United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
CRITES-LEONI, UNITED STATES MAGISTRATE JUDGE.
Forest Conan Kingcade filed this action against Defendants
Tim Trowbridge, Phillip Caldwell, Mark Dennis, Allan
Campbell, Brandon Moore, and Stephen Gregory, alleging
violations of his constitutional rights under 42 U.S.C.
§ 1983. This matter is before the Court on the
parties' Supplemental Motions for Summary Judgment.
(Docs. 87, 92.)
Second Amended Complaint alleges that, on August 7, 2014,
Defendants Moore, Trowbridge, Campbell, Gregory, Caldwell,
and Dennis entered Kingcade's home without a search
warrant in response to a shoplifting incident at the Town and
Country Grocery Store in Kennett, Missouri. (Doc. 28 at 5.)
Kingcade claims that he was ordered to the ground, and
complied with this directive. Id. He states that,
after he was handcuffed, Moore shoved him to the floor, and
Dennis used his taser on the lower part of his thigh for a
period of sixty seconds or more. Id. at 6. Kingcade
states that Trowbridge and Caldwell stood by and watched the
incident. Id. Kingcade alleges that, upon arrival at
the Dunklin County Jail, Campbell tased him while he was
securely detained. Id.
filed a Motion for Summary Judgment, in which they argued
they were entitled to judgment on all of Kingcade's
claims. They first claimed that Kingcade's excessive
force and failure to intervene claims were barred by the
application of Heck v. Humphrey, 512 U.S. 477
(1994). Defendants further argued that they were entitled to
summary judgment on these claims based on collateral estoppel
and qualified immunity. They claimed that Kingcade's
deliberate indifference to medical needs and illegal search
and seizure claims failed on the merits Court granted
Defendants' Motion for Summary Judgment on June 6, 2016,
and entered judgment in favor of Defendants on Kingcade's
Second Amended Complaint. (Doc. 63.) The Court found that
Heck barred Kingcade's excessive force and
failure to intervene claims. Because this finding was
dispositive, the Court did not address Defendants'
additional arguments in support of summary judgment regarding
these claims. The Court found that Kingcade's deliberate
indifference and illegal search and seizure claims failed as
a matter of law.
February 27, 2017, the United States Court of Appeals for the
Eighth Circuit issued an opinion and judgment affirming in
part and reversing in part this Court's grant of
Defendants' Motion for Summary Judgment. Kingcade v.
Trowbridge, et al., 678 Fed.Appx. 452 (8th Cir. 2017)
(unpublished). The Court affirmed the grant of summary
judgment as to Kingcade's claims of deliberate
indifference, but reversed the grant of summary judgment as
to Kingcade's claims of excessive force and failure to
intervene. The Eighth Circuit remanded the matter to
this Court for further proceedings consistent with its
the Eighth Circuit's opinion, this Court gave the parties
an opportunity to file supplemental dispositive motions. The
parties filed the Supplemental Motions for Summary Judgment,
which are currently before the Court.
56(a) of the Federal Rules of Civil Procedure provides that
summary judgment shall be entered if the moving party shows
“that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” In ruling on a motion for summary judgment, the
court is required to view the facts in the light most
favorable to the non-moving party, giving that party the
benefit of all reasonable inferences to be drawn from the
underlying facts. AgriStor Leasing v. Farrow, 826
F.2d 732, 734 (8th Cir. 1987). The moving party bears the
burden of showing both the absence of a genuine issue of
material fact and its entitlement to judgment as a matter of
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986). If the moving party
meets its burden, the non-moving party may not rest on the
allegations of its pleadings, but must set forth specific
facts, by affidavit or other evidence, showing that a genuine
issue of material fact exists. Gannon Intern., Ltd. v.
Blocker, 684 F.3d 785, 792 (8th Cir. 2012); Gibson
v. Am. Greetings Corp., 670 F.3d 844, 853 (8th Cir.
2012). “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.” Ricci
v. DeStefano, 557 U.S. 557, 586 (2009) (quoting
Matsushita Elec. Indus. Co.., 475 U.S. at 587).
