Hunter v. Salem, Missouri, City of et al

Filing 25

REPLY to Response to Motion re 18 MOTION to Dismiss :City of Salem Defendant City of Salem's Reply Memorandum in Support of its Motion to Dismiss filed by Defendant Salem, Missouri, City of. (Wilson, Matthew)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ANAKA HUNTER,
Plaintiff,
vs.
CITY OF SALEM, MISSOURI,
BOARD OF TRUSTEES, Salem Public
Library, and GLENDA WOFFORD,
Individually, and in her official capacity
As Director of the Salem Public Library,
Defendants.

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Case No: 4:12-CV-0004-ERW

DEFENDANT CITY OF SALEM’S REPLY MEMORANDUM IN SUPPORT
OF ITS MOTION TO DISMISS
In Plaintiff’s Memorandum in Opposition to Defendant City of Salem’s Motion to
Dismiss, Plaintiff essentially argues that Plaintiff has stated a plausible claim against the City of
Salem (“the City”) because the City retains some control over the library, in that it has the power
to “maintain” the library and the mayor, with the approval of the board of aldermen, has the
power to appoint and remove trustees to the library board. See Plaintiff’s Memorandum in
Opposition to Defendant City of Salem’s Motion to Dismiss (“PMIO”), p. 4. However, absent
from Plaintiff’s memorandum, as well as Plaintiff’s Complaint, is any allegation that City
engaged in conduct that caused Plaintiff injury, which is necessary to state a plausible claim for
relief against the City. The “Background” section of Plaintiff’s memorandum evidences the lack
of any conduct by the City, as it alleges conduct by Defendant Glenda Wofford (“Wofford”) and
the Board of Trustees (“the Board”), but fails to mention the City. Accordingly, Plaintiff has

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failed to state a plausible claim against the City and her claims against the City should be
dismissed.
I.

Standard of Review
In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must contain

“sufficient factual matter, acceptable as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal quotations omitted).

Two

“working principals” underlie this analysis. Id. First, “the tenet that a court must accept as true
all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. at 1949-51. Second, only a complaint that alleges a plausible claim for relief can
survive a motion to dismiss. Id. at 1950. A complaint is plausible on its face when it pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the conduct alleged. Id. at 1949. The plausibility requirement is not akin to probability, but
asks for more than “a sheer possibility that a defendant has acted unlawfully.” Id.

Where a

complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the
line between possibility and plausibility of entitlement to relief. Id. (internal quotations omitted).
A Complaint that tenders “naked assertions” devoid of “further factual enhancement” will not
suffice. Id. Here, Plaintiff has failed to allege sufficient factual matter to state a facially
plausible claim for relief against the City under 42 U.S.C. § 1983.
II.

Plaintiff has not stated a plausible claim for relief against the City.
Plaintiff argues that she has stated a plausible claim against the City because the City

maintains control over the operation of the library. See PMIO, p. 1. Plaintiff argues that the City
retains control because the mayor can appoint and remove trustees. Apparently, Plaintiff is

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arguing that in appointing certain trustees and having the power to remove them for cause, the
City is effectively setting policy for the library. Plaintiff fails to address Sections 182.200.2,
which empowers the board to “make and adopt such bylaws, rules and regulations for their own
guidance, and for the government of the library, as may be expedient and not inconsistent with
section 182.140 to 182.301.” Mo. Rev. Stat. Section 182.200.2. The statute also authorizes the
hiring of a librarian, and gives the board “exclusive control of the expenditure of all moneys
collected to the credit of the library fund . . . .” Section 182.200.2-3. Moreover, Plaintiff fails to
address Section 70.210, which expressly includes a “city library” within its definition of a
“Political subdivision” of the state of Missouri. A plain reading of these statutes demonstrates the
legislature’s intent to vest control of the library to the Board. Absent from the relevant statutes is
any provision reserving authority to a city to direct, oversee, manage or set policy for a library
once the board of trustees is appointed. Plaintiff’s arguments otherwise are unavailing.
Plaintiff cites to Section 182.170 for the proposition that cities have the power to
establish and maintain libraries. Section 182.170 reads as follows:
When any city establishes and maintains a public library under sections 182.140
to 182.301, the mayor or other proper official of the city, with the approval of the
legislative branch of the city government, shall proceed to appoint a library board
of nine trustees, chosen from the citizens at large, with reference to their fitness
for the office. No member of the city government shall be a member of the board.
Mo. Rev. Stat. § 182.170 (WL 2012). Under a plain reading of the statute, it is clear that Section
182.170 does not convey control of the library to a city by authorizing a city to maintain a
library, but conversely mandates that a city with a library appoint a board of trustees to operate
the library. The intent to separate the library from city control is further demonstrated by the
statute’s last sentence, which dictates that no member of the city government shall be a member
of the board. Mo. Rev. Stat. § 182.170 (WL 2012).
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Plaintiff also argues that the City retains control because the monies received from the
library are deposited in the City treasury pursuant to 182.200.4. See PMIO, p. 4. While Plaintiff
is technically correct that the statute states that library monies shall be deposited in the City
treasury, Plaintiff ignores the rest of the statute mandating that library monies “shall be kept
separate and apart from other moneys of the city” and that the trustees “shall have the exclusive
control of the expenditure of all moneys collected to the credit of the library fund, and . . . of the
supervision, care and custody of the grounds, rooms or buildings constructed . . . for that
purpose.” Mo. Rev. Stat. § 182.200.4 (WL 2012).
Both Section 182.170 and Section 182.200.4 show the legislature’s intent to cede control
of the library to the board of trustees and to keep separate any involvement of a city. Section
182.170 dictates that no member of city government be a member of the board that controls the
library, and Section 182.200.4 mandates that all library funds be kept separate from other city
funds and vests exclusive control of library funds to the trustees. Had the legislature intended to
leave any control with cities, it would have said so.
Plaintiff further alleges that the City retains control over the library because the statutes
allow the City to pass and enforce ordinances to impose penalties on library patrons pursuant to
Section 182.240. See PMIO p. 5. However, Section 182.240 states that cities “may pass
ordinances imposing suitable penalties” for property damage and the failure to return books. Mo.
Rev. Stat. § 182.240 (WL 2012). The statute conveys no “control” to cities, but simply allows
cities to impose penalties for property damage and theft. Accordingly, no reasonable inference
can be drawn that the City maintains any control over the operation of the library. As such,
Plaintiff’s claims against the City should be dismissed.
III.

