Patton v. Blum et al

Filing 15

MEMORANDUM AND ORDER. (read order for details) IT IS HEREBY ORDERED that defendants' motion to dismiss [# 6 ] is denied except that Count I (Due Process) is dismissed as to defendant Cassie Blum and the portion of Count VI (Malicious Trespass) that relates to real property is dismissed. This case will be set for a Rule 16 Scheduling Conference by separate order. Signed by District Judge Catherine D. Perry on 04/04/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
STEPHANIE PATTON,
Plaintiff,
vs.
CASSIE BLUM, et al.,
Defendants.

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Case No. 4:13 CV 2376 CDP

MEMORANDUM AND ORDER
Plaintiff Stephanie Patton operated a state-licensed adult day care facility in
Saint Louis. In October 2008, inspectors from the Missouri Department of Health
and Senior Services (DHSS) arrived at the facility to conduct an inspection.
Things went downhill from there. After a series of escalating incidents, the facility
closed, and DHSS revoked its license. Patton appealed several decisions made by
DHSS and another state agency, the Department of Social Services, to the state‟s
Administrative Hearing Commission. The AHC ruled for Patton in each of its
findings. The agencies appealed to Missouri state court, which largely left the
AHC‟s findings intact. Now, Patton brings claims against four DHSS employees
related to the inspection and eventual closure of her adult day care facility. She
filed this action in state court, and defendants removed on November 22, 2013.

Citing Rule 12(b)(6), Fed. R. Civ. P., the defendants have moved to dismiss
four of the six claims in the complaint. I find that Patton has alleged enough to
support each of her claims, so I will deny the defendants‟ motion, except that I will
grant it as to Count VI (malicious trespass) and dismiss the portion of that claim
that relates to real property. I will also dismiss Count I (due process) only as
against defendant Cassie Blue because none of Patton‟s allegations related to that
count implicate Blum.
I.

Background1
In 1993, Patton opened an adult day care facility in Saint Louis dedicated to

serving African American residents. For fifteen years, she operated the facility,
called Peace of Mind Adult Day Care, without incident. On October 16, 2008, two
DHSS inspectors, Cassie Blum and Sharon Buckner, arrived at the facility to
conduct an unannounced inspection. Patton wished to accompany Blum and
Buckner during the inspection, but Blum told her she could not do so. A dispute
ensued, and Blum struck Patton on the hand, calling her a “nigger” and “illiterate.”
Later, Patton called Tracy Cleeton, a DHSS employee who had previously
inspected Peace of Mind. She complained about the treatment she received.

1

The facts that follow are based on the allegations set out in Patton‟s complaint, and are
considered true for the purpose of this Memorandum and Order. See Ashcroft v. Iqbal, 556 U.S.
662, 678–79 (2009); Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).

–2–

Cleeton advised her to call the inspectors‟ regional supervisor, Mary Collier.
Patton called to speak with Collier but asked for “Mary,” so she ended up speaking
with another DHSS employee. When Patton determined she had spoken to the
wrong person, she contacted Collier by telephone and letter. In response, Patton
received a letter from a DHSS attorney admonishing her to cooperate with
inspectors without mentioning Blum‟s behavior toward Patton.
DHSS employees Cleeton, Tracy Niekamp, and Michelle Williamson
discussed Patton‟s telephone call to Cleeton, as well as a police report apparently
filed about the incident, and statements from Blum and Buckner. They decided
that Niekamp and Williamson would conduct a follow-up inspection of Peace of
Mind. On December 5, 2008, they inspected Peace of Mind, citing Patton for
minor issues and for not having a nurse on duty. Niekamp and Williamson
concluded no nurse was on duty without asking any employees whether there was
a nurse present or conducting an exit interview with Patton, which was customary.
In fact, there were two nurses on duty and present at the time of the inspection.
Peace of Mind‟s adult day care license was set to expire on December 20,
2008. In a letter dated December 19, 2008, Williamson, Niekamp, and Cleeton
issued Patton a provisional license and informed her that the license had been

–3–

converted from a “medical model” to a “social model” license. This letter did not
inform Patton of her right to appeal the decision or receive a hearing.
DHSS inspectors Niekamp and Williamson prepared their inspection report
on January 13, 2009. Because it was prepared several weeks after the inspection, it
was not signed by Patton as was customary. Niekamp and Williamson issued a
“statement of deficiencies” to Patton on January 14, 2009. A few days later, Patton
submitted a plan of correction, which DHSS accepted.
On February 2, 2009, the Missouri Department of Social Services (DSS)
notified Patton that her participation agreement with MO HealthNet had been
retroactively terminated as of December 20, 2008. MO HealthNet is Missouri‟s
Medicaid program. DSS told Patton that the termination was because Peace of
Mind now had a “social model” license rather than a “medical model” license.
Patton disputes that Missouri law makes any distinction whatsoever between
“medical model” and “social model” licenses. However, because her participation
agreement was terminated, she lost the opportunity to get Medicaid funding. This
was devastating because nearly all of Peace of Mind‟s residents were dependent on
Medicaid. Even before sending the February 2 letter, DSS had begun denying
reimbursement for outstanding MO HealthNet claims.

