Green v. State

• Decision Date: 17 August 2010
• Docket Number: No. 4:06CV1667RWS,4:06CV1667RWS
• Citation: 734 F.Supp.2d 814
• Parties: Percy GREEN, II, Plaintiff, v. State of MISSOURI, et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

734 F.Supp.2d 814

Percy GREEN, II, Plaintiff,
v.
State of MISSOURI, et al., Defendants.

No. 4:06CV1667RWS.

United States District Court,
E.D. Missouri,
Eastern Division.

Aug. 17, 2010.

734 F.Supp.2d 822

Robert J. Reinhold, St. Louis, MO, for Plaintiff.

Robert J. Isaacson, Attorney General of Missouri, St. Louis, MO, for Paul Nocchiero, Joseph Mokwa, Chris Goodson, JoAnn Freeman-Morrow, Michael Quinn, Julius Hunter, Francis Slay, John Podolak, David Doetzel, Andrew Griffin, Brent Knox, Michael Regan, Daniel Peek.

Thomas R. McDonnell, St. Louis City Counselor, St. Louis, MO, for Francis Slay, State of Missouri, David Miller, John Bouhasin.

Stephen M. Durbin, Thomas L. Caradonna, Lewis Rice, St. Louis, MO, for Charles McCrary, Kestner Miller, Richard Grines, Special Administrative Board of the Transitional School District of the City of St. Louis.

MEMORANDUM AND ORDER

RODNEY W. SIPPEL, District Judge.

In a thirteen count complaint,¹ Plaintiff Percy Green, II has sued more than twenty defendants for violations of his constitutional and statutory civil rights and the Missouri common law. All claims concern his arrest at a St. Louis City School Board meeting on November 18, 2003 and his subsequent prosecution. In three separate motions, the defendants have moved for summary judgment. In the first motion, Defendants Michael Quinn, JoAnn Freeman Morrow, Julius Hunter, Chris Goodson, and Francis Slay, as current or former members of the St. Louis Board of Police Commissioners, Secretary Paul Nocchiero, and Chief of Police Joseph Mokwa, as well as individual officers David Doetzel, Michael Regan, Andrew Griffin, Daniel Peek, John Podolak, and Brent Knox jointly moved for summary judgment. In the second motion, Defendants Charles McCrary, Kestner Miller, and the Special Administrative Board of the Transitional School District of the City of St. Louis jointly moved for summary judgment. And in the final motion, Defendants

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City of St. Louis, Francis Slay, as Mayor of the City of St. Louis, and two prosecutors, David Miller and John Bouhasin, jointly moved for summary judgment. For the reasons stated below, I will grant summary judgment on some claims and deny judgment on others.

I. Background

Plaintiff Percy Green is a well-known civil rights activist in St. Louis. Green's long history of civil rights activism is discussed in the landmark employment discrimination case, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Three decades after Green's civil rights activities reached the Supreme Court, Green became concerned about the actions taken by a new slate of candidates who were elected to the St. Louis School Board in the Spring of 2003. After being officially sworn in, the new School Board's actions caused an outpouring of anger in the district and swelled the number of people attending School Board meetings. Green was one of the people who began attending School Board meetings, and his arrest at the November 18, 2003 School Board meeting gave rise to this lawsuit.

Green filed his initial complaint on November 17, 2006. Over the course of the last three and a half years, Green has amended his complaint four times. In its final iteration, Green seeks damages for his personal injuries, loss of employment and economic opportunities, personal embarrassment, damage to his reputation, litigation costs, and his sense of personal distress regarding "movement losses." In this case, the "movement loss" at issue is not Green's seizure at the School Board meeting or the loss of his freedom to move. Rather, Green asserts that he was damaged because the success of "the movement" was of great personal importance to him. He claims he is entitled to damages for the failure of "the movement" because after his arrest, attendance at meetings "dropped off."

Before discussing the claims Green has made and the evidence the parties have submitted in support of and in opposition to summary judgment, it is necessary to explain the difficulty the defendants and the Court have encountered in their attempts to understand what, exactly, Green's claims and legal arguments are. Green is represented by counsel, and I have asked Green for clarification. Green's memoranda and responses frequently lack clarity and generally do not assist me in understanding his claims or arguments. It appears Green has made the following claims.