Plaintiff’s complaint fails to allege any conduct by the City.

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Even if Plaintiff has sufficiently alleged that the City retains some degree of control over
the library, the Complaint’s factual allegations provide no basis for the inference that the City is
liable for any alleged conduct, because it does not allege any deliberate conduct by the City. In
Monell v. New York Dept. of Social Servs., 436 U.S. 658, 689 (1978), the United States
Supreme Court held that a municipality is a “person” under § 1983, but recognized that a city
may not be held liable under the statute solely because one of its employees is a tortfeasor. Id.
Monell and its progeny require a plaintiff seeking to recover from a governmental entity under §
1983 to identify a “policy” or “custom” that caused the injury alleged. Monell, 436 U.S. at 694;
Pembaur, 475 U.S. at 480-81; Canton v. Harris, 489 U.S. 378, 389 (1989).
[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly
attributable to the municipality. The plaintiff must also demonstrate that, through
its deliberate conduct, the municipality was the “moving force” behind the injury
alleged. That is, a plaintiff must show that the municipal action was taken with
the requisite degree of culpability and must demonstrate a direct causal link
between the municipal action and the deprivation of federal rights.
Bd. Of County Comm’rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 404 (1997) (emphasis
in original). Because vicarious liability is inapplicable to § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official’s own individual actions, has violated
the Constitution. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1948, 173 L. Ed. 2d 868
(2009). In order to survive a motion to dismiss, a plaintiff must identify a course of action taken
by an authority with final authority to establish policy. Harmon v. St. Louis County,
4:08CV226SNLJ, 2009 WL 880024 *7 (E.D. Mo. Mar. 30, 2009).
Here, Plaintiff has not even alleged any conduct attributable to the City, much less any
deliberate conduct by the City that could be the “moving force” behind any injury.

The

Complaint fails to allege any municipal action of the City taken with any degree of culpability,

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and fails to demonstrate any causal link between any action by the City and any deprivation of
Plaintiff’s rights. Furthermore, nothing in the Complaint alleges any course of action by the City
to establish any policy. Plaintiff’s argument that she has stated a claim against the City because
the City retains some control over the library is nothing more than an attempt to hold the City
liable for the actions of an employee of the library. Efforts to impose vicarious liability on a
municipality under the theory of respondeat superior have repeatedly been rejected by the
United States Supreme Court. Bd. Of County Comm’rs of Bryan County, Okla. v. Brown, 520
U.S. 397, 403 (1997). Here, the effort to impose liability on the City for the actions of Wofford
is a step past respondeat superior, as Wofford is not an employee of the City, but of the library.
Furthermore, Plaintiff’s legal conclusions are not entitled to an assumption of truth. See
Iqbal, 129 S.Ct. at 1949-51. Paragraphs 64 and 65 allege that Defendants’ policies, practices,
and customs of blocking certain websites are content- and viewpoint-based restrictions on
protected speech that are not narrowly tailored to serve a compelling state interest.

