Mick v. Raines

• Decision Date: 05 March 2018
• Docket Number: No. 17-1644,17-1644
• Citation: 883 F.3d 1075
• Parties: Kerrie Gene MICK, Plaintiff–Appellant, v. Wes RAINES; Harold Allison, Presiding; Garrett Brown, Deputy #711; Randy Simms, Presiding Commissioner; Larry King; David Parker, Jailer #723; Jason Keough ; John Patterson, Deputy #712; Jeffrey Parton; Samuel Woolsey, Officer; Charlie Dawson, Defendants–Appellees, Jerry Ramos, Badge #601, Defendant, Bob Gray, Administrator; Wade Wilken, Defendants–Appellees, Robert Smock, Chief, Defendant, Porter Hensen, Sheriff; Ben Becerra, Sheriff; Lt. Devin Lacy, Defendants–Appellees, Dr. Paul B. Glynn, Defendant.
• Court: U.S. Court of Appeals — Eighth Circuit

883 F.3d 1075

Kerrie Gene MICK, Plaintiff–Appellant,

v. Wes RAINES; Harold Allison, Presiding; Garrett Brown, Deputy #711; Randy Simms, Presiding Commissioner; Larry King; David Parker, Jailer #723; Jason Keough ; John Patterson, Deputy #712; Jeffrey Parton; Samuel Woolsey, Officer; Charlie Dawson, Defendants–Appellees,Jerry Ramos, Badge #601, Defendant,Bob Gray, Administrator; Wade Wilken, Defendants–Appellees,Robert Smock, Chief, Defendant,Porter Hensen, Sheriff; Ben Becerra, Sheriff; Lt. Devin Lacy, Defendants–Appellees,Dr. Paul B. Glynn, Defendant.

No. 17-1644

United States Court of Appeals, Eighth Circuit.

Submitted: November 15, 2017

Filed: March 5, 2018

Brian J. Klopfenstein, Kearney, MO, Matthew F. Mulhern, Schmitt & Mulhern, Rebecca M. Randles, Randles & Mata, Bernard T. Schmitt, Schmitt & Manz, Kansas City, MO, for Plaintiff–Appellant.

John R. Lightner, Jennifer A. Mueller, Katherine Ann O'Dell, Baird & Lightner, Springfield, MO, for Defendants–Appellees Wes Raines, Harold Allison, Presiding, Randy Simms, Presiding Commissioner, Jason Keough, Samuel Woolsey, Officer, Jerry Ramos, Badge #601, Bob Gray, Administrator, Ben Becerra, Sheriff, Lt. Devin Lacy.

David S. Baker, Fisher & Patterson, Kansas City, MO, Kenneth Joseph Berra, Fisher & Patterson, Overland Park, KS, for Defendants–Appellees Garrett Brown, Deputy #711, David Parker, Jailer #723, John Patterson, Deputy #712, Jeffrey Parton.

David S. Baker, Fisher & Patterson, Kansas City, MO, Peter Maharry, Appellate Defender Office SBIDS, Topeka, KS, for Defendants–Appellees Larry King, Charlie Dawson, Wade Wilken, Robert Smock, Chief, Porter Hensen, Sheriff.

Before COLLOTON and GRUENDER, Circuit Judges, and HOLMES,¹ District Judge.

HOLMES, District Judge.

Plaintiff Kerrie Gene Mick appeals the judgment of the district court.² Three orders are before us on appeal. The first granted the motion to dismiss filed by Defendants Porter Hensen, Wade Wilken, Larry King, and Charlie Dawson and the motion to dismiss filed by Defendants Bob Gray, Harold Allison, Randy Simms, Ben Becerra, and Wes Raines. The second granted the motion for summary judgment filed by Defendants John Patterson, Garrett Brown, David Parker, and Jeffrey Parton. The third granted the motion for summary judgment filed by Defendants Samuel Woolsey, Jason Keough, and Devin Lacy. We affirm.

I.

The parties have disputed some of the facts of this case. Where there are factual disputes, we base the following summary on accounts provided by Mick. See Mettler v. Whitledge , 165 F.3d 1197, 1200 (8th Cir. 1999) ("When reviewing a grant or denial of summary judgment, this Court considers the evidence in the light most favorable to the nonmoving party and draws all reasonable inferences in that party's favor.").

Mick was arrested without probable cause by officers who entered his mother’s home without a warrant, permission, or probable cause. He was shocked with a Taser and subjected to physical force during that time. He was then transported by ambulance to Clinton County Jail.

