709 F.3d 1201 (8th Cir. 2013), 11-3352, Atkinson v. City of Mountain View, Missouri

Docket Nº:11-3352.
Citation:709 F.3d 1201
Opinion Judge:RILEY, Chief Judge.
Party Name:Mark ATKINSON, Plaintiff-Appellant v. CITY OF MOUNTAIN VIEW, MISSOURI; Derek Sanders; Michael Bales, Defendants-Appellees.
Attorney:Steven Joseph Gunn, argued, John W. Bruzek, Stephen Michael Ryals, on the brief, St. Louis, MO, for appellant. Matthew D. Wilson, argued, Mark Douglas Harpool, on the brief, Springfield, MO, for appellee.
Judge Panel:Before RILEY, Chief Judge, SMITH and COLLOTON, Circuit Judges. COLLOTON, Circuit Judge, concurring in part and dissenting in part.
Case Date:February 08, 2013
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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709 F.3d 1201 (8th Cir. 2013)

Mark ATKINSON, Plaintiff-Appellant

v.

CITY OF MOUNTAIN VIEW, MISSOURI; Derek Sanders; Michael Bales, Defendants-Appellees.

No. 11-3352.

United States Court of Appeals, Eighth Circuit.

February 8, 2013

Submitted: Sept. 20, 2012.

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Steven Joseph Gunn, argued, John W. Bruzek, Stephen Michael Ryals, on the brief, St. Louis, MO, for appellant.

Matthew D. Wilson, argued, Mark Douglas Harpool, on the brief, Springfield, MO, for appellee.

Before RILEY, Chief Judge, SMITH and COLLOTON, Circuit Judges.

RILEY, Chief Judge.

Mark Atkinson, a retired military police officer, sued the City of Mountain View, Missouri (city), and its former police chief, Derek Sanders, under 42 U.S.C. § 1983. Atkinson claimed Sanders, dressed in street clothes, used excessive force in violation of the Fourth and Fourteenth Amendments when, without identifying himself as a police officer, Sanders charged at Atkinson. The charge slammed Atkinson ten to fifteen feet backward into the side of a pickup truck, causing Atkinson severe injuries.

The district court entered summary judgment against Atkinson on his federal claims and declined to exercise supplemental jurisdiction over his state law claims. Atkinson appeals. Atkinson's claim against Sanders presents a genuine dispute of material fact for trial, but Atkinson's

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claim against the city does not. We affirm in part, reverse in part, and vacate the district court's dismissal of Atkinson's pendent state law claims.

I. BACKGROUND1

A. The Events of August 31, 2007

Atkinson is a United States Army veteran who served as an M-60 tank driver for four years and a military police officer for nineteen years. After his honorable discharge in 2005, Atkinson earned a master's degree from the University of Arkansas in 2007. On August 31, 2007, Atkinson traveled from his home in Arkansas to Mountain View, Missouri, to attend his nephew Justin Taylor's first varsity football game. Justin, his arm in a sling because of a dislocated shoulder, remained on the sidelines. After the game, as Atkinson and his extended family were preparing to leave, Atkinson saw someone attack and tackle Justin. Justin's father Joe Taylor, Atkinson's brother-in-law, rushed toward Justin. By the time Taylor reached his son, the attacker had pinned Justin to the ground. Taylor bent over the two adolescents and began " hollering." " Get off my boy," he yelled. Taylor wanted to stop the fight without " grab[bing] somebody."

As Atkinson moved toward his nephew, he saw an unknown man approach Taylor, who now was bending down with his hands on his knees. The stranger pushed Taylor and began to yell. Leaning into Taylor's face, the stranger said, " I'm the motherf[- - -]er who says who does what around here." As Atkinson approached them, Taylor was " start[ing] towards" the unknown man. Worried Taylor was going to " retaliate," Atkinson pushed Taylor and the stranger apart and said, " Look, calm down." The stranger accused Atkinson of assault, pulled out a cell phone, reached toward Atkinson, and said, " I'll take care of you." Believing the stranger to be a " compadre" of the adolescent who had attacked Justin, and fearing the man wanted to call for " reinforcements," Atkinson took the cell phone without touching the man and asked, " Why can't you just talk to us?"

Atkinson " was just about to hand [the phone] back" when the stranger " bull rushed" Atkinson— this unknown man charged " like a football [player]," ramming his shoulder into the right side of Atkinson's chest. The charge slammed Atkinson ten to fifteen feet backward into the side of a parked pickup truck. When Atkinson looked up, Mountain View police officers handcuffed him. As a result of the blow, Atkinson spent twenty-four days in the hospital for treatment of three broken ribs, a punctured lung, and repeated pneumothorax— his right lung collapsed three separate times.

