Henry Davis v. Ferguson

No.
14-1722
______________________________________________
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
______________________________________________
Henry Davis
Appellant
v.
Michael White, et al.
Appellees
______________________________________________
Appeal From The United States District Court
For the Eastern District of Missouri, Eastern Division
Case No. 4:10-CV-1429 NAB
The Honorable Magistrate Nannette A. Baker
______________________________________________
BRIEF OF APPELLANT, HENRY DAVIS
______________________________________________
James W. Schottel, Jr. #03-194
SCHOTTEL & ASSOCIATES, P.C.
906 Olive St., PH
St. Louis, MO 63101
(314) 421-0350
(314) 421-4060 facsimile
jwsj@schotteljustice.com
Attorney for Appellant
Henry Davis
Appellate Case: 14-1722
Page: 1
Date Filed: 07/08/2014 Entry ID: 4173071
SUMMARY OF THE CASE

AND STATEMENT REGARDING ORAL ARGUMENT
This case is brought by Appellant Henry Davis under 42 U.S.C. 1983
claiming that his civil rights were violated. Appellant specifically claimed that
Michael White, John Beaird and Kim Tihen used excessive force on Appellant by
kicking him in the head and punching him, all while Appellant was handcuffed.
Appellant suffered a concussion, headaches and severe bruising from the beating.
Appellant also claimed that the City of Ferguson police department operated under
customs and policies which showed deliberate indifference to the constitutional
rights of Appellant and caused Appellants injuries. The district court, in granting
Appellees motion for summary judgment, held that Appellants injuries were de
minimis and granted the officers qualified immunity.
Appellant also claimed that Appellee John Beaird violated Appellants due
process rights to fair criminal proceedings by executing false, sworn affidavits in
support of municipal charges against Appellant. After presenting evidence in support
of this claim at trial, the district court granted Appellee Beairds motion for
judgment as a matter of law, holding that Appellee Beairds actions did not shock
the conscience. Appellant claims that the district court erred in granting the
Appellees Motion for Summary Judgment and Appellee John Beairds Motion for
Judgment as a Matter of Law after the close of Appellants evidence at trial and
requests 20 minutes for oral argument to demonstrate that he is entitled to relief.
i
Page: 2
TABLE OF CONTENTS
SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENTi
TABLE OF CONTENTS..ii
TABLE OF AUTHORITIES.viii
JURISDICTIONAL STATEMENT..1
STATEMENT OF THE ISSUES WITH MOST APPOSITE CASES..2
STATEMENT OF THE CASE.................................................................................9
SUMMARY OF ARGUMENT...22
ARGUMENT...24
I.
THE DISTRICT COURT ERRED IN GRANTING APPELLEES

MICHAEL
WHITE,
JOHN
BEAIRD
AND
KIM
TIHEN
QUALIFIED IMMUNITY IN RULING ON THEIR MOTION FOR

SUMMARY
JUDGMENT
ON
APPELLANTS
CLAIM
OF
EXCESSIVE FORCE ON THE BASIS THAT THE FORCE USED

CAUSED NON-DE MINIMIS INJURIES TO APPELLANT AND
EVEN IF THE INJURIES SUFFERED BY APPELLANT WERE DE
MINIMIS, A REASONABLE OFFICER COULD NOT HAVE
BELIEVED THAT KICKING AND BEATING A COMPLIANT
AND HANDCUFFED APPELLANT WOULD NOT VIOLATE THE
CONSTITUTION...............................................................................24
ii
Page: 3
A.
IN RULING ON APPELLEES MOTION FOR SUMMARY

JUDGMENT ON APPELLANTS CLAIMS OF EXCESSIVE
FORCE, THE DISTRICT COURT ERRED IN FAILING TO
RESOLVE ALL DISPUTED FACTS AND FAILING TO
DRAW ALL INFERENCES IN FAVOR OF APPELLANT..25
B.
APPELLANTS INJURIES WERE NON-DE MINIMIS.28

1.
Appellants Concussion, Laceration to His Head and

Permanent Scar...28
2.
C.
Appellants Body Injuries Resulting in Bruising...........35
REGARDLESS OF WHETHER APPELLANTS INJURIES

WERE DE MINIMIS OR NON-DE MINIMIS, APPELLEES
MICHAEL WHITE, JOHN BEAIRD AND KIM TIHEN
WERE NOT ENTITLED TO QUALIFIED IMMUNITY AS
THEY KICKED AND BEAT APPELLANT WHO WAS
COMPLIANT AND HANDCUFFED.36
II.

MICHAEL WHITE, JOHN BEAIRD AND KIM TIHENS MOTION
FOR SUMMARY JUDGMENT ON APPELLANTS CLAIMS OF
ASSAULT AND BATTERY UNDER MISSOURI STATE LAW ON
THE BASIS THAT THE OFFICERS WERE NOT ENTITLED TO
iii
Page: 4
OFFICIAL IMMUNITY AS THEIR ACTIONS WERE TAKEN IN

BAD FAITH AND WITH MALICE..38
III.
THE DISTRICT COURT ERRED IN GRANTING APPELLEE

CITY OF FERGUSON, MISSOURIS MOTION FOR SUMMARY
JUDGMENT ON APPELLANTS CLAIM OF MUNICIPAL
LIABILITY ON THE BASIS THAT THE CITY OF FERGUSON
POLICE DEPARTMENT OPERATED UNDER CUSTOMS AND
POLICIES WHICH SHOWED DELIBERATE INDIFFERENCE TO
THE CONSTITUTIONAL RIGHTS OF CITIZENS, INCLUDING
APPELLANT, IN THE LACK OF RECORD KEEPING ABOUT
PARTICULAR OFFICERS' USE OF FORCE, COMPLETELY
IGNORING USE OF FORCE REPORTS AND OFFICERS WHO
MAY BE USING EXCESSIVE FORCE AND IGNORING
OFFICERS
WHO
ARE
SUBJECTED
TO
CITIZENS
COMPLAINTS AND SUCH DELIBERATE INDIFFERENCE

CAUSED APPELLANTS INJURIES.......................41
IV.
THE DISTRICT COURT ERRED IN GRANTING APPELLEE

JOHN BEAIRDS MOTION FOR JUDGMENT AS A MATTER OF
LAW AT THE CLOSE OF APPELLANTS EVIDENCE ON
APPELLANTS
CLAIM
OF
DUE
PROCESS
VIOLATION
iv
Page: 5
BECAUSE APPELLEE JOHN BEAIRDS EXECUTING FALSE

AFFIDAVITS
IN
SUPPORT
OF
MUNICIPAL
PROPERTY
DAMAGE CHARGES AGAINST APPELLANT SHOCKS THE

CONSCIENCE....................................................................................49
V.
THE DISTRICT COURT ERRED IN DENYING APPELLANTS

MOTION
TO
DISMISS
APPELLEE
MICHAEL
WHITES
COUNTERCLAIM FOR BATTERY UNDER MISSOURI STATE

LAW ON THE BASIS THAT THE COUNTERCLAIM WAS
ABANDONED
OR
NO
LONGER
PENDING
BECAUSE
APPELLEE MICHAEL WHITE FAILED TO PLEAD THE

COUNTERCLAIM IN RESPONSE TO APPELLANTS FIRST
AMENDED COMPLAINT55
VI.

MOTION
TO
DISMISS
APPELLEE
MICHAEL
WHITES
COUNTERCLAIM FOR BATTERY UNDER MISSOURI STATE

LAW ON THE BASIS THAT THE DISTRICT COURT LACKED
JURISDICTION
OVER
APPELLEE
MICHAEL
WHITES
COUNTERCLAIM AFTER THE DISTRICT COURT GRANTED

THE APPELLEES MOTION FOR SUMMARY JUDGMENT AND
DISMISSED APPELLANTS CLAIMS OF EXCESSIVE FORCE
v
Page: 6
AND STATE LAW ASSAULT AND BATTERY AGAINST

APPELLEE WHITE...59
VII. THE DISTRICT COURT ERRED IN DENYING APPELLANTS
MOTION TO BIFURCATE THE TRIAL OF APPELLEE MICHAEL
WHITES COUNTERCLAIM FOR BATTERY UNDER MISSOURI
STATE LAW FROM APPELLANTS SUBSTANTIVE DUE
PROCESS VIOLATION AGAINST APPELLEE JOHN BEAIRD IN
THAT THE ISSUES WERE CLEARLY SEPARABLE AND
HAVING ONE TRIAL WAS PREJUDICIAL TO APPELLANT65
CONCLUSION.......................................................................................................69
CERTIFICATE OF COMPLIANCE WITH F.R.A.P. RULE 32(a)(7)...72
VERIFICATION OF VIRUS-FREE ELECTRONIC FILES.................................73
CERTIFICATE OF FILING AND SERVICE........................................................74
ADDENDUM
A.
December 31, 2013 Judgment of Dismissal of Counts I, III, IV, V, VI, VII,
and VIII of Appellants First Amended Complaint
B.
December 31, 2013 District Court Memorandum and Order granting in part
and denying in part Appellees Motion for Summary Judgment
C.
March 10, 2014 District Court Memorandum and Order denying Appellants
Motions to Dismiss or Ruling on Appellee Michael Whites Counterclaim as
vi
Page: 7
Abandoned and Motion to Bifurcate Trial

D.
March 25, 2014 Judgment as a Matter of Law on Count II of Appellants First

Amended Complaint
E.
March 25, 2014 District Court Memorandum and Order granting Appellee
John Beairds Motion for Judgment as a Matter of Law after the Close of
Appellants Evidence
F.
Section 29.61 of the revised Code of the City of Ferguson, 1998
G.
September 24, 2009 Complaints/Informations Executed by Appellee John

Beaird
H.
Booking Photo of Appellant
vii
Page: 8
TABLE OF AUTHORITIES
CASES
ABF Freight Sys., Inc. v. Int'l Bhd. of Teamsters, 645 F.3d 954 (8th Cir. 2011)...62
Agee v. Hickman, 490 F.2d 210 (8th Cir. 1974)..36, 37
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)...........passim
Armoneit v. Ezell, 59 S.W.3d 628 (Mo. Ct. App. 2001)38
Athey v. Farmers Ins. Exchange, 234 F.3d 357 (8th Cir. 2000).65-66, 67
B.J.R. ex rel. Garcia v. Golgart, 2013 WL 3455598 (D.Minn. 2013)28
Beeck v. Aquaslide 'N' Dive Corp., 562 F.2d 537 (8th Cir. 1977).67
Blue v. Harrahs North Kansas City, 170 S.W.3d 466 (Mo. App. 2005)..39-40
Board of County Comrs of Bryan County, Okl. v. Brown, 520 U.S. 397
(1997)...passim
Brandon v. Holt, 469 U.S. 464, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985)46-47
Brown v. City of Golden Valley, 574 F.3d 491 (8th Cir. 2009)............................24-25
Brown v. Mortgage Electronic Registration Systems, Inc., 738 F.3d 926 (8th Cir.
2013)...59
Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 129 S.Ct. 1862, 173 L.Ed.2d 843
(2009)..59
Chambers v. Pennycook, 641 F.3d 898 (8th Cir. 2011)...24, 41
City of Mt. Pleasant, Iowa v. Associated Elec. Co-op, Inc., 838 F.2d 268 (8th Cir.
1988)...43
County of Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct. 1708, 140 L. Ed. 2d 1043
(1998)52, 53
viii
Page: 9
DaVee v. Mathis, 812 S.W.2d 816 (Mo. App. W.D. 1991)...39

Dawkins v. Graham, 50 F.3d 532 (8th Cir. 1995)35-36
Dunkin' Donuts, Inc. v. Romanias, 2002 WL 32955492 (W.D.Pa. May 29, 2002)...58
Equal Employment Opportunity Comm'n v. HBE Corp., 135 F.3d 543 (8th Cir.
1998)..65-66
Feemster v. Dehntjer, 661 F.2d 87 (8th Cir. 1981)...36-37
Figg v. Russell, 433 F.3d 593 (8th Cir. 2006)38
Foxworth v. Major, C/A No. 8:082795, 2009 WL 2368737, (D.S.C. July 30,
2009)...28
General Mills, Inc. v. Kraft Foods Global, Inc., 487 F.3d 1368 (Fed. Cir. 2007).......57
GMAC Commercial Credit LLC v. Dillard Dept. Stores, Inc., 357 F.3d 827 (8th Cir.
2004)...................................................................................................................60
Green v. Arizona Cardinals Football Club LLC, 2014 WL 1920468 (E.D.Mo.
2014)...................................................................................................................31
Ground Zero Museum Workshop v. Wilson, 813 F.Supp.2d 678 (D.Md. 2011).......58
Hall v. Freese, 735 F.2d 956 (5th Cir. 1984)...............................................................31
Hanig v. Lee, 415 F.3d 822 (8th Cir. 2005)..................35-36
Heartland Acad. Cmty. Church v. Waddle, 595 F.3d 798 (8th Cir. 2010)..................29
Herring v. Lacy, No. 95-3535, 1996 WL 109491 (6th Cir. 1996)..............................30
Highway Equipment Co., Inc. v. FECO, Ltd., 469 F.3d 1027 (Fed. Cir. 2006)....64-65
In re: National Football League Players' Concussion Injury Litigation, 842 F.Supp.2d
1378 (U.S.Jud.Pan.Mult.Lit. 2012)31
ix
Page: 10
Innovative Home Health Care, Inc. v. P.T.-O.T. Associates of the Black Hills, 141
F.3d 1284 (8th Cir. 1998)...60-61
Johnson v. Berry, 228 F.Supp.2d 1071 (E.D.Mo. 2002)57
Johnson v. Carroll, 658 F.3d 819 (8th Cir. 2011)........................................................24
Johnson v. Jacobson, 3:06CV0766, 2008 WL 2038882, (N.D.Tex. April 28,
2008)...................................................................................................................28
Johnson v. Warner, 200 Fed.Appx. 270 (4th Cir. 2006)...30-31
Kanagawa v. State, 865 S.W.2d 831 (Mo. banc 1985)..39
Koch Fuels, Inc. v. Cargo of 13,000 Barrels of No. 2 Oil, 704 F.2d. 1038 (8th Cir.
1983)..66-67
Kuelbs v. Hill, 615 F.3d 1037 (8th Cir. 2010)...55
Larson ex rel. Larson v. Miller, 76 F.3d 1446 (8th Cir. 1996)...49
Lehman v. Revolution Portfolio L.L.C., 166 F.3d 389 (1st Cir. 1999)..62
McKenney v. Harrison, 635 F.3d 354, 359 (8th Cir. 2011)...24
Miller v. City of Springfield, 146 F.3d 612 (8th Cir. 1998)........................................49
Monell v. Department of Social Services, 436 U.S. 658 (1978).
..45-46
Montoya v. City of Flandreau, 669 F.3d 867 (8th Cir. 2012)...24, 41

Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935).53
Montefiore Medical Center v. Teamsters Local 272, 642 F.3d 321 (2d Cir.
2011)...................................................................................................................62
Moran v. Clarke, 296 F.3d 638 (8th Cir. 2002)...........................................................53
Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).....................53
x
Page: 11
O'Dell v. Hercules, Inc., 904 F.2d 1194 (8th Cir. 1990)...66-67

Parrish v. Luckie, 963 F.2d 201 (8th Cir. 1992)...46-47
Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)24-25
Pumps & Power Co. v. S. States Indus., 787 F.2d 1252 (8th Cir.1986).49
Roberson v. AFC Enterprises, Inc., 602 F.3d 931 (8th Cir. 2010).49
Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).24-25
Shekleton v. Eichenberger, 677 F.3d 361 (8th Cir. 2012)..25
Small v. McCrystal, 708 F.3d 997 (8th Cir. 2013)..32-33, 34
Smith v. Kan. City, Mo. Police Dept., 586 F.3d 576 (8th Cir. 2009)29
Spurlock v. Nordyne, Inc., 91-1336C(5), 1992 WL 330206 (E.D.Mo. Jan. 29,
1992)..66-67
St. Jude Medical, Inc. v. Lifecare Intern., Inc., 250 F.3d 587 (8th Cir. 2001).......62-63
State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443 (Mo. 1986)..39-40
Thomas v. Adrahtas, 530 Fed.Appx. 830 (10th Cir. 2013)30
Tolan v. Cotton, 572 U.S. ___, 13-551 (U.S. May 5, 2014).27-28
Unique Concepts, Inc. v. Manuel, 930 F.2d 573 (7th Cir. 1991)...62
United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218
(1966)...60-61, 62
United States v. Harrison, 671 F.2d 1159 (8th Cir. 1982), cert. denied, 459 U.S. 847,
103 S.Ct. 104, 74 L.Ed.2d 94 (1982)...........................................................36-37
Wilson v. Lawrence County, 260 F.3d 946 (8th Cir. 2001)........................................53
Wilson v. Northcutt, 441 F.3d 586 (8th Cir. 2006)......................................................29
xi
Page: 12
Winslow v. Smith, 696 F.3d 716 (8th Cir. 2012).............................................50, 53-54
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. XIV, 1.........52
UNITED STATES CODE

28 U.S.C. 1367(a)..61-62
FEDERAL RULES OF CIVIL PROCEDURE

Fed.R.Civ.P. 13(a).58
Fed.R.Civ.P. 15(a)(3)58
Fed.R.Civ.P. 42(b).66
Fed. R. Civ. P. 50(a)(1)...passim
Fed.R.Civ.P. 56(a)........................................................................................................32
FEDERAL RULES OF EVIDENCE

Fed.R.Evid. 40168-69
Fed.R.Evid. 40368-69
MISCELLANEOUS
BLACKS LAW DICTIONARY 390 (9th ed. 2009)..30
ESPN, MLB institutes 7-day DL for concussions, Last Update: March 29, 2011,
available at
http://sports.espn.go.com/mlb/news/story?id=6270514 31
xii
Page: 13
JURISDICTIONAL STATEMENT
I.
Statement concerning the District Courts jurisdiction.

This is an appeal from several orders, including summary judgment and
judgment as a matter of law after the close of Appellants evidence at trial, of the
United States District Court for the Eastern District of Missouri, Eastern Division,
the Honorable Magistrate Judge Nannette A. Baker, presiding upon full consent
pursuant to 28 U.S.C. 636(c)(1). On August 5, 2010, Appellant filed this civil
rights action against Appellees for violation of his civil rights. On December 31,
2013, a judgment of dismissal on all but one count, was entered upon the
Appellees motion for summary judgment. On March 25, 2014, judgment was
entered on the final count upon Appellee Beairds motion for judgment as a matter
of law at trial. The District Court had jurisdiction pursuant to 28 U.S.C. 1331 and
28 U.S.C. 1343.
II.
Statement concerning appellate jurisdiction.

The notice of appeal in this case was timely filed on March 25, 2014.
Jurisdiction is conferred on the United States Court of Appeals for the Eighth Circuit
by 28 U.S.C. 636(c)(3) and Federal Rule of Appellate Procedure 4(b). The United
States Court of Appeals for the Eighth Circuit has jurisdiction pursuant to 28 U.S.C.
41 as the United States District Court for the Eastern District of Missouri is located
in the State of Missouri.
1
Page: 14
STATEMENT OF THE ISSUES

WITH MOST APPOSITE CASES
I.
WHETHER THE DISTRICT COURT ERRED IN GRANTING

APPELLEES MICHAEL WHITE, JOHN BEAIRD AND KIM TIHEN
QUALIFIED IMMUNITY IN RULING ON THEIR MOTION FOR
SUMMARY JUDGMENT ON APPELLANTS CLAIM OF
EXCESSIVE FORCE ON THE BASIS THAT THE FORCE USED
CAUSED DE MINIMIS INJURIES TO APPELLANT AND A
REASONABLE OFFICER COULD NOT HAVE BELIEVED THAT
KICKING AND BEATING A COMPLIANT AND HANDCUFFED
APPELLANT WOULD NOT VIOLATE THE CONSTITUTION.
Agee v. Hickman, 490 F.2d 210 (8th Cir. 1974)

Feemster v. Dehntjer, 661 F.2d 87 (8th Cir. 1981)
Small v. McCrystal, 708 F.3d 997 (8th Cir. 2013)
2
Page: 15
II.
WHETHER THE DISTRICT COURT ERRED IN GRANTING THE

APPELLEES MICHAEL WHITE, JOHN BEAIRD AND KIM TIHENS
MOTION FOR SUMMARY JUDGMENT ON APPELLANTS
MISSOURI STATE LAW CLAIMS OF ASSAULT AND BATTERY ON
THE BASIS THAT APPELLEES MICHAEL WHITE, JOHN BEAIRD
AND KIM TIHEN WERE ENTITLED TO OFFICIAL IMMUNITY
BECAUSE THEY ACTED CONSTITUTIONALLY AND WITHIN
THEIR DISCRETION.
Blue v. Harrahs North Kansas City, 170 S.W.3d 466 (Mo. App. 2005)
Kanagawa v. State, 865 S.W.2d 831 (Mo. banc 1985)
State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443 (Mo. 1986)
3
Page: 16
III.

APPELLEE CITY OF FERGUSON, MISSOURIS MOTION FOR
SUMMARY JUDGMENT ON APPELLANTS CLAIM OF
MUNICIPAL LIABILITY BECAUSE THE CITY OF FERGUSON
IGNORING USE OF FORCE REPORTS AND OFFICERS WHO MAY
BE USING EXCESSIVE FORCE AND IGNORING OFFICERS WHO
ARE SUBJECTED TO CITIZENS COMPLAINTS AND SUCH
DELIBERATE INDIFFERENCE CAUSED APPELLANTS INJURIES.
Parrish v. Luckie, 963 F.2d 201 (8th Cir. 1992)
4
Page: 17
IV.

