Banks et al v. Slay et al

Filing 81

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED Plaintiffs' Motion for Summary Judgment is hereby GRANTED in PART and DENIED in part. [ECF No. 58 ]; IT IS FURTHER ORDERED Plaintiffs' judgment against Officer Williams in his official Capacity is a judgment against the City Defendants; IT IS FURTHER ORDERED City of Saint Louis is not required to pay post-judgment interest. [ECF No. 49 -13]; IT IS FURTHER ORDERED a writ of mandamus be directed to Darlene Green, Comptrolle r of the City of Saint Louis, ordering her to pay the Judgment of $1,487,553.49 to Plaintiffs. IT IS FURTHER ORDERED Defendants Bettye Battle-Turner, Richard Gray, Thomas Irwin, Francis G. Slay, and Erwin O. Switzer's Motion for Summary Jud gment [ECF No. 53 ] is DENIED; IT IS FURTHER ORDERED that Defendants Darlene Green, Tishaura O. Jones, and Francis G. Slay's Motion for Summary Judgment [ECF No. 56 ] is DENIED. Signed by District Judge E. Richard Webber on 7/25/2016. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MICHAEL J. BANKS, et al.,

)
)
)
)
)
)
)
)
)

Plaintiffs,
vs.
FRANCIS G. SLAY, et al.,
Defendants.

Case No. 4:13CV02158 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on the parties’ separate Motions for Summary
Judgment. Defendants Francis Slay, an ex-officio member of the Saint Louis Board of Police
Commissioners, Richard Gray, Thomas Irwin, Bettye-Battle Turner, and Erwin Switzer,
(collectively, “Board Defendants”) filed a Motion for Summary Judgment [ECF No. 53];
Defendants Francis Slay, in his official capacity as Mayor of Saint Louis; Tishaura Jones,
Treasurer of the City of Saint Louis, and Darlene Green, Comptroller of the City of Saint Louis
(collectively “City Defendants”); filed a Motion for Summary Judgment [ECF No. 56]; and
Plaintiffs Michael J. Banks (“Banks”) and Antonia Rush-Banks (“Plaintiffs”) also filed a Motion
for Summary Judgment [ECF No. 58].
I. BACKGROUND
The following account of the procedural history of this case is undisputed by the parties.
Plaintiffs are Michael J. Banks ("Banks") and his wife, Antonia Rush-Banks. Former St. Louis
City Police Officer Reginald Williams ("Williams") unlawfully arrested Banks, used false
statements to justify the arrest, displayed a gun against Banks, without cause, and stole $750.00 in
cash from Banks. Williams was convicted in federal court for his felonious acts against Banks, and
1

he was sentenced to serve a seventy-eight month prison term which was affirmed in United States
v. Williams, 177 Fed. Appx. 513 (8th Cir. 2006). Plaintiffs filed a petition in the Circuit Court of
the City of St. Louis on August 23, 2005 styled Michael J. Banks v. Reginald Williams,
et.al.,22052-08860 ("underlying case"). In their 42 U.S.C. § 1983 action in Circuit Court, Plaintiffs
named as defendants Williams, as a police officer in his individual and official capacity, officer
Ryan Cousins, in his personal and official capacity and the St. Louis Board of Police
Commissioners, (“Board Defendants”), Bart Saracino, Michael Quinn, Joann Freeman Morrow
and Chris Goodson in their official capacity. [ECF No. 54-3 at 1]. In response to the lawsuit,
Williams did not file an answer or any other motion. [ECF No. 52 at ¶3]. An Assistant Attorney
General 1 filed an answer to Plaintiffs' petition on behalf of Board Defendants, and on November
15, 2007, filed a motion for summary judgment for the same defendants. Id. at ¶ 4. Rather than
responding to Board Defendants’ motion for summary judgment, Plaintiffs voluntarily dismissed
their petition against Board Defendants on June 16, 2008, without prejudice, leaving defaulted
Williams as a defendant. Id. at ¶5. Thereafter, on August 19, 2008, Plaintiffs filed their First
Amended Complaint naming police officer Williams and police officer Ryan Cousins as
defendants. Id. at ¶6. Plaintiffs’ claims against Cousins were later dismissed by Plaintiffs with
prejudice. [ECF No. 54-2 at 12].
For their third petition, on January 22, 2009, Plaintiffs filed their Second Amended Petition
naming solely police officer Williams as defendant in his personal and official capacity. [ECF No.
52 at ¶ 7]. Summons, accompanied by the Second Amended Petition, were served, by Plaintiffs, on
individual Board Defendants on January 26, 2009, by serving a copy upon a legal assistant for the
Board Defendants, who, it is admitted by the parties, was authorized to receive service of process

1

No useful purpose is served by including the name of the assistant attorney general in this memorandum and opinion;
the name is included in other court documents.

2

for the individual Board Members. Id. at ¶ 9. Again, no responsive pleading was filed on behalf of
Williams in either his individual or official capacity. Id. at ¶10.
On April 3, 2009, a judge for the Circuit Court of the City of St. Louis entered an order,
"Default and Inquiry," setting a hearing on April 27, 2009. Prior to that hearing, Plaintiffs’ counsel
sent a copy of that order to the Assistant Attorney General assigned to the case by e-mail. [ECF
No. 54-5]. On April 27, 2009, a circuit judge conducted a hearing and entered judgment against
Williams in his individual and official capacity in the amount of $1,487,553.49. [ECF Nos. 1-6, 52
at ¶ 15]. No attorney entered an appearance at the default hearing for either Williams or Board
Defendants, notwithstanding the presence at the hearing of a separate Assistant Attorney General
who remained silent and took no action on behalf of Board Defendants. [ECF No. 52 at ¶14]. The
Missouri Attorney General was tasked with the duty to represent Board Defendants.
Plaintiffs now seek to enforce the judgment entered by default, against the City Defendants
through a writ of mandamus. The Board Defendants represent the Saint Louis Board of Police
Commissioners (“Police Board”), the entity for which Officer Williams worked. The City
Defendants represent the City of Saint Louis, which, the parties agree, is the successor-in-interest
in liability to the Police Board, based on a city ordinance, passed since the conclusion of
underlying case. Id. at ¶¶ 16, 17.
Plaintiffs now seek to enforce the default judgment entered against Williams in his official
capacity against the City Defendants, the successors in interest to the Board Defendants, who have
refused to pay the judgment.
II. STANDARD OF REVIEW
Summary judgment is proper only if there exists “no genuine issue as to any material fact”
and the moving party is entitled to judgment as a matter of law. Fed. R. of Civ. Proc. 56(c); Bores