August 7, 2014, Kennett Police Officers responded to a
residence in Kennett, Missouri, at which the officers located
and arrested Plaintiff Forest Conan Kingcade based on a
felony warrant and probable cause that he committed various
offenses including theft (shoplifting) and operating a
vehicle without a license.
his arrest, Kingcade complied with the officers' initial
commands. He was placed in handcuffs without incident. The
parties disagree about what caused Kingcade to fall to the
ground after he was handcuffed. Kingcade claims that Officer
Moore threw him to the ground for no reason. The officers
contend that Kingcade fell as Officer Moore attempted to
escort him out of the house.
also claims that once he was lifted to his feet after being
handcuffed, his boxers fell down, and he asked Officer Moore
to help him pull the boxers up. The officers, on the other
hand, indicate that when they denied Kingcade's request
to put pants on over his boxers, Kingcade pulled his boxer
shorts down and said he would go naked. (Doc. 93-1 at 1, 7,
8.) Kingcade and his girlfriend, Jessica Gordon, state that
Kingcade's hands were cuffed behind his back when his
boxers fell down. Gordon also claims that she asked the
officers for permission to pull Kingcade's boxers up and
they denied her offer to help. Id. at 5.
eventually got Kingcade out of the residence and placed him
in a patrol vehicle to transport him to the Dunklin County
Justice Center. Kingcade argued with the officers and was
verbally abusive to the officer during the ride from his
residence to the jail.
arrival at the jail, jailers and officers had to carry
Kingcade from the police car to the jail booking room. While
at the jail, Kingcade continued to curse and threaten
officers. The officers claim that Kingcade's behavior was
so combative upon arrival to the jail and in the booking room
that the officers had to carry him into a holding cell.
Kingcade claims that he had to be carried into the jail
because his body had locked up in response to being tased at
his residence and that the back of his thigh was injured from
the taser prongs.
used a taser on Kingcade on two different occasions. First,
Officer Dennis used his taser on Kingcade at Kingcade's
residence. After the taser was deployed, Kingcade complied
with the officers' commands and he was placed in a patrol
car for transport to the jail. Kingcade claims he asked for
and was denied medical assistance. Following Kingcade's
arrival at the jail, Corporal Alan Campbell administered his
taser on Kingcade in “dry-stun” mode.
Kingcade's intake at the Eastern Reception, Diagnostic,
and Correctional Center at Bonne Terre more than two months
after his arrest, Kingcade reported that he did not have an
arrest injury or related medical problem. (Doc. 89-4 at 6.)
Kingcade requested that photographs be taken of his wrists
(Doc. 51-1 at 9) on August 7, 2014, id. at 19-20,
and again on August 13, 2014, id. at 21-22. Kingcade
did not ask for photographs to be taken of his thigh.
Id. at 9.
January 16, 2015, Kingcade pled guilty to the class D felony
of resisting an arrest in violation of Mo. Rev. Stat. '
575.150. The charge to which Kingcade pled guilty stated that
“on or about August 7, 2014, in the county of Dunklin,
State of Missouri, Alan Campbell a law enforcement officer,
was attempting to arrest defendant for the felony [of]
stealing and [Kingcade] resisted arrest by
threatening physical force or violence.” (Doc.
89-5 at 7, emphasis added.)
initial matter, the Court notes that, although Kingcade
titles his pleading “Supplemental Motion, ” he
does not request that the Court enter judgment in his favor.
Instead, Kingcade requests that this Court “proceed on
Count I. Excessive Force and Count III. Failure to Intervene
claims for trial.” (Doc. 92 at 2.) Contemporaneous with
this Supplemental Motion, Kingcade filed a “Memorandum
of the Plaintiff Forest Conan Kingcade in Support of his
Supplemental Motion for the Appeal Court Judges Did Not Err
Judgment by Remanded Count I. Excessive Force and III.
Failure to Intervene of his Claims” (Doc. 93), along
with exhibits in support (Doc. 93-1); and “Affidavits
of Uncontroverted Material Facts in Support of the
Plaintiff's Supplemental Motion, that the Appeal Court
Judges (per curiam) Did Not Err” (Doc. 94).
have filed a Motion to Strike Plaintiff's
“Supplemental Motion, ” in which they argue that
the Court should strike the Supplemental Motion and its
supporting documents because they fail to state a proper
basis for summary judgment and because they are untimely.
(Doc. 97.) Defendants state that, to the extent the Court
accepts Kingcade's Supplemental Motion, they re-allege,
readopt, and incorporate by reference Defendants'
Supplemental Motion for Summary Judgment. (Doc. 87.)
Motion to Strike will be denied. Although Kingcade's
Supplemental Motion was filed two days after the deadline set
forth in the Court's March 30, 2017 Order, Defendants are
not prejudiced by this delay. The record shows that Kingcade
has been diligently pursuing his claims in this action. He
has filed multiple ...