APPELLEE JOHN BEAIRDS MOTION FOR JUDGMENT AS A
MATTER OF LAW AT THE CLOSE OF APPELLANTS EVIDENCE
AT TRIAL ON APPELLANTS CLAIM OF DENIAL OF DUE
PROCESS OF FAIR CRIMINAL PROCEEDINGS HOLDING THAT
APPELLEE JOHN BEAIRDS ACTIONS OF EXECUTING FALSE
SWORN COMPLAINTS/INFORMATIONS DID NOT SHOCK THE
CONSCIENCE.
County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043
(1998)
White v. Smith, 696 F.3d 740 (8th Cir. 2012)
Winslow v. Smith, 696 F.3d 716 (8th Cir. 2012)
5
Page: 18
V.
WHETHER THE DISTRICT COURT ERRED IN ALLOWING THE

CASE TO PROCEED TO TRIAL ON APPELLEE MICHAEL
WHITES MISSOURI STATE LAW COUNTERCLAIM FOR
BATTERY AGAINST APPELLANT DESPITE APPELLEE MICHAEL
WHITES FAILURE TO RE-PLEAD HIS MISSOURI STATE LAW
COUNTERCLAIM FOR BATTERY AGAINST APPELLANT IN
RESPONSE TO APPELLANTS FIRST AMENDED COMPLAINT.
Gen. Mills, Inc. v. Kraft Foods Global, Inc., 495 F.3d 1378 (Fed. Cir. 2007)
6
Page: 19
VI.
WHETHER THE DISTRICT COURT ERRED IN ASSERTING

SUPPLEMENTAL JURISDICTION OVER APPELLEE MICHAEL
WHITES MISSOURI STATE LAW COUNTERCLAIM FOR
BATTERY AGAINST APPELLANT DESPITE APPELLANTS
CLAIMS OF EXCESSIVE FORCE AND MISSOURI STATE LAW
CLAIMS OF ASSAULT AND BATTERY AGAINST APPELLEE
MICHAEL WHITE HAVING BEEN DISMISSED ON APPELLEE
MICHAEL WHITES MOTION FOR SUMMARY JUDGMENT.
ABF Freight Sys., Inc. v. Int'l Bhd. of Teamsters, 645 F.3d 954 (8th Cir. 2011)
Highway Equipment Co., Inc. v. FECO, Ltd., 469 F.3d 1027 (Fed. Cir. 2006)
St. Jude Medical, Inc. v. Lifecare Intern., Inc., 250 F.3d 587 (8th Cir. 2001)
7
Page: 20
VII. WHETHER THE DISTRICT COURT ERRED IN DENYING

APPELLANTS MOTION TO BIFURCATE THE TRIAL AND
PROCEEDING TO HAVE A SINGLE TRIAL ON APPELLANTS
CLAIM OF DENIAL OF DUE PROCESS IN FAIR CRIMINAL
PROCEEDINGS AGAINST
APPELLEE JOHN BEAIRD AND
APPELLEE
MICHAEL
WHITES
COUNTERCLAIM
FOR
MISSOURI STATE LAW OF BATTERY AGAINST APPELLANT.
Beeck v. Aquaslide 'N' Dive Corp., 562 F.2d 537 (8th Cir. 1977)
Koch Fuels, Inc. v. Cargo of 13,000 Barrels of No. 2 Oil, 704 F.2d. 1038
(8th Cir. 1983)
8
Page: 21
STATEMENT OF THE CASE

In this instant case, Appellant Henry Davis (hereinafter Appellant or
Davis) filed this civil rights action against Appellees Michael White (hereinafter
Appellee White), John Beaird (hereinafter Appellee Beaird), Kim Tihen
(hereinafter Appellee Tihen) and City of Ferguson, Missouri (hereinafter
Appellee City of Ferguson)
claiming that excessive force was used on
Appellant, claiming that the City of Ferguson was liable for the constitutional
violations under Monell, claiming Missouri state law assault and battery and
claiming that his substantive due process rights were violated in his underlying
municipal criminal proceedings. App. 57-76. All of Appellants claims were
dismissed at the summary judgment stage of the proceedings, except his
substantive due process violation claim. App. 945-70.
The case proceeded to a jury trial on Appellants claim of substantive due
process against Appellee John Beaird and Appellee Michael Whites state law
counterclaim of battery against Appellant. At the close of Appellants evidence,
Appellee Beaird moved for judgment as a matter of law. The district court granted
Appellee Beairds motion for judgment as a matter of law and declined
supplemental jurisdiction of proceeding with the trial on Appellee Whites state
law counterclaim of battery against Appellant. App. 1030-33. This appeal ensues.
9
Page: 22
Relevant Facts
A.
At the Ferguson Jail on September 20, 2009
(The events of what occurred at the Ferguson Jail give rise to Appellants claims
for excessive force and state law assault and battery. The district court dismissed
these claims based upon qualified immunity at the summary judgment stage.
Although there were detailed facts on what occurred at the Ferguson Jail
presented by testimony at the trial, a few months after the summary judgment
rulings, Appellant will present the facts in the light most favorable to Appellant
based upon the record that was presented at the summary judgment stage.)
On September 20, 2009 at approximately 3:00 a.m., Appellee Beaird
encountered Appellant in his vehicle parked on the side of the off ramp of the
highway. App. 603. Appellee Beaird claims that Appellant and Appellants vehicle
smelled of alcohol, however, Appellant denies such claims. App. 565. Appellant
was handcuffed by Appellee Beaird and placed in Appellee Beairds patrol car.
App. 603. Appellants vehicle was towed and thereafter Appellee Beaird
transported Appellant to the Ferguson jail. Id. When Appellee Beaird arrested
Appellant, Appellee Beaird told Appellant he was being arrested because he had
outstanding warrants. Add. B-6.
At the Ferguson jail, Appellant provided Booking Officer Christopher
Pillarick (hereinafter Officer Pillarick) his full name and social security number.
10
Page: 23
Id. Officer Pillarick told Appellant there was a problem because the Henry Davis
that had warrants had a different social security number and was much taller than
Appellant. Id. When Appellant was with Officer Pillarick to be booked, the
handcuffs on Appellant were removed. App. 625-26.
After learning that Appellant did not match the Henry Davis that had
warrants, Officer Pillarick and Appellee Beaird escorted Appellant to Cell #3 in the
Ferguson Jail. Add. B-2. Each cell of the Ferguson Jail had only one bed with a
mat on it. App. 632; App. Trial Ex. 16-1. There was already a person occupying
Cell #3, so Appellant asked for a mat from the stack of mats he saw off to the side.
App. 630. Appellant alternatively asked to be handcuffed to the bench located
outside of the cells in the Ferguson Jail. Add. B-2.
Appellant was told that he was not getting a mat and one of the officers
called for backup. Id. Appellee White, Appellee Tihen and Sergeant William
Ballard (hereinafter Sergeant Ballard) responded to the Ferguson Jail near Cell
#3 in response to the call for backup. Add. B-2 B-3. Appellee White rushed
Appellant inside of Cell #3 and all the way to the back wall inside Cell #3. App.
634-35. At the time Appellee White rushed Appellant inside of Cell #3, Appellant
put his arms up to cover up his head and ducked. Add. B-6 B-7; App. 636.
Appellants back and the back of his head hit the back wall inside Cell #3. Add. B6; App. 636. After Appellee White rushed Appellant inside of Cell #3, Appellee
11
Page: 24
White ran out of the cell. Add. B-7; App. 637.

Appellant walked towards the front of the cell telling the officers that he
didnt do anything and asking the officers why they were doing this to him. Add.
B-7; App. 638. The officers told Appellant to lie down and put his hands behind
his back and Appellant complied by getting down on his stomach and putting his
hands behind his back. Add. B-7; App. 638-39. Appellee Tihen then entered the
cell, straddled Appellants back and handcuffed Appellants arms behind his back.
Add. B-7; App. 639-40.
After being handcuffed, Appellee Tihen struck Appellant in his head with a
closed fist and hit Appellant in the head with handcuffs. App. 641-42, 713-15.
After being handcuffed, Appellee Beaird, delivered strikes to Appellants body.
App. 641-42, 789-90. After Appellee Tihen and Appellee Beaird finished giving
strikes to Appellant, Appellee Tihen began to raise Appellant up off the floor from
his stomach. Add. B-7; App. 643. As Appellant was still handcuffed and being
raised up from the floor, Appellee White came in the cell towards Appellant and
kicked Appellant in the forehead with the toe of his boot. Id. A booking photo was
taken of Appellant later that shows an injury to the front of Appellants head
consistent with Appellants testimony regarding the kick from Appellee White.
Add. B-4, H-1. Appellee White suffered an injury to his nose, fracturing it,
apparently when he rushed Appellant into Cell #3. Add. B-3. Appellee White
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claims he was punched in the nose by Appellant and Appellant denies punching
Appellee White. Id.
Appellant was subsequently looked at by paramedics in the Ferguson Jail
and then taken to the Christian Hospital emergency room. Although its not
material, Appellant denies being belligerent towards the paramedics or the
Christian Hospital personnel and the district court somehow found that, the
evidence of his behavior is so one-sided that the Court cannot credit his account.1
Add. B-3 B-4. Appellant testified that the paramedics looked at him in the
Ferguson Jail and said there was too much blood, Appellant needed to go to the
hospital. App. 645-46. Appellant testified that at Christian Hospital he demanded
the hospital take pictures of him before treating him as evidence of what was done
to him by the officers. App. 647-50. Because the hospital staff would not take
The district court erroneously relied on Reed v. City of St. Charles, 561 F.3d 788,
790-91 (8th Cir. 2009). The district court gave no explanation as to why the
evidence was so one-sided. In fact, the district court erroneously relied on
hearsay statements in the medical records. Further, it is Appellants testimony
against the paramedics/hospital staff. There is no video or any other evidence in
the record that blatantly contradicts Appellants version of the occurrence. See
Scott v. Harris, 550 U.S. 372, 379-80, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
The district court apparently decided that because it was typed in the medical
records, it must have been true. Being belligerent is not a medical diagnosis and
just like Appellant disagrees with the officers version of the events, he disagrees
with the paramedics and emergency room version of his behavior being
belligerent. Belligerent behavior could be misconstrued as Appellant being
very upset for being beat and kicked in the head while not resisting and being
handcuffed. It should be no surprise that medical personnel would side with the
police officers and not believe Appellant that he was beat and kicked.
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pictures of Appellant, Appellant did not get treated at the hospital. Id.
B.
Appellants injuries
As a result of the force used on Appellant by Appellees White, Beaird and

Tihen, Appellant sustained the following injuries:
Laceration to the front of the head that bled excessively and left a permanent
scar
Concussion and headaches that Appellant still continues to suffer from
Bruises all over his body that lasted for 30 days after the incident
Add. B-13 B-14.
On September 22, 2009, after Appellant was released from the Ferguson
Jail, he went to the emergency room of SSM St. Joseph Health Center. App. 658;
1,111-32. On September 22, 2009 at SSM St. Joseph Health Center, Appellant was
diagnosed with a concussion and scalp laceration. App. 1,111-32. Appellant
additionally sought treatment from Dr. Shobha L Dixit, MD with SSM Medical
Group on September 29, 2009. App. 1,089-110.
C.
Appellants subsequent municipal prosecution
(The events of what occurred with Appellants subsequent municipal prosecution

give rise to Appellants claim of violation of substantive due process against
Appellee Beaird. The district court denied Appellee Beaird motion for summary
judgment and Appellant proceeded to jury trial on this claim only. Appellant will
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present the facts based upon the record of the trial testimony.)
Appellee Beaird executed four (4) complaint/informations that were sworn
and under oath asserting that Appellant committed Property Damage in violation
of Section 29.61 of the revised Code of the City of Ferguson, 1998 by transferring
blood onto the uniforms of Officer Pillarick and Appellees White, Beaird and
Tihen. Add. G-1 G-4. Appellant was charged with violating Paragraph (a)(1) of
Section 29.61 of the revised Code of the City of Ferguson, 1998, which provides
that: A person commits the offense of property damage if he: (1) Knowingly
damages property of another. Add. F-1; Trial Tr. Vol. I, pp. 63-64.
In addition to the four charges of property damage, Appellant was charged
with the following municipal violations: (1) Driving While Intoxicated; (2)
Speeding; (3) Failure to Drive in a Single Lane; (4) No Proof of Insurance; (5)
Failure to Obey Police Officer. Trial Tr. Vol. I, p. 121. Appellant hired attorney
Michael Kielty to represent him in the municipal charges brought against him by
the Appellee City of Ferguson. Trial Tr. Vol. I, pp. 120-21. Mr. Kielty requested
disclosure in the Municipal Case and the four complaint/informations executed by
Appellee Beaird were produced to Mr. Kielty. Trial Tr. Vol. I, pp. 121-22.
Mr. Kielty arranged a plea with the prosecutor of the Appellee City of
Ferguson and all of the charges were disposed of at once. Trial Tr. Vol. I, pp. 12224. Two of the property damage charges were dismissed and Appellant had to pay
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fines and costs on the two property damages charges that were not dismissed. Trial
Tr. Vol. I, pp. 123-24. Appellants total in fines he had to pay was $3,000.00. Trial
Tr. Vol. II, p. 40. In negotiating the plea deal, Mr. Kielty took into consideration
and relied on the four complaint/informations executed by Appellee Beaird. Trial
Tr. Vol. I, pp. 125-26. With regard to the four complaint/informations executed by
Appellee Beaird, Mr. Kielty testified that: I told Mr. Davis that a police officer,
under the penalty of perjury, was swearing that he damaged city property. Despite
maintaining his innocence on whether he committed destruction of property by
bleeding on the Appellee officers and Officer Pillaricks uniforms, Appellant paid
fines on two of the charges on advice from his attorney as part of the plea
arrangement. Trial Tr. Vol. II, pp. 37, 67.
Despite affirmatively swearing under oath that Appellant committed
Property Damage by transferring blood to the uniform of Appellee Tihen,
Appellee Beaird admitted that he did not observe any blood on Appellee Tihens
uniform. Add. G-1; Trial Tr. Vol. I, p. 59. Despite affirmatively swearing under
oath that Appellant committed Property Damage by transferring blood to the
uniform of Officer Pillarick, Appellee Beaird admitted that he did not see
Appellant transfer blood on Officer Pillaricks uniform. Add. G-2; Trial Tr. Vol. I,
p. 60. Appellee White even admitted at trial that it was he who bled on Appellee
Tihens uniform. Trial Tr. Vol. II, p. 86.
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When Appellee Beaird was asked what he based the statement on where he
stated that Appellant transferred blood on to the uniform of Officer Pillarick and
Appellee Beaird responded, The direction provided by Sergeant Ballard.
Appellee Beaird was guessing both that Officer Pillarick had blood on his uniform
and it was the Appellant who got blood on Officer Pillaricks uniform. Trial Tr.
Vol. I, p. 60. Additionally, when asked if he had blood on his uniform, Officer
Pillarick tried to backtrack at trial and said, I dont remember. Trial Tr. Vol. I, p.
109. However, when asked the same question at his deposition if he had blood on
his uniform that night, Officer Pillarick unequivocally said No. Id.
Sergeant Ballard also instructed Appellee Beaird to complete and sign the
complaint/information that alleged that Appellant committed Property Damage
by transferring blood to the uniform of Appellee White. Trial Tr. Vol. I, p. 61. As
Appellee White and Appellant were both bleeding, Appellee Beaird admitted that
he did not know if it was Appellants blood on Appellee Whites uniform. Trial Tr.
Vol. I, p. 62. Appellee White even testified that Appellant did not get blood on his
uniform. Trial Tr. Vol. II, p. 86. Appellee White even further testified that the
blood on his uniform was his own from his nose that was bleeding. Id.
Appellee Beaird didnt know where on his uniform Appellant had
transferred blood to. Trial Tr. Vol. I, p. 62. Appellee Beaird further testified that it
was possible that Appellee Whites blood was on his uniform. Id. Appellee Beaird
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also testified that Sergeant Ballard instructed him to complete and sign the
complaint/information that alleged that Appellant committed Property Damage
by transferring blood to his own uniform. Id.
Appellee Beaird admitted that the four complaint/informations of property
damage against Appellant were not completed and executed based upon personal
knowledge, they were completed and executed because Sergeant Ballard told him
to do so. Trial Tr. Vol. I, pp. 60-62. Appellant testified that he did not bleed on any
of the Appellee officers and Officer Pillaricks uniforms on the night of the
incident. Trial Tr. Vol. II, p. 37.
Relevant Procedural History
On August 5, 2010, Appellant filed his original Complaint against Appellee
White and Appellee City of Ferguson claiming excessive force and state law
assault and battery against Appellee White and Monell liability against Appellee
City of Ferguson. App. 29-39. On October 4, 2010, Appellees White and City of
Ferguson filed their answer to Appellants Complaint. App. 40-49. Also on
October 4, 2010, Appellee White filed a Counterclaim for battery against
Appellant. App. 50-53. On October 6, 2010, Appellant filed his answer to Appellee
Whites counterclaim for battery. App. 54-56. On February 15, 2011, the case was
stayed because an underlying felony assault charge was filed in the state courts
against Appellant. App. 5.
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On January 16, 2013, Appellant filed a motion to re-open the case and set
aside the stay based upon Nolle Prosequi of the underlying felony assault charge
against Appellant. App. 6. On the same date, the case was reassigned from Judge
Magistrate Judge Mary Ann L. Medler to Judge Magistrate Judge Nannette A.
Baker. App. 7. On January 30, 2013, the case was re-opened. App. 7.
On February 26, 2013, Appellant filed his First Amended Complaint against
Appellees White, Beaird, Tihen and City of Ferguson. App. 57-76. On March 7,
2013, against Appellees White, Beaird, Tihen and City of Ferguson filed their
answer to Appellants First Amended Complaint. App. 77-93. Appellee White did
not file his state law counterclaim for battery Appellant in response to Appellants
First Amended Complaint. App. 7-8.
On September 20, 2013, Appellees White, Beaird, Tihen and City of
Ferguson filed a Motion for Summary Judgment on all counts of Appellants First
Amended Complaint. App. 309-562. In Appellants response to Appellees motion
for summary judgment, Appellant withdrew his claim of retaliatory prosecution in
Count III of Appellants First Amended Complaint against Appellee Beaird,
Appellant withdrew his federal law claim of malicious prosecution in Count IV of
Appellants First Amended Complaint against Appellee Beaird and Appellant
withdrew his state law claim of malicious prosecution in Count VIII of Appellants
First Amended Complaint against Appellee Beaird. Add. B-2.
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On December 31, 2013, the district court granted Appellees motion for
summary judgment on all counts, with the exception of Count II of Appellants
First Amended Complaint, whereas the court denied Appellee Beairds motion for
summary judgment on Appellants claim of substantive due process violation
against Appellee Beaird for Appellee Beairds executing sworn false affidavits in
support of municipal charges of property damage against Appellant. Add. A-1, B-1
B-25. At the close of the district courts memorandum granting in part
Appellees motion for summary judgment, the district court stated that, The only
remaining claims in this action are: (1) Count II of Mr. Davis' Amended Complaint
alleging Officer Beaird violated Mr. Davis' substantive due process rights [Doc.
50] and (2) Officer White's Counterclaim against Mr. Davis for Battery [Doc. 7].
Add. B-24.
On January 4, 2014, Appellant filed a motion for a declaratory ruling that
Appellee Whites state law counterclaim for battery had been abandoned or was no
longer pending. App. 971-74. On February 20, 2014, Appellant alternatively filed a
motion to dismiss Appellee Whites state law counterclaim for battery for lack of
jurisdiction. App. 999-1,003. In the event the previous two mentioned motions
were denied, on February 20, 2014, Appellant filed a motion to bifurcate the trial
seeking Appellants substantive due process violation claim against Appellee
Beaird to be tried separately from Appellee Whites state law counterclaim for
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battery against Appellant. App. 1,004-07.

On March 10, 2014, the district court entered a memorandum and order
denying Appellants motion to deem abandoned, motion to dismiss and motion to
bifurcate Appellee Whites state law counterclaim for battery. Add. C-1 C-12.
The case proceeded to jury trial on March 24, 2014. On March 25, 2014, after the
close of Appellants evidence, the district court entered a memorandum, order and
judgment granting Appellee Beairds motion for judgment as a matter of law and
dismissing Appellee Whites state law counterclaim for battery against Appellant.
Add. D-1, E-1 E-3.
Rulings Presented for Review
The district courts memorandum, order and judgment entered on December
31, 2013 granting Appellees motion for summary judgment is presented for
review. The district courts memorandum and order entered on March 10, 2014
denying Appellants motion to deem abandoned, motion to dismiss and motion to
bifurcate Appellee Whites state law counterclaim for battery is presented for
review. Lastly, the district courts memorandum, order and judgment entered on
March 25, 2014 granting Appellee Beairds motion for judgment as a matter of law
at the close of Appellants evidence is presented for review.
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SUMMARY OF ARGUMENT
Appellant argues that the district court erred in granting Appellees Michael
White, John Beaird and Kim Tihens motion for summary judgment on Appellants
claims of excessive force in violation of the Fourth Amendment because Appellant
suffered non-deminimis injuries of a concussion, laceration to the forehead that bled
excessively and bruising all over his body. Appellant argues that Appellees White,
Beaird and Tihen were not entitled to qualified immunity because the force was used
on Appellant when Appellant was handcuffed and not resisting.
Appellant argues that the district court erred in granting Appellees White,
Beaird and Tihens motion for summary judgment on Appellants Missouri state law
claims of assault and battery because the Appellees White, Beaird and Tihens
actions of force against were made in bad faith and with malice and they are not
entitled to official immunity.
Appellant argues that the district court erred in granting Appellee City of
Ferguson, Missouris motion for summary judgment on Appellants claim of
municipal liability in violation of the Fourteenth Amendment because the City of
Ferguson police department operated under customs and policies which showed
deliberate indifference to the constitutional rights of citizens in the lack of record
keeping about particular officers' use of force, completely ignoring use of force
reports and officers who may be using excessive force and ignoring officers who are
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subjected to citizens complaints.

Appellant argues that the district court erred in granting Appellee Beairds
motion for judgment as a matter of law at the close of Appellants evidence at the
jury trial in this matter on Appellants substantive due process claim because
Appellee Beairds executing and submitting false sworn complaints/informations that
were used in Appellants municipal prosecution shocks the conscience and violates
Appellants due process rights of a fair criminal proceeding under the Fourteenth
Amendment.
Appellant argues that Appellee White was required, under Rule 13 and Rule
15 of the Federal Rules of Civil Procedure to file his counterclaim in response to
Appellants First Amended Complaint. Thus, the counterclaim Appellee White filed
in response to Appellants original Complaint was no longer pending.
Appellant argues that, after dismissing all of Appellants claims except the
substantive due process claim against Appellee Beaird, the district court did not have
supplemental jurisdiction over Appellee Whites counterclaim because all claims
against Appellee White were dismissed and Appellee Whites counterclaim was not
then compulsory.
Appellant argues that the district court erred in denying Appellants motion to
bifurcate trial because Appellants substantive due process claim against Appellee
Beaird and Appellee Whites counterclaim of battery against Appellant were clearly
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separable and distinct.

ARGUMENT
I.

