Banks et al v. Slay et al

Filing 29

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendants Slay, Green, and Jones' Motion to Dismiss [ECF No. 13] is GRANTED. IT IS FURTHER ORDERED that Defendants[ Slay, Gray, Irwin, Battle-Turner, and Switzer's] Motion to Dismiss [ECF No. 18] is GRANTED. IT IS FURTHER ORDERED that all claims against Defendants Francis Slay, Darlene Green, Tishaura Jones, Richard Gray, Thomas Irwin, Bettye Battle- Turner, and Erwin Switzer shall be DISMISSED WITH PREJUDICE. Signed by District Judge E. Richard Webber on March 25, 2014. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL J. BANKS and
ANTONIA RUSH-BANKS,
Plaintiffs,
v.
FRANCIS G. SLAY, et al.,
Defendants.

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No. 4:13CV02158 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Defendants Slay, Green and Jones’ Motion to
Dismiss [ECF No. 13] and Defendants[ Slay, Gray, Irwin, Turner, and Switzer’s] Motion to
Dismiss [ECF No. 18]. On March 6, 2014, the Court held a Hearing, and the parties addressed
these pending motions.
I.

BACKGROUND
This case arises out of the alleged violation of Plaintiff Michael Banks’ Fourth

Amendment rights under the United States Constitution. Specifically, Plaintiffs Michael Banks
and Antonia Rush-Banks contend Reginald Williams, a police officer for the St. Louis
Metropolitan Police Department (SLMPD), unlawfully searched and seized Plaintiff Michael
Banks in 2002, leading to criminal charges and subsequent acquittal by a jury.

In 2005,

Plaintiffs filed a state suit, Banks I, against Williams, the SLMPD Board of Commissioners
(Board), and Ryan Cousins, another SLMPD officer. In 2008, Plaintiffs dismissed, without
prejudice, the claims against the Board, and in 2009, they dismissed, with prejudice, the claims
against Cousins.

Plaintiffs then filed a Second Amended Petition against Williams in his

1

personal and official capacities. The Petition asserted a claim under 42 U.S.C. § 1983 for
unconstitutional search and seizure, and common law claims of malicious prosecution,
conversion, and loss of consortium. Williams failed to file an answer, and on April 27, 2009, the
trial court entered a default judgment against him.
On April 6, 2012, Plaintiffs filed another state court suit, Banks II, against: Francis Slay,
in his capacities as Mayor of the City of St. Louis (City) and ex-officio member of the Board;
Darlene Green, City Comptroller; then-City Treasurer Larry C. Williams, who has subsequently
been substituted by his successor, Tishaura Jones; and Board member Bettye Battle-Turner. In
Banks II, Plaintiffs sought a writ of mandamus directing these officials to satisfy the default
judgment entered against Williams in Banks I. The circuit court erroneously issued a summons,
rather than a preliminary writ as required by Missouri Supreme Court Rule 94.04.1
The Banks II defendants moved to dismiss for failure to state a claim on which relief may
be granted, and the trial court granted their motion on November 5, 2012. Plaintiffs filed a
motion for leave to amend their Petition, and the trial court denied the motion on November 29,
2012.
Plaintiffs appealed the Banks II order of dismissal to the Missouri Court of Appeals,
Eastern District, arguing the trial court erred by concluding the underlying default judgment
1

