Hamidi v. City of Kirksville, Missouri et al
MEMORANDUM AND ORDER - Accordingly, IT IS HEREBY ORDERED that Defendants City of Kirksville, Missouri, David Jacobs, Mike LaBeth, Mari MacComber, Bob Russel, Brad Selby, and Clark Wilsons Motion for Summary Judgment [ECF No. 80] is GRANTED. IT IS F URTHER ORDERED that Plaintiff Amir Hamidis Motion for Leave to Amend the Complaint to Conform with the Evidence [ECF No. 94] is DENIED. IT IS FURTHER ORDERED that Plaintiffs Second Amended Complaint against Defendants is DISMISSED, with prejudice. Signed by District Judge E. Richard Webber on July 22, 2016. (MCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CITY OF KIRKSVILLE, MISSOURI, et al.,
No. 2:14CV00087 ERW
MEMORANDUM AND ORDER
This matter comes before the Court on Defendants City of Kirksville, Missouri, David
Jacobs, Mike LaBeth, Mari MacComber, Bob Russel, Brad Selby, and Clark Wilson’s Motion
for Summary Judgment [ECF No. 80] and Plaintiff Amir Hamidi’s Motion for Leave to Amend
the Complaint to Conform with the Evidence [ECF No. 94].
Plaintiff Amir Hamidi (“Plaintiff”) initiated this lawsuit by filing a complaint on
September 2, 2014 [ECF No. 1]. On December 2, 2015, Plaintiff filed a Second Amended
Complaint (“Second Amended Complaint”) [ECF No. 54]. Pursuant to Defendant City of
Kirksville, Missouri, David Jacobs, Mike LaBeth, Mari MacComber, Bob Russel, Brad Selby,
and Clark Wilson’s (“Defendants”) Motions to Dismiss, Count VI against Defendants in their
official capacities was dismissed, with prejudice. On May 16, 2016, Defendants filed the pending
Motion for Summary Judgment requesting the Court grant summary judgment in favor of
Defendants on all of Plaintiff’s claims. The undisputed facts are as follows.
Plaintiff immigrated to the United States from Iran in 1976. He settled in the City of
Kirksville, Missouri (“Kirksville”) and graduated from what is now Truman State University. In
the late 1990s, Plaintiff opened a second-hand goods resale shop. After closing the shop for a
number of years, he reopened in 2008. This shop is located at 508 North Marion. Including his
shop, Plaintiff owns five properties in Kirksville. Since 2008, for all five of his properties,
Plaintiff states he has received a total of five citations or compliance letters from Kirksville for
various property maintenance issues.
Plaintiff decided to relocate his resale shop, Old and New Furniture, from its current
location at 508 North Marion to 1010 East Normal after the highway bypass around Kirksville,
built in 2010, caused diminished business and lost income. The property at 1010 East Normal is
located at the intersection of East Normal and Baltimore Street. Plaintiff has “mostly not”
acquired any new items for his resale shop. On February 20, 2013, Plaintiff submitted an
application to rezone his property at 1010 East Normal from residential to CP-1, planned local
business, or as a Low Density Corridor Zone (“LDCZ”) to allow him to move his resale shop.
The Kirksville Planning and Zoning Commission (“Commission”) received eleven letters
in opposition to Plaintiff’s rezoning application from other Kirksville residents. Ten individuals
appeared in person at a public meeting of the Commission on April 10, 2013, to voice opposition
to the application. Residents opposed the rezoning due to traffic concerns and a desire not to
have items for sale outside on the property. The Commission voted to recommend the City
Council approve Plaintiff’s application subject to certain stipulations on the property. These
stipulations include: (1) keep all items for sale inside the building; (2) attach any advertising sign
to the building only; (3) meet city requirements for the driveway and parking; (4) if parking lot
lights are used, low wattage lights will be required outside; and (5) provide a six-foot privacy
fence if requested by neighbors of the property. On April 12, 2013, Plaintiff formally withdrew
his application for rezoning. Consequently, the property was not rezoned. Plaintiff has not made
any other attempts to rezone his property at 1010 East Normal nor has he made any efforts to
relocate his resale shop to another location.