MICHAEL WHITE, JOHN BEAIRD AND KIM TIHEN QUALIFIED
IMMUNITY IN RULING ON THEIR MOTION FOR SUMMARY
JUDGMENT ON APPELLANTS CLAIM OF EXCESSIVE FORCE
ON THE BASIS THAT THE FORCE USED CAUSED NON-DE
MINIMIS INJURIES TO APPELLANT AND EVEN IF THE INJURIES
SUFFERED BY APPELLANT WERE DE MINIMIS, A REASONABLE
OFFICER COULD NOT HAVE BELIEVED THAT KICKING AND
BEATING A COMPLIANT AND HANDCUFFED APPELLANT
WOULD NOT VIOLATE THE CONSTITUTION.
Standard of Review
The district court's grant of summary judgment is reviewed de novo, viewing
the record in the light most favorable to the nonmoving party and drawing all
reasonable inferences in that party's favor. Montoya v. City of Flandreau, 669 F.3d
867, 870 (8th Cir. 2012) (quoting Chambers v. Pennycook, 641 F.3d 898, 904 (8th
Cir. 2011)).
Argument
Appellants claim of excessive force is evaluated under the reasonableness
standard of the Fourth Amendment. McKenney v. Harrison, 635 F.3d 354, 359 (8th
Cir. 2011). Summary judgment is proper if no genuine issues of material fact exist
and the movant is entitled to judgment as a matter of law. Johnson v. Carroll, 658
F.3d 819, 825 (8th Cir. 2011); Fed.R.Civ.P. 56(a).
Qualified immunity involves the following two-step inquiry: (1) whether the
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facts shown by the plaintiff make out a violation of a constitutional or statutory right,
and (2) whether that right was clearly established at the time of the defendant's
alleged misconduct. Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir.
2009) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272
(2001); see also Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 818, 172 L.Ed.2d
565 (2009) (holding that courts may exercise their discretion in deciding which of the
two prongs of the qualified immunity analysis should be addressed first)).
Qualified immunity protects officers from liability in a section 1983 case
unless the official's conduct violates a clearly established constitutional or statutory
right of which a reasonable person would have known. Shekleton v. Eichenberger,
677 F.3d 361, 365 (8th Cir. 2012) (citing Brown, 574 F.3d at 495).
A.
IN RULING ON APPELLEES MOTION FOR SUMMARY

JUDGMENT ON APPELLANTS CLAIMS OF EXCESSIVE
FORCE, THE DISTRICT COURT ERRED IN FAILING TO
RESOLVE ALL DISPUTED FACTS AND FAILING TO DRAW
ALL INFERENCES IN FAVOR OF APPELLANT.
The district granted Appellees White, Beaird and Tihens motion for summary
judgment based upon qualified immunity and dismissed Appellants claim of
excessive force in Count I of Appellants First Amended Complaint. As an initial
matter, the district court did not follow the established law by failing to resolve all
disputed facts and failing to draw all inferences in favor of Appellant. In the district
courts Summary Judgment Standard of Review and in the district courts portion
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of her memorandum granting Appellees qualified immunity on Appellants

excessive force claims, the district court completely failed to mention that all
disputed facts and all reasonable inferences shall be drawn in favor of Appellant, the
non-moving party. Add. B-9 B-14.
The district court set forth a section she believed were Undisputed Facts and
a section of Disputed Facts. Although minor, a couple Undisputed Facts were in
fact disputed and the court accepted the moving partys (officers) version of the
events. The district court went on to basically state the differing version of events
between Appellant and the Appellees.
However, in granting the Appellees qualified immunity, the district court
focused only on the injuries of the Appellant, not the actions of force by each
Appellee. The district court stated, Viewed in the light most favorable to Mr. Davis,
he sustained a scalp laceration for which he did not receive stitches, a concussion,
and bruising all over his body. Add. B-13. Finally, in granting Appellees White,
Beaird and Tihens motion for summary judgment on Appellants claims of
excessive force, the district court held: as unreasonable as it may sound, a
reasonable officer could have believed that beating a subdued and compliant Mr.
Davis while causing only a concussion, scalp laceration, and bruising with almost no
permanent damage did not violate the Constitution. Add. B-14. As unreasonable as
the district courts holding sounds, the district court erred in granting qualified
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immunity to Appellees White, Beaird and Tihen on Appellants claims of excessive

force. The district court failed to resolve all disputed facts and failed to draw all
reasonable inferences favor of Appellant, the non-moving party, particularly as it
related to individual acts of force taken by each Appellee.
The Supreme Court recently addressed and affirmed this long-standing
principle of law in Tolan v. Cotton. See Tolan v. Cotton, 572 U.S. ___, 13-551 (U.S.
May 5, 2014). Tolan is the case of the near-fatal 2008 shooting of Mr. Robert Tolan
by Police Sergeant Jeffrey Cotton. Tolan sued Cotton under 42 U.S.C. 1983 for
unreasonable seizure by infliction of excessive force in violation of U.S. Const.
amend. IV and XIV. The lower courts failed to view disputed, material facts at
summary judgment in the light most favorable to nonmovant Tolan. Accordingly, the
Court vacated and remanded the case for proper application of the clearly established
summary judgment standard of Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). Tolan, 572 U.S. ___, ___, 13-551, p. 1 of 13 (U.S. May 5, 2014).
The Tolan Court summarized as follows:
By weighing the evidence and reaching factual inferences contrary to
Tolans competent evidence, the court below neglected to adhere to the
fundamental principle that at the summary judgment stage, reasonable
inferences should be drawn in favor of the nonmoving party.
Applying that principle here, the court should have acknowledged and
credited Tolans evidence with regard to the lighting, his mothers
demeanor, whether he shouted words that were an overt threat, and his
positioning during the shooting. We vacate the Fifth Circuits
judgment so that the court can determine whether, when Tolans
evidence is properly credited and factual inferences are reasonably
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drawn in his favor, Cottons actions violated clearly established law.

Tolan, 572 U.S. at ___, 13-551 pp. 10-11.
B.
1.
APPELLANTS INJURIES WERE NON-DE MINIMIS.

Appellants Concussion, Laceration to His Head and Permanent Scar
At the outset, this case presents an issue that has never been decided by this
8th Circuit Court of Appeals. The district court below, did not provide any discussion
or analysis, but summarily held that all of Appellants injuries, including his
concussion, as de minimis. On July 9, 2013, the district court in Minnesota
recognized that, The Eighth Circuit has not addressed whether a concussion is more
than de minimis B.J.R. ex rel. Garcia v. Golgart, 2013 WL 3455598, 8 (D.Minn.
2013) citing e.g. Johnson v. Jacobson, 3:06CV0766, 2008 WL 2038882, at *6
(N.D.Tex. April 28, 2008) (According to ... [h]ospital [r]ecords, Plaintiff suffered a
concussion, a serious injury.); cf. Foxworth v. Major, C/A No. 8:082795, 2009 WL
2368737, at *8 (D.S.C. July 30, 2009) ([T]he plaintiffs medical records establish
that the plaintiff suffered nothing more than a de minimis injury.... The plaintiff was
diagnosed with a mild contus[ ]ionnot a concussion as the plaintiff alleges in his
complaint.). In B.J.R. ex rel. Garcia, the defendants conceded, and the district court
held, that B.J.R. suffered greater than a de minimis injury because B.J.R. was
diagnosed with a concussion. B.J.R. ex rel. Garcia v. Golgart, 2013 WL 3455598, 8
(D. Minn. 2013).
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Appellant claims excessive force was used on him by three individual officers,
Appellees White, Beaird and Tihen. Liability for damages for a federal
constitutional tort is personal, so each defendants conduct must be independently
assessed. Section 1983 does not sanction tort by association. Heartland Acad.
Cmty. Church v. Waddle, 595 F.3d 798, 805-06 (8th Cir. 2010)(quoting Wilson v.
Northcutt, 441 F.3d 586, 591 (8th Cir. 2006)). An officer may be held liable only for
his or her own use of excessive force. Smith v. Kan. City, Mo. Police Dept., 586
F.3d 576, 581 (8th Cir. 2009). Thus, the actions of the individual officers must be
examined with respect to Appellants injuries.
In viewing the facts in the light most favorable to Appellant2, Appellant
received blows to his head from Appellee Whites kick and Appellee Tihens hand
strikes with a handcuff. Thus, there is sufficient evidence that the force used by
Appellee White and Appellee Tihen to Appellants head caused Appellants
concussion. There is no evidence that Appellee Beaird struck Appellant in his head.
The evidence demonstrates that Appellant was kicked in the head by Appellee White
while Appellant was handcuffed with his arms behind his back and being raised from
the floor on his stomach by Appellee Tihen. The evidence also demonstrates that
In the entire argument on this point, Appellant discusses the facts in the light
most favorable to Appellant and will not repeat such phrase. As the Appellees
motion for summary judgment on Appellants claims of excessive force was
granted based upon qualified immunity, the law is well established that the facts
should be viewed in such a manor.
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Appellant was punched in the head by Appellee Tihen with her hand, holding a
handcuff, while Appellant was handcuffed with his arms behind his back.
Appellants concussion, laceration to his head and permanent scar from the
laceration are not de minimis injuries. De minimis is defined as, Trifling;
minimal and (Of a fact or thing) so insignificant that a court may overlook it in
deciding an issue or case. BLACKS LAW DICTIONARY 390 (9th ed. 2009).
In an unpublished opinion in 1996, the Sixth Circuit stated in Herring v. Lacy
that, A concussion and a herniated disc are arguably serious injuries. (emphasis
added); Herring v. Lacy, No. 95-3535, 1996 WL 109491, at *6 (6th Cir. 1996)3. In a
recent unpublished opinion in 2013, the Tenth Circuit stated in Thomas v. Adrahtas
that, The record contains sworn statements and medical records to the effect that
after Plaintiff was handcuffed, Defendant stepped on his back, rendering him
unconscious, drop-kicked him, kicked him in the head and neck and repeatedly
slammed the patrol car door on his leg, and that Plaintiff suffered significant injuries,
including a concussion (emphasis added) Thomas v. Adrahtas, 530 Fed.Appx.
830 (10th Cir. 2013). In an unpublished opinion in 2006, the Fourth Circuit stated in
Johnson v. Warner that, The assaults were invariably unprovoked and resulted in
This 1996 unpublished opinion and a subsequent unpublished opinion issued

before January 1, 2007 is cited in accordance with Local Rule 32.1A of the Local
Rules of the United States Court of Appeals for the 8th Circuit in that the opinion
has persuasive value on a material issue and no published opinion of this court or
another court would serve as well. Local Rule 32.1A.
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serious injuries, including severe cuts, electrocution, and a concussion both the
force used and the injuries claimed to have been sustained were more than de
minimis. (emphasis added); Johnson v. Warner, 200 Fed.Appx. 270, 271; 273 (4th
Cir. 2006).
Although not a civil rights case, the Fifth Circuit held a concussion to be a
severe injury:
Hall presented uncontradicted evidence that she suffered severe
physical injuries in the accident. These injuries included a concussion, a
facial laceration that left a permanent scar on her forehead, and back and
neck injuries. (emphasis added).
Hall v. Freese, 735 F.2d 956, 959 (5th Cir. 1984).
A concussion is not a de minimis injury as evidenced by the ongoing lawsuits
by former National Football League (NFL) players and their families that have
been and continue to be filed. See e.g. Green v. Arizona Cardinals Football Club
LLC, 2014 WL 1920468 (E.D.Mo. 2014)(suit filed in the same district as this case,
Eastern District of Missouri, relating to a former players concussions); In re:
National Football League Players' Concussion Injury Litigation, 842 F.Supp.2d 1378
(U.S.Jud.Pan.Mult.Lit. 2012). Even our national pastime has recognized the severity
of concussions when in 2011, Major League Baseball (MLB) instituted a 7-Day
Disabled List (DL) for players who sustain a concussion. See ESPN, MLB
institutes 7-day DL for concussions, Last Update: March 29, 2011, available at
http://sports.espn.go.com/mlb/news/story?id=6270514 (last visited June 23, 2014).
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This Court has not established a bright line rule or list of what injuries are de
minimis and what injuries are non-de minimis as they relate to claims of excessive
force. As a number of other circuits have already recognized, a concussion is clearly
not a de minimis injury. Appellant testified that 4 years later, he still suffers from
headaches and did not suffer from headaches prior to the incident in question in this
case.
The district court, in just over 3 pages of analysis of Appellants claims of
excessive force, did not mention or even analyze the force used by each individual
officer or the need for any force. Add. B-11 B-14. In relying on this Courts
holding in Chambers v. Pennycock, the district court simply held that, as
unreasonable as it may sound, a reasonable officer could have believed that beating a
subdued and compliant Mr. Davis while causing only a concussion, scalp laceration,
and bruising with almost no permanent damage did not violate the Constitution.
Add. B-14. Prior to reaching this conclusion, the district court cited several cases,
however, none of those cases held that a concussion is a de minimis injury. Even
further, the district court did not cite to a single case holding that a laceration that
bled excessively and left a permanent scar is a de minimis injury.
The district courts holding that Appellants injuries of the concussion and
head laceration that led to the bloody booking photo of Appellant that left a
permanent scar as being de minimis completely contradicts and is at odds with this
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Honorable Courts holding in Small v. McCrystal. See Small v. McCrystal, 708 F.3d
997, 1005-06 (8th Cir. 2013).
The deputy in Small made the same argument as the Appellees made below
in relying on Chambers v. Pennycook. This Court rejected the argument and held
that:
Viewing the facts most favorably to Small: McCrystal tackled him
and his face landed on the gravel parking lot, resulting in three
lacerations above his eye that covered his face with blood. Small was
taken to the hospital in an ambulance, where the lacerations were
treated without stitches. In this case, Small suffered more than a de
minimis injury. See Copeland, 613 F.3d at 881 (holding that cuts,
abrasions, and an injury to the knee support a finding of excessive
force); Lambert v. City of Dumas, 187 F.3d 931, 936 (8th Cir. 1999)
(holding that a single small cut on the eyelid and small scrapes of the
knee and calf support a finding of excessive force); Dawkins v.
Graham, 50 F.3d 532, 535 (8th Cir. 1995) (holding that bruises and a
facial laceration support a finding of excessive force); cf. Wertish v.
Krueger, 433 F.3d 1062, 1067 (8th Cir. 2006) (holding that relatively
minor scrapes and bruises and the less-than-permanent aggravation of
a prior shoulder condition were de minimis injuries).
Id.
Just as the date subject to the incident in this appeal is before Chambers v.
Pennycook was issued, September 20, 2009; the date of the incident subject to the
Small v. McCrystal case is also before Chambers v. Pennycook was issued, October
5, 2008. Small was tackled and his face landed on a gravel parking lot resulting in 3
lacerations above his eye that did not need stitches but the bleeding covered his face
in blood. Appellant had one laceration on his head from the kick of Appellee Whites
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boot, which also covered his head and face with blood. See Add. H-1. Both Small
and Appellant went to the hospital for treatment of the laceration(s) and neither
required stitches. Appellant did not have the laceration treated his first trip to the
hospital because the hospital would not take pictures first of Appellants injured and
bloody head. Appellants head injury was even more severe than Smalls as
Appellant, not only kicked in the head by Appellee White but punched in the head
repeatedly by Appellee Tihen, was diagnosed with a concussion and has continued to
suffer from headaches. This Court in Small v. McCrystal went on to hold that, Small
suffered more than a de minimis injury. Id. As Appellant suffered a similar, if not
more severe, injury as Small, this Court must reverse the district courts ruling below
and find that Appellants concussion and laceration that bloodied Appellants face
and left a permanent scar is more than a de minimis injury as a matter of law.
As a result of the foregoing, this Honorable Court should reverse the district
courts granting of qualified immunity to Appellee White on Appellants claim of
excessive force in violation of the Fourth Amendment to the Constitution in Count I
of Appellants First Amended Complaint. As Appellant was handcuffed with his
arms behind his back, defenseless and being raised up by Appellee Tihen, it was
objectively unreasonable for Appellee White to run up to Appellant and kick
Appellant in the front of his head. The booking photo of Appellant, shows a
significant injury to Appellants head that is entirely consistent with his version of
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how Appellee White kicked him and resulted in Appellants entire face and head to
be bloody. See Add. H-1.
This Honorable Court should also reverse the district courts granting of
qualified immunity to Appellee Tihen on Appellants claim of excessive force in
violation of the Fourth Amendment to the Constitution in Count I of Appellants First
Amended Complaint. As Appellant was handcuffed with his arms behind his back
and not offering any resistance, it was objectively unreasonable for Appellee Tihen to
strike Appellant in his head with a handcuff in her hand several times. Appellee
Tihen would only admit to striking Appellant in his head 3 or 4 times. However,
Appellant testified that he was beat in his head. At the summary judgment stage, the
facts are to be construed in the light most favorable to Appellant.
2.
Appellants Body Injuries Resulting in Bruising
As a result of Appellee Beairds hand strikes to Appellants body, Appellant

had bruises all over his body. According to Appellants testimony and viewing the
facts in the light most favorable to Appellant, Appellant was face down, handcuffed
and not resisting when he was beat by Appellee Beaird.
Appellants bruises all over his body that were present for 30 days cannot be
deemed de minimis. Appellant could not find a single 8th Circuit case supporting the
district courts position that Appellants bruises all over his body that were present
for 30 days as being de minimis. Further, Appellants bruising is an actual injury. Its
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a soft tissue injury and the law was clearly established that Appellee Beairds beating
a handcuffed and non-resistant violated the 4th Amendment if he caused an actual
injury. Dawkins v. Graham, 50 F.3d 532, 535 (8th Cir. 1995); see also Hanig v. Lee,
415 F.3d 822, 824 (8th Cir. 2005)(confirming actual injury requirement).
This Honorable Court should reverse the district courts granting of qualified
immunity to Appellee Beaird on Appellants claim of excessive force in violation of
the Fourth Amendment to the Constitution in Count I of Appellants First Amended
Complaint. As Appellant was handcuffed with his arms behind his back and not
offering any resistance, it was objectively unreasonable for Appellee Beaird to strike
Appellant all over his bod several times.
C.
REGARDLESS OF WHETHER APPELLANTS INJURIES

WERE DE MINIMIS OR NON-DE MINIMIS, APPELLEES
MICHAEL WHITE, JOHN BEAIRD AND KIM TIHEN WERE
NOT ENTITLED TO QUALIFIED IMMUNITY AS THEY
KICKED AND BEAT APPELLANT WHO WAS COMPLIANT
AND HANDCUFFED.
Even if Appellants injuries are deemed de minimis, Appellees White, Beaird

and Tihen are not entitled to qualified immunity because the law was clearly
established on September 20, 2009 that any force used on someone who was not
resisting, compliant and not provoking any force at all is excessive.
The Circuit has affirmatively held that force can only be used to overcome
physical resistance or threatened force. Agee v. Hickman, 490 F.2d 210, 212 (8th Cir.
1974). See also Feemster v. Dehntjer, 661 F.2d 87, 89 (8th Cir. 1981)(force may not
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be used against a suspect who quietly submits); cf. United States v. Harrison, 671
F.2d 1159 (8th Cir. 1982), cert. denied, 459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 94
(1982)(lack of provocation or need to use force would make any use of force
excessive).
In 1982, in United States v. Harrison, this Court specifically stated that, Even
if Culpepper's injuries were minor, a lack of provocation or need to use force would
make any use of force excessive. Harrison, 671 F.2d at 1162 (8th Cir. 1982); see
also Agee v. Hickman, 490 F.2d 210, 212 (8th Cir. 1974); Feemster v. Dehntjer, 661
F.2d 87, 89 (8th Cir. 1981)(force may not be used against a suspect who quietly
submits).
This Honorable Court should reverse the district courts granting of qualified
immunity to Appellees White, Beaird and Tihen on Appellants claim of excessive
force in violation of the Fourth Amendment to the Constitution in Count I of
Appellants First Amended Complaint. As Appellant was handcuffed with his arms
behind his back and not offering any resistance, it was objectively unreasonable for
Appellees White, Beaird and Tihen to kick and strike Appellant in the head and
punch Appellant all over his body several times and remand the case to the district
court for further proceedings.
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II.

MICHAEL WHITE, JOHN BEAIRD AND KIM TIHENS MOTION
FOR SUMMARY JUDGMENT ON APPELLANTS CLAIMS OF
ASSAULT AND BATTERY UNDER MISSOURI STATE LAW ON
THE BASIS THAT THE OFFICERS WERE NOT ENTITLED TO
OFFICIAL IMMUNITY AS THEIR ACTIONS WERE TAKEN IN BAD
FAITH AND WITH MALICE.
Standard of Review
The district court's grant of summary judgment on Appellants state law claims
of assault and battery is reviewed is de novo. Figg v. Russell, 433 F.3d 593, 597-600
(8th Cir. 2006).
Argument
The district granted Appellees White, Beaird and Tihens motion for summary
judgment based upon official immunity and dismissed Appellants state law claims
of assault and battery in Count VII of Appellants First Amended Complaint. The
district court held that, Defendants are entitled to official immunity on Mr. Davis'
state law claims because they acted constitutionally and within their discretion. Add.
B-15.
Under Missouri law an assault is any unlawful offer or attempt to injure
another with the apparent present ability to effectuate the attempt under
circumstances creating a fear of imminent peril. Armoneit v. Ezell, 59 S.W.3d 628,
632 (Mo. Ct. App. 2001) (quoted case omitted). A battery is the willful touching of
the person of another, and has been said to be the consummation of the assault. Id.
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(quoted case omitted).

The district court cited a handful of cases addressing Missouri law and official
immunity regarding assault and battery claims. Add. B-15. However, the district
court failed to recognize the Missouri case law cited by Appellant where official
immunity is not warranted depending on the facts of the case, the actual use of force.
The district held that because it did not find the law was clearly established that the
officers actions did not violate the 4th Amendment of Appellants federal excessive
force claims, then the officers were entitled to official immunity on Appellants state
law claims of battery.
The district court correctly recognized that under Missouri law, Official
immunity shields officials from liability for negligence in the performance of
discretionary, as opposed to ministerial duties and Officers' actions in detaining
someone who has been arrested are properly categorized as discretionary. Add. B15 (internal quotations omitted); see DaVee v. Mathis, 812 S.W.2d 816, 827 (Mo.
App. W.D. 1991)(citing Kanagawa v. State, 865 S.W.2d 831, 835 (Mo. banc 1985)).
However, the district court failed to recognize that official immunity does not
apply to discretionary acts done in bad faith or with malice. Blue v. Harrahs North
Kansas City, 170 S.W.3d 466, 479 (Mo. App. 2005). The Blue court, quoting State
ex rel. Twiehaus v. Adolf, defined those terms as follows:
A defendant acts with malice when he wantonly does that which a man
of reasonable intelligence would know to be contrary to his duty and
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which he intends to be prejudicial or injurious to another. An act is

wanton when it is done of wicked purpose, or when done needlessly,
manifesting a reckless indifference to the rights of others...
Bad faith, although not susceptible of concrete definition,
embraces more than bad judgment or negligence. It imports a dishonest
purpose, moral obliquity, conscious wrongdoing, breach of a known
duty through some ulterior motive or ill will partaking of the nature of
fraud. It also embraces actual intent to mislead or deceive another.
Id; see also State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 447 (Mo. 1986).
The district court failed to address the issue of whether Appellees White,
Beaird and Tihens actions were done in bad faith or with malice. Official immunity
of Missouri law is different than the federal law governing qualified immunity and
excessive force claims. The district courts granting the officers qualified immunity
on Appellants 4th Amendment excessive force claims does not create an automatic
bar to Appellants state law claims of assault and battery.
The acts done in bad or with malice exception to Missouri official immunity is
a fact-sensitive inquiry. Appellees White, Beaird and Tihens respective actions
against Appellant at the Ferguson Jail of striking and kicking Appellant in the head
after he was handcuffed and not resisting in any way, were intended to be prejudicial
or injurious, had a dishonest purpose, showed moral obliquity, demonstrated
conscious wrongdoing, and breached a known duty through an ulterior motive. Even
if, arguendo, Appellants injuries are deemed de minimis, Appellees White, Beaird
and Tihen are not entitled to official immunity if their actions were done in bad faith
or with malice. Using the district courts language, beating a subdued and compliant
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Mr. Davis cannot be found to have been done in good faith or without malice. Add.
B-14.
For the foregoing reasons, this Honorable Court should reverse the district
courts granting of official immunity to Appellees White, Beaird and Tihen on
Appellants Missouri state law claims of assault and battery in Count VII of
Appellants First Amended Complaint and remand the case to the district court for
further proceedings.
III.
THE DISTRICT COURT ERRED IN GRANTING APPELLEE CITY

OF FERGUSON, MISSOURIS MOTION FOR SUMMARY
JUDGMENT ON APPELLANTS CLAIM OF MUNICIPAL
LIABILITY ON THE BASIS THAT THE CITY OF FERGUSON
IGNORING USE OF FORCE REPORTS AND OFFICERS WHO MAY
BE USING EXCESSIVE FORCE AND IGNORING OFFICERS WHO
ARE SUBJECTED TO CITIZENS COMPLAINTS AND SUCH
DELIBERATE INDIFFERENCE CAUSED APPELLANTS INJURIES.
Standard of Review
The district court's grant of summary judgment is reviewed de novo, viewing
the record in the light most favorable to the nonmoving party and drawing all
reasonable inferences in that party's favor. Montoya, 669 F.3d at 870 (quoting
Chambers v. Pennycook, 641 F.3d 898, 904 (8th Cir. 2011)).
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Argument
First, Appellant set forth two (2) separate counts against the municipality,
Appellee City of Ferguson; Count V set forth three different alternative bases for
Monell liability and Count VI claimed liability of respondeat superior based upon
the dissent of Justice Breyer in Board of County Comrs of Bryan County, Okl. v.
Brown, 520 U.S. 397, 416 (1997). App. 68-72. In dismissing Appellants claims
against Appellee City of Ferguson, the district court solely dismissed the claims
because the court dismissed Appellants excessive force claims: In Counts V and VI
of his Complaint, Mr. Davis alleges that the City of Ferguson is liable under 1983
for the use of excessive force by Officers White, Beaird, and Tihen. Because the
underlying excessive force claim has failed, the claims against the City of Ferguson
fail as well. Add. B-17.
Appellee City of Ferguson moved to dismiss Appellants claims against it at
the summary judgment stage, however, it set forth absolutely no facts showing that it
was entitled to summary judgment as a matter of law. Appellee City of Fergusons
Motion for Summary Judgment simply made conclusory statements:
the City of Ferguson is entitled to summary judgment as a matter of
law because Plaintiff failed to prove an underlying constitutional
violation, therefore no municipal liability attaches under 1983. There
is no evidence the City of Ferguson failed to hire, train, supervise or
control the Defendant Officers or that there is any history or pattern of
unconstitutional acts. Further, there is no evidence that the City of
Ferguson had any customs, practices or usages that were the cause of or
the moving force behind any constitutional deprivation to Plaintiff.
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App. 313 (citations omitted).