–4–

Inspectors conducted two revisit surveys in early February. At the first visit,
only minor issues were cited. At the second visit, inspectors found that Peace of
Mind substantially complied with all licensure laws, employed a nurse, and
qualified as a “medical model” adult day care facility.
After the revisits, Patton sought to re-enroll her facility as a MO HealthNet
provider with DSS. The agency sent her an open-ended, unrestricted participation
agreement, which Patton signed and returned in March 2009. But DSS did not
sign the agreement. Instead, it sent a DSS employee to meet with Patton in a state
representative‟s office. The employee, Judith Muck, agreed to send a closed-end
provider agreement to Patton, which Muck represented would be made retroactive
to February 11, 2009. By this time, Patton had been locked out of the facility by
her landlord, so she borrowed money from friends to regain access to the building.
Despite the reassurances from Muck, DSS refused to pay MO HealthNet
claims from February and March. DSS apparently conditioned this refusal on
Patton‟s failure to provide information required by the previous participation
agreement.
When Patton attempted to bring her case to the attention of supervisors at
DSS and DHSS, state legislators, and the governor‟s office, agency employees
began investigating Patton for MO HealthNet overpayments. DSS requested from
–5–

Patton documents related to past claims. Patton informed DSS that the documents
had been lost, some in the 2008 flood of University City, where Peace of Mind was
located, and some when Patton‟s landlord threw her belongings in the street after
she failed to make rent payments during the ongoing incident. DSS then sought
$487,462.08 from Patton in alleged overpayments because she could not produce
the documents it sought.
On June 4, 2009, DHSS employee Cleeton sent Patton a letter notifying her
that the agency had visited Peace of Mind and found it closed and vacant. The
letter stated that DHSS would consider the facility closed and revoke her license if
she did not respond. On July 7, 2009, another DHSS employee revoked Peace of
Mind‟s license by letter. Neither letter informed Patton of her right to appeal.
Patton appealed six decisions2 by DHSS and DSS to the Missouri
Administrative Hearing Commission, which found in her favor. The agencies
appealed to circuit court and eventually the Missouri Court of Appeals. The
appellate court largely affirmed the AHC‟s determinations, with the exception of

2

Those decisions were: DHSS‟s conversion of Peace of Mind‟s license from a medical model to
a social model; (2) DSS‟s first termination of Peace of Mind‟s participation in the MO HealthNet
program, for failure to have a medical model license; (3) DSS‟s second termination of Peace of
Mind‟s participation in the MO HealthNet program, for failure to produce the requested records;
(4) DSS‟s assessment of an overpayment; (5) DHSS‟s termination of its participation agreement
with Peace of Mind; and (6) DHSS‟s eventual revocation of Peace of Mind‟s license. See Dep’t
of Soc. Servs. v. Peace of Mind Adult Day Care Cntr., 377 S.W.3d 631, 636–37 (Mo. Ct. App.
2012) (reviewing AHC decision).

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its conclusion that DHSS had acted with a racially discriminatory animus toward
Patton. As a result, Patton did not have to pay the overpayment sanction and was
reimbursed for services provided by Peace of Mind from December 20, 2008 to
February 20, 2009. The AHC also found that Peace of Mind was entitled to a
provider participation agreement.
Because of her struggle with DHSS and DSS, and the eventual loss of her
business, Patton accumulated a significant amount of debt, which impaired her
credit rating. Her house was foreclosed upon, and her reputation, mental and
physical health, and family have suffered.
II.