Other properties in Kirksville have been rezoned with stipulations. “Pawsitive
Animalworks,” located at 901 South Baltimore Street, was rezoned in July 2007, from District
R-1 Single Family Residential Zone to District LDCZ. The rezoning was approved with the
following stipulations: (1) all parking is to be off-street with at least five spaces available; (2) a
no parking sign is to be posted at the Northeast corner of the property stating “No parking on
street here back to corner”; (3) the property can only be used for a service-type business of a
similar nature; and (4) no more than five dogs may be boarded overnight at the business. “Ratliff
Reed,” a business located at 1000 South Baltimore Street, was rezoned in 1995 from District R-1
Single Family Residential Zone to District LDCZ with the following stipulations: (1)
landscaping, storm water, final building plans, and site screen must be reviewed and accepted by
the Code administrator prior to building permit; (2) construction of a privacy fence and parking
must be shown on the development plan; (3) the City shall place “no parking in alley” signs at
the appropriate locations; and (4) the owner shall place and maintain surface striping on the
alley’s boundaries as to its location in respect to the owner’s project. These businesses are
permitted to have detached signs.
Plaintiff asserts six counts against Defendants. In Count I, Plaintiff asserts Defendants
violated 42 U.S.C. § 1983 by depriving Plaintiff of equal protection of the law in violation of the
Fourteenth Amendment of the United States Constitution. In Count II, Plaintiff asserts
Defendants conspired to interfere with Plaintiff’s civil rights under the Fourteenth Amendment in
violation of 42 U.S.C. § 1985(3). In Count III, Plaintiff alleges Defendants failed to prevent a
conspiracy to interfere with civil rights in violation of 42 U.S.C. § 1986. In Count IV, Plaintiff
alleges an unlawful discriminatory practice in violation of Missouri Revised Statute § 213.070,
claiming Defendants retaliated against him for filing a charge of discrimination with the
Missouri Commission on Human Rights (“MCHR”) and Equal Employment Opportunity
Commission (“EEOC”), and for refusing to agree to the Commission’s stipulations for rezoning
Plaintiff’s property. In Count V, Plaintiff alleges Defendant LaBeth committed an unlawful
discriminatory practice in violation of Missouri Revised Statute § 213.070, claiming Defendant
LaBeth retaliated against him for filing a charge of discrimination with the MCHR and EEOC,
and for refusing to agree to the Commission’s stipulations for rezoning Plaintiff’s property. In
Count VI, Plaintiff alleges Defendants denied him his equal rights under the law in violation of
42 U.S.C. § 1981. In his Second Amended Complaint, Plaintiff requested the Court declare the
proposed stipulations on the zoning of Plaintiff’s property unconstitutional, require Defendants
to rezone Plaintiff’s property without stipulations not contained in the Kirksville Municipal
Code, award Plaintiff compensatory and punitive damages, attorneys’ fees and costs, and other
such relief the Court deems appropriate.
A court shall grant a motion for summary judgment only if the moving party shows
“there is no genuine dispute as to any material fact and that the movant is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
By definition, material facts “might affect the outcome of the suit under the governing law,” and
a genuine dispute of material fact is one “such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the nonmoving party has failed to “make a showing sufficient to establish the existence of an element
essential to that party’s case, . . . there can be ‘no genuine issue as to any material fact,’ since a
complete failure of proof concerning an essential element of the non-moving party’s case
necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322-23.
The moving party bears the initial burden of proof in establishing “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). The moving party must show
that “there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S.
at 325. If the moving party meets this initial burden, the non-moving party must then set forth
affirmative evidence and specific facts that demonstrate a genuine dispute on that issue.
Anderson, 477 U.S. at 250. When the burden shifts, the non-moving party may not rest on the
allegations in its pleadings, but, by affidavit and other evidence, must set forth specific facts
showing that a genuine dispute of material fact exists. Fed. R. Civ. P. 56(c)(1); Stone Motor Co.
v. Gen. Motors Corp., 293 F.3d 456, 465 (8th Cir. 2002). To meet its burden and survive
summary judgment, the non-moving party must “do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). Instead, the non-moving party must demonstrate sufficient favorable
evidence that could enable a jury to return a verdict for it. Anderson, 477 U.S. at 249. “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 ruling on a motion for summary judgment, 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.” Id. The Court must view the facts and all reasonable inferences in the light
most favorable to the nonmoving party. Reed v. City of St. Charles, 561 F.3d 788, 790 (8th Cir.