However, Appellee City of Ferguson did not set forth a single fact in its
statement of facts in support of its conclusory statements that it was entitled to
summary judgment. See App. 316-28. The initial burden is on the moving party to
clearly establish the non-existence of any genuine issue of fact that is material to a
judgment in its favor. See City of Mt. Pleasant, Iowa v. Associated Elec. Co-op, Inc.,
838 F.2d 268, 273 (8th Cir. 1988). In this case, Appellee City of Ferguson
completely failed to meet its initial burden clearly establishing the non-existence of
any genuine issue of fact that is material to a judgment in its favor. If this Court
reverses the trial courts granting of qualified immunity on Appellants excessive
force claims, this Court should reverse the district courts granting of summary
judgment to Appellee City of Ferguson on his claims of municipal liability in Count
V of Appellants First Amended Complaint4.
In addition and alternatively, Appellant set forth specific facts below
establishing a prima facie case of Monell liability against Appellee City of Ferguson
in that the City of Ferguson police department operated under customs and policies
which showed deliberate indifference to the constitutional rights of citizens in the
Appellant recognizes the majority opinion in Board of County Comrs of Bryan

County, Okl. v. Brown, 520 U.S. 397 (1997) and preserves his claim of 42 U.S.C.
1983 respondeat superior liability in Count VI of his First Amended Complaint
based on the dissent of Justice Breyer.
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lack of record keeping about particular officers' use of force, completely ignoring use
of force reports and officers who may be using excessive force and ignoring officers
who are subjected to citizens complaints. App. 610-11.
Thomas Moonier (hereinafter Chief Moonier) was the Chief of Police for
the Ferguson Police Department from January of 1998 to December of 2009. App.
610. At the time of the incident subject to this case, if a non-lethal force report was
completed, a copy of the report would be sent to Chief Moonier, who would read it
and then Chief Moonier would place the report in his out basket so his secretary
could take the report and put it with the case file. Id. If an officer used non-lethal
force, their supervisor was required to complete the non-lethal force report. Id.
However, if an officer used non-lethal force, the officer could complete the nonlethal force report and give it to their supervisor for approval. Id. Copies of non-lethal
force reports were not kept in the personnel file of the officer who used non-lethal
force warranting the report to be made. Id.
Chief Moonier didnt know what was maintained in his police officers
personnel files. App. 611. Chief Moonier didnt know who was in charge of
maintaining officers' personnel files. Id. There was no way to identify any Ferguson
police officers that were subject of one or more citizens' complaints. Id. There was no
way to identify any Ferguson police officers who had completed several use of force
reports. Id.
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Appellant sent a standard discovery request seeking use of force reports on the
use of force by Appellees White, Beaird and Tihen prior to the date of the incident
subject to this case. Counsel for Appellee City of Ferguson claimed in open court at a
hearing on discovery disputes that he could not comply with the request because,
use of force complaints were not the documents related to those went to the
reports and not to the officer's files or another way. App. 611, 837-38.
Appellant also sought citizen complaints and internal reports on the individual
officers use of force. In the Appellee officers response, they said there are none
regarding excessive force, however, Counsel for the Appellee officers said that to
produce such documents would require a, report-by-report review which I'm telling
you would be extremely burdensome to do App. 844. The district court at least
stated, I have some concerns about the recordkeeping, and that's the problem here.
App. 850.
Appellant has established a prima facie case of Monell liability against
Appellee City of Ferguson in that the City of Ferguson police department operated
under customs and policies which showed deliberate indifference to the constitutional
rights of citizens in the lack of record keeping about particular officers' use of force,
completely ignoring use of force reports and officers who may be using excessive
force and ignoring officers who are subjected to citizens complaints. In order to
prevail on a claim for municipal liability under 42 U.S.C. 1983, the plaintiff may
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proceed under the standards set forth by the Supreme Court in Monell v. Department
of Social Services, which establishes municipal liability based on policy statements,
ordinances, regulations or decisions formally adopted and promulgated by
government final policy makers or on custom or usage. Monell v. Department of
Social Services, 436 U.S. 658, 694 (1978).
The system employed here by Chief Moonier and the Appellee City of
Ferguson Police Department at the time of the incident subject to this case,
September 20, 2009, is nearly identical to situation and evidence adduced in Parrish
v. Luckie5. See Parrish v. Luckie, 963 F.2d 201 (8th Cir. 1992). In Parrish, this Court
held:
Chief Bruce created and maintained a use-of-force reporting system
under which he would not be notified of physical force exerted by
officers unless one of his lieutenants or sergeants determined the use of
force was unwarranted. Chief Bruce testified that he developed this useof-force reporting system because I was getting reports of too much
excessive force being used. Chief Bruce did not review use-of-force
files that were not forwarded to him and his Department kept no log on
the history of force used by particular officers.
Reviewing the record, we find overwhelming evidence to support the
jurys finding that North Little Rock police officers operated in a system
where reports of physical or sexual assault by officers were
discouraged, ignored, or covered up. Moreover, evidence revealed that
officers operating under this system recognized they could act with
impunity unless a citizen filed a written complaint. Clearly, the North
5
At the summary judgment stage below, Appellant abandoned the 1st Alternative
Basis of Municipal Liability and the 2nd Alternative Basis of Municipal Liability
of Appellants First Amended Complaint of delegation to the officers to make
policy and failure to hire, supervise and train the officers. App. 68-70.
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Little Rock Police Department operated inherently deficient ... police

administrative procedures involving the discovery of police
misconduct.
Parrish, 963 F.2d at 205 (citing Brandon v. Holt, 469 U.S. 464, 467, 105 S.Ct. 873,
875, 83 L.Ed.2d 878 (1985)).
Chief Moonier implemented a policy of ignoring the use of force of Appellee
City of Ferguson police officers and encouraging Appellee City of Ferguson police
officers to use excessive force without fear of any consequences. On September 20,
2009, copies of non-lethal force reports were not kept in the personnel file of the
officer who used non-lethal force warranting the report to be made. App. 610, 823.
Chief Moonier didnt know what was maintained in his police officers personnel
files. App. 611, 823. On September 20, 2009, Chief Moonier didnt know who was
in charge of maintaining officers' personnel files. App. 611, 823.
Chief Mooniers Department operated under customs and policies which
showed deliberate indifference to the constitutional rights of citizens. On September
20, 2009, there was no way to identify any Appellee City of Ferguson police officers
that were subject of one or more citizens' complaints. App. 611, 824-25. On
September 20th, 2009, there was no way to identify any Appellee City of Ferguson
officers who had completed several use of force reports. App. 611, 825.
Chief Mooniers customs and policies were the driving force behind the
excessive force violations by Appellees White, Beaird and Tihen against Appellant.
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This is evident by the fact that Appellee White and Appellee Tihen both admitted
striking Appellant and using non-lethal force on Appellant, yet neither Appellee
White nor Appellee Tihen even completed non-lethal use of force report regarding
this incident subject to this case with Appellant.
Appellee City of Ferguson had a policy and custom for its officers to use
excessive force at will. Under Chief Mooniers system, an officer could complete 100
non-lethal use of force report in a year and Chief Moonier or the officers supervisor
would not know the number because copies were not kept in the officers personnel
file. The same goes for citizens complaints. The complete lack of record keeping
showed a deliberate indifference and Appellant has present a prima facie case of
municipal liability.
courts granting of summary judgment to Appellee City of Ferguson on Appellants
claim of municipal liability in violation of the Fourteenth Amendment to the
Constitution in Count V of Appellants First Amended Complaint as Appellant has
established a prima facie case of Monell liability against Appellee City of Ferguson
in that the City of Ferguson police department operated under customs and policies
which showed deliberate indifference to the constitutional rights of citizens in the
lack of record keeping about particular officers' use of force, completely ignoring use
of force reports and officers who may be using excessive force and ignoring officers
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who are subjected to citizens complaints and remand the case to the district court for
further proceedings.
IV.
THE DISTRICT COURT ERRED IN GRANTING APPELLEE JOHN

BEAIRDS MOTION FOR JUDGMENT AS A MATTER OF LAW AT
THE CLOSE OF APPELLANTS EVIDENCE ON APPELLANTS
CLAIM OF DUE PROCESS VIOLATION BECAUSE APPELLEE
JOHN BEAIRDS EXECUTING FALSE AFFIDAVITS IN SUPPORT
OF MUNICIPAL PROPERTY DAMAGE CHARGES AGAINST
APPELLANT SHOCKS THE CONSCIENCE.
Standard of Review
Review of a district courts grant of a motion for judgment as a matter of law
under Rule 50 of the Federal Rules of Civil Procedure is de novo. Miller v. City of
Springfield, 146 F.3d 612, 614 (8th Cir. 1998). When reviewing the district court's
grant of judgment as a matter of law, we must (1) resolve direct factual conflicts in
favor of the nonmovant, (2) assume as true all facts supporting the nonmovant which
the evidence tended to prove, (3) give the nonmovant the benefit of all reasonable
inferences, and (4) deny the motion if the evidence so viewed would allow
reasonable jurors to differ as to the conclusions that could be drawn. Roberson v.
AFC Enterprises, Inc., 602 F.3d 931, 933-34 (8th Cir. 2010); citing Larson ex rel.
Larson v. Miller, 76 F.3d 1446, 1452 (8th Cir. 1996)(quoting Pumps & Power Co. v.
S. States Indus., 787 F.2d 1252, 1258 (8th Cir.1986)).
Argument
In Count II of Appellants First Amended Complaint, Appellant claimed that
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Appellee Beaird violated Appellants substantive due process rights of a fair criminal
proceeding by executing four (4) false sworn under oath complaint/informations that
asserting that Appellant committed Property Damage in violation of Section 29.61
of the revised Code of the City of Ferguson, 1998 by transferring blood onto the
uniforms of Appellee Tihen, Officer Pillarick, Appellee White, Appellee Beaird and
Officer Pillarick. App. 64-65. Appellee Beaird moved for summary judgment on
Count II of Appellants First Amended Complaint, which was denied by the district
court and the case proceeded to jury trial on Appellants claim of substantive due
process violation (and Appellee Whites Missouri state law counterclaim of battery)
court 6. Add. B-16 B-24.
The district court, in ruling on Appellee Beairds motion for summary
judgment stated, To breach the shield of qualified immunity by establishing a
violation of substantive due process rights, a plaintiff must show (1) that the official
violated one or more fundamental constitutional rights, and (2) that the conduct of the
official was shocking to the contemporary conscience." Add. B-18 (quoting Winslow
v. Smith, 696 F.3d 716, 731 (8th Cir. 2012)). As to the first prong, the district court
held that, under the facts viewed in the light most favorable to Mr. Davis, Officer
Beaird intentionally fabricated the four complaints and that fabricated evidence was
Appellant also moved for summary judgment on Count II of Appellants First

Amended Complaint and the motion was denied by the district court. Add. B-16
B-24.
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then used to secure Mr. Davis' conviction on two counts of Destruction of City
Property. Add. B-21 B-22. As to the second prong, the district court discussed
several cases on whether an officers action(s) shocks the conscience and concluded,
when viewed in the light most favorable to Mr. Davis, the facts could support a
reasonable inference that Officer Beaird violated Mr. Davis' substantive due process
rights. B-22 B-24.
On March 24, 2014, the case proceeded to jury trial. Appellant presented his
case and rested after a half day of evidence on March 25, 2014. Counsel for Appellee
Beaird made on oral motion for judgment as a matter of law stating that there was no
evidence that Appellee Beaird prepared false evidence of false sworn
complaints/affidavits against Appellant and that even if there was such evidence, it
was not conscience shocking behavior. Trial Tr. Vol. II, pp. 109-13. Counsel for
Appellee Beaird did admit that, the evidence is conflicting. Trial Tr. Vol. II, p. 112.
Despite Appellant submitting even more evidence in his favor at trial than at
the summary judgment stage, the district court did find that there was sufficient
evidence for the case to go to the jury on the actual constitutional violation but made
an unexplained reversal of her summary judgment holding and stated, My problem
here is the "shocks the conscience" standardI cannot find that this shocks the
conscience. Trial Tr. Vol. II, p. 117-18. The district subsequently issued a written
memorandum and order that simply stated:
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After hearing argument from both sides, the Court found that, based on
the evidence adduced at trial, Officer Beaird's conduct did not rise to a
conscience-shocking level. The Court therefore entered judgment as a
matter of law in favor of Officer Beaird on Count II, Mr. Davis'
substantive due process claim. Fed. R. Civ. P. 50(a)(1).
Add. E-2.
The district court did not provide any rationale for the ruling. In reviewing the
district courts summary judgment memorandum and order, it is apparent that the
district court looked at the municipal charges being for Destruction of City
Property instead of focusing on the actions of Appellee Beaird:
Mr. Davis' substantive due process claim is a far cry from White and
Winslow, or even Moran. The plaintiffs in White and Winslow were
falsely convicted of rape and murder based on a witch hunt that can
only be described as the perfect storm of incompetence and corruption
and exonerated years later through DNA evidence. By contrast, Mr.
Davis alleges that he was forced to plead guilty to two counts of
Destruction of City Property. This does not sound conscience-shocking
by comparison.
Add. B-23.
The charges against Appellant are not at the center of the inquiry, it is the
actions of Appellee Beaird that have to be conscience-shocking. "[C]onduct intended
to injure in some way unjustifiable by any government interest is the sort of official
action most likely to rise to the conscience-shocking level." County of Sacramento v.
Lewis, 523 U.S. 833, 848, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998).
The Due Process Clause of the Fourteenth Amendment provides that [n]o
State ... shall ... deprive any person of life, liberty, or property, without due process of
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law. U.S. Const. amend. XIV, 1. If officers use false evidence, including false
testimony, to secure a conviction, the defendants due process is violated. Wilson v.
Lawrence County, 260 F.3d 946, 954-55 (8th Cir. 2001) (citing Napue v. Illinois, 360
U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (noting that this principle is
implicit in any concept of ordered liberty); cf. Mooney v. Holohan, 294 U.S. 103,
112, 55 S.Ct. 340, 79 L.Ed. 791 (1935) (stating that due process is a requirement
that cannot be deemed to be satisfied by mere notice and hearing if a State has
contrived a conviction through the pretense of a trial which in truth is but used as a
means of depriving a defendant of liberty through a deliberate deception of court and
jury by the presentation of testimony known to be perjured)).
This Circuit in Moran v. Clarke recognized that conduct intended to injure in
some way unjustifiable by any government interest is the sort of official action most
likely to rise to the conscience-shocking level. Moran v. Clarke, 296 F.3d 638, 647
(8th Cir. 2002) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S.
Ct. 1708, 1718, 140 L. Ed. 2d 1043 (1998)). In stating there was sufficient evidence
to support plaintiffs claim of a conscience-shocking, reckless investigation and
manufactured false evidence this Court in Winslow v. Smith held that:
Law enforcement officers ... have a responsibility to criminal
defendants to conduct their investigations and prosecutions fairly....
Wilson, 260 F.3d at 957. There is no countervailing equally important
government interest that would excuse [officers] from fulfilling their
responsibility to conduct a fair investigation. Id.
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Winslow, 696 F.3d at 736.

Appellee Beairds knowingly executing false sworn complaints/informations
in support of municipal charges and prosecution shocks the conscience. Appellee
Beaird essentially piled on charges against Appellant. Appellant subsequently pled
guilty to two of the four destruction of city property charges. He was deprived of a
fair municipal criminal proceeding and subsequently deprived of a substantial
amount of money, approximately $3,000 in fines stemming from Appellee Beairds
false sworn complaints/informations. Appellee Beaird abused his power as a police
officer, knowing that the municipal criminal proceedings would follow against
Appellant on the basis of the false informations. Appellee Beaird is a public official
hired to enforce the laws, not break them in his position of authority. Society places
trust in police officers to be truthful and to knowingly sign a false affidavit against a
citizen shocks the conscience. False evidence, the sworn complaints/informations
which are essentially false testimony, was used to secure convictions against
Appellant and Appellants due process is violated.
If the district courts ruling on Appellants substantive due process claim is not
reversed, it will send a message to Appellee Beaird and police officers that it is o.k.
to fill out false, sworn affidavits in support of criminal prosecutions that leads to
guilty pleas or convictions. This is a very chilling message.
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Page: 67
courts granting of judgment as a matter of law to Appellee Beaird on Appellants

claim of substantive due process violation of the Fourteenth Amendment to the
Constitution in Count II of Appellants First Amended Complaint as Appellee
Beairds alleged conduct shocks the conscience as a matter of law and remand the
case to the district court for further proceedings.
V.

MOTION TO DISMISS APPELLEE MICHAEL WHITES
COUNTERCLAIM FOR BATTERY UNDER MISSOURI STATE LAW
ON THE BASIS THAT THE COUNTERCLAIM WAS ABANDONED
OR NO LONGER PENDING BECAUSE APPELLEE MICHAEL
WHITE FAILED TO PLEAD THE COUNTERCLAIM IN RESPONSE
TO APPELLANTS FIRST AMENDED COMPLAINT.
Standard of Review
Review of a district courts interpretation of the Federal Rules of Civil
Procedure is de novo. Kuelbs v. Hill, 615 F.3d 1037, 1041 (8th Cir. 2010).
Argument
Appellant filed his original complaint against Appellees White and City of
Ferguson on August 5, 2010. On October 4, 2010, Appellees White and City of
Ferguson filed an Answer and Appellee White filed a counterclaim for Missouri state
law battery. Appellee Whites counterclaim did not make any allegations as to the
jurisdiction of the court that was invoked. App. 50-53. Appellant filed his First
Amended Complaint against Appellees White, Beaird, Tihen and City of Ferguson
on February 26, 2013. Appellees White, Beaird, Tihen and City of Ferguson filed an
55
Page: 68
answer to Appellants First Amended Complaint on March 7, 2013. It is undisputed

that Appellee White did not file a counterclaim in response to Appellants First
Amended Complaint. After the district court stated in her summary judgment ruling
that the case was going to proceed to trial on Appellee Whites counterclaim of
battery against Appellant, Appellant moved for a declaratory ruling that Appellee
Whites counterclaim was abandoned for failing to plead it in response to Appellants
First Amended Complaint. On March 10, 2014, just two weeks before the jury trial in
this matter, the district court denied Appellants motion holding:
Given the ambiguity in the Federal Rules of Civil Procedure with
regard to whether a counterclaim must be replead, the Court declines a
formalistic interpretation of Rule 15(a)(3) and finds that equitable
considerations weigh in favor of allowing Officer White to proceed with
his counterclaim.
Add. C-7 C-8.
The district court noted that few district courts have addressed this issue, but
the district courts are divided. Add. C-5 C-7. Although cited by Appellant, the
district court cited but did not discuss the one appellate opinion that has discussed
and decided this issue. Contrary to the district courts assertion, there is no ambiguity
in the Federal Rules of Civil Procedure, particularly with regard to Rules 13 and 15.
The black letter of the rules require that a counterclaim be pled in response to an
amended complaint, regardless of whether a counterclaim was pled in response to a
previously filed complaint.
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Page: 69
The leading district court case to decide the issue of whether, according to the
Federal Rules of Civil Procedure, a counterclaim must be pled in response to an
amended complaint; even if the counterclaim was pled in response to the original
complaint, is Johnson v. Berry, 228 F.Supp.2d 1071 (E.D.Mo. 2002). In Johnson v.
Berry, the Court held:
The last sentence of Fed.R.Civ.P. 15(a) requires a party to plead in
response to an amended pleading. No option is given merely to stand on
preexisting pleadings made in response to an earlier complaint. As the
language of Rule 13(a) and (b) makes clear, a counterclaim is part of the
responsive pleading. By failing to plead in response to the first amended
complaint, and therein to replead his counterclaim, Berry abandoned his
counterclaim, which effectively dropped from the case.
Johnson, 228 F.Supp.2d at 1079.
In addition to the above-cited district court cases, Appellate could find only
one appellate decision on this this issue. The Federal Circuit in General Mills, Inc. v.
Kraft Foods Global, Inc. cited and followed Judge Stohrs holding in Johnson v.
Berry. See General Mills, Inc. v. Kraft Foods Global, Inc., 487 F.3d 1368 (Fed. Cir.
2007). The Federal Circuit in General Mills, Inc. v. Kraft Foods Global, Inc.
amended and clarified its original opinion (General Mills, Inc. v. Kraft Foods Global,
Inc., 487 F.3d 1368 (Fed. Cir. 2007)) that a counterclaim was not abandoned if not
re-plead in response to an amended complaint, the prior counterclaim was simply no
longer pending. General Mills, Inc., 495 F.3d 1378, 1381 (Fed. Cir. 2007).
Regarding a response to an amended pleading, Rule 15(a)(3) of the Federal
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Rules of Civil Procedure sets forth:

Unless the court orders otherwise, any required response to an
amended pleading must be made within the time remaining to respond
to the original pleading or within 14 days after service of the amended
pleading, whichever is later.
Fed.R.Civ.P. 15(a)(3).
Additionally, Rule 13(a) of the Federal Rules of Civil Procedure sets forth in
pertinent part that:
A pleading must state as a counterclaim any claim thatat the time of
its servicethe pleader has against an opposing party...
Fed.R.Civ.P. 13(a).
Rules 15 and 13 of the Federal Rules of Civil Procedure require that any
counterclaim must be plead in response to an amended complaint within 14 days
after service and a counterclaim made in response to a complaint that is superseded
by an amended complaint is no longer pending if it is not re-plead in response to the
amended complaint.
The district courts that have reached an opposite result than the results reached
in General Mills and Johnson miss the key words of Rule 13(a) of the Federal Rules
of Civil Procedure, at the time of service. See Fed.R.Civ.P. 13(a). See e.g. Ground
Zero Museum Workshop v. Wilson, 813 F.Supp.2d 678, 706 (D.Md. 2011); Dunkin'
Donuts, Inc. v. Romanias, 2002 WL 32955492, *1 (W.D.Pa. May 29, 2002). When
an amended complaint is filed, it is served on the defendants and if it adds a new
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party, a summons must issue or a request for waiver must be made.
By the plain
language of Rules 13(a) and 15(a)(3) of the Federal Rules of Civil Procedure,
Appellee Whites counterclaim was and is no longer pending because it was not pled
in response to Appellants First Amended Complaint.
courts holding that Appellee Whites counterclaim of Missouri state law battery was
pending at the time of trial and remand the case to the district court for further
proceedings.
VI.

