United States District Court, W.D. Missouri, St. Joseph Division
ORDER AND OPINION GRANTING DEFENDANTS' MOTION FOR
PARTIAL SUMMARY JUDGMENT
Amended Complaint, (Doc. 34), asserts nine claims against law
enforcement officers from the Lathrop Police Department, the
Clinton County Sheriff's Department, the North Kansas
City Police Department, and a security guard at the North
Kansas City Hospital, (“the Hospital”). All
defendants are sued in their individual and official
capacities. (Doc. 34, ¶¶ 9-10.) The first eight
counts are claimed civil rights violations, brought by
Plaintiff Michael Stewart
(“Michael”) pursuant to 42 U.S.C. § 1983.
Count IX is a claim for loss of consortium brought by
Plaintiff Jennifer Stewart (“Jennifer”).
is a Motion for Partial Summary Judgment filed by the Lathrop
and Clinton County Defendants. The Lathrop Defendants are
Chief John Wilson and Officer David Speiser of the Lathrop
Police Department,  and the Clinton County Defendants are
Sheriff Porter Henson, Major Nicholas Neill,  and Deputies Jeff
Parton and John Patterson of the Clinton County Sheriff's
Office. All Defendants are named in their individual and
official capacities (which means that Lathrop and Clinton
County are also Defendants, e.g., Baker v. Chisom,
501 F.3d 920, 925 (8th Cir. 2007)), and these Defendants are
named in Counts I through VI and Count IX. They seek summary
judgment on some, but not all of the claims asserted against
them. Plaintiffs contend that there are disputed issues of
material fact that preclude judgment as a matter of law. As
set forth below, the Motion for Partial Summary Judgment,
(Doc. 87), is GRANTED.
Court begins by addressing some general matters. First, in
many instances Plaintiffs respond to Defendants'
proffered statements of uncontroverted facts by discussing
unrelated facts that have nothing to do with the proposition
originally advanced by Defendants and that have no bearing on
the legal issues to be decided. The Court finds it
unnecessary to discuss these extraneous allegations.
Relatedly, there are several occasions in which Plaintiffs
attempt to dispute a fact with a contention that is not
supported by the portion of the Record cited by Plaintiffs.
In some instances, Plaintiffs cite to exhibits that they have
not supplied to the Court. Where necessary, the Court has
supplied citations to the Record for the facts recited in
this Order. In other instances, Plaintiffs attempt to
controvert facts by contending that they lack sufficient
information to admit or deny the facts in question. This is
not an appropriate response to a motion for summary judgment;
the non-moving party must point to evidence in the Record
that creates a factual dispute. E.g., Fed. R. Civ.
P. 56(c)(1); Conseco Life Ins. Co. v. Williams, 620
F.3d 902, 909-10 (8th Cir. 2010). In these
instances, the matters are effectively admitted.
The Events of August 8, 2014 Relevant to This
evening of August 8, 2014, Michael was arrested outside a
convenience store in Lathrop, Missouri by Speiser, and was
initially charged with two felonies and a misdemeanor. One
felony charge was dismissed and the other was reduced to a
misdemeanor. He was eventually convicted of assaulting a law
enforcement officer and driving while intoxicated (a Class A
misdemeanor and a Class B misdemeanor, respectively), and the
convictions were affirmed by the Missouri Court of Appeals.
administered force in order to remove Michael from his car,
and at some point Michael lost consciousness; there is no
need to detail these facts because Speiser does not seek
summary judgment on Plaintiffs' claims related to this
use of force. Parton and Patterson arrived on the scene after
Michael had already been removed from his car; they obviously
did not see anything that occurred before they arrived, and
they also did not see Speiser administer any force after they
arrived. (Doc. 88-5, ¶¶ 3-6; Doc. 88-6,
¶¶ 3-6.) Michael regained consciousness while
Speiser was transporting him to the Clinton County Jail, and
he remained conscious for the duration of the trip.
Plaintiffs allege that Speiser administered excessive force
in removing Michael from the police car at the Clinton County
Jail; again, these facts need not be detailed because Speiser
does not seek summary judgment on this claim. Importantly,
Plaintiffs concede that none of the other Defendants was
present at the time of this incident. (Doc. 103, p. 7
(Plaintiffs' response to Defendants' Statement of
Uncontroverted Fact # 18).)
again lost consciousness, and when he regained consciousness
he found himself on the floor in a holding cell. He asked
that an ambulance be summoned, and one was called for him.