In Count I, Green sues Charles McCrary and Kestner Miller ("School Security Officers") and David Doetzel, Michael Regan, Andrew Griffin, Daniel Peek, John Podolak, Brent Knox, Craig Hebrank, Daniel Sweeney, and Byron Willis ("Defendant Police Officers"),² for violation of Green's First, Fourth, Fifth, Eighth and Fourteenth Amendment rights in their individual capacities. It is not clear whether Green asserts this count against the Special Administrative Board of the Transitional School District of the City of St. Louis ("SAB") and the Police Department through its Chief of Police Joseph Mokwa, its Secretary Paul Nocchiero, and Board Members Michael Quinn, JoAnn Freeman Morrow, Julius Hunter, Chris Goodson, and Francis Slay, in their capacities as current or former members of the St. Louis Board of Police Commissioners ("Police Board").

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In Count II, Green sues School Security Officers and Defendant Police Officers for violation of his statutory civil rights. Green alleges that School Security Officers and Defendant Police Officers engaged in intentional wrongful conduct and violence toward him, and they had no lawful authority to arrest him or use force against him. Green also claims the actions were done with actual malice and with willful and wanton indifference to, and deliberate disregard, for Green's constitutional rights. Green seeks exemplary and punitive damages.

In Count III, Green sues the Police Board for violations of Green's constitutional rights. Green claims that the Police Department had a policy and practice to authorize, acquiesce to, and cover up the use of excessive force.³ Green further assets the Police Department had a policy and practice of authorizing its officers to verbally abuse detainees, and that these policies and practices caused Green to experience a constitutional deprivation. Green also claims the Police Department failed to adequately train, direct, supervise or control Defendant Police Officers concerning the use of excessive force and verbal abuse.

In Count IV, Green alleges that Defendant Police Officers, School Security Officers, and the Police Department conspired to violate his constitutional and statutory civil rights in violation of 42 U.S.C. §§ 1981, 1983, 1985 and the Equal Protection and Privileges and Immunities Clauses of the Fourteenth Amendment.

The Complaint does not contain any counts numbered V through VIII.

In Count IX, Green asserts a claim against the Police Department for respondeat superior liability for the intentional torts committed by Defendant Police Officers.

In Count X, Green asserts another claim against the Police Department, through the Police Board, for respondeat superior liability for the intentional torts of Defendant Police Officers, specifically the use of excessive force in the line of duty. Green claims that because the Police Department expressly authorized the use of excessive force, he is entitled to exemplary damages for the malicious conduct of Defendant Police Officers.

In Count XI, Green asserts a claim for negligence against Defendant Police Officers and School Security Officers. Green claims that Defendant Police Officers and School Security Officers were negligent when they used excessive force against him.

In Count XII, Green seeks exemplary and punitive damages from Defendant Police Officers and School Security Officers because their negligent violence was done with willful and wanton indifference to, and deliberate disregard for, human life and Green's rights.

In Count XIII, Green seeks damages from the Police Department for the negligence of Defendant Police Officers through the doctrine of respondeat superior because Defendant Police Officers' negligence

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was committed within the scope of their employment and was an approved custom and usage of, or was encouraged, or acquiesced to, by the Police Department.

In Count XIV, Green asserts that the Police Department was negligent in that it failed to provide adequate training, supervision and control of Defendant Police Officers, and that Green was injured as a result of that failure.

In Count XV, Green claims he is entitled to punitive and exemplary damages from the Police Department for its failure to adequately train and supervise Defendant Police Officers because the failure to do so constitutes willful and wanton indifference to, and a deliberate disregard for, human life and the rights of private citizens, including Green.

In Count XVI, Green asserts a claim of malicious abuse of process, false arrest, and false imprisonment against School Security Officers and Defendant Police Officers. Green claims School Security Officers and Defendant Police Officers used the criminal process against him in order to intimidate him and dissuade him from asserting his rights, to cover up their own wrongdoing, and to avoid civil and criminal liability for their own acts. Green also claims School Security Officers and Defendant Police Officers falsely arrested him and falsely imprisoned him or caused him to be imprisoned.

In Count XVII, Green sues City of St. Louis, Francis Slay, as Mayor of the City of St. Louis, and two prosecutors, David Miller and John Bouhasin (collectively "City Defendants"), for malicious prosecution in violation of 42 U.S.C. §§ 1981, 1983 and 1985. Green claims David Miller, Bouhasin, Slay, and the City of St. Louis conspired to deprive him of his rights to free speech, free assembly, and equal protection under the United States Constitution by prosecuting him in retaliation for exercising his...