Unbeknownst to Atkinson until after he was handcuffed and in the backseat of a police cruiser, the unknown man who caused these injuries was Derek Sanders, Mountain View's police chief. Sanders, though on duty, was not in uniform and had neither his gun nor his badge. Sanders never identified himself as a police officer. Atkinson testified, " [I]f [Sanders] would have said ... he was a police officer, I would have ... respected him." All criminal charges against Atkinson stemming from the incident were later dismissed.

B. The City

Mountain View is classified as a " Fourth Class City" under Missouri law. See Mo.Rev.Stat. § 72.040. Sanders testified the

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city's mayor and city council were the final authority on the police department's policies, and the mayor testified the city council set those policies. Sanders also testified he was " the policy maker" for his department, but he " could not use [the policy] until it was reviewed and signed off by the mayor and city council." During Sanders' tenure as police chief from 2005 to 2009, the city had no binding, written policies on any police-related issue, including use of force. Sanders had formulated non-binding guidelines for the department, and he testified his own actions on August 31, 2007, were consistent with those guidelines. Neither the city council nor the mayor ever approved the guidelines, which Sanders explained were " a work in progress." The guidelines were not official city policies and did not apply to Sanders' subordinates.

C. The District Court's Decision

Atkinson sued the city and Sanders under 42 U.S.C. § 1983, alleging Sanders used excessive force in violation of the Fourth and Fourteenth Amendments and the city was liable for Sanders' unconstitutional conduct. Atkinson also asked the district court to exercise pendent jurisdiction over his state law claims against Sanders. The district court granted summary judgment against Atkinson on his federal claims and declined to exercise pendent jurisdiction over his state law claims.

The district court analyzed Atkinson's excessive force claim under two different constitutional standards. First, analyzing Sanders' actions under the Fourteenth Amendment's Due Process Clause, see, e.g., Cnty. of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), the district court found " no material factual dispute regarding whether defendant Sanders violated plaintiff's substantive due process rights by acting maliciously and sadistically with the intent to cause harm." Purportedly viewing the evidence in the light most favorable to Atkinson, the district court found it undisputed that Sanders " only used force to take his cell phone back from plaintiff after he was deprived of his means of communication" and that Sanders " clearly" did not " act[ ] sadistically or maliciously to simply cause harm, but rather ... acted in good faith to restore balance to the situation."

Second, analyzing Sanders' actions under the Fourth Amendment's objective reasonableness standard, see, e.g., Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the district court found no genuine issue of material fact related to " the reasonableness of [Sanders'] actions from the perspective of the objectively reasonable officer." Having concluded Sanders violated neither the Fourth nor Fourteenth Amendment, the district court did not decide whether a seizure occurred or whether Sanders was entitled to qualified immunity.

Turning to Atkinson's municipal liability claim, the district court held that the city could not be held liable under Monell v. Department of Social Services of New York, 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), because no evidence established Sanders' actions were the product of a city policy, and, in any event, Sanders had not violated Atkinson's constitutional rights. Rejecting Atkinson's argument that the city was liable under Monell by virtue of its delegation of policymaking authority to Sanders, the district court relied on a Missouri statute, which grants policymaking authority in a " Fourth Class City" to the mayor and city council. Atkinson appeals, arguing (1) Sanders seized him under the Fourth Amendment, (2) Sanders' use of force was

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objectively unreasonable, and (3) the city is liable for Sanders' actions.

II. DISCUSSION

We review grants of summary judgment de novo. Davenport v. Univ. of Ark. Bd. of Trs., 553 F.3d 1110, 1112-13 (8th Cir.2009). The non-moving party receives the benefit of all reasonable inferences supported by the evidence, but has " the obligation to come forward with specific facts showing that there is a genuine issue for trial." Dahl v. Rice Cnty., Minn., 621 F.3d 740, 743 (8th Cir.2010). Summary judgment is only appropriate when 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(c)(2); see also Dahl, 621 F.3d at 743.

Because Atkinson's claims arise under § 1983, we will reverse the district court's award of summary judgment to Sanders only if a reasonable jury could find Sanders, " ‘ acting under the color of state law,’ " violated " ‘ a right secured by the Constitution and laws of the United States.’ " Cook v. City of Bella Villa, 582 F.3d 840, 848-49 (8th Cir.2009) (quoting West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988)); see 42 U.S.C. § 1983. We will reverse the district court's award of summary judgment to the city only if a reasonable jury could find that " action pursuant to official municipal policy of some nature caused a constitutional tort." Monell, 436 U.S. at 691, 98 S.Ct. 2018.

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