Defendants ask the Court to grant summary judgment in their favor on all counts in
Plaintiff’s Second Amended Complaint. Defendants assert Count I against Kirksville fails
because Plaintiff cannot establish the allegedly discriminatory actions were the result of an
official policy or custom. For this same reason, Defendants claim Count I fails against the
individual Defendants in their official capacities. Defendants also contend Count I against
Defendants in their individual capacities fails because Plaintiff lacks any evidence of intentional
discrimination. According to Defendants, Counts II and III, claims asserting violations of 42
U.S.C. §§ 1985, 1986, fail because Plaintiff is unable to establish all of the elements of the
claims. Defendants assert Counts IV and V fail because Plaintiff lacks any evidence of a causal
link between the allegedly adverse actions taken by Defendants and the charges of discrimination
filed by Plaintiff to establish a violation of Missouri Revised Statute § 213.070. Finally,
Defendants claim Count VI, a claim for a violation of 42 U.S.C. § 1981 fails as a matter of law
because Plaintiff lacks evidence of discriminatory intent.
Statement of Material Facts
Before addressing the substantive claims in Defendants’ Motion, the Court must first
address Plaintiff’s response to Defendants’ Statement of Material Facts. In response to many of
Defendants’ material facts and in asserting many of his own material facts, Plaintiff cites to his
own affidavit which states the following: “I hereby swear upon my oath that all facts described
and attributed to me and to my personal knowledge in my Response to Defendants’ Motion for
Summary Judgment, and Response and Objections to Defendants’ Statements of Uncontroverted
Facts and Plaintiff’s Additional Facts are true to the best of my knowledge and belief.” ECF No.
91-21. There are no facts contained in the affidavit itself.
Federal Rule of Civil Procedure 56(c)(4) requires an affidavit in support of a motion for
summary judgment must set forth facts that would be admissible in evidence and show the
affiant is competent to testify on the matters stated. “In evaluating evidence related to possible
summary judgment, a court may not consider affidavits that do not satisfy the requirements of”
Federal Rule of Civil Procedure 56. El Deeb v. Univ. of Minn., 60 F.3d 423, 429 (8th Cir. 1995).
Specific facts must be contained in the affidavit, which Plaintiff did not do. Therefore, the Court
cannot consider Plaintiff’s facts which are supported solely by Plaintiff’s affidavit. Furthermore,
“[c]onclusory affidavits, standing alone, cannot create a genuine issue of material fact precluding
summary judgment.” Rose-Maston v. NME Hospitals, Inc., 133 F.3d 1104, 1109 (8th Cir. 1998)
Equal Protection Claims
In Count I of Plaintiff’s Second Amended Complaint, he asserts Defendants violated
Plaintiff’s right to equal protection of the law in violation of the Fourteenth Amendment of the
United States Constitution pursuant to 42 U.S.C. § 1983, by intentionally and arbitrarily
imposing different limitations on his use of his property from every other LDCZ owner. This
claim is asserted against all Defendants, including the individual defendants in their official and
individual capacities. Defendants argue Plaintiff cannot establish a § 1983 claim against
Defendant Kirksville for a violation of his equal protection rights because he cannot establish the
allegedly discriminatory actions were the result of an official policy or custom. In response,
Plaintiff asserts the policy or custom at issue is Defendants’ continual violation of the Kirksville
Municipal Code (“Code”) when approving rezoning applications. Defendants further argue
Plaintiff cannot establish a violation of the Equal Protection Clause because he cannot prove
The Equal Protection Clause of the Fourteenth Amendment prohibits government
officials from selectively applying the law in a discriminatory manner. Brandt v. Davis, 191 F.3d
887, 893 (8th Cir. 1999). A plaintiff must prove unlawful, purposeful discrimination. Id. A
plaintiff may bring an equal protection claim as a member of a protected class or as a class of
one where he proves he has been intentionally treated differently from others similarly situated
and there is no rational basis for the difference in treatment. Village of Willowbrook v. Olech,