In Missouri, the normal procedure for writs of mandamus begins with a petition for the writ in
the circuit court. Dept’ of Veterans Affairs v. Boresi, 396 S.W.3d 356, 364 (Mo. 2013) (en banc)
(Fischer, J., concurring). Then, the circuit court examines the petition and determines whether a
preliminary order of mandamus should issue. Id. If the circuit court denies the preliminary writ,
the petitioner can re-file the writ in the next highest court. Id. If the circuit court, however, “is
of the opinion that the preliminary order of mandamus should be granted, such order shall be
issued.” Id.; Missouri Supreme Court Rule 94.04. “The preliminary order in mandamus directs
the respondent to file an answer within a specified amount of time, and it also may order the
respondent to refrain from all or some action.” Boresi, 396 S.W.3d at 364 (Fischer, J.,
concurring). From there, the court may grant or deny the petition for writ of mandamus, and any
final decision is “reviewable by appeal,” rather than by filing an original writ in the next highest
court. Id.
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against Williams was not a direct judgment against the City or the Board. On October 8, 2013,
the Court of Appeals issued an opinion, holding it could not “conclude . . . that any legal
authority exists to require the City or the Board to pay the default judgment entered solely
against Officer Williams.” Banks v. Slay, 410 S.W.3d 767, 771 (Mo. App. E.D. 2013). In so
holding, the Court of Appeals discussed Brandon v. Holt, which “explicit[ly]” stated “that a
judgment against a public servant ‘in his official capacity’ imposes liability on the entity that he
represents provided, of course, the public entity received notice and an opportunity to respond.”
469 U.S. 464, 471-72 (1985). The Court of Appeals distinguished Brandon, and stated it
“c[ould] not conclude the City or the Board had the opportunity to be heard with respect to the
default judgment against Officer Williams.” Banks, 410 S.W.3d at 771. The court took note of
the circuit court’s procedural error, and concluded, “Rather than perpetuate a procedural process
that is not authorized by Rule 94 and is disfavored by the Supreme Court of Missouri, instead of
stating that the judgment is affirmed, this court denies the writ without prejudice to seeking an
original writ in the Supreme Court of Missouri.” Id.
Plaintiffs then filed the instant suit in this Court, naming as Defendants: (1) Francis Slay,
in his official capacities as Mayor of the City and ex-officio member of the Board; (2) Darlene
Green in her official capacity as Comptroller of the City; (3) Tishaura Jones, in her official
capacity as Treasurer of the City; and (4) Richard Gray, Thomas Irwin, Bettye Battle-Turner, and
Erwin Switzer, in their capacities as members of the Board. The Complaint seeks a writ of
mandamus ordering Defendants to satisfy the Banks I default judgment, and a declaration that
the judgment against Williams is tantamount to a direct judgment against Defendants.

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II.

DISCUSSION
In their Motion, Defendants Slay, Green, and Jones assert this case should be dismissed

for three reasons. First, they contend Plaintiffs’ claims are barred by the common law doctrine
of res judicata. Second, they argue, in light of the state court proceedings regarding this matter,
the Rooker-Feldman doctrine divests this Court of subject matter jurisdiction. Finally, they
maintain the instant lawsuit is barred by the five-year statute of limitations applicable to § 1983
claims brought in Missouri. Defendants Slay, Gray, Irwin, Turner, and Switzer argue only that
the Rooker-Feldman doctrine applies, and the Court should, therefore, dismiss this case. For
reasons discussed infra, the Court concludes it lacks subject matter jurisdiction due to the
Rooker-Feldman doctrine.2 Thus, the Court need not decide whether res judicata or the fiveyear statute of limitations applies.3

2

Although the Rooker-Feldman doctrine precludes subject-matter jurisdiction in this case, a
review of the state proceedings compels further commentary.
The allegations in the Second Amended Petition arise out of events that occurred in 2002.
At that time, Missouri police departments were answerable to the State of Missouri, rather than
cities. Mo. Rev. Stat. § 84.010 (repealed 2012); Smith v. State, 152 S.W.3d 275, 278 (Mo. 2005)
(en banc); contra Mo. Rev. Stat. § 84.344 (enacted in 2012, authorizing establishment of
municipal police forces in St. Louis). Therefore, although the SLMPD police officers were, and
continue to be, officers of the State and the City, Mo. Rev. Stat. § 84.330, “this dual status d[id]
not mean the City [wa]s a proper defendant in a § 1983 case challenging City police officers’
conduct against an individual.” Ford v. St. Louis Metro. Towing, L.C., No. 4:09CV0512 TCM,
2010 WL 618491, at *17 (E.D. Mo. Feb. 18, 2010). In fact, at the time, the City was expressly
prohibited from exercising authority or control over the Board or police departments. Mo. Rev.
Stat. § 84.010 (repealed 2012). That said, the City could still be liable on a § 1983 claim if the
City and the Board “acted together by custom to deprive the plaintiff of his constitutional rights.”
Ford, 2010 WL 618491, at *18 (quoting Carroll v. Sisco, No. 4:00CV00864, 2007 WL 209924,
at *4 (E.D. Mo. May 30, 2007)).
In Banks I, Plaintiffs dismissed, with prejudice, their petition against Officer Cousins, and
dismissed, without prejudice, their petition against the SLMPD Board. Plaintiffs then filed and
served their Second Amended Petition on Officer Williams and members of the Board, including
Mayor Slay as ex-officio member of the Board. See ECF No. 1-2. In other words, in Banks I,
none of the City officials, now named as defendants, were served with process, except Mayor
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Under the Rooker-Feldman doctrine, only the United States Supreme Court has
jurisdiction to review decisions of state courts. Friends of Lake View Sch. District v. Beebe, 578
F.3d 753,758 (8th Cir. 2009); 28 U.S.C. § 1257. Therefore, federal district courts generally lack
subject matter jurisdiction over attempted appeals from state courts. Id.; District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co., 263 U.S.
413, 416 (1923). Generally, the Rooker-Feldman doctrine “is confined to cases . . . brought by
state-court losers complaining of injuries caused by state-court judgments rendered before the
district court proceedings commenced.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544
U.S. 280, 284 (2005). It “does not bar federal claims brought in federal court when a state court
previously presented with the same claims declined to reach their merits.” Simes v. Huckabee,
354 F.3d 823, 830 (8th Cir. 2004).
Aside from “straightforward” appeals of state decisions, however, the Rooker-Feldman
doctrine forecloses “more indirect attempts by federal plaintiffs to undermine state court

