.

          ORDER

          NANETTE K. LAUGHREY, UNITED STATES DISTRICT JUDGE

         Before the Court are the Defendants’ Motions for Summary Judgment [Docs. 228, 230, 233, 235]. In these motions, the Defendants move for summary judgment on the following counts: Defendant Piercy on Counts I and III; Defendants Replogle, Johnson, Kindle, and Clardy on Count II; Defendants Kindle, Clardy, Harris, Fick, and Stacks on Count III; Defendants Barbour, Echternacht, and McCullough on Counts II, III, and VI; and Defendants Eberhard and Herndon on Counts III and VII.

         The Court granted a bifurcated briefing schedule on these motions. [Doc. 265]. In an order entered on June 29, 2016, the Court addressed Counts I, II, VI, and VII. [Doc. 292]. The Court now turns to the Defendants’ motions for summary judgment on Count III.

         For the following reasons, the Defendants’ motions for summary judgment on Count III are granted.

         I. Background

         The following facts are uncontroverted for purposes of this order.

         Following Brandon Ellingson’s death, Defendants Kindle, Stacks, Eberhard, McCullough, Replogle, Herndon, and Harris were involved in the Missouri State Highway Patrol’s investigation of Defendant Piercy’s actions. [Doc. 275-9, p. 8; Doc. 275-25, p. 3; Doc. 275-6, p. 17; Doc. 275-17, p. 2; Doc. 275-20, p. 2]. Defendant Stacks was appointed to lead the investigation, and in this capacity he helped prepare evidence and witnesses in advance of the coroner’s inquest, [Doc. 275-9, p. 7], which was conducted by Dr. M.B. Jones with assistance from Amanda Grellner, the special prosecutor then assigned to the case, see [Doc. 287].

         During the investigative process, some information about Piercy’s training and Brandon’s drowning was ignored, other information was not preserved, and certain evidence was not chosen for presentation to the jury at the inquest. [Doc. 275-18, p. 16; Doc. 275-35, pp. 17-28; Doc. 275-6, pp. 18-19; Doc. 275-17, pp. 2, 8-9]. Plaintiffs particularly note that evidence about the speed of Piercy’s boat, video conversations between Piercy and his supervisors, and a video recreation of the incident were all omitted from the inquest; that several potential witnesses-including Sergeant Randy Henry-were not asked to testify; and that changes were made to an accident report prepared by the MSHP. [Doc. 275-18, pp. 22-23; Doc. 297-2, pp. 19, 39-40; Doc. 297-9, p. 1].

         The inquest was held on September 4, 2014 and resulted in a jury verdict finding that Brandon’s death was caused by accidental drowning. [Doc. 297-7, p. 1]. On September 8, Grellner informed Replogle that no formal criminal charges would be filed against Piercy. [Doc. 297-10, p. 2]. Three months later, on December 5, 2014, Plaintiffs filed their present civil suit. See [Doc. 1].

         II. Discussion

         In Count III of their complaint, Plaintiffs allege that the Defendants conspired to deprive them of their constitutional rights in the aftermath of Brandon’s death. The purpose of this conspiracy, Plaintiffs contend, was “to cover up the cause of Brandon’s death while in the custody of Defendant Piercy and the Missouri State Highway Patrol, in order to deprive the Plaintiffs of their constitutional rights, including but not limited to their right to seek redress for their grievances through the courts, right to equal protection under the law, and right to due process of law.” [Doc. 45, p. 22, ¶ 111]. Accordingly, Plaintiffs assert a civil conspiracy claim under 42 U.S.C. §§ 1983, 1985, and 1986.

         The Court has already dismissed Plaintiffs’ claims under Sections 1985 and 1986 as alleged against Defendants Piercy, Kindle, Clardy, and Stacks. [Doc. 241]. Defendants McCullough, Echternacht, Barbour, Eberhard, Herndon, Harris, and Fick now move for summary judgment on the Section 1985 and Section 1986 claims. All Defendants move for summary judgment on Plaintiffs’ conspiracy claim under Section 1983. In their arguments, citing Federal Rule of Civil Procedure 56(a), the Defendants maintain there is no genuine dispute regarding any material fact and they are entitled to judgment as a matter of law.

         A. Section 1983

         To state a Section 1983 conspiracy claim, a plaintiff must allege “that the defendant conspired with others to deprive him or her of a constitutional right; that at least one of the alleged co-conspirators engaged in an overt act in furtherance of the conspiracy; and that the overt act injured the plaintiff.” Askew v. Millerd, 191 F.3d 953, 957 (8th Cir. 1999). Further, “[t]he plaintiff is additionally required to prove a deprivation of a constitutional right or ...


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