While the ambulance was en route, Michael was placed on a
bench outside of his cell. He was then transported by
ambulance to the Hospital. Neill was present at the jail for
at least part of the time Michael was there. However, he
never touched Michael, and he never saw anyone use
inappropriate or excessive force on Michael. (Doc. 88-7,
¶ 5.) Patterson and Parton were also present at the jail
for part of the time that Michael was there; Plaintiffs admit
that Patterson and Parton did not use force on Michael, and
the Record establishes that Patterson and Parton also did not
see anyone subject Michael to excessive or inappropriate
force. (Doc. 88-5, ¶¶ 7-8; Doc. 88-6, ¶¶
7-8.) Henson was not present at the jail when
Michael was there. Similarly, Wilson had no dealings with
Michael on August 8.
Patterson, and Parton went with the ambulance to the
Hospital. Plaintiffs allege that Michael was subjected to
excessive force when he was removed from the ambulance;
Speiser, Patterson, and Parton do not seek summary judgment
on this claim, so the Court need not discuss the surrounding
facts. Later, acting on a complaint signed by Speiser
alleging that he was assaulted by Michael at the Hospital,
Officer Christopher Kimmel of the North Kansas City Police
Department arrested Michael. There are additional facts
surrounding Plaintiffs' claims, but they involve
Plaintiffs' claims against other Defendants and need not
be discussed in this Order.
Additional Facts about Policies, Practices and
to Plaintiffs' complaint in this case, Chief Wilson had
received no allegations of excessive force involving members
of the Lathrop Police Department. The police department's
policy was for all officers to use no more force than
necessary to effect an arrest. All officers (including
Speiser) were required to complete POST training through the
State of Missouri and also received on-the-job training.
Clinton County - through Sheriff Henson - has a written
policy regarding the use of force, which requires deputies
and other Sheriff's Office employees to use the minimum
amount of force necessary to effectuate arrests, overcome
resistance, prevent escapes, or otherwise accomplish the
lawful performance of duty. Use of Force reports are required
whenever force is utilized, and those who utilize excessive
force are subject to discipline. Use of Force reports are
reviewed by supervisors, and the reviewing supervisor(s) are
responsible for bringing incidents of excessive force to
Henson's attention. There have been occasions in which
Henson has disciplined deputies for using excessive force.
(Doc. 88-8.) Clinton County also has a policy requiring law
enforcement personnel to protect members of the public from
harm, and officers are expected to intervene to prevent the
use of excessive force. Finally, Neill, Parton and Patterson
all underwent POST training and received on-the-job training.
attempt to create factual disputes on some of these points,
but their efforts are unavailing. They stress that excessive
force was used in this case, but even if this is true it does
not alter the fact that (1) these policies exist and (2)
deputies have been disciplined for administering excessive
force. Plaintiffs also contend that other individuals have
been subjected to excessive force and identify Kerrie Mick,
Troy Thompson, and Steven Turner. However, the material they
cite for Mick is Exhibit 20, and there is no Exhibit 20 - nor
is there any other exhibit that appears to be related to
Mick. Exhibits 6 and 7 are affidavits from Turner and
Thompson. Turner's affidavit primarily discusses the
Daviess/DeKalb County Regional Jail.
103-6.) Thompson's affidavit discusses both the Clinton
Jail and the Daviess/DeKalb County Regional Jail. It also, as
Defendants point out, relies on hearsay to describe other
incidents at the Clinton County Jail, and hearsay cannot be
used to create a factual dispute. E.g., Jenkins v.
Winter, 540 F.3d 742, 748 (8th Cir. 2008). Neither
affidavit says anything about the Lathrop Police Department,
and the competent evidence in the affidavits does not
establish that any force used at the Clinton County Jail was
excessive or otherwise unconstitutional.
Plaintiffs' Amended Complaint
following counts have been asserted against the moving
• Count I alleges that Patterson, Parton, and Speiser
violated Michael's constitutional rights by using
excessive force (1) when Michael was arrested outside the
convenience store and (2) when he was first brought to the
Clinton County Jail.
• Count II alleges that Patterson, Parton, and Speiser
violated Michael's constitutional rights by arresting him
outside the convenience store without probable cause.
• Count III alleges that Patterson, Parton, Wilson,
Hanson, Neill, and Speiser all violated their constitutional
obligations to protect Michael from the use of excessive
force alleged in Counts I and V.
• Count IV alleges that all of the Defendants conspired
with each other to violate Michael's constitutional
• Count V alleges that Patterson, Parton, and Speiser
administered excessive force at the Hospital.
• Count VI contains only “official capacity”
claims and thus is construed as asserting claims against the