3

v. Domino’s Pizza, LLC, 530 F3d 671, 674 (8th Cir. 2008). The burden of proof is on the party
moving for summary judgment, and all facts and reasonable inferences are to be viewed in the
light most-favorable to the non-moving party. Duluth, Winnipeg and Pacific Ry. Co. v. City of Orr,
529 F.3d 794, 797 (8th Cir. 2008). “Although the moving party has the burden of demonstrating
the absence of genuine issues of material fact, ‘the nonmoving party may not rest upon mere
denials or allegations, but must instead set forth specific facts sufficient to raise a genuine issue for
trial.’” Burchett v. Target Corp., 340 F.3d 510, 516 (8th Cir. 2003) quoting Rose-Maston v. NME
Hosps., Inc., 133 F.3d 1104, 1107 (8th Cir. 1998).
Material facts are determined by substantive law, and factual disputes which are irrelevant
or collateral do not preclude Summary Judgement. Anderson v. Liberty Lobby, Inc. 477 U.S. 242,
248 (1986). A dispute is a genuine issue, where the evidence is such a reasonable jury could return
a verdict for the nonmoving party. Id. at 248. If the non-moving 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 Corp. v. Catrett, 477 U.S. 317, 322 (1986).
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 nonmoving party must then set forth affirmative evidence and specific facts that demonstrate a
genuine dispute on that issue. Anderson, 477 U.S. at 250. 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).

4

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.
III. DISCUSSION
Plaintiffs argue summary judgment is appropriate because they hold a clear and valid
judgment, entitling them to a writ of mandamus, ordering the City Comptroller to pay the
judgment along with post-judgment interest of nine percent. [ECF No. 59]. City Defendants and
Board Defendants argue Plaintiffs are not entitled to summary judgment as a matter of law,
because their judgment is not valid, since Defendants in the underlying case did not receive proper
notice, and therefore, Plaintiffs do not have a clear right to relief entitling them to a writ of
mandamus. Further, Defendants argue post-judgment interest is not appropriate because interest
was not awarded in the initial judgment. [ECF No. 53, 56].
A. Notice
The primary issue in this case is whether Board Defendants had proper notice in the
underlying case, to justify payment by the City of St. Louis for the judgment. The arguments
regarding notice can be divided into two categories. First, Defendants argue Plaintiffs’ course of
conduct, in the underlying case, did not provide the notice required to establish an official capacity
claim against the entity under Brandon v. Holt, 469 U.S. 464 (1985) and its progeny. Next,
Defendants argue the holdings in Brandon and its progeny do not apply to the present case,
because the present case is outside the ambit of the holding in Brandon.

5

“[The Supreme Court has] plainly implied 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.” Brandon, 469 U.S. at 471-2; Kentucky v.
Graham, 473 U.S. 159, 166 (1985) (“[a]s long as the government entity receives notice and an
opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as
a suit against the entity.”).Where a plaintiff sues a police officer in his official capacity, the
plaintiff is “pleading an action against an entity of which the officer is an agent.” Sow v. Fortville
Police Dep't, 636 F.3d 293, 300 (7th Cir. 2011). If Defendants had proper notice of their case,
judgment against Williams is a judgment against City Defendants.
1.

Plaintiffs’ course of conduct in the underlying case and its effect on notice

The City Defendants and the Board Defendants in their current summary judgment motions
argue Plaintiffs’ course of conduct in the underlying case, after the Board Defendants filed for
summary judgment, prevented the Board Defendants from receiving proper notice of the action
against them as required in Brandon. Plaintiffs argue Officer Williams was properly served in his
official capacity, the Board Defendants were properly served with process and all received the due
notice for the default judgment hearing. Arguments surrounding Plaintiffs’ course of conduct can
be divided into four issues: (1) did Plaintiffs’ filings after receiving the Board Defendants’
summary judgment motion prevent Defendants from receiving proper notice; (2) whether
Plaintiffs, in failing to include the service information on the petition for the initial Board
Defendants, prevented proper notice; (3) whether Plaintiffs’ counsel’s e-mail caused any notice
deficiency; and (4) did the City Defendants receive proper notice as an individual group of
defendants.

6

i. Plaintiffs’ filings after the filing of the summary judgment motion in the initial
petition
Defendants argue Plaintiffs’ conduct, after the Board Defendants filed their summary
judgment motion on the initial petition in the underlying suit, so obfuscated the proceedings, it
prevented the Board Defendants from realizing proper notice had been served. Defendants also
argue the summary judgment motion and the voluntary dismissal, together, had the effect of
dismissing the claims against Officer Williams in his official capacity.
a. Obfuscation by conduct
Defendants argue Plaintiffs’ conduct, after Defendants filed their Motion for Summary
Judgment on behalf of the individual board defendants, prevented the Board Defendants from
gaining proper notice of the action. Defendants argue Plaintiffs’ conduct seems to have been
calculated to obfuscate the proceedings by: not similarly naming the parties in the second amended
petition since they were identified in the initial petition, twice requesting an extension, and twice
amending the petition. Defendants argue because of this obfuscation, they were so distanced from
the initial petition, they were prevented from receiving proper notice. However, a plaintiff is the
master of his own complaint, and is entitled to name the parties he desires. Holmes Grp., Inc. v.
Vornado Air Circulation Sys., Inc., 535 U.S. 826, 832 (2002). Defendants do not cite any
precedent to support the suggestion Plaintiffs’ extensions and amended petitions prevented notice,
and extensions and amended complaints are hardly uncommon. It is, however, Plaintiffs’ burden to
show notice to Defendants was legally sufficient. Morris v. Wallach, 440 S.W.3d 571, 576 (Mo.
Ct. App. 2014), reh'g and/or transfer denied (Sept. 22, 2014).
Defendants have taken care to emphasize all of the ways in which the procedures in the
state case were not straight forward, or commonly recognized in advocacy practice. The Court will
address whether the Plaintiffs acted properly under the law.
7