Slay – and then, only in his capacity as ex-officio member of the Board. ECF No. 1-2 at 5. In
addition, while the Second Amended Petition alleges the Board deliberately failed to remedy
continuing and pervasive patterns of unconstitutional conduct, ECF No. 1-4 at ¶¶ 19, 25, it
makes no similar allegations regarding the City. In any event, it certainly fails to allege the City
and Board “acted together by custom to deprive [Plaintiffs] of [their] constitutional rights.”
Ford, 2010 WL 618491, at *18 (quoting Carroll, 2007 WL 209924, at *4).
Therefore, like the Court of Appeals, this Court agrees the City lacked notice and an
opportunity to respond, as required before imposition of entity liability. See Brandon v. Holt,
469 U.S. 464, 471-72 (1985). In fact, even if the City had been properly notified of the
purported claims against it, the Second Amended Petition fails to state a viable basis on which
the City could be held liable. That is, the City, on its own, did not have policy-making authority
over police departments in 2002, and the Second Amended Petition fails to allege the City acted
with the Board to deprive Plaintiffs of their constitutional rights.
3
Not all of the defendants named in Banks II were identical to the defendants now named.
Despite these differences, no separate analysis is needed, because the new defendants are
officials whose positions were represented by the defendants named in Banks II. See Lemonds v.
St. Louis County, 222 F.3d 488, 495 (8th Cir. 2000) (“Insisting that the parties must be identical,
it seems to us, confuses the Rooker-Feldman doctrine with principles of res judicata.”).
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decisions.” Lemonds v. St. Louis County, 222 F.3d 488, 493 (8th Cir. 2000). “Thus, a corollary
to the basic rule against reviewing judgments prohibits federal district courts from exercising
jurisdiction over general constitutional claims that are ‘inextricably intertwined’ with specific
claims already adjudicated in state court.” Id. at 492-93; Simes, 354 F.3d at 827. A federal
claim is inextricably intertwined with a state decision “if a federal claim would succeed only to
the extent that the state court wrongly decided the issues before it.” Simes, 354 F.3d at 827
(internal quotations omitted). “A state court need only indicate it has considered, reached the
merits, and rejected the federal claims in order for [Rooker-Feldman] to apply.” Id. at 830.
Plaintiffs make several arguments against application of the Rooker-Feldman doctrine.
The Court addresses each, in turn.
A.

