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Scherer v. Roemer

United States District Court, E.D. Missouri, Southeastern Division

July 9, 2018

GABE SCHERER, Plaintiff,
CHRISTOPHER ROEMER, et al, Defendants.



         This matter is before the Court on Defendants' Motion for Summary Judgment. (ECF No. 40) The motion is fully briefed and ready for disposition. For the foregoing reasons, the Court will grant summary judgment in favor of Defendants Christopher Roemer ("Roemer"), Gary Stolzer ("Stolzer"), and the County of Ste. Genevieve, Missouri ("Ste. Genevieve County").[1]

         I. Factual Background

         This case stems from an injury to Plaintiffs dog during an investigation by the Ste. Genevieve County Sheriffs Office. On August 25, 2015, Deputy Roemer was dispatched to 9705 Misplay Road in Bloomsdale, Missouri, which property was directly across the street from Plaintiffs house. (Defs.' Statement of Uncontroverted Material Facts ["SUMF"] ¶ 1, ECF No. 42) Roemer was investigating an abandoned vehicle on private property. (Id.) From the vehicle Roemer could see Plaintiffs front door and decided to attempt contact with the residents to seek information regarding the abandoned vehicle. (Id. at ¶ 2) Roemer parked his patrol car in front of Plaintiff s residence and walked toward the front door. (Id. at ¶ 3) As he approached, he observed "No Trespassing" and "Beware of Dog" signs. (PL's SUMF ¶ 20, ECF No. 45) Upon reaching the front door, Roemer knocked on the door and announced, "Sheriffs Office." (Defs.' SUMF ¶ 5) After hearing no response, Roemer knocked and announced his presence a second time. (Id. at ¶ 6) Roemer then heard a dog growl and bark. (Id. at ¶ 7) When he turned a round, Roemer observed Plaintiffs large dog, Max, charging at him from the detached garage. (Id.) However, Plaintiff claims that Max was a gentle dog with no history of anger toward anyone. (PL's SUMF ¶ 14) Roemer drew his firearm and discharged four rounds at Plaintiffs dog, resulting in injury to the dog. (Defs.' SUMF ¶ 9; PL's SUMF ¶ 21) Plaintiffs dog returned to the detached garage, and Roemer went back to his patrol vehicle to wait for backup. (Defs.' SUMF ¶ 10) Roemer and his Sergeant then waited for Plaintiff to return home. (Id. at ¶ 11) Upon Plaintiffs return, deputies advised Plaintiff that his dog had been shot and that they believed he was lying dead in the garage. (PL's SUMF ¶ 23) Plaintiffs dog Max was still alive, and Plaintiff drove him to Veterinary Specialty Services, where his leg was amputated.[2] (Id. at ¶¶ 25-26)

         On September 19, 2016, Plaintiff filed a Complaint under 42 U.S.C. § 1983 alleging civil rights and constitutional violations. (ECF No. 1) Specifically, Plaintiff claims that Defendant Roemer violated Plaintiffs Fourth Amendment rights by unreasonably shooting Plaintiffs dog, which constituted an unlawful seizure (Count I). Plaintiff also claims that Defendants Ste. Genevieve County and Gary Stolzer, the Ste. Genevieve County Sheriff, violated Plaintiffs Fourteenth Amendment Rights by delegating authority to Roemer to make policy or, alternatively by failing to properly train, supervise, and control Roemer (Count II). Finally, Plaintiff asserts that Ste. Genevieve County is liable for Roemer's alleged constitutional violations under a theory of respondeat superior (Count III).

         II. Legal Standard

         "Summary judgment is proper 'if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.'" Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (quoting Fed.R.Civ.P. 56(c)(2)). "At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380 (2007) (citation omitted).

