Kerrie Mick v. Wes Raines

United States Court of Appeals
For the Eighth Circuit
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No. 17−1644
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Kerrie Gene Mick,

lllllllllllllllllllll Plaintiff - Appellant,

v.

Wes Raines; Harold Allison, Presiding; Garrett Brown, Deputy #711; Randy
Simms, Presiding Commissioner; Larry King; David Parker, Jailer #723; Jason
Keough; John Patterson, Deputy #712; Jeffrey Parton; Samuel Woolsey, Officer;
Charlie Dawson,

lllllllllllllllllllll Defendants - Appellees,

Jerry Ramos, Badge #601,

lllllllllllllllllllll Defendant,

Bob Gray, Administrator; Wade Wilken,

lllllllllllllllllllll Defendants - Appellees,

Robert Smock, Chief,

lllllllllllllllllllll Defendant,

Porter Hensen, Sheriff; Ben Becerra, Sheriff; Lt. Devin Lacy,

lllllllllllllllllllll Defendants - Appellees,
 Dr. Paul B. Glynn,

lllllllllllllllllllll Defendant.
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Appeal from United States District Court
for the Western District of Missouri - St. Joseph
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Submitted: November 15, 2017
Filed: March 5, 2018
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Before COLLOTON and GRUENDER, Circuit Judges, and HOLMES, 1 District
Judge.
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HOLMES, District Judge.

Plaintiff Kerrie Gene Mick appeals the judgment of the district court. 2
Three orders are before us on appeal. The first granted the motion to dismiss
filed by Defendants Porter Hensen, Wade Wilken, Larry King, and Charlie
Dawson and the motion to dismiss filed by Defendants Bob Gray, Harold Allison,
Randy Simms, Ben Becerra, and Wes Raines. The second granted the motion for
summary judgment filed by Defendants John Patterson, Garrett Brown, David
Parker, and Jeffrey Parton. The third granted the motion for summary judgment
filed by Defendants Samuel Woolsey, Jason Keough, and Devin Lacy. We
affirm.

1
The Honorable P.K. Holmes, III, Chief Judge, United States District Court for
the Western District of Arkansas, sitting by designation.
2
The Honorable Beth Phillips, United States District Judge for the Western
District of Missouri.

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 I.

The parties have disputed some of the facts of this case. Where there are
factual disputes, we base the following summary on accounts provided by Mick.
See Mettler v. Whitledge, 165 F.3d 1197, 1200 (8th Cir. 1999) (“When reviewing a
grant or denial of summary judgment, this Court considers the evidence in the
light most favorable to the nonmoving party and draws all reasonable inferences in
that party's favor.”).

Mick was arrested without probable cause by officers who entered his
mother’s home without a warrant, permission, or probable cause. He was
shocked with a Taser and subjected to physical force during that time. He was
then transported by ambulance to Clinton County Jail.

There, the jailers refused to call his mother to bring him his prescription
medication. At booking, when Mick refused to remove a ring, he was taken to the
ground, handcuffed, had his head beaten on the floor, was choked, and was
punched in the kidneys. He screamed in pain and begged for help during this
process. No medical attention was provided thereafter, and Mick was moved to
the “drunk tank.” There he was beaten on two other occasions, and his shoulder
was slammed in the cell door, causing his arm to break. He requested medical
attention and none was provided.

Mick was then transferred to Daviess/DeKalb Regional Jail (“Regional
Jail”). When officers arrived to transfer Mick, he complained of pain in his arm.
Despite Mick’s complaints, an officer shackled his arm to the wall of his cell.
Mick stiffened and was then forced to the ground and put in wrist restraints.
Mick again complained of pain and was given no medical attention. He was told
to stand, but one of the officers stood on his manacles, making it impossible for
him to get up, so officers again beat him. Mick was not taken to the hospital

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while en route to the Regional Jail. While being booked into the Regional Jail,
Mick complained about his arm but was given no medical attention. He was
placed into a cell, made repeated requests for medical attention, and was refused.
He was instead handcuffed and placed on a mace-covered floor. When the shift
changed, a sergeant noticed Mick’s condition and called for medical assistance.
All charges against Mick were dismissed by prosecuting attorneys.

Mick brought suit in Missouri state court. The matter was subsequently
removed to the United States District Court for Western District of Missouri.
Mick asserted 42 U.S.C. § 1983 claims for use of excessive force, unreasonable
search and seizure based on his arrest, failure to protect, conspiracy to deprive
Mick of constitutional rights, unconstitutional policy, procedure, or widespread
practice, and danger creation. Some defendants answered, and some filed
motions to dismiss on the basis that the counts naming them were unsupported by
factual allegations. Mick requested leave to amend his complaint, received it, and
filed what was styled as an “amended complaint.” Additional motions to dismiss
were filed on the same basis as the previous motions, and were granted.

Mick later filed a “second amended complaint,” which included additional
claims for deliberate indifference to medical risk. Two motions for summary
judgment were subsequently filed. The motions were granted on the basis that
Mick was unable to show a dispute of fact with respect to whether
unconstitutional misconduct was caused by official policy, unofficial custom, or
failure to train or supervise. This appeal followed.

II.

Mick contends that the district court erred in entering an order granting the
motion to dismiss filed by Defendants Hensen, Wilken, King, and Dawson and the
motion to dismiss filed by Defendants Gray, Allison, Simms, Becerra, and Raines.

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We disagree.

“Our review of an order granting a motion to dismiss is de novo.” Coons v.
Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005).