The State Proceedings Were “Complete” at the Commencement of the Federal
Case

First, Plaintiffs argue the Rooker-Feldman doctrine applies only when the federal suit
commences after the state proceedings have ended. They note, in Banks II, the Court of Appeals
gave leave to file an original writ in the Supreme Court of Missouri. In light of this fact,
Plaintiffs maintain the state court proceedings were not complete when they filed their federal
Complaint, and the Rooker-Feldman doctrine does not apply.
Plaintiffs correctly observe the Rooker-Feldman doctrine applies only when the state
court proceedings are “complete” at the time the federal suit commences. Dornheim v. Sholes,
430 F.3d 919, 923-24 (8th Cir. 2005); Exxon Mobil Corp., 544 U.S. at 292-93. However,
Plaintiffs erroneously contend the state court proceedings are incomplete. Such an outcome
would do violence to the notion of “den[ying]” the writ with leave to seek an “original” writ in
the Supreme Court of Missouri. Banks, 410 S.W.3d at 771. In other words, due, in part, to the
unique nature of mandamus actions, and, in part, to the unusual procedural history of the instant

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case, Plaintiffs would have to institute a new mandamus action should they decide to pursue this
case at the state level. Accordingly, the Court finds the state proceedings were “complete” at the
time the Court of Appeals denied the writ, which occurred before the commencement of the
federal action.4
Nor is the Court persuaded by Plaintiffs’ reference to Mothershed v. Justices of the
Supreme Court, 410 F.3d 602 (9th Cir. 2005).5 In Mothershed, an attorney sought a writ of
mandamus in the Oklahoma Supreme Court to halt state bar disciplinary proceedings against
him. Id. at 604 n.1. The Ninth Circuit, in a footnote, found “state proceedings ended for RookerFeldman purposes when the Oklahoma Supreme Court denied Mothershed’s request that it issue
a writ of mandamus[.]” Id. Based on this language, Plaintiffs argue their underlying state
proceedings cannot be complete until they file a new writ in the Supreme Court of Missouri, and
that court subsequently denies the writ. The Court cannot agree. Nothing in Mothershed
suggests, had the attorney ended his mandamus pursuit at a lower court,6 Rooker-Feldman would
not apply.
In any event, even assuming the state proceedings were incomplete at the time the federal
case commenced, dismissal still would be proper, due to a concept raised by none of the parties:
the Younger abstention doctrine.7 The Younger doctrine “provides that federal courts should

4

The Court of Appeals denied the writ of mandamus on October 8, 2013. See Banks v. Slay, 410
S.W.3d 767 (Mo. App. E.D. 2013). Plaintiffs filed their federal Complaint on October 28, 2013.
5
The Eighth Circuit has favorably cited Mothershed on at least two occasions. See Robins v.
Ritchie, 631 F.3d 919, 926 (8th Cir. 2011); Dornheim v. Sholes, 430 F.3d 919, 923 (8th Cir.
2005).
6
The Court is unaware of Plaintiffs’ reasoning for filing the instant action, instead of seeking an
original writ in the Supreme Court of Missouri. Plaintiffs take the position they could file a writ
in the Supreme Court of Missouri, or here, and elected to file here.
7
This Court may raise sua sponte the issue of Younger abstention. See Geier v. Mo. Ethics
Comm’n, 715 F.3d 674 (8th Cir. 2013) (affirming district court’s sua sponte decision to abstain
under Younger v. Harris, 401 U.S. 37 (1971)).
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abstain from exercising jurisdiction when (1) there is an ongoing state proceeding, (2) which
implicates important state interests, and (3) there is an adequate opportunity to raise any relevant
federal questions in the state proceeding.” Plouffe v. Ligon, 606 F.3d 890, 892 (8th Cir. 2010).
Assuming the state proceedings were not “complete,” and were therefore “ongoing,” the Court
finds this case “implicates important state interests.” That is, the Complaint seeks to enforce the
default judgment against Defendants, and “enforcing state court judgments cuts to the state’s
ability to operate its own judicial system, a vital interest for Younger purposes.” Harper v. Pub.
Serv. Comm’n of W. Va., 396 F.3d 348, 352 (4th Cir. 2005); see also Pennzoil Co. v. Texaco,
Inc., 481 U.S. 1, 12-13 (1987) (“States have important interests in administering certain aspects
of their judicial systems.”). Finally, the Court has no difficulty concluding the third element of
the Younger doctrine is met here; the Court of Appeals’ opinion indicates Plaintiffs had a
meaningful opportunity to argue the City and Board were liable for the judgment against
Williams. See Banks v. Slay, 410 S.W.3d 767 (Mo. App. E.D. 2013). In fact, Plaintiffs set forth
these arguments at the circuit court, as well. Therefore, even if the state proceedings are not
complete, as Plaintiffs maintain, the Court would abstain from exercising jurisdiction under the
Younger doctrine. See also Feingold v. Office of Disciplinary Counsel, 415 Fed. Appx. 429 (3d
Cir. 2011) (affirming district court’s dismissal on grounds either Rooker-Feldman applied, or, in
the alternative, Younger applied, where appellant had filed petition for writ of mandamus in state
court).
B.

