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
from United States District Court for the Western District of
Missouri - Kansas City
COLLOTON, BENTON, and KELLY, Circuit Judges.
COLLOTON, CIRCUIT JUDGE
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.
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.
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.
March 2013, the district court 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.
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
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.
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
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).
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.
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 ...