Ellingson v. Piercy

Decision Date15 June 2015
Docket NumberNo. 2:14-CV-04316-NKL,2:14-CV-04316-NKL
CourtU.S. District Court — Western District of Missouri
PartiesCRAIG E. ELLINGSON and SHERRY ELLINGSON, individually and as Co-Administrators for the ESTATE OF BRANDON ELLINGSON, deceased, and JENNIFER ELLINGSON, Plaintiffs, v. ANTHONY PIERCY, et al., Defendants.

This case arises out of the drowning death of Brandon Ellingson, which happened while he was in the custody of Defendant Anthony Piercy, a Missouri State Trooper, serving in the Water Patrol Division, Troop F, of the Missouri State Highway Patrol (MSHP). The Plaintiffs are Brandon's mother, father, and sister. They are suing Piercy and 15 additional state or county employees, alleging the Defendants violated both federal and state law while Brandon was in custody and during the subsequent investigation of his death.

Defendant M.B. Jones, Coroner of Morgan County, Missouri, moves to dismiss all claims against him. [Doc. 60.] Fourteen other Defendants move to dismiss in part: Colonel Ronald Replogle; Major J. Bret Johnson; Captain Gregory Kindle; Lieutenant Darewin Clardy; Lieutenant Justin McCullough; Corporal David Echternacht; Corporal Eric Stacks; Sergeant Donald Barbour; Sergeant Chris Harris; Trooper Timothy Fick; Captain Sarah L. Eberhard; Lieutenant Rick Herndon; the MSHP; and the State of Missouri. [Doc. 58.]

For the reasons discussed below, Jones' motion to dismiss is granted, and motion of the 14 other Defendants is granted in part and denied in part.

I. Background1

On May 31, 2014, twenty-year old Brandon Ellingson was operating a private boat with some friends on the Lake of the Ozarks. Trooper Piercy stopped Brandon's boat for possible vehicle registration and littering violations. Piercy had Brandon come aboard the patrol boat to determine whether Brandon was intoxicated. After performing a field sobriety test, Piercy determined Brandon was intoxicated and handcuffed Brandon at the wrists, with Brandon's arms behind his back. Leaving Brandon handcuffed, Piercy pulled a Type III life vest—with the buckles already fastened—over Brandon's head, and did not fasten the life vest's crotch strap. Piercy did not know a Type III life vest had a crotch strap. MSHP policy required a Type I or Type II personal flotation device to be used on a handcuffed person. A Type I device was available on Piercy's patrol boat.

Piercy had attended the MSHP's water school in 2013 in order to serve part-time with the Water Patrol. But as of May 31, 2014, "Piercy had received insufficient training, both in the classroom and on the water, including the training needed to be qualified in swimming, boat operation, equipment usage and operation, water rescue, and procedures to allow him to serve without supervision on the water." [Doc. 45, p. 6, ¶ 29.] The Plaintiffs allege on information and belief that Colonel Replogle and Major Johnson approved a marine training program lacking sufficient benchmarks to ensure officers were prepared to safely perform arrests and transportation on the water, before being permitted and scheduled to do so without supervision,and knowingly rushed insufficiently trained officers such as Piercy onto the water in order to log more arrests and citations on the Lake. [Id., p. 15, ¶ 85.] The Plaintiffs also allege on information and belief that Captain Kindle, Lieutenant Clardy, Lieutenant McCullough, and Corporal Echternacht knew Piercy could only swim at low proficiency, did not know how to properly operate his patrol boat, and that because of his inability and training he posed a risk to individuals whom he would be arresting and transporting on the water, but Kindle, Clardy, McCullough, and Echternacht knowingly permitted Piercy to patrol on the water without supervision, for the purpose of logging more arrests and citations on the Lake. [Id., p. 15, ¶ 86.]

When Piercy started to take Brandon away in the patrol boat, Brandon was not buckled into a seat but leaning against a seat to Piercy's right. Piercy operated the patrol boat at speeds up to 46 miles per hour, notwithstanding that the water on the lake was rough. Piercy hit a wave, causing Brandon to be involuntarily ejected from the boat into the water. Brandon's life vest came off within moments. Piercy eventually put a Type V personal flotation device on himself and got in the water to attempt a rescue. Piercy, who mistakenly thought the Type V device would auto-inflate, could not bring up Brandon, and Brandon drowned.

Three hours after Brandon drowned, Trooper Fick told Brandon's friends, who were trying to find Brandon, that Brandon was still in custody because he had been confrontational and aggressive with the arresting officer. Fick knew what he said was false.