Claims
Patton now brings claims against DHSS employees Blum, Cleeton,

Niekamp, and Williamson, in their individual and official capacities. Her claims
are titled as follows: Count I – Violations of Right to Fair Notice of Laws and To
Notice and an Opportunity to be Heard (Due Process Violations); Count II –
Violation of the Right to be Free from Racial Discrimination and Arbitrary and
Selective Enforcement of Laws (Equal Protection Violation); Count III – Violation
of Right to Free Speech and to Petition Government (First Amendment Violation);
Count IV – Violation of § 536.021, RSMo; Count V – Violation of Right to Notice
and Opportunity to be Heard (Due Process Violation); and Count VI – Malicious
–7–

Trespass. Patton seeks compensatory, nominal, punitive, and statutory damages,
costs and attorney fees, and a declaration that the distinctions between medical
model and social model licenses are unlawful and void. The defendants have
moved to dismiss four of Patton‟s claims under Rule 12(b)(6), Fed. R. Civ. P.
III.

Motion to Dismiss Standard
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal

sufficiency of the complaint. When considering a 12(b)(6) motion, the court
assumes the factual allegations of a complaint are true and construes them in favor
of the plaintiff. Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).
Rule 8(a)(2), Fed. R. Civ. P., provides that a complaint must contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.” In
Bell Atlantic Corp. v. Twombly, the Supreme Court clarified that Rule 8(a)(2)
requires complaints to contain “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action.” 550 U.S. 544, 555 (2007); accord
Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). Specifically, to survive a motion
to dismiss, a complaint must contain enough factual allegations, accepted as true,
to state a claim for relief “that is plausible on its face.” Twombly, 550 U.S. at 570.
IV.

Discussion
I will address each of the contested claims in turn.
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Count I: Due Process
In Count I, Patton alleges that the defendants intentionally deprived her of
her property and liberty interests in her adult day care license and MO HealthNet
(Medicaid) provider agreement in violation of her due process rights. Specifically,
she alleges that defendants Niekamp, Williamson, and Cleeton converted Peace of
Mind‟s adult day care license to a “social model” without notifying the facility of
its right to appeal that decision or giving Patton notice of the deficiencies and an
opportunity to correct them; that they failed to conduct an exit interview with her
upon their completion of the December 2008 inspection; and that they failed to
timely provide her with a statement of deficiencies. Patton further alleges that
there is no legal distinction between “medical model” and “social model” licenses
for adult day cares, and so defendants Niekamp, Williamson, and Cleeton violated
Mo. Rev. Stat. § 536.021 by applying an unpromulgated rule against her. She also
alleges that her due process rights were violated when DSS terminated her MO
HealthNet provider agreement based on the facility‟s failure to maintain a medical
model license. Finally, she alleges that defendant Cleeton, along with a non-party,
improperly revoked her license by his letters in June and July 2009, without
notifying Patton of her right to appeal.

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The defendants argue that this claim should be dismissed. The thrust of the
defendants‟ argument is that Patton has already received all the process she was
due through the AHC hearing and appellate review of that decision by the courts.
According to the defendants, their only obligation was to provide some opportunity
to be heard, and they met that obligation by providing the AHC appeals channel.
Patton responds that Missouri law specifically requires DHSS to provide
notice of the right to appeal whenever DHSS refuses to issue a license or to
suspend or revoke an existing license, as well as a reasonable opportunity to
correct deficiencies before suspending or revoking a license. See Mo. Rev. Stat. §
660.416; 19 CSR 30-90.020(10)(D). She alleges that the defendants failed to
comply with these laws, which violated her due process rights and caused her to
suffer “legally cognizable injuries.” She argues that her claim is one for damages,
which is different from the issues she litigated during her defense before the AHC.
As a preliminary matter, although Patton alleges that “all defendants”
deprived her of due process under Count I, she does not describe any involvement
by defendant Blum. None of the actions she cites after the initial inspection was
taken by Blum, and Patton does not allege that the initial inspection abridged her
due process rights. Therefore, Count I will be dismissed as against defendant
Blum.
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The AHC has limited subject matter jurisdiction. See State ex rel. Mo.
Health Care Ass’n v. Mo. Health Facilities Review Comm., 768 S.W.2d 559, 562
(Mo. Ct. App. 1988) (AHC “has only such jurisdiction or authority as may be
granted by the legislature” and its jurisdiction “cannot be enlarged” by agreement
of the parties). Through the AHC process, Patton could – and did – get some
forms of relief. But defendants do not cite, and I have not found, any statute
conveying jurisdiction to the AHC over a due process claim for damages or for a
declaration that there is no distinction between “medical model” and “social
model” adult day care licenses. See State Tax Comm’n v. Admin. Hearing
Comm’n, 641 S.W.2d 69, 75 (Mo. banc 1982) (AHC cannot render declaratory
judgments); see also C. Line, Inc. v. City of Davenport, 957 F. Supp. 2d 1012,
1034 (S.D. Iowa 2013) (adult-oriented business that sued city for alleged
procedural due process violation related to denying license “was not compelled to
pursue its claim for damages to its conclusion in state court because its damage
claim was not a mandatory appeal from an administrative action”).3 Further, it is
unclear how Patton could have sued individual defendants through the AHC and
appellate review process.
3