Plaintiffs dismissed the initial petition and the first amended petition without prejudice,
allowing them to refile another petition. [ECF No. 52 ¶ 5]. While the second amended petition only
named Officer Williams as a defendant, Plaintiffs properly served the second amended petition on
the individual members of the Board, although individual members of the Board were not named
defendants. Id. at ¶ 7. The petition, on its face, indicated it was against Officer Williams in his
official capacity. [ECF No. 1-1].
Plaintiffs also argue, by properly serving the Board Defendants the second amended
petition, if there were problems with notice in the prior petitions, any deficiencies were cured when
the underlying Board Defendants were properly served the second amended petition. It is
undisputed Plaintiffs properly served the Board Defendants the seconded amended petition. The
Court rejects Defendants’ argument Plaintiffs’ conduct was calculated to obfuscate the proceedings
and prevent Defendants from achieving proper notice.
b. Effect of Plaintiffs’ conduct on voluntarily dismissal of the official capacity
claim against Officer Williams
The Court next addresses Defendants’ argument concerning Plaintiffs’ dismissal of the case
against Officer Williams in his official capacity, when Plaintiffs responded to the summary
judgment motion by voluntarily dismissing the initial petition, without prejudice, against the Board
Defendants. Official capacity suits are the equivalent of a suit against the entity employing the
official, and claims against officials in their official capacity are properly dismissed as redundant
to the claim against the entity. Artis v. Francis Howell N. Band Booster Ass’n, Inc. 161 F. 3d 1178,
1182 (8th Cir. 1998); see also Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir.
2010). Courts disfavor motions amending the pleadings only in response to avoid summary
judgment. Dueker v. Gill, 175 S.W.3d 662, 672 (Mo. Ct. App. 2005). Nevertheless, Missouri
courts have also found it would be more unfair to have inequitable rulings on partial summary
8

judgment motions, than to allow plaintiffs to voluntarily dismiss their case to avoid partial
summary judgment. State ex rel. Fortner v. Rolf, 183 S.W.3d 249, 255 (Mo. Ct. App. 2005).
The Court generally agrees dismissal of a claim is not the favored response to a motion for
summary judgment. Here, the Circuit Court permitted the dismissal of Plaintiffs’ claims in their
original petition, without prejudice, without responding to the Board Defendants’ motion for
summary judgment. That allowed Plaintiffs to restate their claims and caused the Board
Defendants additional costs and possibly prevented the Board Defendants from getting judgment
against Plaintiffs at the early stage of the judicial proceeding. The circuit court stands in no
violation of state or federal law for its actions. What followed was elimination of duplicate claims
against the Board Defendants and an eventual claim against the city in the present case for the
actions of the police officer. Contrary to Defendants’ arguments, Plaintiffs did not “effectively
dismiss,” with prejudice, their claims against Officer Williams in his official capacity and
consequentially the claims against Defendants.
ii.

Service of Plaintiffs’ second amended petition in the underlying case

Defendants also argue Plaintiffs failed to properly serve the underlying Board Defendants
because the second amended petition did not contain names and service information for the
individual members of the Board of Police Commissioners, thus, depriving them of the proper
notice required under Brandon.
“Service of process refers to a formal delivery of documents that is legally sufficient to
charge the defendant with notice of a pending action.” Volkswagenwerk Aktiengesellschaft v.
Schlunk, 486 U.S. 694, 700 (1988). Therefore, where service is improper, courts lack jurisdiction.
Printed Media Servs., Inc. v. Solna Web, Inc., 11 F.3d 838, 843 (8th Cir. 1993). “Insufficient
service is a proper basis for voiding an entry of default sua sponte because it deprives a court of

9

proper jurisdiction.” Cambria Co., LLC v. Pental Granite & Marble, Inc., CIV. 12–228, 2013 WL
1249216, at *9 (D. Minn. Mar. 27, 2013) (citing Printed Media Services, 11 F.3d at 843). “In
regard to notice, the general rule is that notice to, or knowledge of, an agent while acting within the
scope of his authority and with regard to any business over which his authority reaches, is notice
to, or knowledge of, the principal.” Fitzgerald v. State ex rel. Adamson, 987 S.W.2d 534, 536 (Mo.
Ct. App. 1999).
It is undisputed Plaintiffs properly served the initial petition and the second amended
petition on the individual members of the Police Board. [ECF No. 52 ¶ 1-7]. Defendants argue not
providing service information in the petition, and not naming Defendants, with their individual
names, on the petition, prevented the underlying Board Defendants from realizing proper notice
from the second amended petition. The Court cannot find any authority, nor do Defendants cite
any authority, which requires Plaintiffs to provide this information in the petition. As noted, Board
Defendants stipulated they were served with the second amended petition. The initial petition and
the second amended petition clearly state a claim was being made against Officer Williams in his
official capacity, giving Defendants required notice.
Plaintiffs took the necessary steps to serve the Board Defendants in the circuit court case.
Defendants’ contention Plaintiffs were legally required to specifically provide the Board
Defendants’ service information and names of Board Defendants in the second amended petition is
without authority. The second amended petition was properly served, and failure to include the
proper service information and names of Board Defendants does not nullify the judgment.
iii. Plaintiffs’ counsel’s e-mail to underlying Defendants’ counsel in regards to the
Default Hearing
Defendants also argue Plaintiffs’ counsel’s e-mail to the Assistant Attorney General,
Defendants’ former counsel, had the effect of negating notice. The argument is there was no
10

