Cockrell v. Bowersox

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TREY COCKRELL, Plaintiff, v. JOSHUA BOWERSOX, et al., Defendants.

No. 4:21-cv-01260-JAR

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

January 31, 2024

MEMORANDUM AND ORDER

JOHN A. ROSS UNITED STATES DISTRICT JUDGE

This matter is before the Court on two motions for summary judgment. On October 2, 2023, Defendants the City of Brentwood, Police Chief Joseph L. Speiss, and Officer Joshua Bowersox filed their Motion for summary judgment. ECF No. 70. Defendants the City of Richmond Heights, Mayor Jim Thomson and Officer Jeffrey Dulaney also filed their Motion for summary judgment on October 2. ECF No. 73. On October 30 2023, Plaintiff filed a combined Response to both motions. ECF No. 77.^[1]On November 13, 2023, Defendants filed their Replies. ECF Nos. 79 and 82. This matter is now fully briefed and ready for disposition. For the reasons explained below, the Court will grant Defendants' Motions.

Background

A. The Complaint

Plaintiff filed his original Complaint with this Court on October 20 2021. ECF No. 1. The Complaint alleged three counts of constitutional rights violations under 42 U.S.C. § 1983 against twenty-one Defendants.

On January 28, 2022, Plaintiff filed an Amended Complaint, which raises three claims under 42 U.S.C. § 1983: (1) Count I use of excessive force in violation of the Fourth Amendment against Defendants Bowersox and Dulaney^[2]; (2) Count II failure to train and discipline under Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978) against the City of Brentwood; Joseph Speiss, Chief of Police for the Brentwood Police Department; the City of Richmond Heights; and Jim Thomson, Mayor of Richmond Heights^[3](the “Municipal Defendants”); and (3) Count III, Assault and Battery against Defendants Bowersox and Dulaney.^[4] ECF No. 37.

B. Relevant Facts

Generally, on a motion for summary judgment, the Court must view the evidence in the light most favorable to the nonmoving party. See Emerald Pointe, LLC v. Taney Cnty., 78 F.4th 428, 432 (8th Cir. 2023). But here, Plaintiff failed to respond to the Defendants' Statements of Uncontroverted Material Facts (“SUMF”) as required by Local Rule 4.01(E):

Every memorandum in opposition [to a motion for summary judgment] must be accompanied by a document titled Response to Statement of Material Facts, which must be separately filed using the filing event “Response to Statement of Material Facts.” The Response must set forth each relevant fact as to which the party contends a genuine issue exists. The facts in dispute shall be set forth with specific citation(s) to the record, where available, upon which the opposing party relies. The opposing party also shall note for all disputed facts the paragraph number from the moving party's Statement of Uncontroverted Material Facts.

The penalty for failing to follow the rule is clear: “All matters set forth in the moving party's Statement of Uncontroverted Material Facts shall be deemed admitted for purposes of summary judgment unless specifically controverted by the opposing party.” Id.

Plaintiff's opposition references his own SUMF, but Plaintiff did not file a separate response to Defendants' SUMF, nor did he seek leave to do so after Defendants' Replies pointed out his omission. Thus, all matters set forth in Defendants' SUMF are deemed admitted for purposes of summary judgment. Id.; see also Whitt v. City of St. Louis, No. 4:18-cv-1294, 2021 WL 2805286, at *2 (E.D. Mo. July 6, 2021) (collecting cases). Accordingly, the following facts are taken largely from the Defendants' SUMFs (ECF Nos. 72 and 75) and are deemed admitted.

1. Defendants the City of Brentwood, Police Chief Spiess, and Officer Bowersox

On November 20, 2018, at around 11:30 p.m., Plaintiff Cockrell was the front seat passenger in a vehicle parked in the Drury Inn parking lot in Brentwood, Missouri. City of Brentwood police officers Nicholas Stanze and Defendant Joshua Bowersox made an investigatory stop of the vehicle after discovering the vehicle had warrants attached. At the time of the stop, Officer Bowersox was not aware that Plaintiff concealed a 9-millimeter handgun in his pants. Officers Stanze and Bowersox attempted to obtain pedigree information from the driver and Plaintiff and then returned to their police cruiser to run the information through their computer.

While the officers were checking the information, Plaintiff exited the car and ran. Officer Bowersox ran after Plaintiff towards Eager Road while Officer Stanze remained with the driver in the Drury Inn parking lot. Officer Bowersox lost sight of Plaintiff as Plaintiff turned out of the lighted area heading east on Eager Road into an area that crosses over Black Creek. Officer Bowersox then heard a gunshot that he believed came from an area of brush along the east side of the creek where he believed Plaintiff was located. Officer Bowersox did not see Plaintiff fire the gun, but upon hearing a gunshot, he believed that Plaintiff had fired at him.