         The moving party has the initial burden to establish the non-existence of any genuine issue of fact that is material to a judgment in its favor. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988); see also Torgerson, 643 F.3d at 1042. To meet this burden, the movant must inform the district court of the basis for the motion "and must identify 'those portions of [the record] ... which it believes demonstrate the absence of a genuine issue of material fact.'" Torgerson, 643 F.3d at 1042 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). When the movant meets this burden, "the nonmovant must respond by submitting evidentiary materials that set out 'specific facts showing that there is a genuine issue for trial.'" Id. (quoting Celotex, 477 U.S. at 324). The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). '"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, 475 U.S. at 587). Conclusory allegations are insufficient to establish a material question of fact required to defeat summary judgment. Boude v. City of Raymore, Missouri, 855 F.3d 930, 935 (8th Cir. 2017); Quinn v. St. Louis Cty., 653 F.3d 745, 752 (8th Cir. 2011).

         III. Discussion

         A. Fourth Amendment Violation

         "To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of a constitutional right committed by a person acting under color of state law." Andrews v. City of W. Branch, Iowa, 454 F.3d 914, 918 (8th Cir. 2006) (citations omitted). Plaintiff contends that Roemer's action in shooting Plaintiffs dog violated Plaintiffs right to be free from unreasonable seizures under the Fourth Amendment. "The Fourth Amendment protects 'persons, houses, papers, and effects, against unreasonable searches and seizures.'" Hansen v. Black, 872 F.3d 554, 558 (8th Cir. 2017) (quoting U.S. Const, amend. IV). '"A seizure of property occurs when there is some meaningful interference with an individual's possessory interests in that property.'" Id. (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984) (internal quotations omitted)). "A dog is considered property for Fourth Amendment purposes." Andrews, 454 F.3d at 918.

         Defendant, however, claims that Roemer is entitled to qualified immunity on Plaintiffs Fourth Amendment violation claim in Count I. "Qualified immunity protects governmental officials from liability for civil damages if they have not violated 'clearly established statutory or constitutional rights of which a reasonable person would have known.'" Akins v. Epperly, 588 F.3d 1178, 1183 (8th Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). This immunity permits '"officers to make reasonable errors,' Habiger v. City of Fargo et al, 80 F.3d 289, 295 (8th Cir. 1996), and provides 'ample room for mistaken judgments.' Malley v. Briggs, 475 U.S. 335, 343, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)." Borgman v. Kedley, 646 F.3d 518, 522 (8th Cir. 2011). In addition, "[t]he defense protects public officials unless they are 'plainly incompetent' or 'knowingly violate the law.'" Id. (quoting Hunter v. Bryant, 502 U.S. 224, 229(1991)).

         To determine whether government officials are entitled to qualified immunity, courts consider two factors: "(1) whether the facts alleged, construed in the light most favorable to [the plaintiff], establish a violation of a constitutional or statutory right, and (2) whether that right was clearly established at the time of the alleged violation, such that a reasonable official would have known that her actions were unlawful." Keil v. Triveline, 661 F.3d 981, 985 (8th Cir. 2011). The courts have discretion to decide which of the two prongs should be addressed first. Pearson v. Callahan, 555 U.S. 223, 236 (2009). '"If either question is answered in the negative, the public official is entitled to qualified immunity.'" Norris v. Engles, 494 F.3d 634, 637 (8th Cir. 2007) (quoting Vaughn v. Ruoff, 253 F.3d 1124, 1128 (8th Cir. 2001)). "Although qualified immunity is an affirmative defense, the burden is on the plaintiff to plead, and, if presented with a properly supported motion for summary judgment, to present evidence from which a reasonable jury could find that the defendant officer has violated the plaintiffs constitutional rights." Moore v. Indehar, 514 F.3d 756, 764 (8th Cir. 2008) (citations omitted).

         Here, Plaintiff claims that Defendant Roemer's use of force against Plaintiffs dog was unreasonable. "The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer; it does not turn on the subjective intent of the officer." Andrews, 454 F.3d at 918 (citing Graham v. Connor,490 U.S. 386, 395 (1989)). Courts have held that a police officer performs an unreasonable seizure when he shoots and kills a family pet when that pet presented no danger and non-lethal means of capture would have been effective. Id. (citing Brown v. Muhlenberg Twp.,269 F.3d 205, 210-11 (3rd Cir. 2001); Fuller v. Vines,36 F.3d 65, 68 (9th Cir. 1994)). For a defense of qualified immunity from such liability, Roemer must show that "a reasonable officer with the ...

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