United States District Court, W.D. Missouri, Western Division
TINA SMITH, individually and as next of friend and lawful heir of RAYMOND A. SMITH JR., deceased; Plaintiff,
MICHAEL KILGORE, et al. Defendants.
W. HAYS UNITED STATES MAGISTRATE JUDGE.
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, the members of the Kansas City Board
of Police Commissioners, and the Kansas City Chief of
Police 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.
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.
SUMMARY JUDGMENT STANDARD
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.
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).
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”)
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,
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
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
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 ...