Appellate review of the AHC decision was also limited, and the courts on appeal from the
AHC could not have granted the relief Patton now seeks. See Mo. Dep’t of Soc. Servs., Div. of
Med. Servs. v. Great Plains Hosp., 930 S.W.2d 429, 433 (Mo. Ct. App. 1996) (standard of
review for administrative appeals).

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Generally, the Fourteenth Amendment to the United States Constitution
prohibits states from depriving a person of her property without notice and an
opportunity to be heard. Crum v. Vincent, 493 F.3d 988, 992 (8th Cir. 2007). In
order to succeed on a due process claim, Patton must establish that she had a
“clearly established constitutionally protected liberty or property interest” and that
the defendants deprived her of that interest. See Austell v. Sprenger, 690 F.3d 929,
935 (8th Cir. 2012).
Even assuming that Missouri law affords each of the rights Patton alleges
she had, those rights do not necessarily attach to constitutionally cognizable
property interests. Id. at 937. “Such a doctrine would turn every state-law
violation into a substantive due process claim, a result that would obliterate
completely the distinction between state law and the federal Constitution.” Id.
(quoting Bagley v. Rogerson, 5 F.3d 325, 328 (8th Cir. 1993)); see also Marler v.
Mo. Bd. of Optometry, 102 F.3d 1453, 1457 (8th Cir. 1996) (“We have stated many
times . . . that a violation of state law, without more, does not state a claim under
the federal Constitution or 42 U.S.C. § 1983.”) (internal quotation marks omitted).
That said, however, a constitutionally cognizable property interest will arise where
a state law creates a justifiable expectation of entitlement. Bloodman v. Kimbrell,
533 Fed. Appx. 678, 679 (8th Cir. 2013).
– 12 –

At this stage, I cannot determine whether the defendants curtailed some
clearly established, constitutionally protected interest of Patton despite her
justifiable expectation of entitlement. It is highly likely that many of the
deficiencies she complains of were merely “state conferred procedural safeguard[s]
which [are] not enforceable under the federal Constitution‟s Due Process Clause.”
Austell, 690 F.3d at 937. But defendants have not fully briefed this issue, and so I
cannot decide it now. As such, I will deny their motion to dismiss as to Count I,
except that I will dismiss Count I as against defendant Blum.
Count II: Equal Protection
In Count II, Patton alleges that the defendants violated her right to equal
protection by treating her differently than similarly situated Caucasian adult day
care providers. She alleges that defendants Cleeton, Niekamp, and Williamson
intentionally furthered defendant Blum‟s demonstrated racial animus toward
Patton by arbitrarily and selectively enforcing licensure standards and Medicaid
program participation requirements.
The defendants argue that Count II should be dismissed because the state
appellate court, when reviewing the AHC decision, already decided that DHSS had
not acted with racially discriminatory animus toward Patton:
The AHC concluded that DHSS, as an agency, acted with a
racially discriminatory animus toward Patton. [emphasis in original]
– 13 –

