United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FL EISSIG UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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).
OF THE PARTIES
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
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).
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.
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.
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 ...