528 U.S. 562, 564 (2000); see also Pitts v. City of Cuba, 913 F. Supp. 2d 688, 704 (E.D. Mo.
A government entity is not liable for an employee’s actions solely on the basis of an
employer and employee relationship. Monell v. Dep’t of Social Serv. of City of New York, 436
U.S. 658, 692 (1978). Instead, to establish a municipality’s liability, a plaintiff must prove his
“constitutional rights were violated by an action pursuant to an official municipal policy or
misconduct so pervasive among non-policy making employees of the municipality as to
constitute a custom or usage with the force of law.” Ware v. Jackson County, Mo., 150 F.3d 873,
880 (8th Cir. 1998). An official policy is a deliberate choice to follow a course of action by an
official who has the final authority to establish policy. Id. Custom or usage is established by
proving “(1) the existence of a continuing widespread, persistent pattern of unconstitutional
misconduct by the [municipality’s] employees; (2) deliberate indifference to or tacit
authorization of such conduct by the [municipality’s] policymaking officials after notice to the
officials of that misconduct; and (3) the plaintiff’s injury by acts pursuant to the [municipality’s]
custom, i.e. proof that the custom was the moving force behind the constitutional violation.” Id.
(citing Harris v. City of Pagedale, 821 F.2d 499, 504-07 (8th Cir. 1987)).
In this matter, Plaintiff is unable to establish liability for Defendant Kirksville because he
is unable to prove the allegedly unconstitutional conduct was pursuant to an official policy or
custom. Plaintiff does not assert there is an official policy already established. Further, the
Commission is not the final authority in Kirksville to create policy. Kirksville, Mo., Code
Appendix A, Art. XXIII § 25-121(b). Plaintiff argues a single action can constitute an act of
official government policy. This is true, but it applies only for a single decision by municipal
policymakers. Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986). The Commission may
approve the application for rezoning but it is then sent to the Kirksville City Council for further
action. Kirksville, Mo., Code Appendix A, Art. XXIII § 25-121(b). The municipal policymaker,
here, is the City Council, not the Commission.
Plaintiff is also unable to establish the alleged actions were pursuant to a custom of
Kirksville. To establish a custom of the municipality, Plaintiff needs to show a widespread,
persistent pattern of unconstitutional conduct. Ware, 150 F.3d at 880. Plaintiff argues the
Commission’s failure to follow the Code constitutes a custom. Plaintiff contends the
Commission has no discretion to approve a zoning application, must approve an application if it
meets the minimum zoning requirements, and is not permitted to add stipulations to approval of
an application. Plaintiff’s argument is essentially the Commission has no discretion in approving
a rezoning application.
The Code does not require the Commission to approve a zoning application. It establishes
a minimum set of requirements for a zoning application to be approved, but does not contain
language requiring an application be approved. The Code states the following in regard to a
(a) A point value system is hereby established for use by the planning and zoning
commission and the zoning administrator in determining whether or not to
recommend approval of a particular rezoning request to the city council.
Recommendation to the city council to approve a particular zoning request will
not be given by the planning and zoning commission or the zoning administrator
unless the minimum requisite number of points is accumulated.
Kirksville, Mo., Code Appendix A, Art. XXIII § 25-119. The Code further states,
[t]he planning and zoning commission shall hold a public hearing on the zoning
application, including the plan as provided by law. At such time as the
development plan meets with the approval of the commission, the same shall be
duly approved, properly endorsed and identified and sent on to the council for
Kirksville, Mo., Code Appendix A, Art. XXIII § 25-121. The Code sets forth minimum
requirements. It does not state the Commission cannot include stipulations when approving a
property to be rezoned. The only requirement the Code places on the Commission is to send the
application to the City Council once it has been approved by the Commission. Plaintiff’s
citations to the Code do not stand for the propositions he asserts. The Code does not require the
Commission to approve every rezoning application that meets the minimum requirements of the
Additionally, to establish a custom, Plaintiff must prove a pattern of unconstitutional
conduct. A violation of the law does not always equal a violation of the Constitution. Plaintiff
needs to prove a pattern of equal protection violations, but did not do so. In the past, the
Commission has put stipulations on other properties prior to approving a rezoning application.