The only evidence in the record to support this legal conclusion was
the testimony by Patton that a single DHSS employee, Blum, directed
a deplorable racial epithet toward Patton and called her illiterate.
There was no evidence presented at trial that Blum‟s statements could
be legally attributed to DHSS as a whole or that DHSS was even
aware the comments were made. Evidence that a single agency
employee made a racial remark to Patton is insufficient as a matter of
law to support a conclusion that the entire agency thereafter acted in
its handling of Patton with racial animus. Even if the single (and
wholly unacceptable) comment by Blum could be legally attributed to
DHSS, standing alone that comment does not rise to the level of a
constitutional violation in the absence of other evidence connecting
the comment to subsequent agency action. The AHC erred in finding
otherwise.
Dep’t of Soc. Servs. v. Peace of Mind Adult Day Care, 377 S.W.3d 631, 646 (Mo.
Ct. App. 2012). The defendants argue that this decision precludes Patton from relitigating the issue of racial animus. See Knutson v. City of Fargo, 600 F.3d 992,
996 (8th Cir. 2010) (“[O]nce a court has decided an issue of fact or law necessary
to its judgment, that decision may preclude relitigation of the issue in a suit on a
different cause of action involving a party to the first case.”) (internal quotation
omitted).
Missouri law on issue preclusion applies. See Simmons v. O’Brien, 77 F.3d
1093, 1096 (8th Cir. 1996). In Missouri, an issue is precluded when (1) the issue
in the present action is identical to the issue decided in the prior adjudication; (2)
the prior adjudication resulted in judgment on the merits; (3) the party against
whom issue preclusion is asserted was a party or is in privity with a party to the
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prior adjudication; and (4) the party against whom estoppel is asserted had a full
and fair opportunity to litigate the issue in the prior suit. State ex rel. Haley v.
Groose, 873 S.W.2d 221, 223 (Mo. banc 1994).
Although Headley v. Bacon, 828 F.2d 1272 (8th Cir. 1987) involved claim
preclusion rather than issue preclusion, it is still instructive. See Montana v.
United States, 440 U.S. 147, 153 (1979) (doctrines are related). In Headley, a
police officer successfully sued her former employer-city under Title VII for sex
discrimination and was awarded the equitable relief of back pay, front pay, and
attorney fees. She then sued several officers in their individual and official
capacity for violations of her rights to due process, equal protection, and free
speech. The district court granted the defendant officers‟ motion for summary
judgment on claim preclusion grounds, holding that the plaintiff should have
joined her claims against the officers in her first case. The Eighth Circuit reversed,
holding that the defendants‟ interests were not so aligned with their employer city
so as to preclude the second suit against them in their individual capacities. The
court also held that “even for the claims brought against them in their official
capacity, privity [was] not automatic” and could not be determined until the record
was developed. Id. at 1279.

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Here, again, the AHC has limited jurisdiction. Montana, 440 U.S. at 153
(for issue prelusion to apply, issue must have been determined by court of
competent jurisdiction). Patton did not litigate the issue of racially discriminatory
conduct by any of the defendants in their official or individual capacities, and
presumably, she could not have done so. Although “[l]itigation involving the
government is generally binding with respect to government officials who are sued
in their official capacities in later actions,” it depends on those officials‟ role in the
agency. See Headley, 828 F.2d at 1276, 1279. All the appellate court decided was
that the racially discriminatory conduct shown to Patton by Blum could not, as a
matter of law, demonstrate that DHSS had acted with racially discriminatory
animus toward Patton. It may be true, as defendants argue, that Patton makes
substantially the same allegations as she did in the AHC action. It may also be true
that she will later be precluded from arguing that the defendants – in their official
capacity – engaged in racial animus. But this will be more appropriately addressed
on summary judgment, where I will have the benefit of a full record explaining the
defendants‟ roles within DHSS. At this stage of the case, I cannot find that Patton
had a full and fair opportunity to litigate the issue of racial animus by the
individual defendants. Therefore, defendants‟ motion to dismiss will be denied as
to Count II.
– 16 –

Count IV: Violation of Mo. Rev. Stat. § 536.021
In Count IV, Patton alleges that the defendants improperly barred her from
participating in the Missouri Medicaid program (MO HealthNet) while she had a
“social model” adult day care license. She alleges that Missouri law does not
distinguish between “medical model” and “social model” licenses, and that a
“medical model” license is not a requirement under state law to participate in the
Medicaid program. Patton alleges that to the extent that the defendants treated it as
a requirement, their actions constituted an unpromulgated rule in violation of Mo.
Rev. Stat. § 536.021.
In order to promulgate an administrative rule, an agency must comply with
the rulemaking procedures specified in Section 536.021. NME Hospitals, Inc. v.
Dep’t of Soc. Servs., Div. of Med. Servs., 850 S.W.2d 71, 74 (Mo. banc 1993). The
failure to formally adopt a rule in compliance with Section 536.021 renders that
rule null and void. See Degraffenreid v. State Bd. of Mediation, 379 S.W.3d 171,
184 (Mo. Ct. App. 2012). A “rule” is an “announcement by a state agency of a
generally applicable policy or interpretation of law „that has future effect and acts
on unnamed and unspecified facts.‟” Id. (quoting Dep’t of Soc. Servs., Div. of
Med. Servs. v. Little Hills Healthcare, LLC, 236 S.W.3d 637, 642 (Mo. banc
2007)); see also Mo. Rev. Stat. § 536.010(6). A rule is generally distinguished
– 17 –

