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Wenzel v. City of Bourbon, Missouri

United States District Court, E.D. Missouri, Eastern Division

April 13, 2017

ERIC WENZEL, ANNIE ALLEY, and THELMA WENZEL, Plaintiffs,
v.
CITY OF BOURBON, MISSOURI, and CARL STORM, Defendants.

          MEMORANDUM

          DAVID D. NOCE, UNITED STATES MAGISTRATE JUDGE

         This 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.

         Plaintiffs 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 Missouri.

         The 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).

         I. Legal standard for summary judgment

         Summary 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 showing. Id.

         Courts 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).

         “When 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.

         The 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 Cir. 2001).

         On 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).

         II. Evidentiary issues

         When 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).

         The 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 statements.[1]

         As to 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.

         Federal 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 ...


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