Mahn v. Jefferson County et al

Filing 55

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendant 23rd Judicial Circuits Motion to Dismiss is DENIED. [Doc. 32 .] Defendant 23rd Judicial Circuits Motion to Dismiss Count II is DENIED. Defendant 23rd Judicial Circuits Motion to Dismiss Co unt III is DENIED as moot. IT IS FURTHER ORDERED that Defendant Howard Wagner and Jeanette McKees Motion to Dismiss is GRANTED in part and DENIED in part as moot. [Doc. 34 .] Defendant Jeanette McKees Motion to Dismiss claims against her in Count I is GRANTED. Defendant Howard Wagners Motion to Dismiss claims against him in Count III is DENIED as moot. IT IS FURTHER ORDERED that Defendant Mike Reuters Motion to Dismiss is DENIED. [Doc. 50 .] Signed by Magistrate Judge Nannette A. Baker on 5/4/15. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JAMIE MAHN,
Plaintiff,
v.
JEFFERSON COUNTY, et al.,
Defendants.

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Case No. 4:14-CV-1806 NAB

MEMORANDUM AND ORDER
This matter is before the Court on Defendant 23rd Judicial Circuit’s Motion to Dismiss
[Doc. 32.], Defendants Howard Wagner and Jeanette McKee’s Motion to Dismiss [Doc. 34.],
and Defendant Mike Reuter’s Motion to Dismiss [Doc. 50.]. The parties have consented to the
jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
The motions are now fully briefed and the Court will grant in part and deny in part Defendants’
motions.
I.

Background
Plaintiff Jamie Mahn filed this action against defendants Jefferson County, State of

Missouri; 23rd Judicial Circuit, State of Missouri; Wes Wagner, individually and in his official
capacity as county clerk/election authority of Jefferson County, Missouri; Howard Wagner,
individually and in his official capacity as the former Circuit Clerk of the 23rd Judicial Circuit,
Jefferson County, Missouri; Jeanette McKee, individually and in her official capacity as Unit
Manager within the Circuit Clerk’s Office, Jefferson County; and Mike Reuter, in his official
capacity as the current Circuit Clerk of the 23rd Judicial Circuit. [Doc. 1.] In Plaintiff’s First
Amended Complaint, she brings three counts against the defendants. [Doc. 28.] Count I is a

claim for violation of the First Amendment-patronage discharge from employment brought
pursuant to 42 U.S.C. §§ 1983 and 1988 against Defendants Jefferson County, Wes Wagner,
Howard Wagner, Jeanette McKee, and Mike Reuter. In Count II, Mahn brings a Family Medical
Leave Act (“FMLA”), 29 U.S.C. § 2601 claim against Defendant 23rd Judicial Circuit. Mahn
alleges that she was told that she was terminated for “abuse of sick leave.” Count III was
voluntarily dismissed without prejudice by Plaintiff on April 2, 2015.
II.

Standard of Review
Federal Rule of Civil Procedure 8(a)(2) requires that a claim for relief must contain a

short and plain statement that demonstrates grounds for the court’s jurisdiction, showing that the
pleader is entitled to relief, and a demand for the relief sought. The pleading standard does not
require detailed factual allegations, “but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading
that offers labels and conclusions or a formulaic recitation of the elements of a cause of action
will not do.” Id.
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556
U.S. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678. Although the court must take all of the factual allegations in the complaint as true, the court
is “not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556
U.S. at 678. “[W]here well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged-but has not shown that the pleader is entitled

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to relief.” Iqbal, 556 U.S. at 678. “The plausibility standard requires a plaintiff to show at the
pleading stage that success on the merits is more than a sheer possibility.” Braden v. Wal-Mart
Stores, 588 F.3d 585, 594 (8th Cir. 2009).

“It is not, however, more than a probability

requirement.” Iqbal, 556 U.S. at 678. “And, of course, a well-pleaded complaint may proceed
even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery
is very remote and unlikely.” Twombly, 550 U.S. at 556.
“In addition, some factual allegations may be so indeterminate that they require further
factual enhancement in order to state a claim.” Braden, 588 F.3d at 594. The complaint “should
be read as a whole, not parsed piece by piece to determine whether each allegation in isolation, is
plausible.” Id. “Ultimately, evaluation of a complaint upon a motion to dismiss is a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Id.
III.

Discussion
A.

