The opinion of the court was delivered by: William D. Stiehl District Judge
MEMORANDUM AND ORDER STIEHL, District Judge:
Before the Court is defendants', individual members of the City of St. Louis Metropolitan Police Department Board of Police Commissioners named in their official capacities*fn1 ("Board"), motion for summary judgment against plaintiff pursuant to Fed. R. Civ. P. 56 (Doc. 72). This Court previously granted this motion, as plaintiff had not responded, but reopened the case for reconsideration of the summary judgment motion. After the Court granted plaintiff's motion for reconsideration (Doc. 95), plaintiff filed his response (Doc. 96), to which the defendants have not replied.
This action arises out of the shooting of plaintiff by defendant Bryan Pour ("Pour") in the parking lot of Mac and Mick's Sports Bar & Grill ("Mac and Mick's") during the early morning hours of November 9, 2008. On the evening of November 8, 2008, and the morning of November 9, 2008, Pour and other off-duty City of St. Louis police officers patronized Mac and Mick's in Granite City, Illinois. Pour and the other officers were not wearing their police uniforms, but were allegedly brandishing their badges and "taking other affirmative steps to advertise the fact that they were police officers." (Second Am. Compl. 4.) At least three of the off-duty officers were carrying their service weapons, including Pour. Before the incident, Pour was allegedly kicked out of Mac and Mick's because of his level of intoxication, but he did not immediately leave and instead remained on the parking lot.
Soon after Pour was kicked out, plaintiff arrived at Mac and Mick's and spoke to some of his friends, who were smoking cigarettes outside the bar. Plaintiff's friends then proceeded toward their car, at which time Pour and plaintiff's friends engaged in some sort of argument and scuffle which left Pour on the ground. During his deposition, plaintiff testified that he heard raised voices and proceeded toward his friend's car. Plaintiff stated that he observed Pour sitting on the ground and tried to help him up by standing behind him and using Pour's elbows to lift him. Plaintiff said to Pour, "Hey, look, my buddies didn't hurt you." (Bladdick Dep. 40-42;52, Dec. 29, 2009.) Plaintiff stated that Pour said nothing but then spun around, drew his gun, and pressed it against plaintiff's chest. Plaintiff testified that he tried to step back but, "before I could do anything, I'm shot." (Bladdick Dep. 41, 42, 54.) Pour fired a single round and the bullet lodged in plaintiff's torso.
During his deposition plaintiff also stated that he had neither met nor conversed with Pour at any point in the evening before helping him off the ground, but had merely seen Pour on the parking lot at Mac and Mick's earlier that evening. Plaintiff stated that he had no idea that Pour was a police officer, and in fact plaintiff described Pour as a bald male in a striped shirt and jeans. In other words, during plaintiff's interaction with him, Pour was not wearing his uniform, did not show his badge, did not identify himself as an officer, and did not orally communicate any type of order pursuant to his police power.
Four counts of plaintiff's Second Amended Complaint remain in this case: (I) violation of 42 U.S.C. § 1983 by defendant Pour in his individual capacity;*fn2 (II) violation of 42 U.S.C. § 1983 by the St. Louis Metropolitan Police Department through the defendant Board; (III) negligence by defendant Mac and Mick's*fn3 ; (IV) negligence by defendant Pour.*fn4
The Board has filed its motion for summary judgment with respect to Count II of plaintiff's second amended complaint, the only Count that is directed at the Board. In Count II plaintiff alleges that the Board is liable under 42 U.S.C. § 1983 because it developed and maintained policies and customs exhibiting deliberate indifference to the constitutional rights of persons, such as plaintiff, which caused the violation of plaintiff's rights. More specifically, the Board allegedly employed a firearm policy for its officers (both on and off duty) which failed to set forth any guidance regarding the transport of firearms across state lines, the carrying of firearms in situations which present a risk of intoxication, and/or any other circumstances in which an off-duty officer's judgment may be impaired, instead, leaving the carrying of firearms while off-duty solely to the officer's discretion, thereby creating the impression with Pour that his acts were tolerated by the Board.
Additionally, plaintiff alleges that as a result of the Board's policies and customs, officers, including Pour, believed that their actions would not be properly monitored by supervisory officers and that any misconduct would not be investigated or sanctioned, and would therefore be tolerated. Finally, plaintiff alleges that the Board's policies and customs demonstrate a deliberate indifference on the part of the Board to the constitutional rights of persons who may foreseeably come into contact with officers of the Board, both on and off-duty, and caused the violation of plaintiff's rights.
Under Fed. R. Civ. P. 56(c), summary judgment is proper if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). A genuine issue of fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether summary judgment is appropriate, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.
The Board raises the issue, in its motion for summary judgment, that even though plaintiff labels Pour's conduct as "under the color of state law," Pour was not acting under color of law and therefore plaintiff cannot maintain an action under 42 U.S.C. § 1983. Plaintiff alleges that Pour was off-duty, in Illinois--not the City of St. Louis--where he was employed as a police officer, intoxicated, kicked out of a bar, dressed in street clothes, and at no point identified himself as a police officer. In the first paragraph of plaintiff's second amended complaint, plaintiff alleges an action against Pour, a police officer of the City of St. Louis, in his individual capacity and against the St. Louis Metropolitan Police Department through the Board of Police Commissioners of the City of St. Louis. (Second Am. Compl.1.) The ...