Childs v. Brummett

Decision Date01 December 2021
Docket Number4:20-00814-CV-RK
PartiesRENA M CHILDS, PERSONAL REPRESENTATIVE OF THE ESTATE OF BRYAN E. HILL, A/K/A BRIONNA HILL; Plaintiff, v. MATTHEW BRUMMETT, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; CHARLES PRICHARD, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; THE KANSAS CITY BOARD OF POLICE COMMISSIONERS, COMMISSIONER DON WAGNER, PRESIDENT, IN HIS OFFICIAL CAPACITY; COMMISSIONER MARK TOLBERT, VICE PRESIDENT, IN HIS OFFICIAL CAPACITY; COMMISSIONER CATHY DEAN, TREASURER, IN HER OFFICIAL CAPACITY; COMMISSIONER NATHAN GARRETT, MEMBER, IN HIS OFFICIAL CAPACITY; MAYOR QUINTON LUCAS, MEMBER, IN HIS OFFICIAL CAPACITY; AND CHIEF OF POLICE RICHARD SMITH, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; Defendants.
CourtU.S. District Court — Western District of Missouri
ORDER

ROSEANN A. KETCHMARK, JUDGE

Before the Court is Defendants' motion to dismiss. (Doc. 35.) Plaintiff opposes the motion and it is now fully briefed. (Docs. 36, 39, 40.) For the reasons below, the motion is GRANTED as to Count I and DENIED as to Count II.

Background

Plaintiff's claims in this case arise out of allegations of excessive force. Plaintiff Rena M. Childs is the personal representative for the estate of Brionna Hill, who the complaint alleges was injured by two Kansas City police officers during an arrest on or about May 24, 2019. Specifically, Plaintiff alleges, inter alia, Officer Brummett and Officer Prichard struck Hill, took her to the ground, placed their knees and elbows on her neck (restricting her airway), slammed her face and head on hot concrete multiple times, raised and twisted her arms in unnatural positions, ignored her calls for help, and did not render aid or call an ambulance. (Doc. 34 at 4-5.) Hill died after her arrest due to unrelated causes, and Plaintiff filed this action on behalf of Hill's estate.

Brummett and Prichard were charged in state court in connection with the events of May 24, 2019. See No. 2016-CR02341 (Circuit Court of Jackson County, Missouri). Similar to the complaint at bar, the indictment states in part that Officers Brummett and Prichard caused Hill injury by “slamming her face against the concrete sidewalk, kneeing her in the face, torso, and ribs, and forcefully bending her arms over her head while her hands were handcuffed and she was laying on her stomach.” (Doc. 17-4 at 5.) The criminal case is set for trial December 6, 2021.

Plaintiff's complaint asserts two counts under 42 U.S.C § 1983. Count I asserts Brummett and Prichard violated § 1983 by their unconstitutional use of excessive force against Hill and Count II asserts the Kansas City Board of Police Commissioners (the Police Board) and each of its members, in their official capacities, violated § 1983 by their failure to train or supervise, or for their role in adopting policies or customs encouraging the conduct. Count Two also names Kansas City Chief of Police Richard Smith in his individual capacity as a defendant.

Discussion

Defendants' motion to dismiss is brought under Rules 12(b)(1) and 12(b)(6) and argues Plaintiff lacks standing, legal capacity or a cause of action because the claims stated in the complaint abated upon Hill's death because Hill's death was unrelated to the § 1983 Excessive Force claim. (Doc. 35, p. 1.)

I. Legal Standard

Hills's claims are based on federal law pursuant to 42 U.S.C. § 1983. Therefore, the question of whether they survive Hill's death “is a question of federal law.” Carlson v. Green, 446 U.S. 14, 23 (1980). The traditional rule is claims by an injured party are extinguished upon the death of either party. Statutes, however, can modify the traditional rule. Statutes allowing the survival of actions were intended to modify the traditional rule that an injured party's claim was extinguished upon the death of either party.” Parkerson v. Carrouth, 782 F.2d 1449, 1451 (8th Cir. 1986) (citing Robertson v. Wegmann, 436 U.S. 584, 589 (1978); Thompson v. Estate of Petroff, 319 N.W.2d 400, 402-06 (Minn.1982); W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts § 125A (5th ed. 1984)).