The Federal Case Is, in Essence, an Appeal from an Adverse State Court
Judgment

Second, Plaintiffs claim the Rooker-Feldman doctrine does not apply, because the instant
suit is not an appeal from a state court judgment. Plaintiffs claim their injury arises out of

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Defendants’ refusal to satisfy the Banks I judgment. Because their grievance does not result
from the outcome of a state court decision, Plaintiffs maintain Rooker-Feldman is inapplicable.
Plaintiffs rely largely on Friends of Lake View School District v. Beebe, 578 F.3d 753
(8th Cir. 2009). In Friends of Lake View, the State of Arkansas had enacted legislation, entitled
Act 60, aimed at equalizing access to education pursuant to a state decision “that the . . . public
education system did not meet the requirements of the Arkansas Constitution.” Id. at 756. In a
federal district court, plaintiffs sought to challenge the constitutionality of Act 60 under the
Fourteenth Amendment of the United States Constitution. Id. at 757. The district court refused
to exercise jurisdiction, invoking the Rooker-Feldman doctrine. Id. The district court believed
exercising jurisdiction would conflict with a different state court decision, holding the Arkansas
General Assembly had taken proper remedial action by enacting Act 60. Id.
The Eighth Circuit reversed. Id. at 758-59. First, it noted the plaintiffs in the federal case
were not seeking direct review of the state court decision. Id. Second, the court explained,
although the federal constitutionality of Act 60 was raised at the state court, the Arkansas
Supreme Court had released jurisdiction of this issue without ever reaching its merits. Id. at 759.
Thus, the court determined Rooker-Feldman did not apply. Id.
Friends of Lake View is inapposite, because, unlike the plaintiffs in that case, Plaintiffs,
here, are reasserting the same exact claims decided by the underlying state case. In addition,
while the state court in Friends of Lake View did not reach the merits of the plaintiff’s claims, the
same cannot be said of the instant case. That is, the Missouri Court of Appeals examined
Plaintiff’s argument that “the circuit court erroneously concluded the underlying default
judgment was not a direct judgment against the City . . . or the Board.” Banks, 410 S.W.3d at
769. The Court of Appeals held this argument was “without merit.” Id. It conducted an analysis

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of relevant case law – namely, Brandon v. Holt, 469 U.S. 464 (1985) – and stated it could not
“conclude, based upon the Court’s rationale in Brandon, that any legal authority exists to require
the City or the Board to pay the default judgment entered solely against Officer Williams.” Id. at
771. In sum, while disposition of the federal claim in Friends of Lake View would have no effect
on the legitimacy of the state court decision, the same is not true here. Therefore, Friends of
Lake View is not a sufficiently analogous case to warrant exercise of this Court’s jurisdiction.
More on-point is Dodson v. University of Arkansas for Medical Sciences, which arose out
of a divorced couple’s dispute over cryogenically frozen embryos. 601 F.3d 750, 752 (8th Cir.
2010), cert. denied, 131 S. Ct. 902 (2011). While married, the couple had entered an In-Vitro
Fertilization (IVF) Program at the University of Arkansas for Medical Sciences. Id. at 751-52.
As part of the IVF Program, the couple entered into an agreement, which governed the custody
of the embryos and dictated the couple would control their disposition. Id. at 752. When the
couple later divorced, the state court handling the divorce proceedings issued a decree, in which
the couple reaffirmed the IVF agreement, and added the wife “shall have the right to choose
from available options, if any, for disposition as listed in the [IVF agreement].” Id.
Post-divorce, the wife sought to have the embryos implanted in her, but the husband
refused consent. The wife brought a state suit, and the court subsequently found, under terms of
the IVF agreement, the couple relinquished control of the embryos to the IVF Program Director
upon dissolution of their marriage. Id. In a second state suit, the wife sued University officials,
seeking a declaration that she had control over the embryos, and the University had an obligation
to implant them in her. Id. at 753. The court dismissed the case, finding the University had
sovereign immunity. Id. Finally, the wife brought a § 1983 suit in federal court, alleging
University officials violated her rights under the United States Constitution. Id. at 753-54. The