notice, but if there was it was negated. Plaintiffs’ counsel e-mailed the Assistant Attorney General,
with a subject line of the cause number of the underlying case, informing him of the “default and
inquiry,” 2 attaching the “default and inquiry,” and thanking him for his cooperation in the prior
matter. [ECF No. 1-5]. Defendants argue this e-mail prevented Defendants from realizing proper
notice, because this is not the type of communication adversarial lawyers send to each other.
The Assistant Attorney General never entered an appearance for Officer Williams in his
official capacity, notwithstanding he received notice of the default hearing. Service was proper in
this case, and the addition of this e-mail message does not detract from the legality of the
stipulated service of process. The following is the text from the body of the e-mail:
“Attached is a copy of a Default and Inquiry in the above-referenced mater, which
is set for April, 27, 2009 at 9:00 a.m. in Division 2 of the St. Louis City Circuit
Court. This is being provided to you as a courtesy, and you are invited to attend.
We also want to thank you for your cooperation in the prior matter. Should you
have any questions, please do not hesitate to contact me.”
[ECF No. 1-5]. The only manner in which the Court could interpret the e-mail as being deceitful, is
to interpret the phrase “prior matter,” to indicate this is a new case. However, such an
interpretation is unreasonable because the cause number is in the subject line, and the attached
default and inquiry, which clearly lists the party as Officer Williams in his individual and official
capacities.
This e-mail was sent in addition to proper notification, was not deceitful or confusing, and
contained the notice as an attachment. This e-mail did not negate any notice provided to
Defendants, and Defendants had proper notice of the default hearing. Nothing the Court has stated

2

The Court has done a search for the definition of “default and inquiry” and it appears the language is commonly used
in the circuit court. The “default and inquiry” served as notice of default sent to the Board Defendants, providing
notice for the determination of damages. State ex rel. Aubuchon v. Jones, 389 S.W.2d 854, 859 (Mo. Ct. App. 1965);
Mo. Rev. Stat. §511.110.

11

in regard to the e-mail should be interpreted as an option for service of process or an enhancement
to service of process.
iv. The City Defendants’ notice requirement as an individual group of defendants
The City Defendants independently argue they never received proper notice because they
were not properly served with any petition in the underlying case, as the Mayor of the City of Saint
Louis was only served in his capacity as a member of the Police Board, and never in his role as the
Mayor of the City of Saint Louis. The City Defendants contend because they were not served, it
does not meet the notice requirement in Brandon.
The City Defendants were not served in the underlying case because they were not
defendants in that case. City Defendants are only parties in this action because they are a
successor-in-interest to the Board Defendants. Courts have found that corporations acquiring an
interest in property are bound to subsequent or prior judgments against that property, despite a lack
of knowledge. Golden State Bottling Co. v. N.L.R.B., 414 U.S. 168, 179 (1973). While, the Court
recognizes the City Defendants are not successor corporations, the Court uses this analyses as
persuasive authority the City of Saint Louis is similarly bound. Further, City Defendants, in the
statement of uncontroverted facts, admit they are a successor-in-interest to the initial defendants,
through Saint Louis City Ordinance 69489. [ECF No. 52 ¶ 17, No. 52-5].
The City Defendants are correct in finding they were never served in the underlying case.
However, the City Defendants were not the party-in-interest in the underlying case, and are merely
successors-in-interest to the initial judgment. Therefore, it is not relevant the City Defendants were
not properly served, because the proper notice inquiry is only pertinent to the defendants in the
underlying case.

12

v. Conclusion regarding Plaintiffs’ course of conduct
Plaintiffs’ course of conduct did not deprive Defendants of the notice required under
Brandon. Further, Plaintiffs’ filings did not have the effect of dismissing the claim. Plaintiffs
properly served Defendants the second amended petition, thus, providing proper notice; their other
procedural filings did nothing to nullify this notice. Plaintiffs’ counsel’s e-mail did not abrogate
the notice of default. While Board Defendants argue they had no notice of the hearing, an attorney
from the governmental entity representing the underlying Board Defendants attended the hearing,
and they were served with the petition and notice of the default. They also received notice to their
counsel by Plaintiffs’ counsel, and on the front page of the seconded amended petition, Plaintiffs
stated they were bringing an official capacity claim. Finally, while the City Defendants were not
served in the underlying case, they are the successors-in-liability to the Board Defendants.
Plaintiffs’ course of conduct did not prevent the defendants in the underlying case from receiving
proper notice.
2. The applicability of Brandon v. Holt and its progeny
Defendants also argue this case is outside of the ambit of the holdings of Brandon v. Holt,
469 U.S. 464 (1985), and its progeny. That case held a judgment against an official in his official
capacity imposes liability on the entity. Defendants argue this case is not within the ambit of
Brandon, because: the pleadings, in Brandon, were amended to conform to offers of proof and in
summary judgment motions, Brandon plaintiffs’ claim was against the City of Memphis and the
primary defendant had policy-making authority, and Plaintiffs did not name the individual board
members as defendants.
A closer look at Brandon v. Holt, 469 U.S. 464 (1985) is prudent. There, petitioners
brought suit against Memphis police officer Robert J. Allen, who had a history of violent and

13

irregular behavior well known to the Memphis Police Department. E. Winslow Chapman was
Director of the Memphis Police Department when Allen attacked petitioners, who subsequently
sought damages against Allen and Chapman. When Allen did not defend the action, default
judgment was entered against him for compensatory and punitive damages. The award against
Chapman was limited to compensatory damages. The district court found liability of Chapman was
in his official capacity. The district court summarized, "This is a civil action against the Honorable
E. Winslow Chapman in his official capacity as director of the Memphis Police Department and
former Memphis Police Officer Robert J. Allen.” Id. at 468.
Justice Stevens, writing for the Supreme Court, noted the petition in Brandon was filed
before Monell v. New York City Department of Social Services, 436 U.S. 658, which overruled
Monroe v. Pape, 365 U.S. 167 (1961) and held “this explains why the city of Memphis was not
named as a defendant in this case. The timing of the complaint may also explain why petitioners
did not expressly allege at the outset of the litigation that they were suing Chapman in his official
capacity as Director of Police of the Memphis Police Department." Brandon, 469 U.S. at 469.
Justice Stevens stated, "The course of the proceedings after Monell was decided did, however,
make it abundantly clear that the action against Chapman was in his official capacity and only in
that capacity.” Id. at 469. Justice Stevens stated, "Given this state of the record, even at this late
stage of the proceedings, petitioners are allowed to amend their proceedings to conform to the
proof and to the District Court's findings of facts." Id. at 471. He concluded, “it is appropriate for
us to proceed to decide the legal issues without first insisting that such a formal amendment be
filed; this is because we regard the record as plainly identifying petitioners' claim for damages as
one that is asserted against the office of ‘Director of Police, City of Memphis,’ rather than against
the particular individual who occupied that office when the claim arose. Id.