However, as the Court stated, the Code does not prohibit the Commission from adding
stipulations when approving a rezoning application. Furthermore, even if this was a violation of
the Code, Plaintiff has not provided any support for his assertion these violations of the Code are
repeated violations of the Equal Protection Clause so as to establish a municipal custom or usage.
Plaintiff has not established municipal liability because he has no evidence the allegedly
discriminatory actions at issue were pursuant to an official policy or custom of Kirksville.
Because Plaintiff cannot establish municipal liability, the claims against the individual
Defendants in their official capacities must also be dismissed. Johnson v. Outboard Marine
Corp., 172 F.3d 531, 535 (8th Cir. 1999) (“A suit against a public employee in his or her official
capacity is merely a suit against the public employer.”).
Even if Plaintiff had established an official policy or custom, his claim would still fail
because he is unable to establish an equal protection violation. To be similarly situated for an
equal protection claim, “the persons alleged to have been treated more favorably must be
identical or directly comparable to the plaintiff in all material respects.” Robbins v. Becker, 794
F.3d 988, 996 (8th Cir. 2015) (quoting Reget v. City of La Crosse, 595 F.3d 691, 695 (7th Cir.
2010)). Plaintiff cannot establish he is similarly situated to others nor can he establish he was
treated differently. Plaintiff asserts he was treated differently because he would not be allowed to
install a detached sign and he would be denied the ability to conduct yard sales.
The properties Plaintiff claims are similarly situated are “Pawsitive Animalworks”
located at 901 South Baltimore Street, “Ratliff Reed” located at 1000 South Baltimore Street, the
Law Offices of James M. Garrett located at 716 South Baltimore Street, a property at 501 South
Baltimore Street, the law firm Frick and Cudiff, PC located at 2211 East Normal Street, and an
American Family Insurance office located at 1503 East Illinois Street. Plaintiff claims these
properties are all zoned LDCZ and permitted to have detached signs. However, Plaintiff fails to
establish how these properties are similarly situated to his. He does not show if these properties
were rezoned from residential properties like his own, if conditions were placed on these
properties when rezoned, if the surrounding properties are residential, or if there were any
protests against the rezoning at a public hearing. Furthermore, Plaintiff does not show any
evidence of the characteristics of the property owners such as whether they are members of his
protected class.1 He has not shown these properties are identical or directly comparable to his.
Two of these properties were rezoned with additional stipulations. “Pawsitive
Animalworks” had four stipulations when its rezoning application was approved: (1) all parking
must be off-street with at least five spaces available; (2) a no parking sign is to be posted at the
Northeast corner of the property; (3) the property can only be used for a service-type business of
similar nature in the future; and (4) no more than five dogs may be boarded overnight at the
business. “Ratliff Reed” also had four stipulations when its rezoning application was approved:
(1) landscaping, storm water, final building plans, and site screen must be reviewed and accepted
by the Code Administrator prior to a building permit; (2) construction of a privacy fence and
parking must be shown on the development plan; (3) the City shall place no parking signs at
appropriate locations; and (4) the owner shall place and maintain surface striping on the alley’s
boundaries. Although these businesses were permitted to have detached signs, they were treated
similarly to Plaintiff in that stipulations were placed on the property to address concerns related
to the rezoning of the property. There is simply no evidence of intentional discrimination against
Plaintiff. He has failed to establish a violation of the Equal Protection Clause on behalf of
Kirksville or the individual Defendants. Therefore, the Court will grant summary judgment to
Defendants on these claims.
42 U.S.C. §§ 1985, 1986
In Count II, Plaintiff asserts Defendants conspired to interfere with his civil rights under
the Fourteenth Amendment in violation of 42 U.S.C. § 1985 because they placed allegedly
It is unclear if Plaintiff is pursuing a claim as a member of a protected class or as a class of one.
