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Morrison v. Hale

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

March 19, 2019

HERBERT W. MORRISON, JR., Plaintiff,
v.
ANDREW HALE, Defendant.

          MEMORANDUM AND ORDER

          NANNETTE A. BAKER, UNITED STATES MAGISTRATE JUDGE

         This case is before the Court on the motion for summary judgment filed by Defendant Andrew Hale (“Officer Hale” or “Defendant”). (Doc. 63). Also before the Court are multiple discovery motions filed by pro se Plaintiff Herbert W. Morrison (“Morrison” or “Plaintiff”) (Docs. 52, 55, 59, 60, and 67), as well as Plaintiff's motion for default judgment, (Doc. 66), a motion to stay, (Doc. 71), and a motion to redact certain exhibits (Doc. 89). Additionally before the Court are Defendant's motion to strike Plaintiff's Exhibits 8 and 12 (Doc. 78), and his motion to strike Plaintiff's Exhibit 9 (Doc. 79). The motions have been fully briefed and are ripe for disposition. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 20 U.S.C. § 636(c). (Doc. 21). For the reasons stated below, Defendant's motion for summary judgment will be granted.

         I. Background

         On November 11, 2013, Defendant, a police officer with the Florissant Police Department, was assigned to investigate allegations that Plaintiff Morrison had sexually abused, raped, and sodomized his daughter. During the course of the investigation, Florissant officers seized computers, CD's, DVD's, and other electronic equipment from Morrison's residence, pursuant to a search conducted with written consent obtained from Morrison's then wife. During his criminal case, Morrison filed a motion to suppress the evidence seized from his residence, as well as additional evidence voluntarily presented to the police by Morrison's wife. After a hearing, the court denied the motion to suppress on the merits. On June 29, 2015, Morrison pled guilty to multiple counts of child pornography, first degree child molestation, statutory rape, statutory sodomy, and sexual exploitation of a minor. See State v. Herbert Morrison, No. 13SL-CR11557-01 (21st Jud. Cir. June 29, 2015). On August 10, 2015, the 21st Judicial Circuit Court of St. Louis sentenced Morrison to a total of thirty years' incarceration.

         Subsequently, Plaintiff filed this suit under 42 U.S.C. § 1983 against Officer Hale, who was the arresting officer in connection with the underlying arrest and conviction. Morrison accuses Officer Hale of unreasonable search and seizure, abuse of process, theft, and conspiracy to commit excessive force in violation of the Fourth and Fourteenth Amendments to the United States Constitution. All of these claims arise from events that occurred during the arrest and prosecution of Morrison. Specifically, in his amended pro se complaint, Plaintiff brings the following Counts[1]against Defendant in his individual capacity: Count I-Unlawful Seizure of Cell Phone; Count II-Unlawful Search of Residence; Count III-Unlawful Seizure of Property from Residence; Count IV-Conspiracy to Search CD/DVD Discs; Count V-Unlawful Arrest; Count VI- Unlawful Seizure of $150.00 From Wallet; Count VII-Conspiracy to Commit Excessive Force; Count VIII-Unlawful Search Warrant; Count IX-Unlawful Search of DVD; Count X- Conspiracy to Conceal Unlawful Search of DVD; Count XI-Unlawful Search of DVD's and Thumb Drive; Count XII-Conspiracy Between Officer Hale and Prosecutor to Conceal Unlawful Searches; Count XIII-Unlawful Seizure of Disc; Count XIV-Unlawful Seizure of MacBook Pro; Count XV-Unlawful Seizure of Data from MacBook Pro; Count XVI-Manufacture of Evidence to Conceal Unlawful Seizure of Disc; and, Count XVII-Conspiracy between Officer Hale and Defendant's Former Wife Regarding Unlawful Seizures. Plaintiff seeks damages of $150.00 that was allegedly stolen from his wallet during arrest; $2, 000.00 for loss of data from his cell phone; $75, 000.00 in punitive damages; and filing fees of $350.00.

         II. Legal Standard

         The standard for summary judgment is well settled. Summary judgment shall be granted “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); Hill v. Walker, 737 F.3d 1209, 1216 (8th Cir. 2013). The movant “bears the initial responsibility of informing the district court of the basis for its motion” and must identify “those portions of [the record] . . . which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial. Id. at 324. “On a motion for summary judgment, ‘facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.'” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).

         The nonmoving party must articulate and substantiate specific facts showing a genuine issue of material fact. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is genuine when “a reasonable jury could return a verdict for the nonmoving party” on a factual issue. Id. at 248. To establish the existence of a genuine issue of material fact, “[a] plaintiff may not merely point to unsupported self-serving allegations.” Bass v. SBC Commc'ns, Inc., 418 F.3d 870, 872 (8th Cir. 2005). To survive a motion for summary judgment, the nonmoving party must “substantiate his allegations with sufficient probative evidence that would permit a finding in his favor based on more than mere speculation, conjecture, or fantasy.” Smith v. International Paper Co. 523 F.3d 845, 848 (8th Cir. 2008). “Mere allegations, unsupported by specific facts or evidence beyond the nonmoving party's own conclusions, are insufficient to withstand a motion for summary judgment.” Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir. 2007). “The mere scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252 (emphasis added); Davidson & Assoc. v. Jung, 422 F.3d 630, 638 (8th Cir. 2005). Evidence that is “merely colorable” or “is not significantly probative” is insufficient. Anderson, 477 U.S. at 249-50; Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 801 (8th Cir. 2011).

