Ellingson v. Piercy

Decision Date10 May 2016
Docket NumberCase No. 2:14-cv-04316-NKL
PartiesCRAIG E. ELLINGSON, et al., Plaintiffs, v. ANTHONY C. PIERCY, et al., Defendants.
CourtU.S. District Court — Western District of Missouri
ORDER

Plaintiffs Craig, Sherry, and Jennifer Ellingson, the surviving parents and sibling of Brandon Ellingson, brought suit against Defendants, all state or county employees, for violations of federal and state law while Brandon was in custody and during the subsequent investigation into his death. Before the Court is Defendant Anthony Piercy's Motion for Partial Judgment on the Pleadings, [Doc. 158], and Defendants Robert Replogle, J. Bret Johnson, Gregory Kindle, Darewin Clardy, Eric Stacks, Missouri State Highway Patrol, and State of Missouri's Motion for Partial Judgment on the Pleadings, [Doc. 134].

For the reasons discussed below, both motions are granted in part and denied in part.

I. Background1

On May 31, 2014, Brandon Ellingson was operating a boat with several friends on Lake of the Ozarks in Morgan County, Missouri. Around 5:00 p.m. that afternoon, Trooper Piercy stopped Brandon's boat for possible vehicle registration and littering violations, and during this stop Piercy had Brandon board the patrol boat to perform a sobriety test. Brandon was fully cooperative throughout the process. After performing the test, Piercy suspected Brandon was intoxicated and decided to take him into custody. Piercy placed double-lock handcuffs on Brandon's wrists, securing Brandon's arms behind his back. Piercy then took a pre-buckled Type III life jacket and pulled it over Brandon's head, leaving the crotch strap unsecured. Missouri State Highway Patrol policy required officers to use a Type I or Type II personal flotation device when securing a handcuffed person. While there were multiple Type I devices on Piercy's patrol boat, Piercy did not use this equipment.

Piercy positioned Brandon leaning against a flipped-up seat on the right side of the boat. Piercy then proceeded to drive the patrol boat to the MSHP's satellite office at H. Toad's Bar & Grill. Despite heavy traffic and rough waves on the lake, Piercy operated the boat at a high rate of speed, hitting a top speed that exceeded 46 miles per hour. As a result, Brandon was involuntarily ejected from the boat, and his life jacket immediately separated from his body because it had been improperly secured. Piercy later falsely stated that Brandon had voluntarily jumped from the moving boat.

After observing Brandon in the water, Piercy accidentally killed the boat's engine while trying to put the vehicle into reverse. He did not activate the boat's sirens or alert nearby witnesses to the situation. Instead, Piercy restarted the engine, drove to Brandon, and attempted rescuing Brandon by using a dock hook despite knowing that Brandon was handcuffed and could not grab the object. Piercy eventually jumped into the water at the urging of nearby witnesses. When he did so, Piercy was wearing a Type V personal flotation device, which he mistakenly believed would auto-inflate. Although Piercy states he was able to grab Brandon, his Type V device did not inflate and Piercy lost his grip. Brandon remained submerged under the water and died of asphyxiation due to drowning.

At the time of Brandon's death, Piercy was a Missouri State Trooper serving part-time with the Water Patrol Division. Piercy was primarily a road officer, but in the previous year, 2013, he had attended MSHP's water school to receive Water Patrol training. Piercy received insufficient training in the classroom and on the water; Plaintiffs allege he was insufficiently trained to swim, operate a boat, operate other equipment, and conduct a water rescue without supervision.

The training program Piercy attended had been approved by Colonel Ronald Replogle and Major J. Bret Johnson, even though both knew it was rushing inadequately trained officers, such as Piercy, into marine enforcement duties. Captain Gregory Kindle and Lieutenant Darewin Clardy further knew that Piercy could only swim at a low proficiency and could not properly operate his patrol boat.

Plaintiffs allege that after Brandon's death, several Defendants conducted a deficient investigation that attempted to suppress facts surrounding the death and shield Piercy from liability. Lieutenant Justin McCullough and Corporal David Echternacht prepared a Marine Accident Investigation Report stating that Brandon voluntarily left the boat, even though both knew he had been involuntarily ejected. Replogle and Captain Sarah Eberhard appointed Corporal Eric Stacks the lead marine investigator into Brandon's death, despite knowing he had no training in marine investigations. Stacks then "intentionally and deliberately excluded relevant information provided by [Randy] Henry, a two-decade veteran of the Water Patrol Division, from [his] investigate report."2 [Doc. 45, p. 12, ¶ 72]. Stacks further, along with Sergeant Chris Harris and Eberhard, "intentionally attempted to steer witnesses into making statements favorable to Piercy's actions and which contradicted known admissions by Piercy." [Doc. 45, p. 13, ¶ 79]. Additionally, Replogle and MSHP violated MSHP policies when reviewing the final investigative reports.