14

The plain language of the opinion leaves no doubt, "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." Id. at 471-472.In a footnote
concerning the opportunity to respond, this very important language is cited: "Here, the Police
Department and the City received notice; no claim is made that the Director of Police and the city
were without due notice of the proceedings." Id. at 472-473, n 20.
The following language from Brandon concludes, "In Monell, the City of New York was
not itself expressly named as a defendant. The suit was nominally against the city's Department of
Social Services, but that Department had no greater separate identity from the city than did the
Director of the Department when he was acting in his official capacity. For the purpose of
evaluating the city's potential liability under § 1983, our opinion clearly equated the actions of the
Director of the Department in his official capacity with the actions of the city itself." Id. at 472.
i. Defendants’ claim of Plaintiffs’ deficient pleadings
The Board Defendants argue this case is outside of the ambit of the Brandon holding
because Plaintiffs did not clarify their pleadings. The Brandon plaintiffs were allowed to amend
their pleadings to conform to offers of proof, because, while they did not expressly allege they
were suing the director in his official capacity, the course of proceedings made it clear the action
was against him in his official capacity. Brandon 469 U.S. at 471. Further, in response to the
defendants’ motion for summary judgment, the plaintiffs clarified they intended to make a claim
against the City of Memphis. Id. at 471.
Here, Defendants argue this lack of clarification prevents the Court from applying
Brandon’s holding because Plaintiffs voluntarily dismissed the initial petition and obfuscated the
proceedings as opposed to clarifying them. While Defendants are correct, Plaintiffs dismissed

15

Board Defendants upon their filing of a summary judgment motion, Plaintiffs never dismissed
Officer Williams; Plaintiffs voluntarily dismissed all of the parties who had filed summary
judgment against them. The initial petition was properly dismissed, without prejudice.
Plaintiffs have always maintained a claim against Officer Williams in his official capacity,
so there can be no doubt about the identity of the real party-in-interest. Defendants do not point to
a single attempt they made to seek clarification, after being served with the second amended
petition. Finally, the situation of the Brandon plaintiffs no longer exists because the holdings in
Monell 3 and Brandon make clear, a claim against a municipal entity can be made by suing an
official in their official capacity. Plaintiffs, like the plaintiffs in Brandon, were not actively trying
to conceal their intent, and their intent did not need to be clarified because of the holding in
Brandon.
Therefore, the differences between the Brandon plaintiffs and the present Plaintiffs’ efforts
to clarify their pleadings do not prevent the Court from applying the holding of Brandon. Here,
Plaintiffs have received a judgment against a public servant in his official capacity, public officials
were provided notice and the opportunity to respond, and therefore, it is appropriate to impose
liability on the entity the official represents.
ii. Officer Williams lack of policy making authority
Defendants also seek to distinguish Brandon, because the primary defendant in Brandon
was the director of police, an official with policy making authority, and here, Officer Williams had
no policy making authority. Defendants argue because this important issue has not been considered
by a court on the merits, Plaintiffs’ judgment against the City of St. Louis is inappropriate. [ECF
No. 57 at 4]. Plaintiffs contend the judgment was against Officer Williams, §1983 suits are
3

Monell held that local government officials sued in their official capacity are “persons” under §1983 in cases in
which the local official violated an official act policy or custom. Monell v. Dep't of Soc. Servs. of City of New York,
436 U.S. 658, 690 (1978).

16

assumed to be against officials in their official capacity, and the Court should not give credence to
a mistaken understanding of the law by Defendants.
In a §1983 action, where a plaintiff’s complaint is silent about whether she is suing an
individual official in their official or individual capacity, the complaint is assumed to be an official
capacity claim. Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir. 1995); Murphy v. State
of Ark., 127 F.3d 750, 755 (8th Cir. 1997). “The real party in interest in an official capacity suit is
the State.” Andrus ex rel. Andrus v. Arkansas, 197 F.3d 953, 955 (8th Cir. 1999) citing Hafer v.
Melo, 502 U.S. 21, 25 (1991).
Plaintiffs also argue the underlying judgment is immune from Defendants’ collateral
attacks, and Defendants’ Motions for Summary Judgment should be denied on this alone. “The law
is clear that a court's order or judgment is immune from collateral attack if the court had
jurisdiction of the parties and of the subject matter, and had the jurisdiction to enter the particular
order entered.” Todd v. Garrison, 417 F. Supp. 97, 101 (E.D. Mo. 1976), aff'd, 553 F.2d 103 (8th
Cir. 1977) (citing Pearson v. Pearson, 369 S.W.2d 272 (Mo.App.1963)); Rodewald v. Rodewald,
297 S.W.2d 536 (Mo.1957).
“If a judgment is to be impeached for infirmities not appearing upon the face of
the record, it must be reached by some direct proceeding, and the Supreme Court
of Missouri has held that an assault in equity upon a judgment or decree procured
by fraud is a direct attack, but as we are of the view that this action should be
construed to be an action at law this rule cannot be invoked. If, however, the
judgment is void upon its face, then it may be attacked collaterally in an action at
law.”
State of Missouri ex rel. & to Use of Stormfeltz v. Title Guar. & Sur. Co., 72 F.2d 595, 598 (8th
Cir. 1934).
Defendants make a merit-based argument in arguing this Court should address Officer
Williams’ lack of policy-making authority. This argument on Officer Williams’ lack of policy

