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Smith v. Kilgore

United States District Court, W.D. Missouri, Western Division

November 27, 2017

TINA SMITH, individually and as next of friend and lawful heir of RAYMOND A. SMITH JR., deceased; Plaintiff,
v.
MICHAEL KILGORE, et al. Defendants.

          SARAH W. HAYS UNITED STATES MAGISTRATE JUDGE.

         I. BACKGROUND

         Pending before this Court is Defendants' Motion For Summary Judgment and Suggestions In Support (doc. #70). On December 23, 2014, plaintiff filed her First Amended Complaint naming four individual officers[1], the members of the Kansas City Board of Police Commissioners[2], and the Kansas City Chief of Police[3] as defendants. Plaintiff alleged the following causes of action: (I) excessive force in violation of the Fourth Amendment and 42 U.S.C. §1983; (II) establishment of an official policy allowing the use deadly force by failing to adequately train, discipline, sanction and supervise officers with respect to the constitutional rights of citizens in violation of the Fourth Amendment and 42 U.S.C. §1983; (III) battery; (IV) assault; (V) state law claims for negligent hiring and retention; (VI) wrongful death pursuant to Mo. Rev. Stat. § 537.080; (VII) failure to provide access to medical care in violation of 42 U.S.C. §1983; and (VIII) establishment of an official policy and custom of providing inadequate medical care to those in police custody in violation of 42 U.S.C. §1983. (Doc. #3) At the end of each count, plaintiff asked for judgment against defendants, jointly and severally.

         On December 20, 2015, this Court granted defendants' motion to dismiss Count V of the First Amended Complaint which alleged state claims for negligent hiring and retention. (Doc. #25) Defendants now bring a motion for summary judgment on the remaining claims.

         II. SUMMARY JUDGMENT STANDARD

         A moving party is entitled to summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party who moves for summary judgment bears the burden of showing that there is no genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). However, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. at 247-48. “Material facts” are those “that might affect the outcome of the suit under the governing law, ” and a dispute about a material fact is “genuine” "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248.

         The initial burden of proof in a motion for summary judgment is placed on the moving party to establish the absence of any genuine issue of material fact. Olson v. Pennzoil Co., 943 F.2d 881, 883 (8th Cir. 1991). If the moving party meets its initial burden, the nonmoving party must then produce specific evidence to demonstrate genuine issues for trial. Id. When the burden shifts, the nonmoving party may not rest on the allegations in its pleadings, but must set forth, via citation to material in the record, specific facts showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(c)(1); Stone Motor Co. v. Gen. Motors Corp., 293 F.3d 456, 465 (8th Cir. 2002). When considering a motion for summary judgment, a court must scrutinize the evidence in the light most favorable to the nonmoving party and the nonmoving party “must be given the benefit of all reasonable inferences.” Mirax Chem. Prods. Corp. v. First Interstate Commercial Corp., 950 F.2d 566, 569 (8th Cir. 1991). The Court may not weigh the evidence in the record, decide credibility questions or determine the truth of factual issues, but merely decides if there is evidence creating a genuine issue for trial. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011).

         III. UNDISPUTED FACTS

         In her responsive pleading, plaintiff denies a number of Defendants' Undisputed Material Facts and provides citations to support such denials. Most of the citations do not directly controvert defendants' facts. (See for example the discussion on page 11-12, infra) The Eighth Circuit has repeatedly stated that “in opposing a motion for summary judgment, a nonmoving party may not rely on mere denials or allegations in its pleadings, but must designate specific facts showing that there is a genuine issue for trial.” Hernandez v. Jarman, 340 F.3d 617, 622 (8th Cir. 2003); see also Brandt v. Davis, 191 F.3d 887, 891 (8th Cir. 1999) (finding that a party's failure to “submit even a shred of evidence” to contradict evidence presented by the movant required the Court to find the facts, as presented by the movant, uncontroverted). Because plaintiff has failed to submit any evidence contradicting Defendants' Undisputed Material Facts, the following facts are uncontroverted:

1. Plaintiff Tina Smith is the mother of the deceased, Raymond Smith. [Doc. #3, at ¶5] (Defendants' Undisputed Material Facts (hereinafter “DUMF”) #1)
2. Officers Selvir Abidovic, Andrew Keller, Christopher Krueger, and Christopher Taylor are Kansas City Police Department (hereafter “KCPD”) police officers and employees of the Kansas City, Missouri Board of Police Commissioners (hereafter “the Board”), and were so at the time of this shooting. [Doc. #3, at ¶¶16-19] (DUMF #2)
3. On May 26, 2012, Officers Abidovic, Keller, Krueger, and Taylor were in full uniform. [Doc. #70-1 (Def. Ex. A), at ¶3; Doc. #70-6 (Def. Ex. C), at ¶2; Doc. #70-7 (Def. Ex. D), at ¶2] (DUMF #3)
4. Also on that day, Officers Abidovic and Keller were partners and in the same marked patrol car; and Officers Krueger and Taylor were partners and in the same marked patrol car. [Doc. #70-6, at ¶2; Doc. #70-7, at ¶2; Doc. #70-1, at ¶3] (DUMF #4)
5. Richard C. Smith is the current Chief of Police for the KCPD. Darryl Forte was the Chief of Police for the KCPD at the time of this shooting. [Doc. #3, at ¶9] (DUMF #5, modified)
6. The Board, through its members, Alvin Brooks, Angela Wasson-Hunt, Michael Rader, and Mayor Sly James, operates the KCPD. [Doc. #3, at ¶¶6-7] (DUMF #6)
7. On May 26, 2012, at approximately 4:00 p.m., Officers Abidovic and Keller were dispatched on a report of a black male, a black female, and a white female involved in suspicious prostitution activity, inside the park, at 542 Park Avenue, Kansas City, Missouri. [Doc. #70-4 (Def. Ex. A-2), at time stamp 00:27 to 00:50; Doc. #70-6, at ¶3; Doc. #70-7, at ¶3] (DUMF #7)
8. Officer Abidovic saw a black male (later identified as, and herein after referred to as, Raymond Smith) sitting on a wall inside the park, speaking to a white female. [Doc. #70-7, at ¶5] (DUMF #8)
9. He suspected Mr. Smith and the white female were the subjects of the suspicious prostitution, because they fit the general description from the dispatcher (a black male and white female), they appeared to be together, and they were the only ones inside the park. [Doc. #70-7, at ¶6] (DUMF #9)
10. Wanting to speak to them, Officer Abidovic walked toward them; but they walked away. [Doc. #70-7, at ¶7; Doc. #76-3, at 6:6-12] (DUMF #10)
11. This heightened Officer Abidovic's suspicions that they were the subjects of the reported prostitution. [Doc. #70-7, at ¶8] (DUMF #11)
12. Officer Abidovic yelled at them, “stop, come and talk to me.” [Doc. #70-7, at ¶9; Doc.#76-3, at 52:13-23] (DUMF #12)
13. Mr. Smith looked back at Officer Abidovic, and then ran out of the park, which further heightened Officer Abidovic's suspicions that Mr. Smith was the subject of the reported prostitution. [Doc. #70-7, at ¶10; Doc. #76-3 (Pl. Ex. 3), at 6:10-12 and 8:5-8] (DUMF #13)
14. Officer Abidovic pulled his taser and chased after him on foot. [Doc. #70-7, at ¶11] (DUMF #14)
15. Officer Keller radioed dispatch the general description of Mr. Smith (black male wearing a blue shirt) and location of the foot pursuit (northbound from 542 Park). [Doc. #70-6, at ¶5; Def. Ex. A-2, at 4:46 to 5:06] (DUMF #15)
16. He then got back in the patrol car and drove it around the block, in an attempt to get ahead of Mr. Smith to block his path of escape. [Doc. #70-6, at ¶5; Doc. #70-9 (Def. Ex. F), at 4:11:48 to 4:12:50] (DUMF #16)
17. Officers Krueger and Taylor were dispatched to the area of 542 Park, to assist. [Doc. #70-1, at ¶4; Doc. #70-2 (Def. Ex. A-1), at 1; Def. Ex. A-2, at 4:46 to 5:06] (DUMF #17)
18. While pursuing Mr. Smith, Officer Abidovic saw a gun in his right hand. [Doc. #70-7, at ¶12] (DUMF #18)
19. Officer Abidovic pointed his gun at Mr. Smith and yelled, “Drop the gun!” [Doc. #70-7, at ...

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