Officer Bowersox ran back to the west side of the creek toward the Drury Inn parking lot. He called out “shots fired!” Officer Stanze, who was still in the Drury Inn parking lot, called out on the police radio “shots fired!” At around the time Officer Stanze made his radio call, Plaintiff abandoned his weapon on a ledge at the edge of the creek. Plaintiff then descended into the area around Black Creek. Plaintiff then ran southbound along and within Black Creek.

Officer Bowersox walked along the west side of the creek trying to find Plaintiff. Officer Bowersox was not aware that Plaintiff had abandoned his gun. Officer Bowersox then heard someone yelling “get down!” to the south. He ran southward down a service road behind the Drury Inn. There, Officer Bowersox saw Plaintiff in a raised area in the middle of the creek surrounded by weeds and foliage. Officer Bowersox then heard what he believed to be another responding officer on the opposite side of the creek yelling “drop the gun!” Officer Bowersox and other responding officers then shouted instructions to Plaintiff to get on the ground and to drop the gun. Plaintiff did not comply with these instructions. Plaintiff then looked at Officer Bowersox and extended his arm. Officer Bowersox believed Plaintiff was pointing an object at him. Officer Bowersox believed the object was a gun. He did not immediately open fire but backpedaled to try to gain cover. While retreating, he tripped over a curb and fell backwards.

Officer Bowersox stood up after his fall and saw Plaintiff still pointing an object at him. Officer Bowersox then heard gunshots and saw Plaintiff turn around to point the object towards the other side of the creek where Officer Bowersox believed at least one other responding officer was positioned. Officer Bowersox then opened fire on Plaintiff believing that Plaintiff was shooting at other officers. Officer Bowersox does not know how many, if any, shots he fired at Plaintiff actually struck Plaintiff.

After Plaintiff was shot and subdued, other officers entered Black Creek to arrest him. Officer Bowersox remained outside of the creek to provide cover for the other responding officers as they apprehended Plaintiff. Plaintiff was taken to Barnes Jewish Hospital for treatment for multiple gunshot wounds.

Discovery has not produced evidence related to the training, supervision, or prior bad acts of the City of Brentwood Police Department and Officer Bowersox. Plaintiff has not presented evidence of a pattern of use of excessive force attributable to the City of Brentwood Police Department or Officer Bowersox. Additionally, Plaintiff has cited to no evidence of deliberate indifference in the training and supervision with the City of Brentwood Police Department, including Officer Bowersox.

2. Defendants the City of Richmond Heights, Officer Dulaney, and Mayor Jim Thomson

On November 20, 2018 at around 11:30 p.m., Officer Dulaney was at a nearby gas station when he heard a dispatch report that Officers Bowersox and Stanze had stopped a vehicle at the Drury Inn that had warrants attached. Officer Dulaney drove towards the Drury Inn to assist. On the way, Officer Dulaney heard a “shots fired!” radio message in connection with the stop. Upon hearing this radio message Officer Dulaney believed that Plaintiff was firing at Officers Bowersox and Stanze. Officer Dulaney activated his emergency lights and sirens to quickly arrive at the Drury Inn. He drove his vehicle to the east bank of Black Creek just southeast of the Drury Inn. Officer Dulaney retrieved his department approved firearm and proceeded towards the creek where he believed Plaintiff was located. He proceeded along the creek until he saw Plaintiff standing in the middle of the creek with his arm in the air pointed toward other responding officers. Officer Dulaney saw Plaintiff holding something in his extended hand, which he believed to be a firearm. Officer Dulaney then heard an officer shout “drop the gun!”, and he too commanded that Plaintiff drop his weapon. Plaintiff did not lower his hands or drop the item within his hand. Officer Dulaney then heard two gunshots and believed that one came from Plaintiff. Officer Dulaney fired his department approved firearm toward Plaintiff. Officer Dulaney believed Plaintiff was an active risk to others. After Officer Dulaney fired, Plaintiff fell to the ground but later stood up again. Believing that Plaintiff had been shot, Officer Dulaney believed that Plaintiff may have been wearing hard body armor. Officer Dulaney again aimed his weapon towards Plaintiff's waist area and fired. Officer Dulaney stopped firing his weapon once he believed that Plaintiff was no longer a threat to himself or the lives of the other responding officers. Plaintiff was arrested and...