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M.A.B. v. Mason

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

June 10, 2019

M.A.B., Plaintiff,
v.
MICHELLE MASON, in her individual capacity only, Defendant.

          MEMORANDUM AND ORDER

          NOELLE C. COLLINS UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Plaintiff M.A.B.'s Motion for Partial Summary Judgment (Doc. 34) and Defendant Michelle Mason's Cross-Motion for Summary Judgment (Doc. 43). The Motions are fully briefed and ready for disposition. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c) (Doc. 7). For the following reasons, Plaintiff's Motion will be DENIED and Defendant's Motion will be DENIED.

         I. Background

         On July 5, 2017, Plaintiff M.A.B. (“Plaintiff”) filed this action pursuant to 42 U.S.C. § 1983 and Missouri state law against Defendants the City of Maryland Heights, Missouri (“Maryland Heights”), Michele Mason (“Mason”), and Gregory Johnston (“Johnston”) (collectively “Defendants”) in St. Louis County Circuit Court (Doc. 2). On August 9, 2017, Defendants removed the case to the United States District Court for the Eastern District of Missouri (Doc. 1). On October 27, 2017, the Court granted Defendants' Joint Motion for More Definite Statement and Dismissal, in part, and directed Plaintiff to file an Amended Complaint (Doc. 15). Plaintiff filed her Amended Complaint on November 7, 2017 (Doc. 16). Plaintiff sued Mason, a Maryland Heights police officer, and Johnston, also a Maryland Heights police officer, (collectively the “Officer Defendants”) in their individual capacities only (Id.). Plaintiff makes claims against the Officer Defendants pursuant to section 1983 for violations of Plaintiff's Substantive Due Process (Counts I, III) and for an Unreasonable Search (Counts II, IV), as well as violations of Missouri's Strip Search Law, Missouri Revised Statute § 544.195 (Counts VI, VII) (Id.). Plaintiff also raises a section 1983 failure to train claim against Defendant Maryland Heights (Count V) (Id.). On August 29, 2019, on Plaintiff's consent Motion, the Court dismissed, with prejudice, Defendant Maryland Heights and Defendant Officer Johnston and Counts III, IV, V, and VII (Doc. 30). Therefore, remaining before the Court are Counts I, II, and VI against Defendant Officer Mason in her individual capacity. The undisputed facts are, relevant to the current motions, as follows.[1]

         On April 26, 2016, at approximately 10:22 a.m. Plaintiff, a 32-year old female, was driving in her own vehicle southbound along North Lindbergh Boulevard north of Adie Road in the City of Maryland Heights, Missouri (Plaintiff's Statement of Undisputed Material Facts (hereinafter “PSOF”), Doc. 36, ¶1).[2] Officer Johnston pulled over Plaintiff after he “clocked” Plaintiff going 55 mph, a speed in excess of the posted limit of 40 mph (Id.). Plaintiff exited Lindbergh at the Dorsett Road exit and stopped her car on the Dorsett Road bridge overpass over Lindbergh Boulevard (PSOF ¶2; Defendant's Additional Facts, Doc. 45 at 16-17, ¶6). The overpass had a cement barrier on the passenger side of the vehicle (Defendant's Additional Facts ¶7).

         Officer Johnston ran Plaintiff's license plate and driver's license (PSOF ¶¶ 3-4). Officer Johnston had no information that Plaintiff had committed a felony (PSOF ¶8). Officer Johnston asked Plaintiff to exit her car (PSOF ¶12). Plaintiff exited her car (PSOF ¶13). Plaintiff consented to a search of her car (PSOF ¶14). At some point during the stop, Officer Johnston called for a female officer to come to the scene (PSOF ¶16). Defendant Officer Mason was on duty at the time and came to the scene (PSOF ¶¶17-18). Officer Johnston told Defendant Officer Mason that Plaintiff was nervous, had been moving around in her car, and “something about a warrant” (PSOF ¶¶19, 24, 25). Whether Officer Johnston told Defendant Officer Mason that the warrant was connected to Plaintiff is a matter of dispute, as neither Officer Johnston nor Defendant Officer Mason recalls this information (PSOF ¶¶19, 25). Defendant Officer Mason approached Plaintiff as she was standing in front of Officer Johnston's car (PSOF ¶27). Plaintiff was not handcuffed (PSOF ¶28). Defendant Officer Mason was not advised that Plaintiff was under arrest (PSOF ¶29). Defendant Officer Mason, wearing gloves, patted down Plaintiff (PSOF ¶32). Plaintiff concedes for the purposes of these motions only, that Plaintiff consented to this portion of the search, which Plaintiff identifies as the pat-down search (PSOF ¶31).

         Defendant Officer Mason then walked Plaintiff to her patrol car (PSOF ¶33). Defendant Officer Mason had Plaintiff sit in the rear passenger seat of the patrol car, with the door open and her feet outside the car, facing the cement barrier of the overpass (PSOF ¶34; Defendant's Additional Facts ¶¶7, 8). Plaintiff was wearing a cotton stretchy tank top (PSOF ¶35).