MOTION TO DISMISS APPELLEE MICHAEL WHITES
COUNTERCLAIM FOR BATTERY UNDER MISSOURI STATE LAW
ON THE BASIS THAT THE DISTRICT COURT LACKED
JURISDICTION
OVER
APPELLEE
MICHAEL
WHITES
COUNTERCLAIM AFTER THE DISTRICT COURT GRANTED THE
APPELLEES MOTION FOR SUMMARY JUDGMENT AND
DISMISSED APPELLANTS CLAIMS OF EXCESSIVE FORCE AND
STATE LAW ASSAULT AND BATTERY AGAINST APPELLEE
WHITE.
Standard of Review
The exercise of supplemental jurisdiction is reviewed for abuse of
discretion. Brown v. Mortgage Electronic Registration Systems, Inc., 738 F.3d 926,
933 (8th Cir. 2013) (citing Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 640,
129 S.Ct. 1862, 173 L.Ed.2d 843 (2009)).
Argument
First, Appellant recognizes that this Honorable Courts ruling on Appellants
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Point I on this appeal could make this point moot. If this Court reverses and remands
on Point I, Appellants federal claims of excessive force against Appellees White,
Beaird and Tihen, Appellant concedes that the district court would have supplemental
jurisdiction over Appellee Whites Missouri state law counterclaim of battery under
28 U.S.C. 1367.
In ruling on the Appellant and Appellees respective motions for summary
judgment, the district court dismissed all of Appellants claims except Count II of
Appellants First Amended Complaint, which claims that his civil rights were
violated
by
Appellee
Beaird
in
creating
false
evidence,
sworn
informations/complaints, that were used in the subsequent municipal prosecution of

Appellant. Despite dismissing Appellants claim of excessive force against Appellee
White, the district court stated in her summary judgment Memorandum and Order
that the case would proceed to trial on Appellee Whites counterclaim that claimed
Missouri state law battery in response to Appellants claim of excessive force against
Appellee White. Add. B-24.
After the district courts summary judgment ruling, Appellant moved to
dismiss Appellee Whites counterclaim for state law battery for lack of jurisdiction.
The motion was proper as [a]ny party or the court may, at any time, raise the issue
of subject matter jurisdiction. GMAC Commercial Credit LLC v. Dillard Dept.
Stores, Inc., 357 F.3d 827, 828 (8th Cir. 2004). While the district court's power to
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Page: 73
exercise jurisdiction under the same case or controversy requirement in 28 U.S.C.

1367(a) is one ordinarily resolved on the pleadings, the court's decision to exercise
that jurisdiction is one which remains open throughout the litigation. Innovative
Home Health Care, Inc. v. P.T.-O.T. Associates of the Black Hills, 141 F.3d 1284,
1287 (8th Cir. 1998) (citing United Mine Workers v. Gibbs, 383 U.S. 715, 727, 86
S.Ct. 1130, 113940, 16 L.Ed.2d 218 (1966) (discussion of pendent jurisdiction and
discretionary power of federal trial court to refuse to hear state law claims, now
codified by 28 U.S.C. 1367)).
It is important to note that the only two claims against Appellee White in
Appellants First Amended Complaint was for excess force under the Fourth
Amendment and Missouri state law battery and both of those claims were dismissed
on summary judgment. Despite Appellee White being essentially dismissed from the
case, the district court did not discuss its jurisdiction over Appellee Whites
counterclaim of Missouri state law battery and simply stated that the case was going
to proceed to jury trial on his Appellee Whites counterclaim, as well as Appellants
substantive due process violation claim against Appellee Beaird. Add. B-1 B-25.
Whether the Court had subject matter jurisdiction over Defendant Whites
Counterclaim is governed by 28 U.S.C. 1367(a), which sets forth the following:
Except as provided in subsections (b) and (c) or as expressly provided
otherwise by Federal statute, in any civil action of which the district
courts have original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so related to
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claims in the action within such original jurisdiction that they form part
of the same case or controversy under Article III of the United States
Constitution. Such supplemental jurisdiction shall include claims that
involve the joinder or intervention of additional parties.
See 28 U.S.C. 1367(a).
Before the Court can exercise supplemental jurisdiction, it must have a claim
before it that has original jurisdiction. Appellants due process claim in Count II of
Appellants First Amended Complaint against Defendant John Beaird (Defendant
Beaird) that has survived summary judgment raises a federal question and confers
upon this Court original jurisdiction.
"In order to exercise supplemental jurisdiction, a federal court must first have
before it a claim sufficient to confer subject matter jurisdiction. Furthermore, the
federal claim and state claim must stem from the same common nucleus of operative
fact'; in other words, they must be such that the plaintiff would ordinarily be
expected to try them all in one judicial proceeding.'" Montefiore Medical Center v.
Teamsters Local 272, 642 F.3d 321, 332 (2d Cir. 2011), quoting United Mine
Workers of Am. v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966);
see also ABF Freight Sys., Inc. v. Int'l Bhd. of Teamsters, 645 F.3d 954, 963 (8th
Cir. 2011). Only compulsory counterclaims can rely upon supplemental jurisdiction;
permissive counterclaims require their own jurisdictional basis. Lehman v.
Revolution Portfolio L.L.C., 166 F.3d 389, 393 (1st Cir. 1999); see also Unique
Concepts, Inc. v. Manuel, 930 F.2d 573, 574-75 (7th Cir. 1991); St. Jude Medical,
62
Page: 75
Inc. v. Lifecare Intern., Inc., 250 F.3d 587, 594 (8th Cir. 2001).
The federal claim that survived summary judgment was against Appellee
Beaird for violation of Appellants due process rights of a fair criminal proceeding in
manufacturing false evidence by executing false sworn complaints/affidavits.
Appellant claimed that Appellee Beaird executed false affidavits that were used in
Appellants municipal criminal proceedings whereas Appellee Beaird swore under
oath that Appellant committed four violations of property damage by bleeding on the
Appellee officers and Officer Pillaricks uniforms. It was the use of the
complaints/affidavits in Appellants municipal criminal proceedings that is the basis
of Appellants federal claim against Appellee Beaird. Appellee Beaird executed the
complaints/affidavits on September 24, 2009 and Appellant pled guilty to the
municipal charges months later. Appellee Whites counterclaim for battery under
Missouri law against Appellant alleges that Appellee White was punched by
Appellant in the Ferguson jail on September 20, 2009, four (4) days before Appellee
Beaird executed the complaints/affidavits and months before Appellant pled guilty to
the municipal charges.
The district court lacked supplemental jurisdiction over Appellee Whites
counterclaim because Appellants federal claim against Appellee Beaird for
substantive due process violation and Appellee Whites counterclaim against
Appellant for state law battery do not stem from the same common nucleus of
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operative fact. The operative facts concerning each claim are completely different.
The common nucleus concept covers cases that arise out of the same transaction or
occurrence. Appellants federal claim against Appellee Beaird and Appellee
Whites counterclaim against Appellant are completely separate and distinct and are
from different occurrences. There are two separate transactions or occurrences
with respect to those claims: Appellee Whites counterclaim against Appellant stems
from the incident and only the incident that occurred in the Ferguson jail on
September 20, 2009. Appellants substantive due process claim against Appellee
Beaird stems from the subsequent prosecution of his municipal case that occurred
months after September 20, 2009. The allegations of the sworn complaints/affidavits
executed by Appellee Beaird that are at issue in Appellants substantive due process
claim against Appellee Beaird does not change this fact or make the claims from the
same occurrence or transaction.
The difference of timing with respect to the operative facts to each claim was
noted in Highway Equipment Co., Inc. v. FECO, Ltd.:
In the present case, the [state] count and the federal counts are not
derived from a common nucleus of operative fact. The facts alleged in
the [state] count involved the alleged wrongful termination of a
dealership agreement between the parties that designated FECO as a
dealer for certain outdoor power equipment manufactured and supplied
by Highway Equipment. That dealership agreement was terminated on
September 16, 2002. The facts alleged in the federal counts involved not
a contract, but a patent that issued on February 11, 2003, months after
the dealership was terminated on September 16, 2002.
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Page: 77
Highway Equipment Co., Inc. v. FECO, Ltd., 469 F.3d 1027, 1038-39 (Fed. Cir.
2006).
After the district court granted Appellee Whites motion for summary
judgment, there were no claims remaining against Appellee White and the district
court did not have supplemental jurisdiction to hear the district court Whites state
law counterclaim for battery pursuant to 28 U.S.C. 1367(a).
For the foregoing reasons, if this Honorable Court should reverse the district
courts granting judgment as a matter of law on Appellants substantive due process
claim and affirm the district courts granting of summary judgment on Appellants
excessive force claims, then Appellant respect requests this Honorable Court to find
that the district court does not have supplemental jurisdiction over Appellee Whites
Missouri state law counterclaim and remand the case to the district court for further
proceedings.
VII. THE DISTRICT COURT ERRED IN DENYING APPELLANTS
MOTION TO BIFURCATE THE TRIAL OF APPELLEE MICHAEL
WHITES COUNTERCLAIM FOR BATTERY UNDER MISSOURI
STATE LAW FROM APPELLANTS SUBSTANTIVE DUE PROCESS
VIOLATION AGAINST APPELLEE JOHN BEAIRD IN THAT THE
ISSUES WERE CLEARLY SEPARABLE AND HAVING ONE TRIAL
WAS PREJUDICIAL TO APPELLANT.
Standard of Review
The denial of a motion to bifurcate under Fed.R.Civ.P. 42(b) is reviewed for
abuse of discretion. Athey v. Farmers Ins. Exchange, 234 F.3d 357, 362 (8th Cir.
65
Page: 78
2000) (citing Equal Employment Opportunity Comm'n v. HBE Corp., 135 F.3d 543,
551 (8th Cir. 1998)).
Argument
First, Appellant recognizes that this Honorable Courts ruling on Appellants
Point I on this appeal could make this point moot. If this Court reverses and remands
on Point I, Appellants federal claims of excessive force against Appellees White,
Beaird and Tihen, Appellant concedes that there is no cause for bifurcation of
Appellee Whites counterclaim for battery and Appellants federal claims of
excessive force. Appellant further states that this point is moot if this Court does not
reverse the district courts granting of Appellee Beairds motion for judgment as a
matter of law on Appellants claim of substantive due process violation against
Appellee Beaird.
Rule 42(b) of the Federal Rules of Civil Procedure provides that:
For convenience, to avoid prejudice, or to expedite and economize, the
court may order a separate trial of one or more separate issues, claims,
crossclaims, counterclaims, or third-party claims. When ordering a
separate trial, the court must preserve any federal right to a jury trial.
Fed.R.Civ.P. 42(b).
District courts possess broad discretion to bifurcate issues for purposes of trial
under Fed.R.Civ.P. 42(b). O'Dell v. Hercules, Inc., 904 F.2d 1194, 1201-02 (8th Cir.
1990); see also Athey, 234 F.3d at 362. The court's determination should include
consideration of the preservation of constitutional rights, clarity, judicial economy,
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the likelihood of inconsistent results, and the possibility of confusion. Spurlock v.

Nordyne, Inc., 91-1336C(5), 1992 WL 330206 (E.D.Mo. Jan. 29, 1992) citing O'Dell
904 F.2d at 1202; see also Koch Fuels, Inc. v. Cargo of 13,000 Barrels of No. 2 Oil,
704 F.2d. 1038, 1042 (8th Cir. 1983).
This Circuit has held that where the issues in a case are clearly separable,
bifurcation is not an abuse of discretion. Beeck v. Aquaslide 'N' Dive Corp., 562 F.2d
537 (8th Cir. 1977)(separate trial solely on the issue of whether the product was
manufactured by the defendant). Appellant concedes that he, the party moving for
bifurcation, bears the burden of proving that bifurcation is appropriate. Athey, 234
F.3d at 362.
The district court briefly addressed Appellants motion to bifurcate trial and
held:
However, as discussed above, Mr. Davis' due process claim depends
on the fact issue of whether Mr. Davis resisted commands, including by
punching Officer White. Therefore, Mr. Davis is not prejudiced by
having a single trial. Furthermore, it would be waste of judicial
resources to try separately claims that share common questions of fact.
Add. C-10.
After the district courts summary judgment rulings, the remaining claims
were clearly separable and bifurcation was appropriate. Appellants claim alleged in
his substantive due process claim that his civil rights were violated by Appellee
Beaird in creating false evidence, sworn informations/complaints, that were used in
67
Page: 80
the subsequent municipal prosecution of Appellant. Appellants excessive force

claims were dismissed on summary judgment. Appellee Whites counterclaim
alleged Missouri state law battery in response to Appellants claim of excessive
force. The issues of each separate claim do not overlap and the claims involved
separate parties Appellant vs. Appellee Beaird and Appellee White vs. Appellant.
Whether or not Appellant punched or committed battery against Appellee has
absolute no relation with and is entirely separable from Appellants claim of
substantive due process violation against Appellee Beaird. Even the substance of
Appellee Beairds sworn informations/complaints alleged that Appellant bled on the
officers and Officer Pillaricks uniforms, not Appellee White. Whether or not
Appellant punched Appellee White has no relation to the Appellant bleeding, or
bleeding on the officers and Officer Pillaricks uniforms.
Allowing Appellee White to try his counterclaim and inject into the trial that
Appellant punched Appellee White severely prejudices Appellant in his claim against
Appellee Beaird and confuses the jury as to the presence of Appellee Whites
counterclaim and the lack of claim (for excessive force) by Appellant, which was
dismissed on summary judgment. Appellant allegedly punching Appellee White is
irrelevant and immaterial to Appellants claim of substantive due process violation
against Appellee Beaird and allows Appellee Beaird (who is represented by same
counsel of Appellee White) to circumvent the Federal Rules of Evidence. See
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Page: 81
Fed.R.Evid. 401, 403.

Additionally, in trying both claims together, there is a high probability that the
jury will be confused. A counterclaim is just that, a counter, or responsive claim to an
initial claim. The initial claim (Appellants excessive force claim) was dismissed and
the remaining claim was not against Appellee White, it is against a separate person,
Appellee Beaird. There would be much less of a chance for confusion with the jury if
Appellants claim for due process violation against Appellee Beaird is tried by itself,
separate from and Appellee Whites counterclaim for Missouri state law battery
against Appellant.
For the foregoing reasons, if this Honorable Court should reverse the district
courts granting of summary judgment on Appellants substantive due process claim
and not Appellants excessive force claims, this Honorable Court should reverse the
district courts denial of Appellants motion to bifurcate trial and order that
Appellants claim for due process violation against Appellee Beaird be tried
separately from Appellee Whites counterclaim for Missouri state law battery against
Appellant and remand the case to the district court for further proceedings.
CONCLUSION
For the foregoing reasons, Appellant presented a submissible case of
excessive force and Missouri state law assault and battery and respectfully requests
this Honorable Court to reverse the district courts judgment of dismissal of
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Appellants excessive force and Missouri state law assault and battery claims
against Appellees Michael White, John Beaird and Kim Tihen; Appellant
presented a submissible case of municipal liability and requests this Honorable
Court to reverse the district courts judgment of dismissal of Appellants municipal
liability claim against Appellee City of Ferguson, Missouri; Appellant presented a
submissible case of substantive due process violation and requests this Honorable
Court to reverse the district courts judgment of dismissal of Appellants
substantive due process claim against Appellee John Beaird; Appellee Michael
White filed to file his counterclaim in response to Appellants First Amended
Complaint as required by Rule 13(a) of the Federal Rules of Civil Procedure and
Appellant requests this Honorable Court to reverse the district courts holding that
Appellee Michael Whites counterclaim of Missouri state law battery was pending
at the time of trial.
If this Honorable Court should reverse the district courts granting judgment
as a matter of law on Appellants substantive due process claim and affirm the
district courts granting of summary judgment on Appellants excessive force
claims, then the district court does not have supplemental jurisdiction over
Appellee Missouri Whites Missouri state law counterclaim.
If this Honorable Court should reverse the district courts granting of
summary judgment on Appellants substantive due process claim and not
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Appellants excessive force claims, this Honorable Court should reverse the district
courts denial of Appellants motion to bifurcate trial and order that Appellants
claim for due process violation against Appellee Beaird be tried separately from
Appellee Whites counterclaim for Missouri state law battery against Appellant
because the claims are clearly separable.
Upon reversal, Appellant requests that this case be remanded to the district
court for proceedings consistent with this Courts findings.
Respectfully submitted,
SCHOTTEL & ASSOCIATES, P.C.
BY: s/James W. Schottel, Jr.
James W. Schottel, Jr. #03-194
906 Olive St., PH
St. Louis, MO 63101
(314) 421-0350
(314) 421-4060 facsimile
jwsj@schotteljustice.com
Attorney for Appellant
Henry Davis
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CERTIFICATE OF COMPLIANCE WITH F.R.A.P. 32(a)(7)

1.
This brief exceeds the type-volume limitation of F.R.A.P. 32(a)(7)(B) and
because:
this brief contains 16,035 words, excluding the parts of the brief exempted
by F.R.A.P. 32(a)(7)(B)(iii).
However, leave has been granted to file this brief in excess of length limitation of
F.R.A.P. 32(a)(7)(B).
2.
This brief complies with the typeface requirements of F.R.A.P. 32(a)(5) and
the type style of F.R.A.P. 32(a)(6) because:
this brief has been prepared in a proportionally spaced typeface using
Microsoft Word 2007 in 14 point, Times New Roman.
Dated: July 8, 2014.
s/James W. Schottel, Jr.
James W. Schottel, Jr.
Attorney for Appellant, Henry Davis
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VERIFICATION OF VIRUS-FREE ELECTRONIC FILES

The undersigned hereby certifies that the electronic files presented to the
Clerk of this Court containing a copy of the Appellants brief and the addendum
have been scanned for viruses and are virus free.

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CERTIFICATE OF FILING AND SERVICE

The undersigned counsel for the Appellant, Henry Davis, hereby certifies
that on July 8, 2014, I electronically filed the foregoing brief with the Clerk of
Court for the United States Court of Appeals for the Eighth Circuit by using the
CM/ECF system. Participants in the case who are registered CM/ECF users will be
served by the CM/ECF system.
I further certify that, 10 paper copies of the brief were filed with the Clerk of
Court and 1 paper copy served on the counsel of record for the Appellee as noted
below this 10th day of July, 2014.
Peter J. Dunne
Robert T. Plunkert
PITZER & SNODGRASS, P.C.
100 S. 4th St., Ste 400
St. Louis, MO 63102
(314) 421-5545
Attorneys for Appellees
Michael White
John Beaird
Kim Tihen
City of Ferguson, Missouri
74
No. 14-1722
______________________________________________
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
______________________________________________
Henry Davis
Appellant
v.
Michael White, et al.
Appellees
______________________________________________
Appeal From The United States District Court
For the Eastern District of Missouri, Eastern Division
The Honorable Magistrate Nannette A. Baker
______________________________________________
APPELLANTS BRIEF ADDENDUM
December 31, 2013 Judgment of Dismissal of Counts I, III, IV, V, VI, VII, and VIII
of Appellants First Amended Complaint (Doc. #173)....................................A
December 31, 2013 District Court Memorandum and Order granting in part and
denying in part Appellees Motion for Summary Judgment (Doc. #172)......B
March 10, 2014 District Court Memorandum and Order denying Appellants
Motions to Dismiss or Ruling on Appellee Michael Whites Counterclaim as
Abandoned and Motion to Bifurcate Trial (Doc. #211)...................................C
March 25, 2014 Judgment as a Matter of Law on Count II of Appellants First

Amended Complaint (Doc. #246)...................................................................D
March 25, 2014 District Court Memorandum and Order granting Appellee John
Beairds Motion for Judgment as a Matter of Law after the Close of
Appellants Evidence (Doc. #245)..................................................................E
Section 29.61 of the revised Code of the City of Ferguson, 1998 (Appellants Trial
Exhibit 1)........................................................................................................F
September 24, 2009 Complaints/Informations Executed by Appellee John Beaird
(Appellants Trial Exhibits 2, 3, 4 and 5).......................................................G
Booking Photo of Appellant (Doc. #142-10).............................................................H
Case: 4:10-cv-01429-NAB Doc.#: 173 Filed : 12/31/13 Page: 1 of 1 PageiD #: 2586
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
HENRYM. DAVIS,
Plaintiff,
V.
)
)
)
)
)
MICHAEL WHITE, et al.,

Defendant.
)
)
)
JUDGMENT
In accordance with the Memorandum and Order of this date and incorporated herein,
IT IS HEREBY ORDERD, ADJUDGED, AND DECREED that judgment is entered

in favor ofDefendants City of Ferguson, Missouri, Michael White, John Beaird, and Kim Tihen
and against Plaintiff Henry Davis on Counts I, ill, IV, V, VI VII, and VIII.
Dated this 31st day of December, 2013.
Is/ Nannette A. Baker

NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
A-1
Case: 4:10-cv-01429-NAB Doc.#: 172 Filed : 12/31/13 Page : 1 of 25 PageiD #: 2561

EASTERN DIVISION
HENRYM. DAVIS,
)
)
Plaintiff,
)
)
)
)
)
)
)
V.
MlCHAEL WHITE, et al.,

Defendants.
Case No. 4: 10-CV-1429 NAB
MEMORANDUM AND ORDER
This matter is before the Court on Defendants City of Ferguson, Missouri and Ferguson
Police Officers Michael White, John Beaird, and Kim Tihen' s Joint Motion for Swnmary
Judgment [Doc. 124] and Plaintiff Henry Davis' Motion for Partial Swnmary Judgment against
Defendant Beaird [Doc. 127].
Both motions have been fully briefed.
Mr. Davis alleges
Defendants violated his rights under the Fourth and Fourteenth Amendments, 42 U.S .C. 1983,
and Missouri tort law when he sustained injuries following his September 20, 2009 arrest. Mr.
Davis has also filed a Motion to Strike portions of Officer Beaird s deposition testimony [Doc.
157]. Defendants filed a Motion for Leave to Produce Mr. Davis criminal attorney Michael
Kielty or, in the alternative, a Motion to Strike Mr. Kielty's affidavit from the record [Doc. 163].
The parties consented to the jurisdiction of the undersigned United States Magistrate Judge
pursuant to 28 U.S.C. 636(c)(1).
I.
Background
Mr. Davis filed suit against Defendants in August of 2010 alleging violations of the
Fourth and Fourteenth Amendments, 42 U.S.C. 1983, and Missouri tort law related to his
September 20 2009 arrest and detention. In February of 2011 , the case was stayed pending the
B-1
Case: 4:10-cv-01429-NAB Doc. #: 172 Filed: 12/31/13 Page: 2 of 25 PageiD #: 2562
outcome of criminal proceedings. It was reopened on January 30, 2013. On February 26, 2013,
Mr. Davis filed an Amended Complaint. [Doc. 50.] Mr. Davis has since withdrawn several
claims.
He maintains claims against Officers White, Beaird, and Tihen for Excessive Force
under the Fourth Amendment and 1983 and Assault and Battery under Missouri law (Counts I
and Vll), against the City of Ferguson for Municipal Liability and Respondeat Superior under
1983 (Counts V and VI), and against Officer Beaird for Substantive Due Process under the
Fourteenth Amendment and 1983 (Count II).
A.
Undisputed, Material Facts
At all relevant times, Officers Beaird, White, and Tihen acted under color of state law as
police officers for the City of Ferguson police department. Around 3:00 a.m. on the morning of
September 20, 2009 Officer Beaird arrested Mr. Davis on suspicion of driving while intoxicated.
Mr. Davis did not complete a sobriety test. When he arrived at the Ferguson jail, Mr. Davis was
placed in booking with Officer Pillarick and his handcuffs were removed. The only information
Mr. Davis gave to Officer Pillarick was his name and social security number.
Officers Beaird and Pillarick then escorted Mr. Davis to cell three.
Mr. Davis
commented that the cell was for one person and someone was already in it. All the cells bad at
least one person in them. He asked for a mat or, alternatively, to be chained to a bench outside.
He said if he did not receive a mat, he would not enter the cell. Officer Pillarick told Mr. Davis
he would not receive a mat. One of the officers called for back up. Officers White, Tihen, and
Mr. Davis has withdrawn Counts III, IV, and VII against Officer Beaird for Retaliatory and
Malicious Prosecution. [Doc. 143.]
The Court will therefore grant summary judgment for
Officer Beaird on those counts.

