United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. COLLINS UNITED STATES MAGISTRATE JUDGE.
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.
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
“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
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). 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).
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).
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).
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)).
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).
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).
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.).
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.).
Summary Judgment Standard
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).
Count VI: Missouri ...