There, the jailers refused to call his mother to bring him his prescription medication. At booking, when Mick refused to remove a ring, he was taken to the ground, handcuffed, had his head beaten on the floor, was choked, and was punched in the kidneys. He screamed in pain and begged for help during this process. No medical attention was provided thereafter, and Mick was moved to the "drunk tank." There he was beaten on two other occasions, and his shoulder was slammed in the cell door, causing his arm to break. He requested medical attention and none was provided.

Mick was then transferred to Daviess/DeKalb Regional Jail ("Regional Jail"). When officers arrived to transfer Mick, he complained of pain in his arm. Despite Mick’s complaints, an officer shackled his arm to the wall of his cell. Mick stiffened and was then forced to the ground and put in wrist restraints. Mick again complained of pain and was given no medical attention. He was told to stand, but one of the officers stood on his manacles, making it impossible for him to get up, so officers again beat him. Mick was not taken to the hospital while en route to the Regional Jail. While being booked into the Regional Jail, Mick complained about his arm but was given no medical attention. He was placed into a cell, made repeated requests for medical attention, and was refused. He was instead handcuffed and placed on a mace-covered floor. When the shift changed, a sergeant noticed Mick’s condition and called for medical assistance. All charges against Mick were dismissed by prosecuting attorneys.

Mick brought suit in Missouri state court. The matter was subsequently removed to the United States District Court for Western District of Missouri. Mick asserted 42 U.S.C. § 1983 claims for use of excessive force, unreasonable search and seizure based on his arrest, failure to protect, conspiracy to deprive Mick of constitutional rights, unconstitutional policy, procedure, or widespread practice, and danger creation. Some defendants answered, and some filed motions to dismiss on the basis that the counts naming them were unsupported by factual allegations. Mick requested leave to amend his complaint, received it, and filed what was styled as an "amended complaint." Additional motions to dismiss were filed on the same basis as the previous motions, and were granted.

Mick later filed a "second amended complaint," which included additional claims for deliberate indifference to medical risk. Two motions for summary judgment were subsequently filed. The motions were granted on the basis that Mick was unable to show a dispute of fact with respect to whether unconstitutional misconduct was caused by official policy, unofficial custom, or failure to train or supervise. This appeal followed.

II.

Mick contends that the district court erred in entering an order granting the motion to dismiss filed by Defendants Hensen, Wilken, King, and Dawson and the motion to dismiss filed by Defendants Gray, Allison, Simms, Becerra, and Raines. We disagree.

"Our review of an order granting a motion to dismiss is de novo." Coons v. Mineta , 410 F.3d 1036, 1039 (8th Cir. 2005).

The district court’s order dismissed Mick’s § 1983 claims for unconstitutional policy, procedure or widespread practice, and danger creation. In dismissing these claims, the district court correctly noted that Mick made no allegations that the defendants named in the relevant counts had knowledge of unconstitutional acts by subordinates—a required element of each claim—nor did he make any allegations from which such knowledge could be inferred. See Livers v. Schenck , 700 F.3d 340, 355 (8th Cir. 2012) (A supervisor may be liable under § 1983 only if he had "notice of a pattern of unconstitutional acts committed by subordinates.").

Further, the district court previously dismissed the same claims on the grounds that they were conclusory and not supported by factual allegations. In that order, the district court gave Mick the opportunity to file an amended complaint alleging sufficient factual material to state a plausible claim for relief. In attempting to address the deficiency, rather than plead more facts, Mick just pled additional conclusions of law. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are not sufficient to survive a motion to dismiss. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Accordingly, the district court did not err in granting the motions to dismiss.

III.

Mick contends that the district court erred in entering an order granting the motion for summary judgment filed by Defendants Patterson, Brown, Parker, and Parton and in entering an order granting the motion for summary judgment filed by Defendants Woolsey, Keough, and Lacy.

We review "a district court’s grant of summary judgment de novo, affirming if ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ " B.M. ex rel. Miller v. S. Callaway R-II Sch. Dist. , 732 F.3d 882, 886 (8th Cir. 2013) (quoting Fed. R. Civ. P. 56(a) ).

As a threshold matter, the district court correctly determined that none of the defendants requesting summary judgment were named in their individual capacities, and were deemed to be sued in their official capacities only. "This court has held that, in order to sue a public official in his or her individual capacity, a plaintiff must expressly and unambiguously state so in the pleadings, otherwise, it will be assumed that the defendant is sued only in his or her official capacity." Johnson v. Outboard Marine Corp. , 172 F.3d 531, 535 (8th Cir. 1999). Nowhere in any of the complaints filed does Mick expressly and unambiguously state that any defendant was sued in his individual capacity. Accordingly, the district court properly treated Clinton County and the...