17

making authority is an improper collateral attack because it attacks a possible error in legal
judgment, and does not relate to notice. This is a prohibited merit-based argument, not an attack on
jurisdiction, and therefore, Defendants will not prevail on this argument.
Defendants also argue Officer Williams’s lack of policy making authority prevented
Defendants from receiving proper notice, and this is not a prohibited collateral attack. There are
multiple methods for a government entity to become liable which do not require the official to
have policy making authority. Connick v. Thompson, 563 U.S. 51, 60-61 (2011) (finding plaintiffs
can prove liability under §1983 by showing an action pursuant to a decision of government's
lawmakers, the acts of its policymaking officials, or a practice so widespread as to practically have
the force of law caused their injury). Defendants do not cite any authority which supports their
argument notice was prevented by not naming a policy making official. For these reasons, the
Court disagrees with Defendants’ contentions and finding Defendants are liable, notwithstanding
Officer Williams is not a policy making official.
iii. Defendants’ allege Plaintiffs, in not naming the individual members of the Police
Board in their Second Amended Petition, prevented Defendants from receiving
proper notice
Defendants argue Plaintiffs’ failure to name the individual members of the Police Board as
defendants prevented Plaintiffs from receiving proper notice of the action against them. Plaintiffs
contend Best v. Schoemehl, 652 S.W.2d 740, 741-742 (Mo. Ct. App. 1983), has no application to
this case and is inapplicable after the Supreme Court’s holdings in Brandon and Graham. [ECF
No. 64 at 10-11].
a. Defendants aver individual members should have been named in the second
amended complaint because of the holdings in Brandon and Monell
Defendants argue this case is outside the holding in Brandon because Monell is now clearly
established law. Therefore, Plaintiffs should have named the Police Board Commissioners as
18

defendants. Plaintiffs point out the multiple cases since Brandon, holding a case against an official
in his official capacity is an action against the entity itself. [ECF No. 59 at 6-9]. Defendants assert
none of the cases Plaintiffs cited involve the collection of judgments or the obfuscation which has
occurred in this case.
Official capacity suits represent an alternative way of pleading an action against an entity
of which the officer is an agent. Monell, 436 U.S. at 691. “As a judgment against a public servant
in his individual capacity exposes him or her to compensatory and punitive damages, we have
repeatedly stated that section 1983 litigants wishing to sue government agents in both capacities
should simply use the following language: ‘Plaintiff sues each and all defendants in both their
individual and official capacities.’” Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989) (quoting
Rollins by Agosta v. Farmer, 731 F.2d 533, 536 n. 3 (8th Cir.1984)); see also Baker v. Chisom,
501 F.3d 920, 924 (8th Cir. 2007).
Defendants do not challenge the holdings in Monell or Brandon, but argue this case is
outside of the ambit of such holdings because the underlying Board Defendants were not named in
the underlying case. Brandon was filed before the Supreme Court’s decision in Monell, and the
Supreme Court recognized this as a factor as to why the Brandon plaintiffs had difficulty in
determining the proper party to be named in the suit. Brandon, 469 U.S. at 470. In Brandon, the
Court determined it was an action against the City of Memphis, despite the complaint being
improperly filed. Further, courts have held pleading an action against an officer in their official
capacity is acceptable even if the governmental entity was not named. Sow v. Fortville Police
Dep't, 636 F.3d 293, 300 (7th Cir. 2011).
The Supreme Court has considered the issue of claimed ambiguous pleadings. The Hafer
Court’s willingness to permit the suit to go forward without specific pleading allegations suggests

19

rigid pleading formulas are not required. 1 Section 1983 Litigation in State Courts § 12:5; Hafer v.
Melo, 502 U.S. 21, 24 n* (1991).
Defendants argue the Court should institute a rule when a Plaintiff sues a person in their
official capacity, they must also sue the entity itself. However, there is no precedent to support this
rule. The Court rejects Defendants’ argument in light of the presumption a §1983 action against an
individual is presumed to be against someone in their official capacity, and because the Supreme
Court has not instituted such a requirement, notwithstanding multiple opportunities to do so.
Plaintiffs’ second amended petition clearly contains the language from Nix, intended to
provide notice to the Board Defendants, and was properly served to the Board Defendants. The
petition states it was an official capacity claim. A ruling concluding Defendants did not have
proper notice is contrary to law and would allow Defendants to unjustly avoid their liability.
b. Defendants’ claim individual members of the Police Board should have been
named pursuant to Best v. Schoemehl
The Board Defendants in their Motion for Summary Judgment argue the second amended
petition does not follow the holding of Best v. Schoemehl, a Missouri case holding the Police
Board can only be sued by suing the individual members of the Board in their official capacities.
Best v. Schoemehl, 652 S.W.2d 740, 741-742 (Mo. Ct. App. 1983). Plaintiffs argue Best is not
applicable to the present case because Best is not a §1983 action, and does not involve a suit
against a police officer in her official capacity.
In Best, the plaintiff brought an action against the individual members of the Police Board
in their official capacities. The action was brought against the City of Saint Louis, and others, for
injuries sustained in a vehicular collision allegedly caused by a negligent unknown police officer.
Id. at 741-742. The appellate court reversed the circuit court and held the only method to bring

20

claims against the Police Board was to bring an official capacity suit against each of the individual
members. Id. at 741-742. The court found:
“It has long been established that the St. Louis Board of Police Commissioners
may only be sued by bringing an action against the individual members of the
Board in their official capacity. An action against the ‘St. Louis Board of Police
Commissioners’ in that name alone does not lie. American Fire Alarm Co. v.
Board of Police Commissioners, 285 Mo. 581, 227 S.W. 114 (Mo.1920).
Here, the individuals comprising the Board of Police Commissioners have been
named as defendants in their official capacity. This is not an attempt to hold the
Commissioners individually liable, but is the only method to properly bring the
St. Louis Board of Police Commissioners before the Court.”
Id. at 742. The court in Best cites American Fire Alarm Co. v. Board of Police, to support a
plaintiff’s recourse against the Police Board is achieved through naming the individual members of
the Police Board, when the real party in the complaint was the board itself. Id. However, Monell,
Brandon, and Graham were decided after Best. Now, the police board may become the party-ininterest without being named itself, or without the individual members of the Police Board being
named. Johnson v. Bd. of Police Comm'rs, 370 F. Supp. 2d 892, 898 (E.D. Mo. 2005) (finding
claims against the Police Board and a Police Commander in her official capacity were duplicitous
claims, but that alone did not require dismissal); see also Beene v. City of St. Louis, Mo., No.
4:09CV0651 TCM, 2009 WL 5103268, at *3 (E.D. Mo. Dec. 17, 2009) (determining arguments of
police officials were the same as the arguments of the board members).
However, the Eighth Circuit has cited Best, to support the proposition, the Police Board
must be sued by suing its individual members. Edwards v. Baer, 863 F.2d 606, 609 (8th Cir.
1988). The case comes after the decisions of Brandon and Graham. The Court will address this
case, even though the parties did not.
“The St. Louis Board of Police Commissioners is not a suable entity. ‘Jurisdiction
can only be obtained by suing its individual members.’ Lawrence v. Board of
Police Comm'rs, 604 F.Supp. 1229, 1232 (E.D.Mo.1985). See also Best v.
Schoemehl, 652 S.W.2d 740, 742 (Mo.Ct.App.1983) (“An action against the ‘St.
21