from a case-specific adjudication, but “[i]f a state agency suddenly applies a new
(but unpromulgated) generally applicable policy, even within a case-specific
adjudication, the agency may be at fault for failure to promulgate the new policy.”
Id. at 185. An agency is liable for attorneys‟ fees in any litigation that establishes
the agency's failure to pursue rulemaking. Id. (citing Mo. Rev. Stat. § 536.021.9).
The defendants argue that Mo. Rev. Stat. § 536.021 creates a statutorily
defined cause of action, which “must be technically and strictly construed,” see
Asmus v. Capital Region Family Practice, 115 S.W.3d 427, 435 (Mo. Ct. App.
2003), and Patton has sued individuals, not an “agency” as the statute requires.4
As such, they contend that her claim should be dismissed.
Section 536.021 provides, in relevant part:
If it is found in a contested case by an administrative or judicial
fact finder that a state agency‟s action was based upon a statement of
general applicability which should have been adopted as a rule, as
required by sections 536.010 to 536.050, and that agency was put on
notice in writing of such deficiency prior to the administrative or
judicial hearing on such matter, then the administrative or judicial fact
4

Both parties quote Mo. Rev. Stat. § 536.021 incorrectly. The language they rely on is: “Any
person who is or may be aggrieved by any rule promulgated by a state agency shall have
standing to challenge any rule promulgated by a state agency and may bring such an action
pursuant to the provisions of section 536.050. Such person shall not be required to exhaust any
administrative remedy and shall be considered a nonstate party.” This language actually appears
in Section 536.053, and it is not clear this section applies. Patton is challenging an allegedly
unpromulgated rule, not claiming she was aggrieved by a promulgated rule. See United
Pharmacal Co. of Mo., Inc. v. Mo. Bd. of Pharmacy, 159 S.W.3d 361, 366 (Mo. banc 2005)
(distinguishing between rules that purport to be promulgated and agency statements that may or
may not be rules). Even if Section 536.050 does apply, it does not require dismissal for the
reasons stated above.

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finder shall award the prevailing nonstate agency party its reasonable
attorney's fees incurred prior to the award, not to exceed the amount in
controversy in the original action.
Under Mo. Rev. Stat. § 536.010, which sets forth the definitions applicable to
Section 536.021, “state agency” and “agency,” separately listed, are both defined
to include individual administrative officers.5 The individual defendants may in
fact be officers. Defendants do not argue otherwise, nor do they raise any other
issue related to the sufficiency of this count. Therefore, the motion to dismiss will
be denied as to Count IV.
Count VI: Malicious Trespass
In Count VI, Patton claims that the defendants “maliciously or wantonly
damaged or destroyed” her “real property and intangible property rights” in
violation of Mo. Rev. Stat. § 537.330, providing double damages for malicious
trespass. Defendants argue that Patton cannot bring a malicious trespass claim
based on damage to her real property. Defendants are correct. The Missouri
statute applies only to “personal property, goods, chattels, furniture or livestock,”
id., and a Missouri appellate court has interpreted the statute to include intangible
5

Section 536.010(2) provides “„Agency‟ means any administrative officer or body existing
under the constitution or by law and authorized by law or the constitution to make rules or to
adjudicate contested cases, except those in the legislative or judicial branches.” Section
536.010(8) provides “„State agency‟ means each board, commission, department, officer or
other administrative office or unit of the state other than the general assembly, the courts, the
governor, or a political subdivision of the state, existing under the constitution or statute, and
authorized by the constitution or statute to make rules or to adjudicate contested cases.”

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property. See Weicht v. Suburban Newspapers of Greater St. Louis, Inc., 32
S.W.3d 592, 599 (Mo. Ct. App. 2000). The statute, by its very wording, does not
apply to real property. See id. at 600. As such, I will grant defendants‟ motion to
dismiss the portion of Count VI that relates to real property.6
V.

Conclusion
Based on the foregoing,
IT IS HEREBY ORDERED that defendants‟ motion to dismiss [#6] is

denied except that Count I (Due Process) is dismissed as to defendant Cassie Blum
and the portion of Count VI (Malicious Trespass) that relates to real property is
dismissed.
This case will be set for a Rule 16 Scheduling Conference by separate order.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 4th day of April, 2014.

6

Plaintiff objects that she meant “tangible” when she used the word “real,” and that interpreting
“real property” as land or real estate “would defy a fair reading of her complaint.” Regardless of
plaintiff‟s intent, “real property” is universally understood to be “[l]and and anything growing
on, attached to, or erected on it, excluding anything that may be severed without injury to the
land.” BLACK‟S LAW DICTIONARY 1234 (7th ed. 1999).

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