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Ballard responded. They asked Mr. Davis why he would not enter the cell. Mr. Davis responded
that someone was already in it and he had not received a mat.
Officer White then forced Mr. Davis into the cell by grabbing his chest and pushing him
back. Physical contact between the officers and Mr. Davis ensued. At some point, Officer Tihen
struck Mr. Davis three to four times. During the contact, Officer White and Mr. Davis both
sustained injuries that caused bleeding and Mr. Davis ' blood ended up on the floor of the celL
Officer White sustained an injury to his nose. Mr. Davis sustained a bead injury and painful
bruising that did not subside for 30 days.
After the contact, Officer Ballard instructed Officer White to seek medical attention and
paramedics were called.
Records show that Mr. Davis presented with a laceration to his
forehead but paramedics did not treat him because he was yelling and screaming profanities?
Officer White drove himself and Officer Beaird drove Mr. Davis to the emergency room at
Christian Hospital in St. Louis, Missouri.
Records show that, at the emergency room, Officer White complained that a prisoner had
punched him in the face. After a CT scan, Officer White was diagnosed with a Nasal Fracture
(broken nose). Medical personnel noted blood on his unifotm. He was prescribed 500 mg of
Naprosyn Oral twice daily as needed for pain and discharged with instructions to follow up with
the facial plastics clinic.
Mr. Davis denies that be was belligerent toward the paramedics or medical personnel at
Christian Hospital, but the evidence of his behavior is so one-sided that the Court cannot credit
his account, even at the summary judgment stage. See Reed v. City of St. Charles, 561 F.3d 788,
790-91 (8th Cir. 2009).
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Records show that Mr. Davis complained that officers had assaulted him and refused
treatment because he wanted his picture taken before he was treated. He also refused to sign a
refusal of treatment form. Medical personnel noted bleeding to his frontal scalp. Records also
show he was belligerent toward staff, yelling and using expletives. 3 When Mr. Davis was
returned to the jail, a booking photo was taken. The photo is a headshot and shows dried blood
all over Mr. Davis ' face.
The same morning, after the incident, Officer Beaird drew up four complaints alleging
that Mr. Davis committed Property Damage by transferring his blood to the uniforms of Officers
Beaird, White, Tihen, and Pillarick. In the complaints, Officer Beaird asserted that the officers
were attempting to subdue Mr. Davis who was "actively resisting." Executed on September 24,
2013 , the complaints formed part of a municipal case against Mr. Davis. Th e City of Ferguson v.
Henry M. Davis, Case No. 09-16166. Mr. Davis was charged with Driving While Intoxicated,
Speeding, Failure to Drive in a Single Lane, No Proof of Insurance, Failure to Obey Police
Officer, and four counts of Destruction of City Property.
As a result of plea negotiations,
Driving While Intoxicated was reduced to Careless and Imprudent Driving, Failure to Drive in a
Single Lane and No Proof of Insurance were reduced to non-moving violations, and the four
counts of Destruction of City Property were reduced to two counts. In sum, Mr. Davis pled
guilty to Careless and Imprudent Driving, Speeding, two non-moving violations, Failure to Obey
Police Officer, and two counts of Destruction of City Property. Officer Beaird's complaints
formed the sole basis for the Destruction of City Property charges.
Again, the evidence of Mr. Davis' behavior is too one-sided to credit his account. See Reed,
561 F.3d at 790-91.

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When Mr. Davis was released from the jail on September 22, 2013, he went to the
emergency room at SSM St. Joseph Health Center in St. Charles, Missouri. Records show that
he complained of persistent headaches and associated symptoms and was diagnosed with a
"Concussion with no Loss of Consciousness" and "Scalp Laceration." He was prescribed 750
mg of Methocarbarnol (Robaxin) once every six hows and 50 mg of Tramadol (U1tram) once
every four hours as needed for pain. Mr. Davis was discharged with instructions to follow up in
a week. He returned on September 29, 2013 for aCT scan, which was negative for signs of
bleeding, masses, or stroke.
Nearly a year after the incident, on or around August 30, 2010, Officer Beaird applied for
felony warrants against Mr. Davis, resulting in a state case against him for Assault on a Law
Enforcement Officer. State of Missouri v. Henry M Davis, Case No. JOSL-CR07793-01. The
case was ultimately dropped.
B.
Disputed, Material Facts
This case essentially pits the testimony of Mr. Davis against that of Officers Beaird,
White, Tihen, Pillarick, and Ballard. There is no video of the incident despite the fact that the
jail is equipped with video cameras. Nor are there any photos beyond the booking photo taken of
Mr. Davis. There is no testimony from other detainees. The parties present different versions of
what happened on September 20, 2009.
Mr. Davis asserts that Officer Beaird arrested the
"wrong" Henry Davis, that he was generally compliant, and that the officers nonetheless beat
him without provocation while he was handcuffed on the ground. By contrast, Defendants assert
that Mr. Davis was intoxicated and belligerent throughout the day and that he punched Officer
White, triggering a struggle wherein the officers fought to subdue Mr. Davis. For clarity and
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because there are dueling motions for summary judgment, the facts according to both sides are
presented in more detail below.
i.
Mr. Davis' Interactions with Defendants Prior to the Incident
According to Mr. Davis, when Officer Beaird arrested him, he was told it was because of
warrants. When he arrived at booking, he complied with all of Officer Pillarick's requests. He
provided his name and social security number, at which point Officer Pillarick said they had a
problem. When Mr. Davis asked why, Officer Pillarick said the warrants were for a man who
was taller and had a different social security number and middle name. Mr. Davis claims that,
beyond asking the officers a few questions and refusing to enter his cell without a mat he was
compliant.
According to Defendants, when he was arrested, Mr. Davis appeared intoxicated but
refused a sobriety test, along with other instructions. Mr. Davis was belligerent during the
booking process and refused to provide any information beyond his name and social security
number. Outside of cell three, he would not cooperate, was yelling obscenities, and, after being
told by Officer Beaird that not entering the cell was not an option, threatened to assault Officers
Beaird and Pillarick, prompting them to call for back up. When Officers White, Tihen, and
Ballard arrived, Mr. Davis ' fists were balled up as Officer Beaird continued to ask him to enter
the cell. When Mr. Davis told the officers he would not enter the cell without a mat, Officer
Beaird said "[a]re we really going to have to do this," to which Mr. Davis responded, "[y]es, we
are" and that he would make the officers "kick my ass so I can sue you."
ii.
Events After Officer White Forced Mr. Davis into the Cell
According to Mr. Davis, when Officer White forced him into the cell, Mr. Davis hit the
back of his head on the back of the cell, which dazed him but did not cause any visible injury.
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He then raised his arms and ducked his head to "cover up." Mr. Davis did not recall whether any
part of his body made contact with Officer White as he covered up. Officer White ran out of the
cell. Mr. Davis walked toward the front of cell and asked why the officers were doing this to
him. They told him to lie on the ground and put his hands behind his back. He complied, lying
on his stomach. At that point, Officer Tihen jumped on the bed. Mr. Davis ' cell mate had exited
when Officer White pushed Mr. Davis into the cell. But it was still a small cell, so Officer Tihen
had to jump on the bed to get behind Mr. Davis. From the bed, she then straddled Mr. Davis and
handcuffed him.
According to Mr. Davis, the officers then proceeded to beat him. Officer Tihen had him
handcuffed . Officers Beaird and White entered the cell. The officers, including Officer Tihen,
started hitting Mr. Davis. He covered up to protect himself. Officers Beaird and White left the
cell. Officer Tihen was still behind Mr. Davis, holding him up such that his head was slightly
raised. Officer White then came back into the cell and kicked Mr. Davis in the head with the toe
of his boot, causing the scalp laceration. Officer Tihen said "Oh my god." Mr. Davis did not
lose consciousness but was again dazed.
According to Defendants, Officer White was closing the door after forcing Mr. Davis in
the cell when Mr. Davis grabbed him and punched him in the nose. Mr. Davis was clearly
intoxicated. When Mr. Davis would not let go of Officer White, Officer White struck him twice
in the side and once in an unknown location. Mr. Davis and Officers White and Tihen ended up
on the floor. Officer White managed to break free and exit the cell. Officer Tihen was pinned.
Fearing Mr. Davis would bite her, she struck him three to four times in the back of the head.
With help from Officers Pillarick and Beaird, she was eventually able to handcuff Mr. Davis. In
addition to Officer White's broken nose, Officer Tihen had bumps and bruises and was sore for
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days and Officer Beaird bad a sore band. Defendants maintain Mr. Davis hit his head at some
point during the struggle.
iii.
Testimony as to Whether There was Blood on the Officers' Uniforms
Mr. Davis testified that be did not see any blood on the officers' uniforms, but that there
was a lot of his blood on his face and clothing and on the ground. He testified that he did not spit
or wipe blood on any of the officers. Mr. Davis maintains that, because of Officer Beaird' s
complaints, he pled guilty to two counts of Destruction of City Property he did not commit.
On January 14, 2013, Officer Beaird gave a deposition in Mr. Davis' state case. When
asked if he, Officer Beaird, had any blood on him after the incident, he answered no. When
asked if he saw any blood on Officer White's uniform after the incident he answered that he did
not remember seeing any. When asked if he noticed any blood on Officer Tihen's uniform after
the incident, he answered that he did not know. Officer Beaird was then presented with the fom
complaints signed by him.
On August 29, 2013 , Officer Beaird gave a deposition in this case. Officer Beaird said
the following with regard to his January 14, 2013 deposition testimony: "When counsel was
questioning me during the deposition, I had no recollection of the complaints that I had signed
against Mr. Davis. When he [counsel] brought those to light dming the deposition, it refreshed
my memory. But at that point - I do recall signing the complaints and the fact that Officer
Tihen, Pillarick, White and myself had blood on us. But during the initial questioning I did not."
When asked " [a]s you sit here today, do you recall whether blood of Henry Davis was
transferred to the uniforms of the four [officers]," Officer Beaird answered "I do recall that."
When Officer Beaird was asked how blood got on Officer Pillarick's uniform, he answered that
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it must have been inside the cell. When asked if Officer Pillarick entered the cell at any point
during the incident, Officer Beaird answered that he was unclear on that.
Officers White, Tihen, and Pillarick also gave deposition testimony regarding the
presence of blood on their uniforms. Officer White testified that his nose was bleeding heavily
and that he bled on Officer Tihen during the struggle to subdue Mr. Davis. When asked if any of
Mr. Davis ' blood got on his uniform, Officer White responded that he believed all of the blood
was his own. Officer Tihen testified that both Officer White and Mr. Davis got blood on her
uniform. Officer Pillarick testified that he entered the cell towards the end of the struggle and
helped to handcuff Mr. Davis. When asked if he got any blood on his uniform, he answered no.
Officer Pillarick testified he could not recall whether he saw blood on Officer Beaird or Officer
Tihen's uniform. In addition, Officer Ballard testified that all the officers were covered in blood.
ll.
Summary Judgment Standard of Review