Louis Board of Police Commissioners' in that name alone does not lie.”). The
district court therefore properly dismissed plaintiff's cause of action as against the
“St. Louis Board of Police Commissioners.”
Baer, 863 F.2d at 609. In Baer, plaintiff brought an action against the Police Board and the
individual officers. The Eighth Circuit cited Best to support the concept suits cannot be brought
against the Police Board, as an entity without naming the individual members. It did not address
the issue of official liability through an officer. Further, Lawrence, which the Eighth Circuit also
cites for support, found a person cannot sue the Police Board as a separate entity, but must sue its
individual members. Lawrence, 604 F.Supp. at 1232. There is nothing to suggest the Eighth Circuit
intended to make a determinative ruling the Police Board may only be sued by suing the individual
members. It stressed the Police Board, by itself, is not a suable entity. Neither Best nor Baer are
authority the Police Board may not be sued by naming a police officer in his official capacity
without naming the individual members of the Police Board.
iv. Conclusion on the scope of the Brandon v. Holt holding
The Court has considered multiple arguments from Defendants Brandon v. Holt does not
apply in this case. The Court determined, although the Brandon pleadings were clarified in
summary judgment and the petition was amended to conform to the offers of proof, it does not
prevent the holding of Brandon from applying in this case. Further, the Court found it was not a
requirement for Officer Williams to be a policy-making official; his lack of policy making
authority did not prevent proper notice, and other merit-based arguments on this topic would be a
collateral attack. Finally, the Court found the judgment was appropriate without individual
members of the Police Commissioner Board being named as individual defendants in the Second
Amended Complaint. The Court found service of process was lawful to all of the individual board
members under the unique facts of this case.

22

B. Writ of Mandamus
Plaintiffs argue they are entitled to a writ of mandamus to enforce their judgment, which
the City of Saint Louis refuses to pay. [ECF No. 59 at 11]. Defendants argue Plaintiffs are not
entitled to a writ of mandamus because Plaintiffs do not have a clear, unequivocal right to relief
due to the many problems with notice in the underlying judgment. [ECF Nos. 54 at 9-10, 62 at 910, 67 at 4-5]. Further, Board Defendants specifically argue Plaintiffs are no longer requesting a
writ of mandamus against the Board Defendants on their summary judgment motion, and as such
these claims should be dismissed as moot. [ECF No. 62 at 9].
Under Federal Rule of Civil Procedure Rule 69, a money judgment is enforced by writ of
execution, and the procedure on execution must be in accord of the state where the court is
located. 4 Mandamus is the appropriate procedure to seek enforcement of a judgment debt from a
public entity. State ex rel. Hermitage R-IV Sch. Dist. v. Hickory Cty. R-I Sch. Dist., 558 S.W.2d
667, 669 (Mo. 1977).
Under Missouri law, a writ of mandamus may enforce a legal right which has already been
established. State ex rel. Brentwood Sch. Dist. v. State Tax Comm'n, 589 S.W.2d 613, 614 (Mo.
1979). Writs of mandamus are not to be utilized to create new rights, but only to establish or
enforce a right which already exists. St. Louis Police Officers' Ass'n v. Sayad, 685 S.W.2d 913, 916
(Mo. Ct. App. 1984). “The purpose of the extraordinary writ of mandamus is to compel the
performance of a ministerial duty that one charged with the duty has refused to perform.” Furlong
Companies, Inc. v. City of Kansas City, 189 S.W.3d 157, 165 (Mo. 2006). “A litigant asking relief
by mandamus must allege and prove that he has a clear, unequivocal, specific right to a thing
claimed. He must show himself possessed of a clear and legal right to the remedy.” Id. at 166.

4

Since Plaintiffs seek a money judgment enforced by a writ of execution, the Court will apply Missouri law on the
proper procedure for an execution of the judgment.

23

Defendants also highlight Plaintiffs sought nearly identical relief in the Missouri courts and
were denied. In Banks v. Slay, 410 S.W.3d 767 (Mo. Ct. App. 2013), the Missouri Court of
Appeals denied the same relief Plaintiffs requested be entered by a writ of mandamus. The
Missouri Court of Appeals determined Plaintiffs were not entitled to a writ of mandamus because
they did not have a clear and unequivocal right to their judgment, because Defendants were not
provided sufficient notice under Brandon; the State Court found Brandon was distinguishable
because the Brandon plaintiffs brought claims against the police director, where the underlying
case only made allegations based on Officer Williams’s individual actions; there was no discussion
of qualified immunity; and finally, the state court found, by failing to name the individual Police
Board members as named defendants, it prevented the parties from receiving proper notice. The
Missouri Court of Appeals found these distinctions prevented the type of proper notice as required
in Brandon. Id. at 769-771. The Eighth Circuit determined this Court maintains subject matter
jurisdiction over this case because Plaintiffs are not seeking to overturn an injurious-state
judgment, nor are there pending proceedings in state court. Banks v. Slay, 789 F.3d 919, 923 (8th
Cir. 2015).
For the Court to enter a writ of mandamus against Defendants, Plaintiffs need to establish a
clear and unequivocal right for relief. Plaintiffs must also prove the payment of debt is a
ministerial duty Defendants are refusing to pay, which Defendants do not dispute. Defendants
argue the Court should not enter a writ of mandamus, because Defendants lacked notice of the
default judgment and the Missouri Court of Appeals, when faced with the same facts, did not grant
relief. The Court has already conclusively concluded Plaintiffs provided proper and due legal
notice to Defendants, supra, and the Court need not repeat its findings, here. Further, the Court has
already addressed each argument presented by Defendants, which often mirrored the Missouri