Following the investigation, Sergeant Donald Barbour, Kindle, and Clardy stated at a meeting that the investigation had been "handled." [Doc. 45, p. 15, ¶ 87]. A coroner's inquest was held on September 4, 2014. At the inquest, Clardy decided not to call Randy Henry to testify, even though Henry had spoken with Piercy on the night of Brandon's death. Stacks also withheld a video recreation which demonstrated the patrol boat's high rate of speed.

Plaintiffs filed their suit on December 5, 2014. The Court dismissed several of Plaintiffs' claims in orders entered on June, 15, 2015 [Doc. 95] and on June 30, 2015 [Doc. 96]. Plaintiffs further dismissed several claims on February 20, 2016 [Doc. 162]. Accordingly, the following claims are still pending:

• Count I: Civil Rights Violation under 42 U.S.C. § 1983. Asserted by Plaintiffs Craig and Sherry (individually and as co-administrators of Brandon's estate) and Jennifer against Trooper Piercy (individually).
• Count II: Civil Rights Violation under 42 U.S.C. § 1983. Asserted by Plaintiffs Craig and Sherry (individually and as co-administrators of Brandon's estate) against Colonel Replogle, Major Johnson, Captain Kindle, and Lieutenant Clardy (individually). Asserted by Plaintiffs Craig and Sherry (individually and as co-administrators of Brandon's estate) and Jennifer against Lieutenant McCullough, Corporal Echternacht, and Sergeant Barbour (individually).
• Count III: Civil Conspiracy under 42 U.S.C. §§ 1983, 1985, and 1986. Asserted by Plaintiffs Craig and Sherry (individually and as co-administrators of Brandon's estate) against Captain Kindle, Lieutenant Clardy, and Corporal Stacks (individually). Asserted by Plaintiffs Craig and Sherry (individually and as co-administrators of Brandon's estate) and Jennifer against Trooper Piercy, Lieutenant McCullough, Corporal Echternacht, Sergeant Barbour, Sergeant Harris, Trooper Fick, Captain Eberhard, and Lieutenant Herndon (individually).
• Count IV: Negligence. Asserted by Plaintiffs Craig and Sherry (individually and as co-administrators of Brandon's estate) and Jennifer against Trooper Piercy (individually and in his official capacity).
• Count V: Negligence Per Se. Asserted by Plaintiffs Craig and Sherry (individually and as co-administrators of Brandon's estate) and Jennifer against Trooper Piercy (individually and in his official capacity).
• Count VI: Negligent Hiring, Training, and Supervision (of Trooper Piercy) under Mo. Rev. Stat. § 537.080. Asserted by Plaintiffs Craig and Sherry (individually and as co-administrators of Brandon's estate) against Colonel Replogle, Major Johnson, Captain Kindle, Lieutenant Clardy, Lieutenant McCullough, Corporal Echternacht, and Sergeant Barbour (in their official capacities).
• Count VII: Negligent Hiring, Training, and Supervision (of Corporal Stacks and Sergeant Harris) under Mo. Rev. Stat. § 537.080. Asserted by Plaintiffs Craig and Sherry (individually and as co-administrators of Brandon's estate) against Colonel Replogle, Captain Eberhard, and Lieutenant Herndon (in their official capacities).
• Count VIII: Respondeat Superior under Mo. Rev. Stat. § 537.080. Asserted by Plaintiffs Craig and Sherry (individually and as co-administrators of Brandon's estate) against the State of Missouri and the MSHP.
• Count IX: Conspiracy to Commit Abuse of Process. Asserted by Plaintiffs Craig and Sherry (individually and as co-administrators of Brandon's estate) and Jennifer against Trooper Piercy (individually and in his official capacity).
II. Discussion

A motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) is appropriate "when there is no dispute as to any material facts and the movingparty is entitled to judgment as a matter of law." Wishnatsky v. Rovner, 433 F.3d 608, 610 (8th Cir. 2006). In assessing this motion, a court applies "the same standard used to address a motion to dismiss for failure to state a claim under Rule 12(b)(6)." Ashley Cty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009).

Accordingly, the Defendants are entitled partial judgment on the pleadings if Plaintiffs' complaint fails to "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A. Jennifer Ellingson's Claims

Defendants first argue that Plaintiff Jennifer Ellingson lacks standing to assert several claims in this litigation. Defendant Piercy asks the Court to dismiss Jennifer from Count I. Plaintiffs have not contested Piercy's argument, so accordingly, this claim is dismissed with prejudice.

Defendants Replogle, Johnson, Kindle, Clardy, Stacks,...

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