The Plaintiffs allege on information and belief that Sergeant Barbour, Piercy's direct supervisor, spoke with Piercy by phone shortly after the drowning, about Brandon's arrest and transportation, but that Barbour did not prepare an official report about the conversation, in violation of MSHP policy. [Id., p. 12, ¶ 73.] The Plaintiffs further allege on information and belief that Corporal Echternacht knew Barbour had spoken with Piercy and failed to prepare anofficial report about the conversation, and knowingly consented to Barbour's violation of policy. [Id., p. 12, ¶ 74.]

The Plaintiffs allege on information and belief that Colonel Replogle and Captain Eberhard appointed Corporal Stacks as lead marine investigator of the drowning incident, knowing Stacks had neither training in investigations of marine incidents or marine deaths, nor experience performing such investigations. [Id., pp. 12-13, ¶¶ 75 and 77.] Sergeant Harris, who was also investigating the incident, similarly lacked training and experience. Captain Eberhard and Lieutenant Herndon were responsible for ensuring officers charged with investigations into incidents such as Brandon's drowning had proper training and experience. The Plaintiffs allege on information and belief that Captain Eberhard and Lieutenant Herndon were also responsible for supervising the investigation; permitted it to be improperly steered to absolve Piercy and the MSHP; and failed to ensure the reports were being properly reviewed and documented pursuant to MSHP policy. [Id., p. 14, ¶ 83.]

During the investigation, Corporal Stacks, Sergeant Harris, and Captain Eberhard intentionally attempted to steer witnesses to make statements favorable to Piercy's actions, and contradict admissions made by Piercy and known to Stacks, Harris, and Eberhard, including Piercy's admission that the Type III life vest was improperly secured. Further, in the course of investigating Brandon's death, Sergeant Harris and Corporal Stacks interviewed Sergeant Randy Henry2 regarding information Henry had gathered from conversations with Piercy the night of Brandon's death. Harris and Stacks refused to collect relevant information Henry provided. They turned off the audio recording of Henry's interview. They also intentionally excluded from their report, relevant information provided by Henry.

One month after the drowning, Corporal Echternacht submitted a Marine Accident Investigation Report, stating Brandon voluntarily left Piercy's patrol boat, a statement Echternacht knew to be false. The Plaintiffs allege on information and belief that an earlier version of Echternacht's report indicated Brandon had been involuntarily ejected from the boat, but that Lieutenant McCullough instructed Echternacht to change the report to say Brandon voluntarily left the boat, for the purpose of absolving Piercy and the MSHP of responsibility for Brandon's death. [Doc. 45, p. 11, ¶ 67.]

The Plaintiffs allege on information and belief that Colonel Replogle reviewed the "325" reports prepared and issued in the investigation of Brandon's death, knowing that a mandatory procedural requirement had not been carried out, specifically, that Corporal Echternacht's report had not been reviewed by a supervisor. [Id., p. 14, ¶ 81.] But Replogle intentionally allowed the requirement to go unfulfilled. Further, in violation of MSHP policy and procedure, no one ultimately signed the MSHP's investigative report, nor signed off as having reviewed it.

Captain Kindle, Lieutenant Clardy, and Sergeant Barbour "attended Troop F Sergeants meetings, at which they stated having the investigation 'handled', indicating a specific intent for the investigation to protect Piercy from legal action for Brandon's death while in custody." [Id., p. 15, ¶ 87.]3 "As ranking and supervising officers within the [MSHP], generally, and Troop F, specifically, [Captain Kindle and Lieutenant Clardy] are responsible for ensuring officers subject to their supervision and command are properly and fully trained[.]" [Id., p. 15, ¶ 88.]

Coroner Jones obtained a blood sample from Brandon's body the day after the drowning, which showed a blood alcohol content of .243, but did not show the presence of cocaine. A second toxicology report reflected a BAC of .268, as well as cocaine metabolites. At theCoroner's Inquest, Jones presented only the second toxicology report and did not disclose the results of the first one. The Plaintiffs allege on information and belief that Jones, in derogation of his duties under Mo. Rev. Stat. §§ 58.451.1(5) and 58.330, permitted Lieutenant Clardy to decide that Sergeant Henry, who was Piercy's immediate supervisor and who spoke with Piercy immediately after Brandon's death, would not testify at the inquest. [Id., p. 16, ¶ 91.] Accordingly, Plaintiffs allege on information and belief, Jones did not call Henry to testify, despite Jones' knowledge of Henry's information. [Id., p. 17, ¶ 92.] For the purpose of hiding the truth and absolving Piercy and the MSHP of responsibility for Brandon's death, Jones also failed to present relevant testimony of Brandon's friends about Piercy's conduct.

Corporal Stacks intentionally withheld relevant evidence during the Coroner's Inquest. He did not disclose...

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