24

Court of Appeals opinion, and the Court has rejected them, in finding the Board Defendants had
notice. Plaintiffs have shown they have a clear and unequivocal right to relief. Plaintiffs have
established they have a valid state court judgment, which the Defendants refuse to pay. Therefore,
Plaintiffs are entitled to a writ of mandamus enforcing said judgment, against the City Defendants.
The Board Defendants assert Plaintiffs do not request a writ of mandamus against the
Board Defendants because Plaintiffs, in their summary judgment motion, only requested a writ of
mandamus against City Defendants. 5 As the parties have now agreed, because the City Defendants
are the successors-in-interest to the Board Defendants, it is no longer appropriate for a writ of
mandamus to be entered against the Board Defendants. Therefore, the Court will deny the motion
for Summary Judgment as moot as it relates to the Board Defendants, denying any writ of
mandamus as to them, specifically. The Court will issue a writ of mandamus against the City
Defendants.
C. Post-Judgment Interest
Plaintiffs also request post-judgment interest on the underlying judgment, asserting they
have a non-tort judgment and interest is required at the statutory rate of nine percent per year.
[ECF No. 75 at 7-8]. Defendants disagree, and argue interest is not payable unless it is included in
the judgment, and the underlying judgment does not provide for interest. Further, Defendants
argue even if the Court wanted to impose interest, it should provide interest at the statutory rate for
tort actions which is the federal rate plus five percent per annum. [ECF Nos. 67 at 5, 62 at 9].
The original underlying judgment did not contain an award of interest, nor does it mention
interest. [ECF No. 60-1]. Under Missouri law,

5

The Court is aware City Defendants and Board Defendants assert different arguments as to issuing a writ of
mandamus. The City Defendants allege they did not have proper notice, because they were not part of the underlying
case because they were successors-in-interest. The Board Defendants allege Plaintiffs no longer seek a writ of
mandamus against them, because they have been succeeded-in-interest.

25

In all nontort actions, interest shall be allowed on all money due upon any
judgment or order of any court from the date judgment is entered by the trial court
until satisfaction be made by payment, accord or sale of property; all such
judgments and orders for money upon contracts bearing more than nine percent
interest shall bear the same interest borne by such contracts, and all other
judgments and orders for money shall bear nine percent per annum until
satisfaction made as aforesaid.
Mo. Rev. Stat. § 408.040.02. An award of post-judgment interest, even though mandated by
statute, must be included in the original judgment or in a timely amendment to that judgment.
Peterson v. Discover Prop. & Cas. Ins. Co., 460 S.W.3d 393, 413 (Mo. Ct. App. 2015) (citing
McGuire v. Kenoma, LLC, 447 S.W.3d 659, 666–67 (Mo. 2014)).
Plaintiffs seek to distinguish these cases and the present case by asserting both Peterson
and McGuire involved judgments for tort damages, as opposed to non-tort damages, and there is
no statutory requirement for the judgment rate to be entered in a non-tort judgment. Plaintiffs cite
Laughlin v. Boatmen's National Bank of St. Louis for the proposition the judgment need not
include the interest rate itself, because the interest rate is a result of the statute and it is not
necessary to recite it. Laughlin v. Boatmen's National Bank of St. Louis, 189 S.W.2d 974, 980 (Mo.
1945). The court in McGuire concluded, even though the trial court should have included the
award of post-judgment interest in its original judgment, and there was no evidence in the record
discussing the trial court’s intent to set an interest rate, the trial court was incorrect in issuing a
nunc pro tunc judgment 6 because the retroactive inclusion of such a judgment substantially
changed the judgment. McGuire, 447 S.W.3d at 667. This case cannot be distinguished between
the tort and non-tort nature of the action, because the court in McGuire concluded post-judgment
interest should have been included. As a result, it does not matter in this case whether the judgment
was in tort or in a non-tort action, because even where the judgment was appropriate, interest was
6

A nunc pro tunc judgment is “entered on a day after the time when it should have been entered, replacing that entered
on the earlier date; specif., a procedural device by which the record of a judgment is amended to accord with what the
judge actually said and did, so that the record will be accurate.” JUDGMENT, Black's Law Dictionary (10th ed. 2014).

26

still not allowed because it substantially changed the nature of the judgment. The distinction
Plaintiffs attempt to make is non-existent, and the Court will apply McGuire and its progeny. Thus,
the Court finds post-judgment interest is inapplicable at this time, and denies Plaintiffs’ attempt to
include post-judgment interest.
Accordingly,
IT IS HEREBY ORDERED Plaintiffs’ Motion for Summary Judgment is hereby
GRANTED in PART and DENIED in part. [ECF No. 58];
IT IS FURTHER ORDERED Plaintiffs’ judgment against Officer Williams in his official
Capacity is a judgment against the City Defendants;
IT IS FURTHER ORDERED City of Saint Louis is not required to pay post-judgment
interest. [ECF No. 49-13];
IT IS FURTHER ORDERED a writ of mandamus be directed to Darlene Green,
Comptroller of the City of Saint Louis, ordering her to pay the Judgment of $1,487,553.49 to
Plaintiffs.
IT IS FURTHER ORDERED Defendants Bettye Battle-Turner, Richard Gray, Thomas
Irwin, Francis G. Slay, and Erwin O. Switzer’s Motion for Summary Judgment [ECF No. 53] is
DENIED;
IT IS FURTHER ORDERED that Defendants Darlene Green, Tishaura O. Jones, and
Francis G. Slay’s Motion for Summary Judgment [ECF No. 56] is DENIED.

So Ordered this 25th Day of July, 2016.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE
27