Either way, the result is the same.
arbitrary limitations on his property, not required of other LDCZ properties. Similarly, in Count
III, Plaintiff alleges Defendants failed to prevent a conspiracy to interfere with his civil rights in
violation of 42 U.S.C. § 1986. Defendants argue Plaintiff cannot establish the essential elements
of either a § 1985 or a § 1986 claim.
A claim for damages caused by a conspiracy aimed at damaging a person or property, or
denying a person a federal right or privilege may be brought pursuant to 42 U.S.C. § 1985. To
establish a claim that his rights or privileges were denied, a plaintiff must show the defendants
conspired with the intent to deprive, directly or indirectly, a plaintiff of his right to equal
protection, privileges or immunities under the law, to act in furtherance of the conspiracy and
that the plaintiff was injured or deprived of a right or privilege. Rodgers v. Univ. of Mo. Bd. of
Curators, 56 F. Supp. 3d 1037, 1054 (E.D. Mo. 2014) (citing Barstad v. Murray Cnty, 420 F.3d
880, 887 (8th Cir 2005) and Larson v. Miller, 76 F.3d 1446, 1454 (8th Cir. 1996), aff’d per
curiam 634 Fed. App’x 598 (8th Cir. 2015)). A conspiracy claim requires evidence of specific
facts showing a meeting of the minds of the conspirators. Barstad v. Murray Cnty, 420 F.3d 880,
887 (8th Cir. 2005).
Plaintiff does not point to specific facts showing an illicit agreement among Defendants
to violate Plaintiff’s rights. Working together at the public hearing as part of their duties as
commissioners is not enough evidence to establish a genuine issue of material fact regarding the
existence of a conspiracy. See Johnson v. City of Shorewood, Minn., 360 F.3d 810, 817-818 (8th
Cir. 2004) (evidence suggesting municipal defendants and private actors worked together on a
project is not enough to establish a genuine issue of material fact regarding the existence of a
conspiracy). Because Plaintiff cannot create a genuine issue of material fact showing Defendants
conspired with the intent to deprive Plaintiff of his rights, summary judgment will be granted in
favor of Defendants on this claim. Count II will be dismissed.
Title 42 U.S.C. § 1986 allows an action against a party who knows a § 1985 deprivation
will occur, has the power to prevent it, and fails to do so. Rogers, 56 F. Supp. 3d at 1055. A §
1986 claim is predicated on a successful showing of a claim under 42 U.S.C. § 1985. McIntosh v.
Ark. Republican Party-Frank White Election Comm., 766 F.2d 337, 340 (8th Cir. 1985). Because
Plaintiff cannot establish a § 1985 claim, his § 1986 claim must also be dismissed. Count III will
Missouri Revised Statute § 213.070
In Count IV, Plaintiff asserts Defendants retaliated against him for filing a complaint with
the MCHR in violation of Missouri Revised Statute § 213.070, when they allegedly harassed him
by inspecting his property more regularly and with greater scrutiny than others and mailed a
letter threating to fine Plaintiff for growing flowers on his property. Similarly, in Count V,
Plaintiff asserts Defendant Mike LaBeth, also a real estate agent, retaliated against him by
allegedly refusing to sell Plaintiff’s property along with a neighboring property, even though he
was under contract to sell Plaintiff’s property and Defendant LaBeth terminated the agreement to
sell the property. Defendants argue Plaintiff cannot establish a causal link between an allegedly
adverse action and Plaintiff’s charges of discrimination as required under the statute.
Missouri Revised Statute § 213.070(2) states retaliating or discriminating against a
person because the person has filed a complaint regarding any actions prohibited by the Missouri
Human Rights Act is an unlawful discriminatory practice. To establish a claim for retaliation,
Plaintiff must show he complained of an act of discrimination, Defendants took adverse action
against him for such complaint, and there is a causal relationship between the complaint and the
adverse action. Jain v. CVS Pharmacy, Inc., 779 F.3d 753, 760 (8th Cir. 2015).
There are no material facts in the record regarding this alleged retaliation by Defendants.
