The opinion of the court was delivered by: 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). Plaintiff has not filed a response to the Board's motion for summary judgment.
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. 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 of 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 as a way 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 Depo. 41, 42, 54.) Pour fired a single round and the bullet became lodged in Plaintiff's torso.
During his deposition plaintiff also stated that he had not 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 Pour, 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; (IV) negligence by defendant Pour.*fn3
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 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, and 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 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 plaintiff has filed nothing in response to the Board's motion. According to Local Rule 7.1(c)(1), the plaintiff had 30 days after service of the motion to file a response. Local Rule 7.1(c)(2) states that "[f]ailure to timely file a response to a motion may, in the Court's discretion, be considered an admission of the merits of the motion." Additionally, the Court notes that pursuant to Fed. R. Civ. P. 56(e)(2):
[w]hen a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading;
rather, its response must--by affidavits or as otherwise provided in this rule--set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party. (Emphasis added); See also Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir.1994). The Supreme Court in Celotex explained:
[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no "genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to judgment as a matter of law" ...