The district court’s order dismissed Mick’s § 1983 claims for
unconstitutional policy, procedure or widespread practice, and danger creation.
In dismissing these claims, the district court correctly noted that Mick made no
allegations that the defendants named in the relevant counts had knowledge of
unconstitutional acts by subordinates – a required element of each claim – nor did
he make any allegations from which such knowledge could be inferred. See
Livers v. Schenck, 700 F.3d 340, 355 (8th Cir. 2012) (A supervisor may be liable
under § 1983 only if he had “notice of a pattern of unconstitutional acts committed
by subordinates.”).

Further, the district court previously dismissed the same claims on the
grounds that they were conclusory and not supported by factual allegations. In
that order, the district court gave Mick the opportunity to file an amended
complaint alleging sufficient factual material to state a plausible claim for relief.
In attempting to address the deficiency, rather than plead more facts, Mick just
pled additional conclusions of law. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements,” are not sufficient to
survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Accordingly, the district court did not err in granting the motions to dismiss.

III.

Mick contends that the district court erred in entering an order granting the
motion for summary judgment filed by Defendants Patterson, Brown, Parker, and

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Parton and in entering an order granting the motion for summary judgment filed
by Defendants Woolsey, Keough, and Lacy.

We review “a district court’s grant of summary judgment de novo, affirming
if ‘there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’” B.M. ex rel. Miller v. S. Callaway R-II Sch. Dist.,
732 F.3d 882, 886 (8th Cir. 2013) (quoting Fed. R. Civ. P. 56(a)).

As a threshold matter, the district court correctly determined that none of
the defendants requesting summary judgment were named in their individual
capacities, and were deemed to be sued in their official capacities only. “This
court has held that, in order to sue a public official in his or her individual
capacity, a plaintiff must expressly and unambiguously state so in the pleadings,
otherwise, it will be assumed that the defendant is sued only in his or her official
capacity.” Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir.
1999). Nowhere in any of the complaints filed does Mick expressly and
unambiguously state that any defendant was sued in his individual capacity.
Accordingly, the district court properly treated Clinton County and the Regional
Jail as the actual defendants.

Moving to the motions for summary judgment, the district court correctly
determined that the record lacked the facts necessary to impose liability on a
municipality for its employees’ constitutional violations. “Section 1983 liability
for a constitutional violation may attach to a municipality if the violation resulted
from (1) an ‘official municipal policy,’ (2) an unofficial ‘custom,’ or (3) a
deliberately indifferent failure to train or supervise.” Corwin v. City of
Independence., MO., 829 F.3d 695, 699 (8th Cir. 2016) (citations omitted). There
is no question that Defendants have official policies that are directed not only at
searches and seizures, the use of force, and provision of medical care, but that are
directed at ensuring that Defendants can review their own compliance with those

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policies. For example, each use of force requires a report. There is also no
evidence to contravene Defendants’ assertion that employees are trained in
constitutional policies. Thus, Mick must rest his entire argument on the existence
of an unofficial custom from which the constitutional violation resulted.

[A] plaintiff may establish municipal liability through an
unofficial custom of the municipality by demonstrating
“(1) the existence of a continuing, widespread, persistent
pattern of unconstitutional misconduct by the
governmental entity's employees; (2) deliberate
indifference to or tacit authorization of such conduct by
the governmental entity's policymaking officials after
notice to the officials of that misconduct; and (3) that
plaintiff was injured by acts pursuant to the
governmental entity's custom, i.e., that the custom was a
moving force behind the constitutional violation.”

Id. at 700 (citation omitted).

Mick attempts to make this showing through affidavits of other detainees.
The affidavits Mick relies on largely comprise inadmissible hearsay, and Federal
Rule of Civil Procedure 56 requires the nonmoving party to cite admissible
evidence to survive summary judgment. Jenkins v. Winter, 540 F.3d 742, 748
(8th Cir. 2008) (“When an affidavit contains an out-of-court statement offered to
prove the truth of the statement that is inadmissible hearsay, the statement may not
be used to support or defeat a motion for summary judgment.”).

Even if the affidavit testimony were admissible evidence, Mick does not
identify a sufficient number of unconstitutional acts to support an inference of
deliberate indifference to employee misconduct. This Court has previously
discussed the heavy burden required to establish municipal liability through an
unofficial custom:

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 This Court has held municipalities liable ... when the
plaintiffs have produced evidence of prior complaints
sufficient to demonstrate that the municipalities and their
officials ignored police misconduct. See, e.g., Parrish
v. Luckie, 963 F.2d 201, 204–05 (8th Cir. 1992)
(reviewing the “detailed and compelling” evidence the
plaintiff presented that the defendant police department
avoided, ignored, and covered up complaints of physical
and sexual misconduct by officers); Harris v. City of
Pagedale, 821 F.2d 499, 501–06 (8th Cir.) (finding a
plaintiff had proven a municipal custom through the
presentation of detailed evidence regarding the particular
police officer's previous misconduct, and the city's
failure to investigate or punish that conduct), cert.
denied, 484 U.S. 986, 108 S.Ct. 504, 98 L.Ed.2d 502
(1987). However, when the plaintiff has not made such
a showing, the mere existence of previous citizens'
complaints does not suffice to show a municipal custom
of permitting or encouraging excessive force. See
Rogers v. City of Little Rock, 152 F.3d 790, 799 (8th Cir.
1998).

Mettler, 165 F.3d at 1205. Mick has not presented sufficient evidence to meet
this burden. Just as citizens’ complaints were insufficient in Mettler, the
affidavits of three detainees describing alleged constitutional violations are not
sufficient to establish a genuine issue of material fact regarding whether there was
a widespread custom or practice of unconstitutional misconduct, known to and
unaddressed by policymaking officials.

Accordingly, Mick failed to allege sufficient facts to establish municipal
liability, and the district court did not err in granting the motions for summary
judgment.

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 IV.

The district court’s judgment is affirmed in all respects.
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