Since 2008, Plaintiff has received five citations or compliance letters for all five of his properties
regarding various property maintenance issues. There are no facts in either Plaintiff or
Defendants’ Statements of Material Fact establishing what was contained in these compliance
letters, and whether they were received after the complaints were filed to support a causal
connection between the complaint and the claimed adverse action against him. Plaintiff fails to
establish the existence of an agreement between Plaintiff and Defendant LaBeth, any facts
regarding this opportunity to sell 516 East Jefferson Street, or any facts about a termination of
the agreement to sell. There is simply no evidence to support either of Plaintiff’s retaliation
claims. Defendants will be granted summary judgment on Count IV.
42 U.S.C. § 1981
In Count VI, Plaintiff alleges Defendants intentionally discriminated against him on the
basis of his race by attempting to limit, frustrate, and dissuade Plaintiff from rezoning his
property. Defendants argue Plaintiff’s claim fails as a matter of law because Plaintiff cannot
establish discriminatory intent.
Title 42 U.S.C. § 1981 protects a person’s right to make and enforce contracts and
purchase property without impairment due to racial discrimination. Daniels v. Dillard’s, Inc.,
373 F.3d 885, 887 (8th Cir. 2004). To establish a claim under § 1981, a plaintiff must show
membership in a protected class, the defendant’s intent to discriminate on the basis of race, and
the discrimination interfered with a protected activity. Id. There is no evidence Defendants
intended to discriminate on the basis of Plaintiff’s race. As stated previously, other properties
were rezoned with stipulations similar, although not the exact same, as Plaintiff’s. Additionally,
there is no evidence to suggest Defendants’ motives in adding the stipulations were because of
Plaintiff’s race rather than to address concerns raised by citizens at the public hearing. The only
admissible evidence Plaintiff puts forth is the fact Plaintiff is Iranian. Being a member of a
protected class is not enough to establish a claim pursuant to § 1981. Summary judgment will be
granted in Defendants’ favor on this claim. Count VI will be dismissed.
Motion for Leave to Amend to Conform with the Evidence
Plaintiff filed a Motion for Leave to Amend the Complaint to Conform with the
Evidence, in which he stated evidence submitted by Defendants raises issues not included in the
pleadings but tried by express or implied consent of Defendants. Federal Rule of Civil Procedure
Rule 15(a) provides the Court should “freely give leave when justice so requires.” The Court
may consider undue delay, bad faith or dilatory motive, failure to cure deficiencies in prior
amendments, undue prejudice to the opposing party, and futility of the amendment. Gamma-10
Plastics, Inc. v. Am. President Lines, Ltd., 32 F.3d 1244, 1256 (8th Cir. 1994) (citing Foman v.
Davis, 371 U.S. 178, 182 (1962)). FRCP 15(b) provides a pleading may be amended during or
after trial to conform with the evidence presented. “An amended pleading that ‘merely amplifies
some of the allegations that have been proven’ should be allowed.” Gamma-10 Plastics, Inc., 32
F.3d at 1256 (quoting Herrera v. Valentine, 653 F.2d 1220, 1224 (8th Cir. 1981)). “A district
court is not required to grant a motion to amend on the basis of some evidence that would be
relevant to the new claim if the same evidence was also relevant to a claim originally pled.” Id.
Plaintiff has amended his petition twice and attempted to amend his petition a third time
but was denied by the Court. The Case Management Order stated the deadline for amendment of
pleadings was August 13, 2015. This was not changed in the Amended Case Management Order.
There is no showing there is substance to the motion except for delay of the proceedings. It is
unclear how Plaintiff would like to amend the complaint to conform with the evidence, if he is
raising an entirely new claim or including new allegations under claims already asserted. For
these reasons, the Motion to Amend will be denied.
IT IS HEREBY ORDERED that Defendants City of Kirksville, Missouri, David Jacobs,
Mike LaBeth, Mari MacComber, Bob Russel, Brad Selby, and Clark Wilson’s Motion for
Summary Judgment [ECF No. 80] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff Amir Hamidi’s Motion for Leave to Amend
the Complaint to Conform with the Evidence [ECF No. 94] is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Second Amended Complaint against
Defendants is DISMISSED, with prejudice.
Dated this 22nd Day of July, 2016.
E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE
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