United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
Travon Mitchell brought this action against the City of
Sikeston, Missouri, and two Sikeston police officers,
defendants Zach Albright and Franklin Adams. This matter is
before the Court on the City of Sikeston and Albright's
motions for summary judgment (#48, #31). The matter has been
fully briefed and is now ripe for disposition.
April 19, 2014, at 12:05 a.m., Sikeston police officer and
nonparty Justin James received a call about suspicious
activity reported by an individual who stated he observed
three people in a red car with Missouri license plate number
DL9A8U. Officer James drove to the location of the reported
suspicious activity and observed a red Cobalt with Missouri
license plate DL9A8U turning and heading north at high speed.
James was at the time heading southbound, so he made a U-turn
and turned on his lights and sirens. Plaintiff was one of two
passengers in the red Cobalt with Missouri plate DL9A8U,
which was being driven by Aaron Allen. Upon seeing Officer
James's police vehicle lights, Allen started driving
faster, fleeing Officer James's vehicle. Allen took the
officer on a high speed chase through a neighborhood, running
stop signs and eventually hitting the brakes to avoid another
police vehicle that was blocking the road. That other police
vehicle was being driven by defendant Sikeston Police Officer
Zach Albright. All three occupants of the red Cobalt took off
running from the vehicle. Officer James ran after an
individual who ran toward apartment buildings nearby;
defendant Officer Franklin Adams drove toward the apartments
and stopped where Officer James was located near the
apartments. Officer James lost sight of the individual among
the apartment buildings. Defendant Adams deployed his police
dog, Levi, to try to track the individual whom Officer James
had been pursuing.
tracked for about 100 to 150 feet and stopped at the door of
one of the buildings, but defendant Adams and Levi had to
leave that location to assist the search for the individual
defendant Albright had been pursuing. Officer James stayed at
the location where Levi had led him, but he later returned to
the red Cobalt, where he located a .40 caliber handgun loaded
with .40 caliber hollow point ammunition.
defendant Albright pursued plaintiff, who was wearing black
jeans and a black hoodie, through yards and fields and then
through an alleyway. At some point plaintiff decided to turn
around. He was in the backyard at 202 West Gladys and headed
toward the street when he saw several police officers on West
Gladys, so he slid between the house and a bush that was
located in the side yard. Albright lost sight of plaintiff
and called for Adams and Levi.
Adams deployed Levi from the patrol car. At that time, Adams
had heard that a handgun had been found in the red Cobalt.
Adams, Albright, and Levi proceeded towards the residence
next to which plaintiff was hiding. At the rear of the
residence, Levi started to track one of the individuals who
had fled from the Cobalt. Levi tracked the individual through
several backyards before doubling back to the residence at
202 West Gladys where plaintiff was hiding. Adams and Levi
walked past plaintiff behind his bush twice. The dog went
toward the bush, sniffed, and stood straight up. Adams said
“we got them. We found them.” Plaintiff says that
he rolled over onto his stomach beside the bush and that he
heard Adams say something to the dog and that the dog started
growling. Plaintiff says Adams commanded “Packen,
” which is the German language command for the dog to
bite. Levi bit plaintiff on his upper right thigh and dragged
him two or three feet to the middle of the sideyard.
parties dispute what happened next. Plaintiff says that Levi
bit him for four to five minutes while the police officers
watched and did nothing to stop it. Defendants say that
plaintiff hit Levi on the nose, that Adams ordered Levi to
stop, and that the dog released plaintiff after 10-15
helped plaintiff get up and had paramedics examine the
plaintiff's injuries. Paramedics told the officers that
plaintiff needed to go to the hospital, and an ambulance took
him to the hospital, where plaintiff received stitches and
other treatment for his wounds.
was charged with resisting arrest and assaulting a police
dog. He pleaded guilty to resisting arrest but the assault on
the police dog charge was dismissed.
filed this action under 42 U.S.C. Section 1983 claiming in
Count I that defendants Albright and Adams violated his
Fourth Amendment rights by using excessive force and failing
to intervene to prevent the use of excessive force against
him, and in Count II that the City of Sikeston showed
deliberate indifference to the rights of others in adopting
unlawful customs or policies and failing to train its
Albright and the City of Sikeston have moved for summary
judgment on the Counts against them.
to Federal Rule of Civil Procedure 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 Broadcasting System, Inc., 368 U.S. 464, 467
(1962). The burden is on the moving party. City of Mt.
Pleasant, Iowa v. Assoc. Elec. Co-op., Inc., 838 F.2d
268, 273 (8th Cir. 1988). 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
(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 (1986); Celotex Corp. v. Catrett, 477 U.S. 317,
ruling 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. Interchange Co., 541 F.2d 207, 210
(8th Cir. 1976).
Defendant Zach Albright
claims that defendant Albright used excessive force against
plaintiff and that he failed to intervene to prevent the use
of excessive force against plaintiff.