         Defendant Officer Mason “patted the outside of [Plaintiffs] bra and [] shook her bra” (PSOF ¶36). “Shaking the bra” is defined as grabbing the middle of the bra, the wire or other material, and shaking it (Defendant's Additional Facts ¶3; Plaintiffs Response to Defendant's Additional Facts, Doc. 49, ¶3). Defendant Officer Mason's standard practice in performing a pat down includes a pat and shake of the bra (Defendant's Additional Facts ¶1). While the parties dispute whether Defendant Officer Mason reached under Plaintiffs shirt to touch Plaintiffs bra, Defendant Officer Mason concedes that she touched Plaintiff s breasts through her bra (PSOF ¶¶38, 40; Response to PSOF ¶¶38, 40; Defendant's Additional Facts ¶4; Plaintiffs Response to Defendant's Additional Facts ¶4). The parties also dispute the exact nature of Defendant Officer Mason's contact with Plaintiff s bra (PSOF ¶40; Response to PSOF ¶40). Specifically, Plaintiff alleges that Defendant Officer Mason asked Plaintiff to unhook her bra, lifted Plaintiffs shirt a little bit, and used her hands to go from the sides of her breasts, under her breasts, to inside, around, and behind her breasts (Doc. 36-3 at 13 (Plaintiffs deposition)).

         The remainder of Defendant Officer Mason's search of Plaintiff remains in dispute and is not addressed, by agreement of the parties, in the current motions for summary judgment (See Doc. 34 at 2). Defendant Officer Mason's search of Plaintiff did not uncover any weapons or contraband (PSOF ¶43). Defendant Officer Mason did not seek permission from a supervisor to conduct a strip search (PSOF ¶44; Response to PSOF ¶44). Defendant Officer Mason did not write a report about her search of Plaintiff (PSOF ¶45; Response to PSOF ¶45).

         A few weeks prior to the encounter, Defendant Officer Mason received a score of two for self-initiated activity on an evaluation, indicating a need for some improvement in the area (Plaintiffs Additional Facts ¶¶3-4). Defendant Officer Mason subsequently began tracking her female searches (PSOF ¶22; Defendant's Response ¶22).

         On September 18, 2018, Plaintiff filed a Motion for Partial Summary Judgment, Liability, Under Missouri Strip Search Law and § 1983 Unreasonable Search, on Issue of Shaking Bra and Touching of Breasts Through Bra (Doc. 34). Plaintiff argues that when Officer Mason shook Plaintiff's bra, Officer Mason as a matter of law violated (1) Missouri Strip Search Law and (2) Plaintiff's clearly established Fourth Amendment constitutional right to be free of an unreasonable search (Id.). Plaintiff requests the Court enter partial summary judgment in Plaintiff's favor on liability as to the shaking of Plaintiff's bra and the touching of Plaintiff's breasts through the bra on Counts II and VI (Id.).

         Defendant Officer Mason filed a Cross Motion for Summary Judgment on October 25, 2018 (Doc. 43). In her Motion, Defendant Officer Mason asserts that Plaintiff's claims under the Missouri Strip Search Statute fail because Defendant Officer Mason's actions in shaking the Plaintiff's bra fail under the definition of the Missouri Strip Search Statute and she had probable cause, or arguable probable cause, to perform the search (Id.). Defendant Officer Mason further asserts that Plaintiff's claims under the Missouri Strip Search Statute are barred by official immunity (Id.). Defendant Officer Mason also argues that Plaintiff's constitutional claims fail because Defendant's actions were reasonable under the circumstances and, therefore, Plaintiff's Fourth Amendment rights were not violated during the search (Id.). Defendant Officer Mason additionally asserts that Plaintiff's claims are barred by qualified immunity as a reasonable officer in Defendant's position could conclude, based on the law established at the time of the incident, that the search was lawful (Id.).

         II. Summary Judgment Standard

         Pursuant to Federal Rule of Civil Procedure 56(a), a court may grant a motion for summary judgment if “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden is on the moving party. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op. Inc., 838 F.2d 268, 273 (8th Cir. 1988). Once the moving party demonstrates that there is no genuine issue of material fact, the nonmovant must do more than show there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the nonmoving party bears the burden of setting forth affirmative evidence and specific facts by affidavit and other evidence showing a genuine factual dispute that must be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex, 477 U.S. at 324. “A dispute about a material fact is ‘genuine' only ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Herring v. Canada Life Assur. Co., 207 F.3d 1026, 1030 (8th Cir. 2000) (quoting Anderson, 477 U.S. at 248). In ruling on a motion for summary judgment, all reasonable inferences must be drawn in a light most favorable to the non-moving party. Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005). The evidence is not weighed and no credibility determinations are made. Jenkins v. Winter, 540 F.3d 742, 750 (8th Cir. 2008).

         III. Analysis

         A. Count VI: Missouri ...


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