To determine whether § 1983 claims survive the injured party's death, we are first governed by 42 U.S.C. § 1988. The Civil Rights Act does not contain a survivorship rule. However, 42 U.S.C. § 1988 recognizes that in certain areas, “federal law is unsuited or insufficient ‘to furnish suitable remedies[.]' Robertson, 436 U.S. at 588. As illustrated by the absence of a survivorship rule in the Civil Rights Act, [f]ederal law simply does not ‘cover every issue that may arise in the context of a federal civil rights action.' Id. (quoting Moor v. County of Alameda, 411 U.S. 693, 703, 702 (1973)). One specific area not covered by federal law is that relating to the survival of civil rights actions under § 1983 upon the death of either the plaintiff or defendant. “When federal law is thus ‘deficient,' § 1988 instructs us to turn to ‘the common law, as modified and changed by the constitution and statutes of the [forum] State,' as long as these are ‘not inconsistent with the Constitution and laws of the United States.' Id. (quoting § 1988). The common law rule of survivorship of claims has been modified by state survivorship statutes, and we are guided to follow the state survival statute of the forum state. “State statutes governing the survival of state actions . . . were intended to modify the simple, if harsh, 19th-century common-law rule.” Id. at 589.

In instructing us to turn to state survivorship statutes to resolve this issue, the Supreme Court acknowledges the wide disparity across the country of the states' survivorship laws. “These statutes . . . vary widely with regard to both the types of claims that survive and the parties as to whom survivorship is allowed.” Id. Even though there are inconsistencies amongst the states, the Court found nothing in § 1983 or the underlying policies of § 1983 to require uniform survivorship rules of § 1983 claims. Id. at 593 n.11. (“in the areas [of civil rights enforcement] to which § 1988 is applicable Congress has provided direction, indicating that state law will often provide the content of the federal remedial rule. This statutory reliance on state law obviously means that there will not be nationwide uniformity on these issues.”)

Robertson involved the interpretation of Louisiana's survivorship statutes. Robertson was the personal representative of Clay Shaw, and was the executor of Shaw's estate. The decedent, Shaw, did not have a surviving spouse, child, parent, or sibling. In Robertson, the Plaintiff's § 1983 claim was for bad faith prosecution. Id. at 586. The Court found that, for purposes of analyzing survival of the action applying § 1988, [i]n actions other than those for damage to property [], Louisiana does not allow the deceased's personal representative to be substituted as plaintiff; rather, the action survives only in favor of a spouse, children, parents, or siblings.” Id. at 591 (citing Shaw v. Garrison, 391 F.Supp. 1353, 1361-1363; La. Civ. Code Ann., Art. 2315 (West 1971); J. Wilton Jones Co. v. Liberty Mut. Ins. Co., 248 So.2d 878 (La .App. 1970 and 1971) (en banc)). Because Shaw did not have a living close relative, his claims abated under Louisiana's statute. If Shaw had had a living close relative, the bad faith prosecution claim would have survived for the close relative to pursue.[1] The Robertson Court concluded that [u]nder the circumstances presented here, the fact that Shaw was not survived by one of several close relatives should not itself be sufficient to cause the Louisiana survivorship provisions to be deemed ‘inconsistent with the Constitution and laws of the United States' for purposes of analysis under § 1988. Id. at 593. Therefore, the bad faith prosecution claim was held to have abated upon the death of the plaintiff under Louisiana law applied in accordance with § 1988. Id. at 593-94.

Here, Plaintiff concedes (1) the applicable rule in this case is that, in determining whether a particular §1983 claim survives the death of the plaintiff, the Court looks to the closest or most analogous state tort equivalent, see § 1988(a), (2) the closest state tort equivalents to Plaintiff's § 1983 excessive force claims here, for purposes of determining survival of the action, are assault and battery, and (3) under Missouri statute, claims of assault and battery abate upon the death of the Plaintiff (when the death is unrelated to the assault and battery), § 537.030, RSMo. (Doc. 39, p. 13.)

II. Count I - Excessive Force Claim

To decide whether a state law causing abatement of a particular action is inconsistent with federal law under § 1988, courts are to consider the particular federal statute and constitutional provisions in question, as well as the policies they express. Robertson, 436 U.S. at 590. The Supreme Court accords particular importance to “whether application of state law would be inconsistent with the federal policy underlying the cause of action under consideration.” Id. (internal quotation marks omitted). The Robertson Court applied § 1988(a) to decide whether a claim under § 1983 survived the death of the plaintiff, concluding Louisiana survival law was not inconsistent with the Constitution and laws of the United States. 436 U.S. 584, 585, 594-95.

The Robertson Court was careful to express the narrowness of its holding, providing it is “limited to situations in which no claim is made that state law generally is inhospitable to survival of § 1983 actions and in which the particular application of state survivorship law while it may cause abatement of the action, has no independent adverse effect on the policies underlying § 1983.” Id. at 594. The Court further noted, [a] different situation might well be presented...

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