Pursuant to Federal Rule of Civil Procedure 56(c), "[s]ummary judgment is properly
granted when the record, viewed in the light most favorable to the nonmoving party, shows that
there is no genuine issue of material fact, and the moving party is entitled to judgment as a
matter of law." Brandt v. Davis, 191 F.3d 887, 891 (8th Cir. 1999). The Supreme Court has
noted that "[s]ummary judgment procedure is properly regarded not as a disfavored procedural
shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to
' secure the just, speedy and inexpensive determination of every action.' ' Celotex Corp. v.
Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (quoting Fed. R. Civ. P. 1).
"By its very terms, [Rule 56(c)(1)] provides that the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact. " Anderson v. Liberty
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Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A material fact is
one that "might affect the outcome of the suit under the governing law" and a genuine issue of
material fact exists when "a reasonable jury could return a verdict for the nonmoving party." Id.
at 248 . There is no genuine issue of material fact where the non-moving party failed to "make a
showing sufficient to establish the existence of an element essential to that party's case ... . since
a complete failure of proof concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322-23.
The initial burden is on the moving party to establish "the non-existence of any genuine
issue of fact that is material to a judgment in his favor." City of Mt. Pleasant, Iowa v. Associated
Elec. Co-op. , Inc., 838 F.2d 268, 273 (8th Cir. 1988). Once this burden is discharged, if the
record does in fact bear out that no genuine dispute exists the burden shifts to the non-moving
party to set forth affirmative evidence and specific facts showing there is a genuine dispute on
that issue. Anderson, 477 U.S. at 256-57. When the burden shifts, the non-moving party cannot
rest on the allegations in its pleadings, but by affidavit and other evidence must set forth specific
facts showing that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e); Stone Motor Co.
v. Gen. Motors Corp., 293 F.3d 456, 465 (8th Cir. 2002). To meet its burden, the non-moving
party must "do more than simply show that there is orne metaphysical doubt as to the material
facts ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348
(1986). Self-serving, conclusory statements without support are not sufficient to defeat summary
judgment. Annour and Co., Inc. v. Inver Grove Heights, 2 F.3d 276, 279 (8th Cir. 1993). The
non-moving party must show there is sufficient evidence favoring the non-moving party which
would enable a jury to return a verdict for it. Anderson, 477 U.S. at 249; Celotex, 477 U.S. at
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334. "If the non-moving party fails to produce such evidence, summary judgment is proper."
Olson v. Pennzoil Co., 943 F.2d 881 , 883 (8th Cir. 1991).
In passing on a motion for summary judgment, it is not the court's role to decide the
merits. The court may not "weigh the evidence in the summary judgment record, decide
credibility questions, or determine the truth of any factual issue." Kampouris v. St. Louis
Symphony Soc. , 210 F.3d 845, 847 (8th Cir. 2000). The Court instead ' perform[s] only a
gatekeeper function of determining whether there is evidence in the summary judgment record
generating a genuine issue of material fact for trial on each essential element of a claim." I d.
Finally, "[w ]here as here, each side moves for summary judgment, each concedes that for
purposes of his own motion there is no genuine factual issue; however, the fact that both sides
move for summary judgment does not necessarily establish that the case is a proper one for
summary disposition." Young v. Southwestern Bell Telephone Co. , 309 F.Supp. 475, 476 (E.D.
Ark. 1969).
III.
Discussion
A.
Excessive Force Claim
In Count I of his Complaint, Mr. Davis alleges that Officers White, Beaird, and Tihen
violated the Fourth Amendment and 42 U.S.C. 1983 by using excessive force against him.
Defendants argue that they are entitled to qualified immunity because Mr. Davis suffered de
minimis injuries and, given the state of the law on September 20, 2009 a reasonable officer
could have believed that he did not violate the Fourth Amendment if be only inflicted de minimis
injuries. Mr. Davis counters that it was clearly established at the time that the use force without
any provocation violated the Fourth Amendment and, alternatively, his injuries were more than
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de minimis. The Court agrees with Defendants and holds that Officers White, Beaird, and Tihen
are entitled to qualified immunity.
Where a right was not 'clearly established" at the time of an alleged constitutional
violation, an officer is entitled to qualified immunity. See Saucier v. Katz, 533 U.S. 194, 121 S.
Ct. 2151 , 150 L. Ed. 2d 272 (2001); Pearson v. Callahan , 555 U.S. 223, 129 S. Ct. 808, 172 L.
Ed. 2d 565 (2009) (receding from Katz by allowing courts to evaluate whether a right was clearly
established as a threshold inquiry). Qualified immunity is an absolute immunity from suit rather
than a mere defense to liability. Mitchell v. Forsyth, 472 U.S. 511 , 526, 105 S. Ct. 2806, 86 L.
Ed. 2d 411 (1985). It is "an entitlement not to stand trial or face the other burdens of litigation,
conditioned on the resolution of the essentially legal question whether the conduct of which the
plaintiff complains violated clearly established law." !d. In the context of an excessive force
claim, "the relevant, dispositive inquiry . . . is whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted." Katz, 533 U.S. at 202. "In other
words, we must ask whether the law at the time of the events in question gave the officers ' fair
warning' that their conduct was unconstitutional." Chambers v. Pennycock, 641 F.3d 898, 908
(8th Cir. 2011 ). Qualified immunity "applies regardless of whether [an officer' s] enor is a
mistake of law, a mistake of fact, or a mi take based on the mixed questions of law and fact" as
long as the mistake was reasonable under the circumstances. Pearson, 555 U.S . at 231 (internal
quotations omitted); see also Katz 533 U.S. at 206 (officers are entitled to qualified immunity
for 'reasonable but mistaken, beliefs" and "reasonable mistakes as to the legality of their
actions' ). It protects "all but the plainly incompetent or those who knowingly violate the law."
Malley v. Briggs, 475 U.S . 335, 341 , 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986).
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Defendants rightly emphasize that, as of Mr. Davis ' arrest, Eighth Circuit law was split
on the question of whether de minimis injuries foreclosed a 1983 excessive force claim. In
Chambers v. Penny cock decided on June 6, 2011 , the Eighth Circuit clarified that de minimis
injuries do not necessarily foreclose such a claim but acknowledged that under prior law, "a
reasonable officer could have believed that as long as be did not cause more than de minimis
injury to an arrestee, his actions would not run afoul of the Fourth Amendment." 641 F.3d at
908. The court elaborated, "The officers knew there was some chance that their actions would
cause only de minimis injury, and it was reasonable for the officers to believe that they remained
within constitutional bounds if that was the result." !d. Other courts have cited this language in
granting qualified immunity to officers who caused de minimi injuries pre-Chambers. See, e.g.,
Grady v. Becker, 907 F. Supp. 2d 975, 983 (D. Minn. 2012). Mr. Davis argues Chambers is
inapposite and cites cases holding that any use of force without provocation is excessive.
However, those cases do not negate the fact that when Mr. Davis was arrested, at least some
Eighth Circuit panels were foreclosing excessive force claims based on de minimis injuries. See,
e.g. , Andrews v. Fuo s, 417 F.3d 813, 818 (8th Cir. 2005) (de minimis injuries preclude a claim
for excessive force) ; see also Chambers, 641 F.3d at 907 (granting qualified immunity where
plaintiff claimed officer kicked him while he was restrained on the ground and offering no
resistance).
At core, whether Officers White, Beaird, and Tihen are entitled to qualified immunity
turns on the legal definition of de minimis at the time Mr. Davis was anested. Unless the law at
the time of his arrest clearly established his injuries a non-de minimis, Defendants are entitled to
qualified immunity. Viewed in the light most favorable to Mr. Davis, he sustained a scalp
laceration for which he did not receive stitches, a concussion, and bruising all over his body.
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The bruising lasted for 30 days and he has continued to experience frequent headaches. He also
has a petmanent scar from the laceration. While there are certainly cases to suggest these
injuries were considered non-de minimis, there are also cases to suggest the converse. Compare
Lambert v. City of Dumas, 187 F.3d 931 , 936 (8th Cir. 1999) ("single small cut of the lateral
right eyelid and small scrapes of the right posterior knee and upper calf' sufficient to support
excessive force claim), with Wertish v. Krueger, 433 F.3d 1062, 1067 (8th Cir. 2006) ("bruised
ribs, a sore shoulder, and multiple abrasions to [the] face and head' that "were not permanent but
some took six weeks to heal" categorized as de minimis); Andrews, 417 F.3d at 818 (sore neck,
arm, and shoulder, "horrible, horrible headache," and exacerbated pre-existing mental condition
were de minimis); see also Grady, 907 F. Supp. 2d at 984 (officers entitled to qualified immunity
even though some pre-Chambers cases found injuries like those suffered by plaintiff to be de
minimis); Robinson v. City of Minneapolis 2013 WL 3929043, No. 10-3067, at *5 (July 30,
20 13) ("contusions and swelling" were de minimis). Moreover, de minimis is more of a standard
than a rule, clearly defmed in the extremes but much hazier toward the middle. See FREDERICK
SCHA UER, THI
KJ
G LIKE A LAWYER: A NEW lNTRODUCT0 TO LEGAL REASON! G 88 (2009).
"Qualified immunity operates . . . to protect officers from the sometimes hazy border between
excessive and acceptable force. ' !d. And even if the majority of prior cases established that
injuries akin to those suffered by Mr. Davis are non-de minimis, officers are still allowed
reasonable mistakes of law. See Katz, 533 U.S. at 206. As a result, as unreasonable as it may
sound, a reasonable officer could have believed that beating a subdued and compliant Mr. Davis
while causing only a concussion, scalp laceration, and bruising with almost no permanent
damage did not violate the Constitution. The Court grants summary judgment to Defendants on
Count!.
14
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B.
Assault and Battery Claims
In Count VTI of his Complaint, Mr. Davis alleges that Officers White Beaird, and Tihen
committed as ault and battery against him under Missouri law. Defendants contend that they are
entitled to summary judgment based on official immunity. Official immunity shields officials
from liability for negligence in the performance of "discretionary, as opposed to ministerial,
duties." Brown v. Tate, 888 S.W.2d 413 , 415 (Mo. App. W.D. 1994). It "provides that public
officials acting within the scope of their authority are not liable in tort for injuries arising from
their discretionary acts or omissions." DaVee v. Mathis, 812 S.W.2d 816, 827 (Mo. App. W.D .
1991) (citing Kanagawa v. State, 865 S.W.2d 831 , 835 (Mo. bane 1985)). Whether duties are
discretionary or ministerial "must be determined by the facts of each particular case after
weighing such factors as the nature of the official 's duties, the extent to which the acts involve
policy making or the exercise of professional expertise and judgment, and the likely
consequences of withholding immunity." Kanagawa, 865 S.W.2d at 835. Officers' actions in
detaining someone who has been arrested are properly categorized as discretionary. Compare
DaVee, 812 S.W.2d at 827 (actions in executing search warrant were discretionary such that
officers were entitled to official immunity) (citing Dalia v. United States, 441 U. S. 238, 256, 99
S. Ct. 1682, 60 L. Ed. 2d 177 (1979)), with Jungerman v. City of Raytown, 925 S.W.2d 202 206
(Mo. bane 1996) (inventorying, recording, and storing inmates' property was ministerial). As a
result, Defendants are entitled to official immunity on Mr. Davis' state law claims because they
acted constitutionally and within their discretion. See Grady, F. Supp. 2d at 985 (officers entitled
to official immunity on state law assault and battery claims because they caused only de minimis
injuries). The Court grants sununary judgment to Defendants on Count VTI.
C.
Claims against the City of Ferguson
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In Counts V and VI of his Complaint, Mr. Davis alleges that the City of Ferguson is
liable under 1983 for the use of excessive force by Officers White, Beaird, and Tihen. Because
the underlying excessive force claim has failed the claims against the City of Ferguson fail as
well. See Reed v. City of St. Charles, 561 F.3d 788, 792 (8th Cir. 2009). The Cowt grants
summary judgment to the City of Ferguson on Counts V and VI.
D.
Substantive Due Process Claim
In Count II, Mr. Davis alleges that Officer Beaird violated his substantive due process
rights by deliberately fabricating at least three of the four Property Damage complaints against
him. As a threshold matter, the Court will address Mr. Davis ' Motion to Strike portions of
Officer Beaird's August 29, 2013 deposition testimony. The motion was fully briefed. In his
January 14 2013 deposition, without having reviewed the four Property Damage complaints,
Officer Beaird testified that there was no blood on his uniform and that he could not remember
or did not know whether there was blood on other officers' uniforms. In his August 29 2013
deposition, when asked "[i]s there anything that you wanted to clarify on that [January 14 2013]
deposition transcript that you had read," Officer Beaird explained that reviewing the complaints
had refreshed his memory and he now recalled there was blood on all four officers' uniforms.
Counsel for Mr. Davis objected to the question as vague. Mr. Davis contends that Officer
Beaird's explanation should be stricken under the sham exception doctiine and, alternately,
because it was beyond the scope of direct examination. Officer Beaird counters that the sham
exception doctrine is inapplicable. The Court agrees with Officer Beaird.
The goal of the sham exception doctrine is to prevent parties from giving last-minute,
contradictory testimony solely to survive a motion for summary judgment. "Ambiguities and
even conflicts in a deponent's testimony are generally matters for the jury to sort out, but a
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district court may grant summary judgment where a party' s sudden and unexplained revision of
testimony creates an issue of fact where none existed before. Otherwise, any party could head
off a summary judgment motion by supplanting previous depositions ad hoc with a new
affidavit, and no case would ever be appropriate for summary judgment." Wilson v.
Westinghouse Elec. Corp. , 838 F.2d 286, 289 (8th Cir. 1988). Officer Beaird's explanation does
not fall within the sham exception doctrine. Significantly, the ambiguity in Officer Beaird's
statements as to whether there was blood on the officers ' uniform existed before his August 29,
2013 deposition. It is not as though Officer Beaird revised his prior testimony solely to create an
issue of fact. Quite the opposite. He revised his testimony in order to explain a pre-existing
ambiguity. Finally Mr. Davis cannot raise a Hail Mary objection in a reply memorandum that
he did not raise at the time of Officer Beaird's deposition. See Fed. R. Civ. P. 32(d)(3)(B). Mr.
Davis' Motion to Strike portions of Officer Beaird' s August 29, 2013 deposition testimony is
denied.
Having dispensed with Mr. Davis' Motion to Strike, the Court will take up the parties'
dueling motions for summary judgment on Count II. Mr. Davis contends he is entitled to
summary judgment because the undisputed facts show that Officer Beaird knowingly submitted
false complaints to coerce him into pleading guilty. Officer Beaird in turn contends that he is
entitled to summary judgment based on qualified immunity. He argues that the undisputed facts
show there was probable cause to believe Mr. Davis committed the offenses. He further argues
there is no evidence to suggest he had knowledge of their alleged falsity or that his conduct in
any way shocked the conscience. Mr. Davis counters that this case is identical to Winslow
v.
Smith , 696 F.3d 716 (8th Cir. 2012) where the Eighth Circuit reversed the district cowt's grant
17
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of qualified immunity fmding that the facts viewed in the light most favorabl e to the plaintiffs
supported an inference of conscience-shocking reckless investigation and deliberate fabrication.
"To breach the shield of qualified immunity by establishing a violation of substantive due
process rights, a plaintiff must show (1) that the official violated one or more fundamental
constitutional rights, and (2) that the conduct of the official was shocking to the contemporary
conscience." Winslow, 696 F.3d at 731 (internal quotations omitted). Where a plaintiff claims
that officers manufactured false evidence he alleges a violation of his fundamental " liberty
interest in fair criminal proceedings." !d. ; see also Wilson v. Lawrence Cnty, 260 F.3d 946, 957
(8th Cir. 2001) ("Law enforcement officers ... have a responsibility to criminal defendants to
conduct their investigations and prosecutions fairly").
Such a claim "requires proof that
investigators deliberately fabricated evidence in order to frame a criminal defendant" and that the
evidence was actually "used to deprive the defendant of her liberty in some way." Winslow, 696
F.3d at 732 , 735 (internal quotations omitted). "Failing to follow guidelines to carry out an
investigation in a manner that will ensure an error-free result is one thing; intentionally
fabricating false evidence is quite another." Deveraux v. Abbey, 263 F.3d 1070, 1076-77 (9th Cir.
2001) (en bane), cited with approval in Winslow, 696 F.3d at 732.
To get past qualified
immunity Mr. Davis must show that Officer Beaird intentionally fabricated the complaints, that
Mr. Davis therefore pled to crimes he did not commit, and that Officer Beaird's conduct shocked
the conscience.
The Court will take up Mr. Davis' motion first. Viewed in the light most favorable to
Officer Beaird, on September 20, 2009, he and Officers White Tihen, and Pillarick attempted to
subdue Mr. Davis after Mr. Davis punched Officer White. The struggle was a "pile" of bodies
where all four officers made some kind of physical contact with Mr. Davis. Both Officer White
18
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and Mr. Davis were bleeding. By the end of the struggle, all of the officers had blood on them,
with the possible exception of Officer Pillarick. Later that morning, Officer Beaird executed the
four complaints alleging Property Damage. When he was questioned on January 14, 2013, a
little over three years after the incident he forgot that there had been blood on his uniform and
could not remember whether there had been blood on Officer White and Tihen's uniforms. But
after reviewing the complaints, Officer Beaird recalled that they were correct. These facts in no
way support a finding of deliberate fabrication that shocks the conscience. The Court will deny
Mr. Davis' Motion for Partial Swnmary Judgment Against Defendant Beaird.
Next the Court will take up Officer Beaird's motion. "The party asserting [qualified]
immunity always has the burden to establish the relevant predicate facts, and at the summary
judgment stage, the nonmoving party is given the benefit of all reasonable inferences." Wh ite v.
McKinley, 519 F.3d 806 (8th Cir. 519 F.3d 806). Viewed in the light most favorable to Mr.
Davis, on September 20, 2009, Officers Beaird, White, and Tihen beat him without provocation
while he was handcuffed on the ground . Defendants argue that, because Mr. Davis has done
nothing more than put forth self-serving testimony, this Court should not credit his account, even
when the facts are viewed in the light most favorable to him. The Court disagrees. The Eighth
Circuit has stated:
If opposing parties tell two different stories the court must review the record
determine which facts are material and genuinely disputed, and then view those
facts in the light most favorable to the non-moving party- as long as those facts
are not so blatantly contradicted by the record that no reasonable jury could
believe them. A plaintiff may not merely point to unsupported self-serving
allegations, but must substantiate his allegations with sufficient probative
evidence that would permit a finding in his favor without resort to speculation,
conjecture, or fantasy. In sum, the evidence must be such that a reasonable jwy
could return a verdict for the non-moving party.
19
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Reed v. City of St. Charles, 561 F.3d 788, 790-91 (8th Cir. 2009) (citations and internal
In Reed, the Eighth Circuit confronted a situation much like the Court
quotations omitted).
confronts here. Tommy Reed's testimony was the only evidence supporting his contention that
several officers beat him after he cooperated by lying down with his hands behind his back. !d. at
790. The officers claimed he had been resisting arrest. !d. However, in Mr. Reed' s case, his
account was directly contradicted by other evidence. Mr. Reed actually plead guilty to resisting
arrest without raising any claim of mistreatment at his plea hearing or sentencing and medical
records showed that shortly after the incident he was deemed fit for confinement. Id. at 791.
Here, the assault charges against Mr. Davis were dropped and the medical evidence is at least
consistent with his account.
Just as Mr. Davis cannot say how Officer White was injured,
Defendants cannot say how Mr. Davis was injured. In addition, the seminal Supreme Court case
on "self-serving testimony," Scott v. Harris, involved an incident of alleged excessive force that
was clearly contradicted by video evidence. 550 U.S. 372, 127 S. Ct. 1769, 167 L. Ed. 2d 686
(2007); ee also Loving v. Roy, 2013 WL 4734017, No. 12-cv-551 (D. Minn. Sept. 3, 2012)
(granting qualified immunity where video "plainly contradicted" plaintiffs claim of excessive
force). No such video exists in this case. While portions of Mr. Davis ' testimony could be
4
called into question, his account of the incident is not so blatantly contradicted by the record
that it constitutes mere speculation, conjecture, or fantasy. A reasonable juror could find Mr.
Davis credible enough to return a verdict in his favor. The Court will therefore credit his account
in evaluating Officer Beaird ' s motion for summary judgment.
For example Mr. Davis asserts that he was not belligerent at any point, which is contradicted
by medical evidence.
20
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Taking as true Mr. Davis' assertion that Officers Beaird, White, and Tihen beat him
without provocation while he was on the ground, Officer Beaird deliberately fabricated the four
complaints alleging Property Damage. First, the complaints assert that Mr. Davis was "actively
resisting." Second, section 29-61 of the Ferguson Code of Ordinances defines Property Damage
as follows: "A person commits the offense of property damage if he knowingly damages the
property of another." The transfer of Mr. Davis' blood, if it occurred, to the officers' uniforms
while they were beating him hardly seems to qualify as intentional property damage. It is not
enough, however, that Officer Beaird intentionally fabricated false evidence. The evidence must
also have been used to deprive Mr. Davis of his liberty in some way.
A ctiminal defendant's substantive due process rights are violated when deliberately
fabricated evidence is used to secure his conviction, even if he enters a plea. See Winslow, 696
F.3d at 716. In his deposition, Mr. Davis maintained that he did not commit Destruction of City
Property despite his guilty plea. He has cited the affidavit of his attorney, Micheal Kielty, to
show that Mr. Kielty "relied on" Officer Beaird's complaints in negotiating Mr. Davis ' plea and
that the complaints were therefore used to deprive him of his right to fair criminal proceedings.
Officer Beaird has moved to strike Mr. Kielty's affidavit. The Court will deny the motion as
moot. It is undisputed that the four complaints formed the sole basis for the four counts of
Destruction of City Property. Mr. Davis ultimately pled to two of those counts. Mr. Kielty' s
testimony is not necessary for the Court to conclude that the complaints led Mr. Davis to plead
guilty to two counts of Destruction of City Property. Cf Win low 696 F.3d at 716 (largely
circumstantial evidence that false evidence was used at plea hearings sufficient to support claim
in much more complicated investigation). Therefore, under the facts viewed in the light most
favorable to Mr. Davis, Officer Beaird intentionally fabricated the four complaints and that
21
B-21
fabricated evidence was then used to secure Mr. Davis' conviction on two counts of Destruction
of City Property.
The Court will now tum to the most difficult issue: whether Officer Beaird's conduct
shocks the conscience. "Only in the rare situation when the state action is ' truly egregious and
extraordinary' will a substantive due process claim arise." Strutton v. Meade 668 F.3d 549, 557
(8th Cir. 20 12). "Substantive due process is concerned with violations of personal rights so
severe, so disproportionate to the need presented, and so inspired by malice or sadism rather than
a merely careless or unwise excess of zeal that it amounted to brutal and inhumane abuse of
official power." Golden ex ref. Balch v. Anders, 324 F.3d 650, 652-53 (8th Cir. 2003) (internal
quotations and alterations omitted). "[C]onduct intended to injure in some way unjustifiable by
any government interest is the sort of official action most likely to rise to the conscienceshocking level." County of Sacramento v. Lewis, 523 U.S. 833, 848, 118 S. Ct. 1708, 140 L. Ed.
2d 1043 (1998). "Only the most severe violations of individual rights that result from the 'brutal
and inhumane abuse of official power' rise to this level." White v. Smith, 696 F.3d 740, 758 (8th
Cir. 2012) (quoting C.N v. Willmar Pub. Schs. lndep. Dist. No. 347, 591 F.3d 624, 634 (8th Cir.
201 0)).
In twin cases involving the same investigation the Eighth Circuit reversed a grant of
qualified immunity to officers who had participated in the investigation and conviction of the
plaintiffs for a rape and murder they did not commit. White v. Smith, 696 F.3d 740, 758 (8th Cir.
2012); Winslow v. Smith, 696 F.3d 716 (8th Cir. 2012). The facts of the investigation were
conscience-shocking without reference to the legal standard.
There was evidence that the
officers "systematically and intentionally coached witnesses into providing false testimony that
fit [the officers'] particular narrative of how the crime was committed." White, 696 F.3d at 754.
22
B-22
In White, the cow1 found that there was evidence of the following pattern: "[The officers] fust
convinced a suspect that he or she was at the scene of the crime through lies, threats, leading
questions, manipulative ' therapy' sessions, and the alleged accusations of several other
' accomplices; ' and then if the suspect's blood was not a match for the blood found at the crime
scene, [the officers] manipulated the suspect into implicating yet another individual, thus
beginning the process again." !d. at 755 . Similarly, in Moran v. Clarke, the Eighth Circuit held
that evidence of a "purposeful police conspiracy to manufacture, and the manufacture of, false
evidence" was sufficient to place a substantive due process claim before a jury. 296 F.3d 638,
647 (8th Cir. 2002). The plaintiff, a police officer, was acquitted after going to trial on assault
charges.
Mr. Davis' substantive due process claim is a far cry from White and Winslow, or even
Moran. The plaintiffs in White and Winslow were falsely convicted of rape and murder based on
a witch hunt that can only be described as the perfect storm of incompetence and corruption and
exonerated years later through DNA evidence. By contrast, Mr. Davis alleges that he was forced
to plead guilty to two counts of Destruction of City Property. This does not sound conscienceshocking by comparison. Indeed, because Officer Beaird alone executed the complaints, Mr.
Davis does not even allege some broader conspiracy to deny him his substantive due process
rights as was the case in White Winslow, and Moran. Nevertheless, in White, the Eighth Circuit
set forth the following proposition which would seem to be directly on point: "There can be little
doubt that intentionally manufacturing false evidence to convict a criminal defendant is the sort
of 'brutal and inhumane abuse of power' that shocks the conscience." White, 696 F.3d at 758.
While Mr. Davis ' plea to two counts of property damage might differ from the deprivations
normally associated with successful substantive due process claims, whether a substantive due
23
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process violation "shocks the conscience" is an inquiry centered on intent. See Lewis, 523 U.S . at
848 (' It should not be surprising that the constitutional concept of conscience shocking
duplicated no traditional category of common-law fault, but rather points clearly away from
liability, or clearly towards it, only at the ends of the tort law ' s spectrum of culpability."). In
other words, a relatively minor deprivation can support a substantive due process claim where an
officer acts with a highly culpable mental state. Cf Moran, 296 F.3d at 644 (commenting in dicta
that "some precedent at least implies that even minor interests may be actionable if government
conduct is sufficiently arbitrary and outrageous"). In addition, "the right to be free from a
conviction purposefully obtained by false evidence and false testimony has long been clearly
established." White, 696 F.3d at 759.
The Court finds that, when viewed in the light most
favorable to Mr. Davis, the facts could suppmt a reasonable inference that Officer Beaird
violated Mr. Davis ' substantive due process rights. The Court will therefore deny summary
judgment on Count II.
IV.
Conclusion
The Court grants summary judgment to Defendants on all counts with the exception of
Count II against Officer Beaird. In addition, the Court denies Defendants' Joint Motion for
Partial Judgment on the Pleadings [Doc. 53] as moot since the counts disputed therein have
either been withdrawn or dismissed pursuant to this Order. The only remaining claims in this
action are: (1) Count II of Mr. Davis ' Amended Complaint alleging Officer Beaird violated Mr.
Davis' substantive due process rights [Doc. 50] and (2) Officer White' s Counterclaim against
Mr. Davis for Battery [Doc. 7].
Accordingly,
24
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IT IS HEREBY ORDERED that Defendants' Joint Motion for Summary Judgment is

GRANTED in part and DENIED in part. [Doc. 124.]
IT IS FURTHER ORDERED that summary judgment is GRANTED in favor of
Defendants Michael White, John Beaird, and Kim Tihen on Counts I and VII.
IT IS FURTHER ORDERED that summary judgment is GRANTED in favor of
Defendant City of Ferguson, Mis ouri on Counts V and VI.
IT IS FURTHER ORDERED that summary judgment is DENIED regarding Count II
against Defendant Beaird.
IT IS FURTHER ORDERED that Plaintiffs Motion for Partial Summary Judgment
against Defendant Beaird on Count II is DENIED. [Doc. 127.]
IT IS FURTHER ORDERED that Plaintiffs Motion to Strike portions of Officer
Beaird's deposition testimony is DENIED. [Doc. 157.]
IT IS FURTHER ORDERED that Defendants' Motion for Leave to Produce Mr.
Davis' criminal attorney Michael Kielty or, in the alternative, a Motion to Strike Mr. Kielty's
affidavit from the record is DENIED as moot. [Doc. 163 .]
IT IS FURTHER ORDERED that Defendants' Joint Motion for Partial Judgment on
the Pleadings is DENIED as moot. [Doc. 53 .]
A separate Judgment will accompany this Memorandum and Order.
Dated this 31st day of December, 2013.

NANNETTE A. BAKER
25
B-25

EASTERN DIVISION
HENRY M. DAVIS,
)
)
)
)
)
)
Plaintiff,
v.
JOHN BEAIRD,
Defendant, and
MICHAEL WHITE,
Counterclaim Plaintiff,
)
)
)
)
)
)
)
)
)
v.
HENRY M. DAVIS,
Counterclaim Defendant.
)
)
)
This matter is before the Court on Plaintiff Henry Davis' motions to exclude expert
testimony [Doc. 120] dismiss or bifurcate former Defendant Michael White s counterclaim
[Docs. 174, 183, 185], and unseal documents [Doc. 179]. All motions have been fully briefed.
In addition, Defendant John Beaird and Counterclaim Plaintiff Michael White have filed a
motion to seal several exhibits [Doc. 177], which Plaintiff is contesting. The parties have
consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28
U.S.C. 636(c)(l).
I.
Discussion
A.
Sealing of Documents
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Defendants previously filed a motion to seal Defendants' Motion for Summary Judgment
and accompanying documents and exhibits [Doc. 122].
On September 27, 2013, the Court
granted Defendants' motion in a docket entry. [Doc. 132.]
Mr. Davis now contends that
Defendants' Motion for Summary Judgment and accompanying documents and exhibits [Docs.
124-126] should be unsealed, with the exception of Exhibit M [Doc. 126-13]. In addition,
Officers Beaird and White have filed a motion to seal Exhibits D through H [Doc. 177]. Mr.
Davis concedes that Exhibit G [Doc. 177-3] should be sealed but contends it is unnecessary to
seal Exhibits D, F, and H [Doc. 177-1 , 177-2, 177-4].
A request to lift or modify an order sealing documents is left to the sound discretion of
the trial court. Meyer Goldberg, Inc. v. Fisher Foods, Inc. , 823 F.2d 159, 161 (6th Cir. 1987),
cited with approval in Risdal v. Galloway, 100 Fed. Appx. 597 (8th Cir. 2004) (per curiam)
Gadd v. United States, 392 Fed. Appx. 503 (8th Cir. 2010) (per curiam). For the reasons set
forth in Mr. Davis' pleadings, the Court will grant his motion for unsealing and deny in part
Officers Beaird and Whites motion for sealing. With the exception ofExhibit M [Doc. 126-13]
and Exhibit G [Doc. 177-3], Officers Beaird and White are ordered to redact Defendants' Motion
for Summary Judgment and accompanying documents and exhibits [Docs. 124-126] and Exhibits
D through H [Doc. 177] pursuant to E.D.Mo. L.R. 2.17.
B.
Officer White's Counterclaim
Mr. Davis filed his original complaint against the City of Ferguson, Missouri and
Ferguson Police Officers Michael White, John Beaird, and Kim Tihen on August 5, 2010. On
October 4, 20 I 0, Defendants filed a Joint Answer [Doc. 6] and Officer White filed a
Counterclaim against Mr. Davis for Battery [Doc. 7]. On November 30, 20 l 0 Mr. Davis served
Officer White with a set of interrogatories and a request for production of documents
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("November 30, 2010 Interrogatories").
Three intenogatories mentioned the counterclaim
specifically:
15. State the each of the parts ofDefendant' s body, if any, injured in the incident
mentioned in the Defendant's Counterclaim, and for each state the nature,
duration and present condition of each.
16. State whether the Defendant has ever had any illnesses or injuries to the parts
of the body injured in the occutTence mentioned in the Defendant's Counterclaim,
either before or after the incident, which is the subject of this lawsuit, and if so,
state the date, occasion, nature and duration of each such injury. If you answered
"Yes" to this question, please state the following for each injury:
(a) The dates sustained or suffered;
(b) The parts of the body involved;
(c) The nature or type; and
(d) The name and address of each healthcare provider who treated
Defendant."
17. State the names and addresses of all doctors, hospitals, chiropractors, healers
or health care providers, psychiatrist, and psychologist who have treated
Defendant for any parts of the body Defendant claims injury to as referred to in
the Defendant' s Counterclaim and for each listed please state:
(a) The amount of the bill from each such health care provider for services
rendered because of the occurrence in question;
(b) The number of visits and the specific dates of each visit Defendant has
made to each of these health care providers because of the occurrence;
(c) The conditions for which Defendant was examined or treated; and
(d) If you claim Defendant received a medical examination, care or
treatment because of the occurrence mentioned in the Defendant's
Counterclain1 please sign and retum the attached medical authorization,
after inserting the names and addresses of the doctors and hospitals.
[Doc. 71-1 p. 7.] When this case was stayed on February 15, 2011 , Mr. Davis had not yet
received any responses. [See Doc. 56.]
The case was reopened on January 30, 2013 . On February 26, 2013 , Mr. Davis filed an
Amended Complaint [Doc. 50]. On March 7, 2013 , Defendants filed a Joint Answer, which
included the following affirmative defense:
C-3
5. For further answer and for affirmative defense, any force that was used against
plaintiff was reasonable and necessary in order to subdue the plaintiff due to
plaintiffs own unreasonable and irrational conduct, including violently resisting
his lawful arrest and plaintiffs unprovoked and illegal assault and battery against
Officer White, Officer Beaird, Officer Tihen and other Ferguson Police Officers
and correctional officers.
[Doc. 52 p. 12.] Officer White did not replead his counterclaim in response to the Amended
Complaint. Mr. Davis filed several motions to compel the November 30, 2010 Interrogatories.
[Docs. 56, 58, 71.] On April 22, 2013, Officer White served Mr. Davis with responses. [Docs.
71-1 177-2.] Mr. Davis maintained these disclosures were insufficient. [Doc. 58, 71.] On May
9 2013, Officer White served Mr. Davis with supplemental responses including "a CD of all
medical records and bills I have, to date, regarding Officer Michael White's Counterclaim."
[Doc. 177-3 .] On June 27, 2013 , the Court granted in part Mr. Davis ' request for additional
supplemental responses. On July 17, 2013, Officer White served Mr. Davis with. additional
supplemental responses including more detailed responses to interrogatories 15 through 17.
[Doc. 177-1.] At the deposition of Mr. Davis on July 31 , 2013 , in the presence of Plaintiffs
counsel, opposing counsel announced himself as representing "defendants and . . . the
counterclaim plaintiff Mike White" and asked Mr. Davis whether he was aware that he was "also
named as a defendant in a counterclaim," to which Mr. Davis responded "Yes." [Doc. 176-1 p.
4-5.]
Discovery closed on August 30, 2013.
motions in September.
The parties filed dueling summary judgment
On December 31 , 2013, the Court entered summary judgment for
Defendants on all of Mr. Davis ' claims except one. The Court stated that, "The only remaining
claims in this action are: (1) Count II of Mr. Davis ' Amended Complaint alleging Officer Beaird
violated Mr. Davis' substantive due process rights [Doc. 50] and (2) Officer White' s
C-4
Counterclaim against Mr. Davis for Battery [Doc. 7]." [Doc. 172 p. 24.] Mr. Davis has filed
three motions related to Officer White s counterclaim. The Court will address each in tum.
First, Mr. Davis moves that the Court deem Officer White's counterclaim abandoned or
no longer pending because (1) Officer White did not replead it in response to Mr. Davis '
Amended Complaint and (2) Mr. Davis would be unfairly prejudiced if it was allowed to
proceed. [Doc. 174.] Finding that equitable considerations weigh in favor of allowing Officer
White's counterclaim to proceed, the Court will deny Mr. Davis motion.
Federal Rule of Civil Procedure 15(a)(3) provides: "Unless the court orders otherwise,
any required response to an amended pleading must be made within the time remaining to
respond to the original pleading or within 14 days after service of the amended pleading,
whichever is later." Fourteen days would be the applicable period in this case. However, the
rule raises the question of whether a counterclaim is a "required response" and if it is, whether
the technical deficiency of failing to replead a counterclaim in response to an amended complaint
will ever be excused. Federal Rule of Civil Procedure 13, which governs counterclaims, merely
states that a "pleading" must include certain counterclaims deemed "compulsory" and may
include certain counterclaims deemed "permissive" but does not specify whether a response to
an amended complaint constitutes such a pleading. Also in play, Federal Rule of Civil Procedure
15(a)(2) allows amendments to add a counterclaim with leave from the court. The rule states,
"The court should freely give leave when justice so requires. '
Some courts have interpreted Rule 15(a)(3) as a strict requirement that a defendant
replead a counterclaim in response to an amended complaint or else forfeit the claim. See
Johnson v. Berry, 228 F. Supp. 2d 1071, 1079 (E.D. Mo. 2002) ("The last sentence of
Fed.R.Civ.P. 15(a) requires a party to plead in response to an amended pleading. No option is
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given merely to stand on preexisting pleadings made in response to an earlier complaint. As the
language of Rule 13(a) and (b) makes clear, a counterclaim is part of the responsive pleading.");
General Mills, Inc. v. Kraft Foods Global, Inc., 495 F.3d 1368, 1376-77 (Fed. Cir. 2007)
(endorsing Johnson) ; Settlement Capital Corp. v. Pagan, 649 F. Supp. 2d 545, 562 (N.D. Tex.
2009). Other court have reached the opposite conclusion, holding that a defendant is never
required to replead a counterclaim in response to an amended complaint. See Dun"kin ' Donuts,
Inc. v. Romanias, 2002 WL 32955492, at 2* (W.D. Pa. May 29, 2002) ("Rule 13, which governs
counterclaims, requires only that a counterclaim be set forth in a pleading-it does not mandate
that it be contained in an answer. See Fed.R.Civ.P. 13(a)-(f). Further, an answer responds to
allegations in a complaint, a counterclaim is something independent. Revisions to a complaint
do not require revisions to a counterclaim.").
However, most courts have taken a functional approach, weighing equitable
considerations, including a defendant' s manifestations of intent, whether the plaintiff was on
notice of the defendant's continued pursuit of the counterclaim, and the prejudice to the plaintiff
if the claim is allowed to proceed. See, e.g., Ground Zero Museum Workshop v. Wilson , 813 F.
Supp. 2d 678, 705-706 (D. Md. 2011) (allowing counterclaims to proceed because they were
" indisputably at issue for the majority of the discovery period" and defendant "repeatedly took
actions to indicate his intent to pursue the counterclaims " including defending against plaintiffs '
motion to dismiss the counterclaims and moving to amend them, and concluding plaintiffs
"failed to conduct discovery regarding the claims at their own peril"); Hitachi Med. Sy . Am. ,
Inc. v. Horizon Med. Grp. , 2008 WL 5723531 , at *4-5 (N .D. Ohio Aug. 29, 2008) (plaintiff was
on notice of contents of counterclaim which had not changed since initial filing parties had
every opportunity to conduct discovery, plaintiff failed to identify any prejudice, defendant' s
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failure to replead counterclaim was inadvertent, and defendant would be prejudiced if

