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Fletcher v. City of Marshall

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

January 25, 2019

HARLAN D. FLETCHER, JR., Plaintiff,
v.
CITY OF MARSHALL, MISSOURI, et al., Defendants.

          ORDER GRANTING IN PART DEFENDANTS' MOTION TO DISMISS

          GREG KAYS, JUDGE

         This case arises from Plaintiff's arrest in a Sonic Drive-In parking lot in Marshall, Missouri. After a “carhop” reported seeing Plaintiff slouched over in the cab of his truck, apparently passed out, the restaurant's manager called the police. Exactly what happened after the police arrived is in dispute, but the parties agree the police removed Plaintiff from the truck by force and later found a small bag containing methamphetamine and marijuana in the truck. The police arrested Plaintiff and charged him with felony and misdemeanor drug possession, possession of paraphernalia, and resisting arrest. The Saline County Circuit Court later suppressed all evidence obtained during Plaintiff's arrest.

         Plaintiff is now suing the officers involved in his arrest, the Marshall Chief of Police, the city of Marshall, the Sonic Drive-In, and the Sonic manager who called the police. The Petition asserts four federal civil rights claims and four state law claims.

         Now before the Court is Defendants' Joint Motion to Dismiss (Doc. 41). Defendants argue the Court must dismiss this case with prejudice because during discovery Plaintiff repeatedly invoked his Fifth Amendment right against self-incrimination and refused to answer questions related to his possession and use of drugs on the day of the incident. Defendants argue state and federal law prohibit Plaintiff from prosecuting affirmative claims while invoking his Fifth Amendment right not to answer these questions.

         Plaintiff responds that the invocation of his right against self-incrimination was a valid exercise of his Fifth Amendment privilege, and that striking his pleadings as a sanction would be an abuse of discretion. Plaintiff suggests that, at most, the Court should grant Defendants an adverse inference instruction.

         The Court holds that under both state and federal law Plaintiff cannot continue to prosecute his affirmative claims while refusing to answer relevant questions by invoking the privilege. Plaintiff shall decide whether he wishes to waive his right against self-incrimination and answer discovery or have his case dismissed with prejudice. The motion is GRANTED IN PART.

         Background

         On August 11, 2016, a “carhop” at the Sonic in Marshall, Missouri, reported to her manager that there was a customer in a truck who, when she took his order, had what she thought was an alcoholic bottle in his lap, and he now appeared to be unconscious. The manager called the police instead of waking the man up because, as the he told the 911 operator, the man “looks like he could be crazy.” The man was Plaintiff Harlan Fletcher, Jr., a 140 pound, sixty-five year-old disabled veteran.

         The Defendant Marshall police officers arrived and attempted to interact with Plaintiff. The parties dispute what happened next. The officers allege Plaintiff: spoke with slurred speech; would not make eye contact; was fidgety, belligerent, and uncooperative; appeared to be hiding something behind his back; attempted to put the key back in the ignition; and refused a request to exit the vehicle through the passenger side. Plaintiff denies most of these assertions. He contends his disability prevented him from leaving the truck through the passenger side, and that he told the officers this but they ignored his pleas. The parties agree that after using pepper spray unsuccessfully to get Plaintiff to exit the truck, the police removed Plaintiff from the cab by force, and Plaintiff's head hit the ground at least once.

         After the officers handcuffed Plaintiff they searched the truck. Inside, they found what he was allegedly trying to hide behind his back: a small bag containing marijuana and methamphetamine, as well as two glass pipes used to smoke marijuana and methamphetamine.

         The police arrested Plaintiff, and the Saline County Prosecutor charged Plaintiff with felony and misdemeanor drug possession, possession of paraphernalia, and resisting arrest. The Saline County Circuit Court later suppressed all evidence obtained during Plaintiff's arrest, and the Saline County Prosecutor subsequently dismissed all charges.

         On October 30, 2017, Plaintiff filed this lawsuit in the Circuit Court of Saline County, Missouri. Defendants removed it to federal court on December 1, 2017. Plaintiff's Petition asserts federal claims under 42 U.S.C. § 1983 for unlawful seizure (Count I), excessive force (Count II), failure to train or supervise (Count III), and a custom of using excessive force during arrests (Count IV). The Petition also brings state law claims for battery (Count V), false imprisonment (Count VI), malicious prosecution (Count VII), and negligence (Count VIII).

         During his deposition on August 14, 2018, Plaintiff repeatedly invoked his Fifth Amendment right against self-incrimination, declining at his attorney's direction to answer any questions related to his drug use or possession of drugs on the day of the incident. Plaintiff has also invoked the privilege against self-incrimination in an interrogatory answer.

         Defendants filed the pending motion on October 12, 2018. The motion seeks dismissal but is not brought pursuant to any particular rule. Defendants do not argue that Plaintiff's invocation of the right against self-incrimination is invalid or was made in bad faith. Rather, they contend certain ...


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