United States District Court, E.D. Missouri, Eastern Division
D. NOCE, UNITED STATES MAGISTRATE JUDGE
action is before the court on the motions of (a) plaintiffs
Eric Wenzel, Annie Alley, and Thelma Wenzel for partial
summary judgment against defendant Carl Storm on Count 1 (ECF
No. 35); (b) defendant City of Bourbon for summary judgment
against plaintiffs on Counts 3, 4, and 5 (ECF No. 58); and
(c) defendant Carl Storm for summary judgment against
plaintiffs on Counts 1, 3, 4, and 5 (ECF No. 60). The court
heard oral argument on the motions on March 31, 2017.
seek relief in five counts:
Count 1: against defendant Storm under 42 U.S.C. § 1983
for use of unconstitutionally excessive force that resulted
in the death of plaintiffs' decedent, Gary Wenzel on
March 5, 2014;
Count 2 against defendant City of Bourbon was dismissed by
the court (ECF No. 17);
Count 3 against both defendants for wrongful death under the
law of Miss
ouri; Count 4 against both defendants for assault under the
law of Missouri; and
Count 5 against both defendants for battery under the law of
court has subject matter jurisdiction over Count 1 pursuant
to 28 U.S.C. §§ 1331 and 1343(3), and supplemental
subject matter jurisdiction over Counts 3, 4, and 5 pursuant
to 28 U.S.C. § 1367(a).
Legal standard for summary judgment
judgment is proper “if there is no dispute of material
fact and reasonable fact finders could not find in favor of
the nonmoving party.” Shrable v. Eaton Corp.,
695 F.3d 768, 770 (8th Cir. 2012); see also Fed. R.
Civ. P. 56(a). The party moving for summary judgment must
demonstrate the absence of a genuine issue of material fact
and that it is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
The burden shifts to the non-moving party to demonstrate that
disputes of fact do exist only after the movant has made its
must grant summary judgment when the pleadings and the
proffered evidence demonstrate that no genuine issue of
material fact exists and that the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex
Corp, 477 U.S. at 322. A fact is “material”
if it could affect the ultimate disposition of the case, and
a factual dispute is “genuine” if there is
substantial evidence to support a reasonable jury verdict in
favor of the nonmoving party. Rademacher v. HBE
Corp., 645 F.3d 1005, 1010 (8th Cir. 2011).
the moving party has carried its burden under Rule 56(c), its
opponent must do more than simply show that there is some
metaphysical doubt as to the material facts . . . . Where the
record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no genuine
issue for trial.” Scott v. Harris, 550 U.S.
372, 381 (2007) (internal citation omitted). Stated another
way, the nonmoving party must “make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial.” Celotex Corp.,
477 U.S. at 322.
court must view the evidence in the light most favorable to
the nonmoving party and accord it the benefit of all
reasonable inferences. Scott, 550 U.S. at 379-80.
The nonmoving party must proffer “affirmative evidence
in order to defeat a properly supported motion for summary
judgment.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 257 (1986); Iverson v. Johnson Gas
Appliance Co., 172 F.3d 524, 530 (8th Cir. 1999). If the
nonmoving party fails to proffer substantial evidence of an
essential element of a claim, summary judgment is appropriate
on that claim because “a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Celotex Corp., 477 U.S. at 323; St. Jude Med.,
Inc. v. Lifecare Intern., Inc., 250 F.3d 587, 595 (8th
Count 1 the parties have filed cross-motions for summary
judgment. “[T]he filing of cross motions for summary
judgment does not necessarily indicate that there is no
dispute as to a material fact, or have the effect of
submitting the cause to a plenary determination on the
merits.” Wermager v. Cormorant Twp. Bd., 716
F.2d 1211, 1214 (8th Cir. 1983).
supporting or disputing statements of material fact offered
to support a motion for summary judgment, the opposing party
may object that such a statement is not supported by
admissible evidence. Fed.R.Civ.P. 56(c)(2) (“A party
may object that the material cited to support or dispute a
fact cannot be presented in a form that would be admissible
in evidence.”); Moore v. Indehar, 514 F.3d
756, 761 (8th Cir. 2008) (ruling hearsay evidence properly
not considered on motion for summary judgment). Plaintiffs
argue that defendant Storm's statements that he had heard
about decedent Gary Wenzel's background and attitude
before the March 5, 2014, incident, are inadmissible because
they are hearsay and self-serving. (ECF No. 62 at
¶¶ 10, 11, 12, 16, 24, 25, 34).
court disagrees with plaintiffs. The warnings defendant Storm
states he had received about Wenzel (ECF Nos. 50, 61, Ex. 1
at ¶¶ 10, 11, 12, 16, 24, 25) would be hearsay if
they were offered for the truth of the facts stated in the
warning statements. See Fed. R. Evid. 801(c).
However, these statements are not hearsay when used to prove
their effect on defendant Storm. See United States v.
Wright, 739 F.3d 1160, 1170 (8th Cir. 2014); see
also Bady v. Murphy-Kjos, 628 F.3d 1000, 1002-03 (8th
Cir. 2011) (holding that information provided to an officer
about a suspect is not hearsay when only offered to show
“what the officers knew, or thought they knew, at the
time of the arrest.”). Accordingly, paragraphs 10-12,
16, and 24-25 are not inadmissible hearsay
plaintiffs' objections that these statements were
self-serving, the court is not persuaded that they are
thereby inadmissible or insufficient to establish a material
fact. Plaintiffs rely on the Eighth Circuit holding that:
“we cannot draw favorable inferences from [a
party's] unsupported, self-serving affidavit stating his
subjective views.” Conolly v. Clark, 457 F.3d
872, 876 (8th Cir. 2006). However, the Conolly court
was referring to a party who was attempting to explain how he
understood the terms of a contract, when the question on
summary judgment was whether there was an objective
manifestation of an intent to be bound. Id. This
holding is inapplicable here, where the question is not
purely objective, but also subjective.
Rule of Civil Procedure 56(c) provides that affidavits may be
considered in ruling on a motion for summary judgment, so
long as they are “made on personal knowledge, . . . set
forth such facts as would be admissible in evidence, and . .
. show affirmatively that the affiant is competent to testify
to the matters stated therein.” Fed.R.Civ.P. 56(c).
Defendant Storm's affidavit (ECF No. 50) only goes to
events of which he has personal knowledge. He sets forth
facts that are admissible in evidence as ...