counterclaim was struck); see also Mullins v. Med. Lien Mgmt. , Inc. , 2013 WL 5397412 (Colo.
App. Sept. 26, 2013) (finding Ground Zero persuasive and evaluating equitable considerations).
Similarly, some courts have in the interest of justice, granted a defendant leave to essentially
retroactively replead a counterclaim, sidestepping the issue of whether the miginal counterclaim
was abandoned. See Cairo Marin e Serv. , Inc. v. Homeland Ins. Co. of New York, 2010 WL
4614693 , at *1 (E.D. Mo. Nov. 4, 2010) (granting defendant leave to amend answer where
plaintiff had notice defendant intended to pursue counterclaim because original answer included
specific reference and plaintiff would not be unduly prejudiced).
Only a few courts have found that equitable considerations weighed against allowing a
counterclaim to proceed or allowing the defendant to retroactively replead it. See Johnson, 228
F. Supp. 2d at 1079 (denying leave to replead a counterclaim where trial setting was imminent,
all of the claims in the amended complaint were subject to summary judgment, and defendant
had never filed an answer to the amended complaint); Bremer Bank, Nat. Ass 'n v. John Hancock
Life Ins. Co. , 2009 WL 702009, at *12 (D. Minn. March 13, 2009) (holding counterclaim failed
as a matter of law but commenting, "[f]rom a practical standpoint, [defendant' s] failure to
replead the counterclaim, together with nearly two years passing without discovery or any action
on the counterclaim casts doubt on whether the counterclaim was ever viewed as meritorious").
Mr. Davis asks the Court to follow Johnson and its progeny and argues that allowing
Officer White' s counterclaim to proceed at this late stage would unfairly prejudice him because
he has not conducted discovery on the issue or deposed Officer White's health care providers.
Officer White counters that Mr. Davis has had adequate notice of his intent to pursue the claim
and has received significant discovery related to it. Given the ambiguity in the Federal Rules of
C-7
Civil Procedure with regard to whether a counterclaim must be replead, the Court declines a
formalistic interpretation of Rule 15(a)(3) and fmds that equitable considerations weigh in favor
of allowing Officer White to proceed with his counterclaim. Defendants ' Joint Answer to the
Amended Complaint did not mention the counterclaim and it cannot be said that the course of
discovery or motions placed the counterclaim "indisputably" at issue. Nevertheless, Defendants
have never indicated any intent to abandon the counterclaim they gave at least some indications
they intended to pre erve it and Mr. Davis has vigorously pursued discovery on the issue, even
following the Amended Complaint and the stay. Because Mr. Davis has had sufficient notice of
the counterclaim and in fact repeatedly petitioned this Court to compel discovery on the issue,
the Court will deny Mr. Davis motion to deem the counterclaim abandoned or no longer pending.
Second, Mr. Davis moves that the Court dismiss Officer White' s counterclaim for lack of
jurisdiction. [Doc. 183 .] This Court has original jurisdiction over Mr. Davis ' Substantive Due
Process claim against Officer Beaird. 28 U.S .C. 1367(a) provides that: "in any civil action of
which the district courts have original jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related in the action within such original jurisdiction
that they form part of the same case or controversy under Article III of the United States
Constitution.' Section 1367 allows for supplemental jurisdiction over permissive counterclaims
as long as Article III's case-or-controversy requirement is met. Global NAPs, Inc. v. Verizon
New England, Inc., 603 F.3d 71 , 76-77, 85-89 (1st Cir. 2010); Jone v. Ford Motor Credit Co. ,
358 F.3d 205, 210-14 (2d Cir. 2004); Channell v. Citicorp Nat '! Servs., Inc. , 89 F.3d 379, 384-87
(7th Cir. 1996). While the counterclaim need not arise from the same transaction or occurrence,
it must be so related as to arise from a 'common nucleus of operative fact." Global NAPs, Inc.,
C-8
603 F.3d at 88 (citing United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130
(1966)) .
Mr. Davis contends that Officer White's counterclaim stems from the September 20,
2009 incident at the Ferguson jail whereas his due process claim stems from the subsequent
affidavits and prosecution. Officer White counters that the fact issue of whether Mr. Davis
resisted lawful commands and punched Officer White is central to both claims. The Court
agrees with Officer White and finds that Mr. Davis' due process claim and Officer White' s
counterclaim arise from a common nucleus of operative fact. Mr. Davis ' due process claim turns
on whether Officer Beaird's sworn statements- that blood was transferred to the officers '
unifmms while they were "attempting to subdue Davis, who was actively resisting"- were
knowingly false. Thus what occmTed at the Ferguson jail on September 20, 2009 is directly at
issue. The truth or falsity of Officer Beaird's statements depends on (1) whether blood was
transferred to the officers ' uniforms and (2) whether Mr. Davis resisted lawful commands,
including by punching Officer White.
Because Mr. Davis ' due process claim and Officer
White's counterclaim are sufficiently related, the Court will deny Mr. Davis ' motion to dismiss
the counterclaim for lack of jurisdiction.
Finally Mr. Davis moves that the Court bifurcate Officer White' s counterclaim. [Doc.
185.] Federal Rule of Civil Procedure 42(b) provides that: "For convenience to avoid prejudice,
or to expedite and economize, the court may order a separate trial of one or more separate issues,
claims, crossclaims, counterclaims, or third-party claims."
"District courts possess broad
discretion to bifurcate issues for purposes of trial under [Rule] 42(b)." O 'Dell v. Hercules, Inc.,
904 F.2d 1194, 1201-02 (8th Cir. 1990). Mr. Davis contends that a single trial will "inject" the
issue of whether Mr. Davis punched Officer White into the tiial of his due process claim,
C-9
Case : 4:10-cv-01429-NAB Doc.#: 211 Filed: 03/10/14 Page: 10 of 12 PageiD #: 3062
severely prejudicing Mr. Davis and confusing the jury. [Doc. 186 p. 3.] However, as discussed
above, Mr. Davis' due process claim depends on the fact issue of whether Mr. Davis resisted
commands, including by punching Officer White. Therefore, Mr. Davis is not prejudiced by
having a single trial.
Furthermore, it would be waste of judicial resources to try separately
claims that share common questions of fact. For the foregoing reasons the Court will deny Mr.
Davis' motion to bifurcate.
C.
Expert Testi mony
On September 20 2013 , Plaintiff moved to exclude the following proposed experts:

Officer Michael White, Officer John Beaird, Officer Kim Tihen, Lieutenant William Ballard,
Chief Tom Jackson, Dr. Sebastian A. Ruekert, Dr. Robert Abbott, and Dr. Mark Grinm1. [Doc.
120.] Officer White, Officer Beaird, Officer Tihen, Lieutenant Ballard, and Chief Jackson would
have testified to: (1) the reasonab leness of the force used against Mr. Davis, (2) any policy or
pattern of unconstitutional conduct by the City of Ferguson, and (3) any pattern or custom of
deliberate indifference by Ferguson Police Officers. [Doc. 137-4.] Because the Court entered
summary judgment for Defendants on Plaintiffs claims of Excessive Force, Assault and Battery,
and Municipal Liability and Respondeat Superior, and because Plaintiff has not alleged
deliberate indifference, the Court will deny as moot Mr. Davis motion to exclude Officer
Michael White, Officer John Beaird Officer Kim Tihen, Lieutenant William Ballard, and Chief
Tom Jack on from offering expert testimony. The Court will also deny as moot Mr. Davis'
motion to exclude Dr. Sebastian A. Ruekert since he was withdrawn as a proposed expert. [Doc.
137 p. 1.]
Turning to Mr. Davis motion to exclude Dr. Robert A bbott and Dr. Mark Grimm from
testifying to the cause of Mr. Davis injuries, the Court will deny the motion. Federal Rule of
10
C-10
Case: 4:10-cv-01429-NAB Doc.#: 211 Filed: 03/10/14 Page : 11 of 12 PageiD #: 3063
Civil Procedure 26(a)(2)(C) requires only that Defendants disclose the subject matter the expert
is expected to present and a "summary" of the facts and opinions to which the expert is expected
to testify. Defendants' disclosure of experts stated that Dr. Abbott and Dr. Grimm "may be
called to opine the care, treatment and charges to Michael White were caused by Plaintiff,
regarding the injuries to his left nose and left wrist on September 20, 2009, and were reasonable
and necessary to treat those injuries." [Doc. 137-4 p. 2-3 .] The disclosme further stated, "These
treating physicians relied on representations and the presentation of Officer Michael White,
including the deformity of his no e, the swelling, and his statements that he was punched in the
face and experienced pain in his left wrist." [!d.] While not the most eloquent summary, these
statements were sufficient to comply with Rule 26(a)(2)(C). Cf Anderson v. Bristol, 936 F.
Supp. 2d 1039, 1059 (S.D. Iowa 2013) (cataloguing cases and holding "when a party merely
states the name of the witness along with the witness' connection to the case, or where the party
solely refers to medical or similar records that have already been produced, without providing a
summary of the witness' expected testimony, the party is not in full compliance"). The Court
will deny Mr. Davis motion and take up any objections to the admissibility of expert testimony
along with other motions in limine.
IV.
Conclusion
For the foregoing reasons, the Court will grant Mr. Davis' motion to unseal documents
[Doc. 179], deny his motions regarding former Defendant Michael White 's counterclaim [Docs.
174, 183, 185], and deny his motion to exclude expert testimony [Doc. 120]. The Court will
further deny in part Defendant John Beaird and Counterclaim Plaintiff Michael White 's motion
to seal several exhibits [Doc. 177].
Accordingly,
11
C-11
Case: 4:10-cv-01429-NAB
Doc.#: 211 Filed : 03/10/14 Page : 12 of 12 PageiD #: 3064
IT IS HEREBY ORDERED that Plaintiffs motion to unseal documents is GRANTED.

[Doc. 179.] Defendant Beaird and Counterclaim Plaintiff White shall redact Defendants' Motion
for Summary Judgment and accompanying documents and exhibits [Docs. 124-126] pursuant to
E.D.Mo. L.R. 2.17, with the exception of Exhibit M [Doc. 126-13] which shall remain under
seal.
IT IS FURTHER ORDERED that Defendant Beaird and Counterclaim Plaintiff
White' s motion to seal several exhibits is GRANTED in part and DENIED in part. [Doc. 177.]
White' s motion to seal several exhibits is GRANTED insofar as the Clerk of Court shall
maintain Exhibit Gunder seal. [Doc. 177-3.]
White's motion to seal several exhibits is DENIED insofar as Defendant Beaird and
Counterclaim Plaintiff White shall redact Exhibits D, F, and H pursuant to E.D.Mo. L.R. 2.17.
[Doc. 177-1, 177-2, and 177-4.]
IT IS FURTHER ORDERED that Plaintiffs motions to dismiss or bifurcate former
Defendant Michael White's counterclaim are DENIED. [Docs. 174 183, 185.]
IT IS FURTHER ORDERED that Plaintiffs motion to exclude expert testimony is
DENIED. [Doc. 120.]
Dated this 1Oth day of March, 2014.

NANNETTE A. BAKER
12
C-12
Case: 4:10-cv-01429-NAB Doc. #: 246 Filed : 03/25/14 Page: 1 of 1 PagelD #: 3567

EASTERN DIVISION
HENRY M. DAVIS,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
JOHN BEAIRD,
Defendant, and
MICHAEL WHITE,
v.
HENRY M. DAVIS,
JUDGMENT
The parties have consented to the jurisdiction of the undersigned United States Magistrate
Judge pursuant to 28 U.S.C. 636(c)(l). In accordance with the Memorandum and Order of this
date and incorporated herein.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that judgment is entered
in favor of John Beaird and against Henry Davis on Count II, Mr. Davis ' substantive due process
claim.
Dated this 25th day of March, 2014.

NANNETTE A. BAKER
D-1
Case: 4:10-cv-01429-NAB Doc. #: 245 Filed : 03/25/14 Page : 1 of 3 PageiD # : 3564

EASTERN DIVISION
HENRY M. DAVIS,
)
)
)
)
Plaintiff
)
)
v.
JOHN BEAJRD,
Defendant, and
MICHAEL WHITE,
v.
HENRY M. DAVlS
)
)
)
)
)
)
)
)
)
)
)
)
)

The parties have consented to the jurisdiction of the undersigned United States Magistrate
Judge pursuant to 28 U .S.C. 636(c)(l). The trial of this matter was held on March 24 and 25 ,
2014. At the close of evidence, counsel for Officer John Beaird made an oral motion that the
Court enter judgment on Count II, Henry Davis ' claim for substantive due process violations, as
a matter of law . As outlined in this Court' s Summary Judgment Order, to prevail on his claim
Mr. Davis had to show that Officer Beaird' s conduct "shocks the conscience." [Doc. 172.]
"Whether the alleged conduct shocks the conscience is a question of law ." Akins v. Epperly, 588
F.3d 1178, 1183 (8th Cir. 2009) (citing Terrell v. Larson, 396 F.3d 975, 981 (8th Cir. 2005) (en
bane)). "Only the most severe violations of individual rights that result from the 'brutal and
inhumane abuse of official power' rise to this level." White v. Smith, 696 F.3d 740 758 (8th Cir.
E-1
2012) (quoting C.N v. Willmar Pub. Schs. Jndep. Dist. No. 347, 591 F.3d 624, 634 (8th Cir.
2010)). After hearing argument from both sides, the Court found that, based on the evidence
adduced at trial, Officer Beaird's conduct did not rise to a conscience-shocking level. The Court
therefore entered judgment as a matter of law in favor of Officer Beaird on Count II, Mr. Davis '
substantive due process claim. Fed. R. Civ. P. SO(a)(l).
The only remaining claim was Officer Michael White' s counterclaim against Mr. Davis
for battery under state law. A federal court may decline to exercise supplemental jurisdiction
over state law claims when it has dismissed all claims giving rise to original jurisdiction. 28
U.S.C. 1367(c)(3); Lindsey v. Dillard's, Inc., 306 F.3d 596, 599 (8th Cir. 2002).
Having
entered judgment on Mr. Davis' substantive due process claim, and because Officer White and
Mr. Davis are non-diverse parties, the Court declined to exercise supplemental jurisdiction over
Officer White's state law counterclaim.
Accordingly
IT IS HEREBY ORDERED that John Beaird' s oral motion for judgment as a matter of
law is GRANTED.
IT IS FURTHER ORDERED that judgment as a matter of law is GRANTED in favor
of Officer Beaird on Count ll Henry Davis' substantive due process claim.
IT IS FURTHER ORDERED that Michael White' s counterclaim against Mr. Davis for
battery under state law is DISMISSED without prejudice. The Court declined to exercise
supplemental jurisdiction.
A separate Judgment will accompany this Memorandum and Order.
Dated this 25th day of March, 2014.
E-2
/s/ Nannette A. Baker

NANNETIE A. BAKER
E-3
F -1
Sec. 29-61 . Property damage.

{a)
A person commits the offense of property damage if he:

(1)
Knowingly damages property of another; or
(2)
Damages property for the purpose of defrauding an
insurer.
(b)
In addition to the penalty provided, if the property involved is

owned by or under the management or control of the city, any
person convicted of a violation of this section shall pay to the
city the cost of repairing or replacing such property.
(Code 1973, 26A.10, 26A.12, 51.05, 51 . 15, 51 .22(2), 51.41(}),
(n), 51 .42. 7)
State law reference- Property damage, RSMo 569. 100, 569. 120.
PLAINTlFPS
EXHIBIT
_ _1:,___
Case: 4:10-cv-01429-NAB Doc. #: 142-10 Filed: 10/25/13 Page: 1 of 1 PageID #: 1948
H-1
EXHIBIT
10
CERTIFICATE OF FILING AND SERVICE

The undersigned counsel for the Appellant, Henry Davis, hereby certifies that
on July 8, 2014, I electronically filed the foregoing addendum with the Clerk of
Court for the United States Court of Appeals for the Eighth Circuit by using the
CM/ECF system. Participants in the case who are registered CM/ECF users will be
served by the CM/ECF system.
I further certify that, 10 paper copies of the addendum were filed with the
Clerk of Court and 1 paper copy served on the counsel of record for the Appellee
as noted below this 10th day of July, 2014.
Peter J. Dunne
Robert T. Plunkert
PITZER & SNODGRASS, P.C.
100 S. 4th St., Ste 400
St. Louis, MO 63102
Attorneys for Appellees
Michael White
John Beaird
Kim Tihen
City of Ferguson, Missouri

Henry Davis v. Ferguson

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No.

Appellate Case: 14-1722

Date Filed: 07/08/2014 Entry ID: 4173071

SUMMARY OF THE CASE

Date Filed: 07/08/2014 Entry ID: 4173071

THE DISTRICT COURT ERRED IN GRANTING APPELLEES

QUALIFIED IMMUNITY IN RULING ON THEIR MOTION FOR

EXCESSIVE FORCE ON THE BASIS THAT THE FORCE USED

Date Filed: 07/08/2014 Entry ID: 4173071

IN RULING ON APPELLEES MOTION FOR SUMMARY

APPELLANTS INJURIES WERE NON-DE MINIMIS.28

Appellants Concussion, Laceration to His Head and

Appellants Body Injuries Resulting in Bruising...........35

REGARDLESS OF WHETHER APPELLANTS INJURIES

THE DISTRICT COURT ERRED IN GRANTING APPELLEES

Date Filed: 07/08/2014 Entry ID: 4173071

OFFICIAL IMMUNITY AS THEIR ACTIONS WERE TAKEN IN

THE DISTRICT COURT ERRED IN GRANTING APPELLEE

COMPLAINTS AND SUCH DELIBERATE INDIFFERENCE

THE DISTRICT COURT ERRED IN GRANTING APPELLEE

Date Filed: 07/08/2014 Entry ID: 4173071

BECAUSE APPELLEE JOHN BEAIRDS EXECUTING FALSE

DAMAGE CHARGES AGAINST APPELLANT SHOCKS THE

THE DISTRICT COURT ERRED IN DENYING APPELLANTS

COUNTERCLAIM FOR BATTERY UNDER MISSOURI STATE

APPELLEE MICHAEL WHITE FAILED TO PLEAD THE

THE DISTRICT COURT ERRED IN DENYING APPELLANTS

COUNTERCLAIM FOR BATTERY UNDER MISSOURI STATE

COUNTERCLAIM AFTER THE DISTRICT COURT GRANTED

Date Filed: 07/08/2014 Entry ID: 4173071

AND STATE LAW ASSAULT AND BATTERY AGAINST

Date Filed: 07/08/2014 Entry ID: 4173071

Abandoned and Motion to Bifurcate Trial

March 25, 2014 Judgment as a Matter of Law on Count II of Appellants First

Section 29.61 of the revised Code of the City of Ferguson, 1998

September 24, 2009 Complaints/Informations Executed by Appellee John

Booking Photo of Appellant

Date Filed: 07/08/2014 Entry ID: 4173071

Date Filed: 07/08/2014 Entry ID: 4173071

DaVee v. Mathis, 812 S.W.2d 816 (Mo. App. W.D. 1991)...39

Date Filed: 07/08/2014 Entry ID: 4173071

Montoya v. City of Flandreau, 669 F.3d 867 (8th Cir. 2012)...24, 41

Date Filed: 07/08/2014 Entry ID: 4173071

O'Dell v. Hercules, Inc., 904 F.2d 1194 (8th Cir. 1990)...66-67

Date Filed: 07/08/2014 Entry ID: 4173071

Winslow v. Smith, 696 F.3d 716 (8th Cir. 2012).............................................50, 53-54

UNITED STATES CODE

FEDERAL RULES OF CIVIL PROCEDURE

FEDERAL RULES OF EVIDENCE

Date Filed: 07/08/2014 Entry ID: 4173071

Statement concerning the District Courts jurisdiction.

Statement concerning appellate jurisdiction.

Date Filed: 07/08/2014 Entry ID: 4173071

STATEMENT OF THE ISSUES

WHETHER THE DISTRICT COURT ERRED IN GRANTING

Agee v. Hickman, 490 F.2d 210 (8th Cir. 1974)

Date Filed: 07/08/2014 Entry ID: 4173071

WHETHER THE DISTRICT COURT ERRED IN GRANTING THE

Date Filed: 07/08/2014 Entry ID: 4173071

WHETHER THE DISTRICT COURT ERRED IN GRANTING

Parrish v. Luckie, 963 F.2d 201 (8th Cir. 1992)

Date Filed: 07/08/2014 Entry ID: 4173071

WHETHER THE DISTRICT COURT ERRED IN GRANTING

Date Filed: 07/08/2014 Entry ID: 4173071