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Elbert v. Carter

United States Court of Appeals, Eighth Circuit

September 10, 2018

Richard M. Elbert, Plaintiff- Appellant,
Gilbert Carter, Police Officer; Francis Collins, Police Officer; Andrew Dorothy, Sgt.; Erik Enderlin, Police Officer; Charles Evans, Police Officer; William Hooley, Police Officer; Caleb Lenz, Sgt.; Rebecca Mills, Sgt.; William Nauyok, Police Officer; James Manley, Police Officer; Christopher Onik, Police Officer; Jason Rusley, Police Officer; Marcus Smith, Police Officer; Alan Whaley, Police Officer; Alvin Brooks, Commissioner; Michael Rader, Commissioner; Angela Wasson-Hunt, Commissioner; Sly James, Commissioner; David Kenner, Secretary; Robert Richardson, Fire Marshall; Joe Williamson, Code Enforcement Manager, Defendants - Appellees.

          Submitted: June 13, 2018

          Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before COLLOTON, BENTON, and KELLY, Circuit Judges.


         In a previous lawsuit filed in 2011, Richard Elbert sued the City of Kansas City, Missouri, the Kansas City Board of Police Commissioners, and various Kansas City employees, including police officers, in federal court. Elbert brought several federal constitutional claims under 42 U.S.C. § 1983, alleging violations of the First and Fourth Amendments, as incorporated against the States. He also alleged violations of state law, and sought the return of property under Federal Rule of Civil Procedure 64.

         Many of Elbert's claims were based on an episode at the Kansas City Apollo Country Club. Elbert was the manager of the club. The country club had been the subject of citizen complaints and investigations by the city. On December 10, 2011, Kansas City police officers executing a search warrant effected a no-knock forceful entry into the club.

         Elbert alleged that a group of Kansas City police officers-identified as John Doe defendants in his complaint-battered the front door of the establishment, threw a "flash bang grenade" through the partially shattered door, and entered the club with weapons drawn. He asserted that the John Does pointed weapons at his friends and associates, and demanded that they get down on the ground. According to Elbert, the officers placed him in restraints, and Detective Robert Gibbs questioned him, first at the scene and later at police headquarters. Among other claims, Elbert alleged that Detective Gibbs violated the Fourth Amendment by using excessive force and falsely arresting and imprisoning him.

         In March 2013, the district court[1] dismissed Elbert's First Amendment claims for failure to state a claim. The court also denied Elbert's motion for return of property, reasoning that Elbert had not availed himself of the post-deprivation remedy of replevin under Missouri law.

         The court allowed Elbert's Fourth Amendment claims to proceed and directed the parties to submit a scheduling order. The parties agreed that the deadline for Elbert to amend his pleadings would be October 31, 2014. Elbert then moved for leave to amend his pleadings on December 23, 2014, nearly two months after the deadline. In his proposed amended complaint, Elbert sought to substitute twenty-one named individual defendants, mostly Kansas City police officers, for the twenty-one John Doe defendants listed in his second amended complaint. The court denied Elbert's motion to amend as untimely.

         Before final judgment in the first action, Elbert filed the present suit in Missouri state court. He named as defendants several people, including Detective Gibbs and the Missouri Board of Police Commissioners, who were also defendants in the first lawsuit. Elbert also sued sixteen Kansas City police officers, all of whom he had unsuccessfully sought to substitute for the John Doe defendants in the first lawsuit. The defendants removed the case to federal court. Elbert's claims in this action, as in the first action, arise from the events occurring at the Apollo Country Club on December 10, 2011.

         Just over two weeks after the case was removed, the district court sua sponte dismissed Counts 1, 2, 3, 5, and 9 of Elbert's eight-count complaint. In Counts 1, 2, and 5 of the complaint, Elbert alleged that the Board of Police Commissioners had failed to train and properly supervise the defendant police officers, and had failed to establish proper policies. In Count 3, Elbert alleged that the police officers and other city officials had violated his right to freedom of assembly under the First Amendment by dispersing guests during the December 10 search. Finally, in Count 9, Elbert sought replevin from the police officers and other city officials. The district court reasoned that Elbert had brought the same claims in the first federal action, and the court had dismissed them for failure to state a claim, so they should be summarily dismissed in the second action. The court then stayed further proceedings pending resolution of motions for summary judgment on the remaining claims in the first action.

         On January 15, 2016, the district court granted summary judgment for the defendants on Elbert's remaining federal claims in the first action, and declined to exercise supplemental jurisdiction over his state claims. This court affirmed the judgment, including the district court's denial of leave to amend the second amended complaint. See Elbert v. City of Kansas City, 667 Fed.Appx. 881, 882-83 (8th Cir. 2016) (per curiam).

         After entering final judgment in the first action, the district court dismissed all remaining counts in the second action-Counts 4, 6, 7, and 8-reasoning that they were barred under the doctrine of res judicata. In Count 8, Elbert alleged that Detective Gibbs, who was also a defendant in the first action, had negligently supervised the police officers in their execution of the search warrant on December 10, 2011. In Counts 4, 6, and 7, Elbert challenged the actions of the police officers who were identified as John Doe defendants in the first action but never added as parties in that case. In Count 4, Elbert alleged that several city employees, including the police officers, had violated his equal protection rights by interfering with his ability to host private parties. Count 6 alleged a state law conversion claim against all defendants. Count 7 asserted that several city employees, including the police officers, violated Elbert's due process rights.

         In dismissing these claims based on res judicata, the district court reasoned that they were "based on the same events" as the first federal action. The court recognized that several of Elbert's claims involved police officers who were not defendants in the first action, but concluded that these officers were in "privity" with the defendants in ...

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