See

Complaint, ¶¶ 64-65. Paragraphs 67, 68, and 69 allege that Defendants’ policies, practices, and
customs have injured Plaintiff by placing upon her a substantial burden on Plaintiff’s access to
protected speech. See Complaint, ¶¶ 67-69. Paragraphs 72, 73, and 74 allege that Defendants’
blocking of certain websites does not serve a legitimate secular purpose and has the principal
effect of promoting and favoring some religious viewpoints over others, which constitutes an
endorsement of some religious faiths and viewpoints over others. See Complaint, ¶¶ 72-74.
Under Iqbal, these paragraphs are not entitled to an assumption of truth because they are
merely conclusory statements of the elements of a cause of action that are not further enhanced
by factual allegations. While the “Factual Allegations” portion of the Complaint alleges conduct
by Wofford and the Board, the City is never specifically referenced, and the conduct complained

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of is specifically attributed to Wofford and the Board. See Complaint, ¶¶ 12-62. Lumping the
City in as “Defendants” and stating that its policies, practices, and customs are not narrowly
tailored to serve a compelling state interest, that they constituted a substantial burden on
Plaintiff’s access to protected speech, that they operated as an endorsement of some religious
viewpoints over others, and that they served no secular purpose is merely a recitation of the
elements of free speech causes of action.

These allegations are nothing more than legal

conclusions regarding the City supported by no other factual allegations against the City.
Accordingly, those allegations are not entitled to an assumption of truth.
The remaining paragraphs of the Complaint that reference the City, even if assumed true,
do not state a facially plausible claim of entitlement to relief. The allegations fail to state a
facially plausible claim because the alleged facts are insufficient to allow the Court to draw a
reasonable inference that any conduct by the City caused injury to Plaintiff. In her Complaint,
Plaintiff herself states that the Board and Wofford are the policymakers who determine what
content is blocked from library access. Complaint, ¶ 50. The only time the City is specifically
mentioned in the Complaint is in the case caption and in the description of the parties. See
Complaint, ¶¶ 6-8. Otherwise, the City is merely lumped in with the Board and Wofford as
“Defendants.” See, e.g., Complaint, ¶¶ 51-52, 64-65, 72-74.

Even when lumped together as

“Defendants,” Plaintiff has not alleged a plausible claim for relief against the City because she
has simply stated naked assertions regarding the City that are devoid of further factual
enhancement. See Iqbal, 129 S.Ct. at 1949.
In paragraphs 51, 52, and 55, Plaintiff alleges that “Defendants” had a policy, practice,
and custom of blocking websites categorized as “occult,” and that “Defendants” know that the
category “overblocks” websites, which results in content- and viewpoint-based discrimination.

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See Complaint, ¶¶ 51, 52, and 55.

Paragraphs 58, 59, and 62 contain similar allegations

regarding websites categorized as “criminal skills.”

See Complaint, ¶¶ 58, 59, and 62.

Paragraph 75 alleges that Defendants’ policies, practices, and customs injured Plaintiff because
she was prevented from accessing content related to her faith while receiving messages that
content regarding other faiths would be treated more favorably. See Complaint, ¶ 75.
The above cited paragraphs contain the only allegations against the City, which notably is
only impliedly referenced by being lumped together with Wofford and the Board as
“Defendants.” With regard to the City, these allegations are simply conclusory statements that
are not further enhanced by any factual allegations. These allegations against the City, whose
inclusion is only implied from the term “Defendants,” are threadbare recitals of elements of a
cause of action supported only by conclusory statements. While the allegations in the Complaint
may be consistent with the City’s liability, they fall short of the line between possibility and
plausibility of entitlement to relief.
Respectfully submitted,
BAIRD, LIGHTNER, MILLSAP & HARPOOL, P.C.

By:

____/s/ Matthew D. Wilson_________________
M. DOUGLAS HARPOOL
Mo. Bar #28702, ED #28702MO
MATTHEW D. WILSON
Mo. Bar #59966, ED #59966MO
Baird, Lightner, Millsap & Harpool, P.C.
1904-C South Ventura Avenue
Springfield, MO 65804
Telephone: [phone]
Facsimile: 417-887-8740
[e-mail]
[e-mail]
Attorney for Defendants
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CERTIFICATE OF SERVICE

I hereby certify that on the 28th day of March, 2012, I electronically filed the foregoing
with the Clerk of Court using the CM/ECF system which provided a copy of same, and (_____)
mailed, via the United States Postal Service, postage pre-paid, (______) faxed, the foregoing
document to the below listed counsel of record:
Anthony E. Rothert
Grant R. Doty
ACLU of Eastern Missouri
454 Whittier Street
St. Louis, MO 63108

Daniel Mach
ACLU Foundation
915 15th Street, NWS
Washington, DC 20005
Fax: [phone]

Fax: [phone]

______/s/ Matthew D. Wilson _______________
MATTHEW D. WILSON

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