Count I

In Count I of the First Amended Complaint, Mahn makes the following factual
allegations: Mahn was employed by the 23rd Judicial Circuit in the Circuit Clerk’s Office as a
deputy clerk assigned to the ex parte division, processing orders of protection. Before the
primary election of August 5, 2014, Defendant Howard Wagner, the former Circuit Clerk for
Jefferson County, told Mahn that she had to vote for Defendant McKee, her immediate
supervisor, to replace him as Circuit Clerk. Howard Wagner told her that their families had
family ties going back generations and she only had her job because of her family’s alliance with
the Democratic Party. Mahn told Howard Wagner that his threat was unconstitutional and she
would vote for whomever she wanted. Howard Wagner responded that it was his office. Mahn

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then obtained a Republican absentee ballot and returned it to Jefferson County and Defendant
Wes Wagner, Howard Wagner’s son and the County Clerk/Election Authority. After the August
5, 2014 election, Mahn went on family medical leave for a personal illness. Upon Mahn’s return
to work, Howard Wagner told her, “I know how you voted.” A few days later, Howard Wagner
announced to staff (at a meeting Mahn did not attend) that he knew how everyone voted and that
Defendant Mike Reuter would clean house if he were elected. Defendant Wes Wagner shared
with his father Howard Wagner how everyone voted, because he had access to all voters’
information. Mahn alleges that on September 19, 2014, she was terminated by a letter dated
August 29, 2014. After Mahn was terminated, Defendant McKee lied and told the Missouri
Department of Employment Security that Plaintiff was never employed in the 23rd Judicial
District.
1.

Defendant Jeanette McKee

Defendant McKee contends that Mahn has failed to allege that Defendant McKee was
personally involved in any actions involving her termination; therefore, McKee should be
dismissed from this action. Further, McKee states that she is entitled to qualified immunity,
because Mahn cannot show the denial of a constitutional right or that any such right was clearly
established. Mahn responds that she cannot plead more specific allegations until discovery is
undertaken. Mahn also contends that patronage discharge has been declared unlawful for nearly
four decades.
Even under the most generous pleading standard, Mahn’s First Amended Complaint fails
to assert any claim against McKee for unconstitutional patronage discharge. Mahn does not
allege that McKee was personally involved in Mahn’s discharge from the Circuit Clerk’s office.
Mahn admits as much in her response to McKee’s Motion to Dismiss. The scant allegations

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against McKee refer to conduct that occurred after Mahn’s discharge. In the context of § 1983
claims, a supervisor is only liable for her own misconduct and may only be held individually
liable under § 1983 if she directly participates in the constitutional violations. Wagner v. Jones,
664 F.3d 259, 275 (8th Cir. 2011). Mahn has not pled that McKee participated in the decision to
terminate her employment, which is essential to her § 1983 claim for patronage discharge.
Therefore, the Court will grant Defendant Jeanette McKee’s Motion to Dismiss.
2.

Defendant Mike Reuter

Next, Defendant Reuter contends that he should be dismissed from this action, because
Mahn’s First Amended Complaint fails to contain allegations establishing a claim against Reuter,
because he was not personally responsible for any actions taken against Mahn. In response,
Mahn asserts that because Reuter is the current officeholder of the office of Circuit Clerk, he
must be added as a party for her to obtain equitable relief. Federal Rule of Civil Procedure
25(d), not cited by either party, provides as follows:
An action does not abate when a public officer who is a party
in an official capacity dies, resigns, or otherwise ceases to
hold office while the action is pending. The officer’s
successor is automatically substituted as a party. Later
proceedings should be in the substituted party’s name, but
any misnomer not affecting the parties’ substantial rights
must be disregarded. The court may order substitution at any
time, but the absence of such an order does not affect the
substitution.
Reuter does not dispute that he is the current officeholder and that the official officeholder must
be named for Mahn to obtain equitable relief.

According to Fed. R. Civ. P. 25(d), this

substitution is automatic. Once Reuter took office he was automatically substituted as the
Circuit Clerk in this action and Reuter can be sued in his official capacity as the successor in
office.

