United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE
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").
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. (Id. at ¶¶ 25-26)
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).
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).
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).
Fourth Amendment Violation
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
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)).
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).
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 ...