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district court dismissed the case for lack of subject matter jurisdiction under the Rooker-Feldman
doctrine, and the wife appealed. Id. at 754.
On appeal, the Eighth Circuit affirmed the district court’s dismissal. Id. at 756. The
Eighth Circuit explained the first state court undisputedly found, “Under the terms of the [IVF
agreement], upon the dissolution of the marriage by court order, all control and direction of the
tissues as of [the dissolution of the marriage], was relinquished to the [IVF Program Director].”
Id. at 755. The court held “[a]ny ruling in the case at bar in [the wife’s] favor, i.e., that the
federal constitution demands the return of the embryos to [her], would wholly undermine this
part of the [first state court ruling].” Id. Likewise, in the second state suit, the court “determined
the IVF Program Director had the right to dispose of the embryos.” Id. Deciding the wife’s
claim at the federal level would have required federal review of that same issue. Id.
In light of Dodson, the Court is not persuaded by Plaintiffs’ argument that, because their
grievance does not arise from the outcome of a state court proceeding, the Rooker-Feldman
doctrine is inapplicable. The wife in Dodson did not claim the outcome of the state court
decisions caused her harm. Nonetheless, the Eighth Circuit held Rooker-Feldman applied,
because deciding her federal claim would put the legitimacy of the state decisions in jeopardy.
Similarly, here, determining Plaintiffs’ federal case would cause this Court to examine matters
already adjudicated by the Missouri Court of Appeals. In other words, the Rooker-Feldman
doctrine applies, because Plaintiffs’ instant allegations are “inextricably intertwined” with the
state court proceedings; “the federal claim [would] succeed[] only to the extent that the state
court wrongly decided the issue before it.” See Lemonds, 222 F.3d at 492-93. Accordingly, the
Court is not persuaded by Plaintiffs’ second argument against application of the Rooker-Feldman
doctrine.

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C.

The Rooker-Feldman Doctrine Reached the Merits of Plaintiffs’ Federal
Claims

Finally, Plaintiffs contend the Rooker-Feldman doctrine does not apply, because the
Court of Appeals did not reach the merits of their claim. Specifically, Plaintiffs claim the Court
of Appeals rested its decision solely on procedural grounds – namely, the circuit court’s failure
to issue a preliminary writ instead of a summons – and any discussion of the merits was merely
obiter dictum. Additionally, Plaintiffs maintain the denial of a writ of mandamus cannot serve as
a basis for applying Rooker-Feldman, because mandamus is awarded at the court’s discretion.
1.

The Court of Appeals Did Not Rest on Procedural Grounds, and Even If It
Did, Obiter Dictum Can Serve as the Basis for Rooker-Feldman

As an initial matter, the Court finds the Court of Appeals clearly went beyond the circuit
court’s procedural error and discussed the merits of Plaintiffs’ federal claim. Admittedly, the
Court of Appeals noted the circuit court’s procedural error at the outset of the Banks II opinion.
Banks, 410 S.W.3d at 768. However, aside from the two paragraphs devoted to that issue, the
remainder of the opinion largely discusses whether Plaintiffs were entitled to relief on the merits
of their petition. Id. at 769-71. The Court of Appeals discussed at length Brandon v. Holt,
which held a public official named in official capacity is liable upon the entity he or she
represents, provided the entity received notice and an opportunity to respond. 469 U.S. 464,
471-72 (1985); see also Banks, 410 S.W.3d at 770. However, the Court of Appeals distinguished
Brandon on its facts, and denied Plaintiffs’ request for mandamus relief. Banks, 410 S.W.3d at
770-71. In fact, the Court of Appeals plainly indicated it was examining the merits of this case
when it cited a portion of United States Department of Veterans Affairs v. Boresi:
Writs are extraordinary remedies, and their procedures differ from normal civil
actions. . . . The practice of issuing a summons rather than a preliminary order
fails to acknowledge the nature of the remedy. Additionally, it requires a
response from the respondent without regard to the merits of the petition.