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In his Reply Brief, Reuter also asserts that Mahn has failed to properly plead official
capacity claims against him. Official capacity suits “generally represent only another way of
pleading an action against an entity of which an officer is an agent.” Kentucky v. Graham, 473
U.S. 159, 165 (1985). “It is not a suit against the official personally, for the real party in interest
is the entity.” Id. at 166. “Because the real party in interest in an official-capacity suit is the
governmental entity and not the named official, the entity’s policy or custom must have played a
role in the violation of federal law.” Hafer v. Melo, 502 U.S. 21, 25 (1991). At the motion to
dismiss stage, a plaintiff does not have to plead the specific existence of an unconstitutional
policy or custom. Doe v. School Dist. of City of Norfolk, 340 F.3d 605, 614 (8th Cir. 2003).
“When a complaint is filed, a plaintiff may not be privy to the facts necessary to accurately
describe or identify any policies or customs which may have caused the deprivation of a
constitutional right.” Id. “At a minimum, a complaint must allege facts which would support the
existence of an unconstitutional policy or custom.” Id. A single incident is insufficient to
establish a policy. Id.
Mahn’s First Amended Complaint does not allege that a specific unconstitutional policy
or custom exists.

Liberally construing Mahn’s complaint, the Court finds that she has

sufficiently plead allegations that would lead the court to draw an inference that the conduct
resulted from an unconstitutional policy or custom of the Circuit Clerk’s office. Doe, 340 F.3d
at 614. Mahn’s allegations in paragraphs 12-14, 22-24 allege that Howard Wagner threatened
Mahn and other co-workers with dismissal if they did not vote for McKee in the Democratic
Party primary. These allegations are sufficient to allege a policy or custom actionable under
§ 1983. Therefore, Reuter’s motion to dismiss official capacity claims against him will be
denied.

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B.

Count II

Finally, the 23rd Judicial Circuit asserts that Mahn’s claim in Count II for violation of the
Family Medical Leave Act should be dismissed, because they have Eleventh Amendment
immunity. Mahn responds that the 23rd’s Judicial Circuit’s sovereign immunity under the
Eleventh Amendment does not prevent her from obtaining equitable relief, including
reinstatement, attorney’s fees and costs. In its Reply Brief, Defendant 23rd Judicial Circuit,
states that Mahn’s equitable claims should be dismissed, because she has not pled facts
demonstrating a serious injury with respect to her ear condition or that she was fired for taking
FMLA leave for a serious health condition.
There is no dispute that any suit against the 23rd Judicial Circuit for monetary damages
under the FMLA is barred by the state’s sovereign immunity as provided for by the Eleventh
Amendment to the U.S. Constitution. Coleman v. Court of Appeals of Maryland, 132 S.Ct.
1327, 1332 (2012). Defendant 23rd Judicial Circuit acknowledges that Mahn’s equitable claims
are not barred by sovereign immunity, but states that Mahn also fails to state a claim under the
FMLA that her ear condition is a serious health condition. The Court disagrees. Mahn’s First
Amended Complaint clearly alleges that her hysterectomy and serous effusion qualified as
“serious physical illnesses.” In this case, the allegation that Mahn’s illness meets the definition
of a serious health condition under the FMLA requires discovery and further development of the
facts. Therefore, the 23rd Judicial Circuit’s motion to dismiss Count II will be denied at this
time.

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IV.

Conclusion
In summary, the Court will grant Defendant Jeanette McKee’s Motion to Dismiss; deny

Defendant Howard Wagner’s Motion to Dismiss as moot; deny Defendant Mike Reuter’s motion
to dismiss; and deny Defendant 23rd Judicial Circuit’s Motion to Dismiss Count II as to
equitable relief, and deny as moot its Motion to Dismiss Count III.
Accordingly,
IT IS HEREBY ORDERED that Defendant 23rd Judicial Circuit’s Motion to Dismiss is
DENIED.

[Doc. 32.]

Defendant 23rd Judicial Circuit’s Motion to Dismiss Count II is

DENIED. Defendant 23rd Judicial Circuit’s Motion to Dismiss Count III is DENIED as moot.
IT IS FURTHER ORDERED that Defendant Howard Wagner and Jeanette McKee’s
Motion to Dismiss is GRANTED in part and DENIED in part as moot. [Doc. 34.] Defendant
Jeanette McKee’s Motion to Dismiss claims against her in Count I is GRANTED. Defendant
Howard Wagner’s Motion to Dismiss claims against him in Count III is DENIED as moot.
IT IS FURTHER ORDERED that Defendant Mike Reuter’s Motion to Dismiss is
DENIED. [Doc. 50.]
Dated this 4th day of May, 2015.

/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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