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Graham v. Manley

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

May 4, 2017

MATTHEW MANLEY, in his individual capacity and official capacity as a police officer of the St. Louis Metropolitan Police Department; and GREGORY KLIPSCH, in his individual capacity and official capacity as a police officer of the St. Louis Metropolitan Police Department, Defendants.



         This matter, brought under 42 U.SC. § 1983, is before the court on the motion of Defendants Matthew Manley and Gregory Klipsch to dismiss Plaintiff Fredrick Graham's Second Amended Complaint (the “Complaint”) for failure to state a claim upon which relief may be granted. For the reasons set forth below, the motion will be granted with respect to all claims, except the claim that Defendant Klipsch, in his individual capacity, used excessive force in effecting Plaintiff's arrest.


         Plaintiff's Complaint asserts Fourth and Fourteenth Amendment claims of excessive force (Count I) and unreasonable seizure (Count II) against Defendants in their individual and official capacities as police officers of the St. Louis Metropolitan Police Department. Plaintiff's claims arise out of his arrest on September 3, 2014. Plaintiff alleges that he was a sales representative, working “in his sales territory” going door-to-door looking for customers for mobile phone service, when Defendants, who were in plainclothes purportedly investigating a series of robberies, approached and directed Plaintiff to put his hands up. According to the Complaint, Klipsch “without warning” tased Plaintiff in dart mode several times, with one dart hitting him in the lower back and another hitting him in the back of the head. The impact of the taser caused Plaintiff to fall against the concrete sidewalk, knocking him unconscious and injuring his eye, shoulder, and back. Plaintiff further alleges that at the time he was tased, he was not resisting arrest, was not a suspect in a crime, and did not pose a threat to anyone. Plaintiff further alleges that Defendants placed him in handcuffs, with Defendant Manley placing his knee against Plaintiff's head, as Plaintiff lay on the ground. Plaintiff was brought to the police “substation” and then to jail, where a nurse thought Plaintiff's shoulder was dislocated. Plaintiff was taken to the hospital, and discharged on September 4, 2014, fit for confinement. Plaintiff alleges that he continues to experience headaches as a result of being tased and that the impact of the fall from the taser also aggravated his back injury, and he continues to suffer from back pain. ECF No. 52.

         Following his arrest, Plaintiff was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). United States v. Graham, No. 4:14-CR-00333-RLW. An evidentiary hearing was held on Plaintiff's pretrial motions to suppress statements and physical evidence (a ski mask and gloves found in Plaintiff's pocket, and a gun), based on which the district court (adopting the magistrate judge's Report and Recommendation) made the following factual findings: At 11:00 p.m. on the night in question, Defendants were driving in an unmarked car in a high crime area when they saw Plaintiff walking alone in the middle of a deserted street. Plaintiff repeatedly looked over his shoulder to monitor Defendants' location, and repeatedly pulled at his waistband, which Defendant Klipsch believed, based on his experience, was an attempt to conceal a weapon. When Plaintiff walked up to the front door of a house, Defendants called out to him, identified themselves as police officers, and asked Plaintiff if he lived there. Plaintiff gave inconsistent answers and then ran from the house, throwing a pistol to the ground as he ran. Defendants ran after Plaintiff and ordered him to stop several times. Petitioner ran on and Defendant Klipsch again ordered him to stop and told him he would use a taser if he did not stop. Petitioner kept running and Defendant Klipsch tased him. “Both taser prongs properly deployed and struck [Plaintiff.]” Plaintiff fell to the ground and Defendants placed him under arrest and handcuffed him. Klipsch offered Plaintiff medical attention, but Plaintiff refused it. Plaintiff did not appear disoriented, groggy, sleepy, or in pain after being tased. Petitioner was transported to jail for booking. Upon arrival, Plaintiff complained of shoulder pain and he was taken to the hospital where he was examined, and then discharged that same night. Id. ECF No. 54 at 9-10.

         The district court held that Defendants “knew reasonable, articulable facts that supported their reasonable suspicion that [Petitioner] was involved in some criminal activity” when he was at the front of the house before he fled, and that this allowed Defendants to stop Plaintiff for a brief investigatory stop. The district court further held that after Petitioner fled, Defendant Klipsch had probable cause to believe that Plaintiff was illegally in possession of a firearm. The court concluded that seizure of the mask and gloves from Plaintiff's person should not be suppressed, “because they were seized in a proper search incident to a lawful arrest, which is an exception to the Fourth Amendment warrant requirement.” Id. ECF No. 54 at 15.

         Plaintiff was convicted by a jury, and his conviction was affirmed on appeal. United States v. Graham, No. 16-1423, 2017 WL 702287 (8th Cir. Feb. 22, 2017).


         Defendants argue that Plaintiff's Complaint should be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted for three reasons. Defendants first argue that collateral estoppel bars re-litigation of the propriety of Plaintiff's arrest, based on the facts as determined by the district court in Plaintiff's criminal prosecution. In support of this argument, Defendants rely on cases applying Missouri rules of collateral estoppel.

         Second, Defendants contend that both counts against Defendants in their individual capacities are barred by qualified immunity. Defendants argue that Count I should be dismissed because, under the totality of circumstances found by the district court in Plaintiff's criminal prosecution, Defendants used reasonable - not excessive - force; and Count II should be dismissed because under the facts determined by the court in Plaintiff's criminal prosecution, Defendants did not illegally or unreasonably seize Plaintiff. Lastly, Defendants argue that Plaintiff's claims against Defendants in their official capacities should be dismissed because such claims are claims against the municipality, and Plaintiff fails to allege a policy or custom that would trigger municipal liability under Monell v. Department of Social Services, 436 U.S. 658 (2000).

         Plaintiff responds that defensive collateral estoppel is inappropriate here because Defendants cannot establish that the issues in this proceeding and in Plaintiff's criminal prosecution are identical, in that the suppression hearing and subsequent order did not specifically address whether the officers' use of force was reasonable. Plaintiff further argues that collateral estoppel is unavailable because Defendants cannot ascertain that Plaintiff had a full and fair opportunity to litigate the current issues at his evidentiary hearing in his criminal prosecution. More specifically, Plaintiff argues that the nature of a “preliminary hearing” is fundamentally different than a trial, and as such, orders from preliminary hearings should not have preclusive effect in § 1983 actions. Plaintiff also relies on cases applying Missouri collateral estoppel principles.

         Plaintiff contends that qualified immunity is inapplicable because, taking Plaintiff's allegations in the Complaint as true, “Defendants' use of a dangerous weapon on a non-violent suspect who was not fleeing was objectively unreasonable, ” and Defendants' seizure of Plaintiff was unreasonable because Plaintiff was not a suspect in a crime, not fleeing, and not resisting arrest. Lastly, Plaintiff requests the right to re-plead, after discovery, a municipal custom or policy.


         For a plaintiff to survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. The reviewing court must accept the plaintiff's factual allegations as true and construe them in the plaintiff's favor, but the court is not required to accept the ...

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