         III. Discussion

         A. Motion to Strike

         The Court will first address Defendant's motion to strike Plaintiff's Exhibit 9.[2] (Doc. 79). Morrison submitted, in opposition to Defendant's motion for summary judgment, a document entitled, “Affidavit[3] of Herbert W. Morrison, Jr. in Support of Prisoner Civil Rights Complaint Under 42 U.S.C. § 1983.” (Doc. 77-2). Defendant asks the Court to strike the “Affidavit” because it fails to meet the requirements of 28 U.S.C. § 1746, as it is undated, [4] and, in the alternative, because it is based on speculation and conjecture rather than personal knowledge. Plaintiff responded to Defendant's Motion to Strike, asserting that the “Affidavit” was based entirely on his personal knowledge.

         As an initial point, the Court must address a procedural issue. Defendant moves the Court to “strike” the declaration of Morrison, but “[t]his Court has generally restricted the use of motions to strike to material contained in pleadings.” Shea v. Peoples Nat'l Bank, No. 4:11CV1415 CAS, 2013 WL 74374, at * 1 (E.D .Mo. Jan. 7, 2013) (citing cases); see also Khamis v. Bd. of Regents, Se. Mo. State Univ., No. 1:09-CV-145-RWS, 2010 WL 1936228, at *1 (E.D. Mo. May 13, 2013) (“A motion to strike is properly directed only to material contained in pleadings.”) (quoting Mecklenburg Farm, Inc. v. Anheuser-Busch, Inc., No. 4:07-CV-1719-CAS, 2008 WL 2518561, at *1 (E.D. Mo. June 19, 2008)); Fed.R.Civ.P. 12(f) (permitting the Court to strike certain materials “from a pleading”). Pursuant to Federal Rule of Civil Procedure 7(a), a declaration, such as the “affidavit” submitted by Morrison, is not a pleading, and a motion to strike is therefore not applicable to the declaration. Thus, the Court will deny Defendant's motion to strike Morrison's declaration.

         However, as Defendant correctly points out, Rule 56(c)(4) requires that a “declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the . . . declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). Therefore, in ruling on Defendant's summary judgment motion, the Court will disregard any portions of the declaration that are not based on personal knowledge, or that contain hearsay or otherwise inadmissible evidence. See, e.g., Khamis, 2010 WL 1936228, at *1. After careful review of Morrison's 28 page declaration, the Court finds that it contains very few statements actually based on personal knowledge. The declaration is replete with conjecture and speculation as to what Morrison thinks may have happened in any given circumstance. For example, Morrison frequently provides a narrative concerning something he surmises might have happened, and about which he could not possibly have first-hand knowledge, and then explicitly states that his declaration is based on what he “concludes” must have occurred. (Doc. 77-2 at 5, 7, 8, 11, 13, 15, 18, and 22). However superior Morrison's skills of deduction may be, they cannot transform what Plaintiff “concludes” may have happened into a declaration based on personal knowledge. Accordingly, the Court will consider only the portions of his declaration that are based on Plaintiff's personal knowledge.

         B. Heck v. Humphrey Bars Counts I-V and VIII-XVII

         Defendant argues that Counts I-V and VIII-XVII of Plaintiff's amended complaint are barred from review by this Court by Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court of the United States held that:

In order to recover damages for an allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus.

Heck, at 486-87. The Supreme Court stated that one reason, among others, for imposing such a requirement is to prevent a convicted criminal defendant from collaterally attacking his criminal conviction through a civil suit. Id. at 484.

         As noted above, in Counts I-V and VIII-XVII, Morrison alleges that Defendant illegally arrested him, illegally searched his residence, illegally seized various items of electronic evidence of the crimes to which Morrison subsequently pled guilty, illegally searched those electronic devices, and conspired with another detective, the prosecutor, and Morrison's former wife in order to successfully carry out and cover up these allegedly illegal searches and seizures. These claims attack the validity of consent given prior to the initial search of Morrison's residence, as well as the validity of the warrants pursuant to which later searches were performed. The evidence discovered during these searches provided the factual basis pursuant to which Morrison pled guilty. Therefore, it is clear that a decision favorable to Morrison with respect to these allegations would necessarily imply the invalidity of his conviction or sentence. Id. at 487. Additionally, Morrison has failed to make a showing that his conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or called into question by a federal court's issuance of a writ of habeas corpus. To the contrary, Morrison's motion for post-conviction relief, in which his only claim was related to ineffective assistance of counsel, was denied by the Missouri Court of Appeals. See Morrison v. State of Missouri, Missouri Court of Appeals, No. ED105000.[5] ...


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