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Nevertheless, this Court is exercising its discretion to consider the matter on the
merits and issue the writ because the parties, who already have litigated the matter
fully, were not at fault and should not be required to initiate a new writ
proceeding due to the circuit court’s failure to follow the procedure proscribed by
the rules.
396 S.W.3d 356, 359 n.1 (Mo. 2013) (en banc) (emphasis added); Banks, 410 S.W.3d at 768 n.3.
Even if Plaintiffs correctly argue the Court of Appeals merely offered obiter dictum,
Rooker-Feldman would still apply.

In Dodson, supra Section II.B, the Eighth Circuit

acknowledged the second state decision – which found the IVF Program Director had the right to
dispose of the embryos – was unnecessary to the dispositive issue of sovereign immunity. 601
F.3d at 755. The Eighth Circuit explained, however,
Even if that determination were technically obiter dictum, it was not a stray
remark on an issue not presented to it. This is not a case in which the state court
simply held it lacked jurisdiction and dismissed the plaintiff’s case without
prejudice. Rather, the state court discussed the merits of [the wife’s] case
extensively and dismissed [the second suit] with prejudice.
Id. (internal citations omitted). Likewise, here, the Court of Appeals did not make a “stray
remark” when, after a thorough discussion of the merits, it held, “[T]his court cannot conclude,
based upon the Court’s rationale in Brandon, that any legal authority exists to require the City or
the Board to pay the default judgment entered solely against Officer Williams.” Banks, 410
S.W.3d at 771.
2.

The Denial of a Writ of Mandamus Is Sufficient to Warrant Application of
Rooker-Feldman

Under the Rooker-Feldman doctrine, “federal plaintiffs cannot be said to have had a
reasonable opportunity to raise their federal claims in state court where the state court declines to
address those claims and rests its holding solely on state law.” Simes, 354 F.3d at 829. Citing
Biddulph v. Mortham, 89 F.3d 1491 (11th Cir. 1996), an Eleventh Circuit case, Plaintiffs argue
the denial of a writ of mandamus cannot serve as the basis for applying Rooker-Feldman,

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because mandamus is awarded at a court’s discretion, and fails to afford a reasonable opportunity
to raise federal claims. In Biddulph, the Eleventh Circuit devoted one footnote to its discussion
of the Rooker-Feldman doctrine. Id. at 1495 n.1. In relevant part, it stated,
Because the Florida Supreme Court has strictly limited authority to grant a writ of
mandamus to those cases where there is a clear right to performance of an
indisputable legal duty,8 the state mandamus proceeding did not afford Biddulph
the kind of ‘reasonable opportunity’ to raise his federal claim that would preclude
our independent review of that claim. The Florida Supreme Court’s refusal to
grant a writ of mandamus means only that the state court failed to find it clear and
indisputable . . . that [Biddulph was entitled to a writ of mandamus].
Id.
Although Biddulph appears persuasive at first glance, the Court ultimately concludes it
does not apply for several reasons. First, other courts have applied Rooker-Feldman where the
underlying state proceedings resulted in denial of mandamus relief. See Reed v. Swilley, 266
Fed. Appx. 336, 337 (5th Cir. 2008) (“Because Reed essentially sought federal district court
review of the Mississippi9 state court’s denial of his petition for writ of mandamus, the district
court did not err in dismissing the complaint for lack of jurisdiction under the Rooker/Feldman
doctrine.”); Brackman v. Ind.,10 93 Fed. Appx. 989, 992 (7th Cir. 2004) (“Brackman petitioned
for and was denied a writ of mandamus by the state supreme court to compel the circuit court to
act on his filings. He may not now challenge or seek damages under 42 U.S.C. § 1983 or related
statutes on account of the supreme court’s refusal to compel the circuit court to act; his only

8

Likewise, in Missouri, “[a] litigant seeking mandamus must allege and prove a clear,
unequivocal, specific right to a thing claimed.” State ex rel. Kizer v. Mennemeyer, __ S.W.3d
__, 2014 WL 707150, at *1 (Mo. App. E.D. 2014).
9
As in Missouri, in Mississippi, mandamus relief requires “a clear right in the petitioner to the
relief sought.” Aldridge v. West, 929 So.2d 298, 302 (Miss. 2006) (internal quotations omitted).
10
Like Missouri, in Indiana, “[m]andamus does not lie unless the petitioner has a clear and
unquestioned right to relief and the respondent has failed to perform a clear, absolute, and
imperative duty imposed by law.” State ex rel. Steinke v. Coriden, 831 N.E.2d 751, 757 (Ind. Ct.
App. 2009) (internal quotations omitted).
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remedy was to seek certiorari under 28 U.S.C. § 1257.”11); Ward v. Plymale, No. 3:12-6186,
2013 WL 3776609, at *3 (S.D. W. Va. July 17, 2013) (“If Ward seeks to have this district court
review the West Virginia12 Supreme Court of Appeal’s denial of his mandamus request, the
Rooker-Feldman doctrine precludes such review.”); Cherry v. Record Transcript, Inc., No. 8:07CV-565-T-30MAP, 2008 WL 1777745, at *3 (M.D. Fla. Apr. 18, 2008) (“Moreover, to the
extent that Plaintiff is challenging in this Court the Second District’s denial of his petition for
writ of mandamus, . . . the Rooker-Feldman doctrine deprives this Court of subject matter
jurisdiction.”); Oblander v. Hamilton, 90 F. Supp. 2d 1216, 1221 (D. Kan. 2000) (“Having lost
in state district court, and unable to obtain the relief sought from the Kansas13 Supreme Court in
his petition for mandamus, Oblander has turned to the federal district court in the hope of a more
expedient and favorable ruling. This he cannot do.”).
Even if Biddulph were conclusively alive and well today, the Court would not apply it
here, because it is distinguishable on its facts. Unlike the appellant in Biddulph, Plaintiffs had a
reasonable opportunity to raise their federal claim during the state proceedings, which they fully

11

Under 28 U.S.C. § 1257,

[f]inal judgments or decrees rendered by the highest court of a State in which a
decision could be had, may be reviewed by the Supreme Court by writ of
certiorari where the validity of a treaty or statute of the United States is drawn in
question or where the validity of a statute of any State is drawn in question on the
ground of its being repugnant to the Constitution, treaties, or laws of the United
States, or where any title, right, privilege, or immunity is specially set up or
claimed under the Constitution or the treaties or statutes of, or any commission
held or authority exercised under, the United States.
12
In West Virginia, mandamus will not issue “unless three elements coexist – (1) a clear legal
right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the
thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.”
Veltri v. Parker, 750 S.E.2d 116, 121 (W. Va. 2013) (internal quotations omitted).
13
Kansas similarly requires a “clear legal right” before mandamus will lie. Bd. of County
Comm’rs of County of Harvey v. Whiteman, 933 P.2d 771, 774 (Kan. Ct. App. 1997) (internal
quotations omitted).
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litigated before both the circuit court and the Missouri Court of Appeals, Eastern District.
Moreover, the Court of Appeals did not simply hold Plaintiffs failed to show a “clear right”
warranting mandamus; rather, it stated it could not conclude “that any legal authority exists to
require the City or the Board to pay the default judgment entered solely against Officer
Williams.” Banks, 410 S.W.3d at 771 (emphasis added). Even if this finding was obiter dictum,
it is sufficient for implementation of Rooker-Feldman, because it was not a mere “stray remark”
regarding an unpresented issue. Dodson, 601 F.3d at 755.
In sum, the Court concludes exercising jurisdiction in this case would jeopardize the
legitimacy of the underlying state court proceedings.

Proper consideration of federalism

principles form the basis of applying Rooker-Feldman doctrine in this instant suit, Lemonds, 222
F.3d at 495, and the Court therefore dismisses this case with prejudice.
Accordingly,
IT IS HEREBY ORDERED that Defendants Slay, Green, and Jones’ Motion to Dismiss
[ECF No. 13] is GRANTED.
IT IS FURTHER ORDERED that Defendants[ Slay, Gray, Irwin, Battle-Turner, and
Switzer’s] Motion to Dismiss [ECF No. 18] is GRANTED.
IT IS FURTHER ORDERED that all claims against Defendants Francis Slay, Darlene
Green, Tishaura Jones, Richard Gray, Thomas Irwin, Bettye Battle-Turner, and Erwin Switzer
shall be DISMISSED WITH PREJUDICE.
Dated this 25th Day of March, 2014.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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