Sykes v. Pine Lawn, City of, et al.

Filing 24

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that Defendant's motion to dismiss Counts 2 and 4 of Plaintiff's complaint is GRANTED. (Doc. No. 20 .) IT IS FURTHER ORDERED that Plaintiff shall have up to and including July 20, 2015, to sho w cause why Count 1 of the complaint should not be dismissed for failure to state a claim. Failure to do so will result in dismissal of this count. ( Show Cause Response due by 7/20/2015.) Signed by District Judge Audrey G. Fleissig on 7/9/2015. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MARY SYKES,
Plaintiff,
v.
CITY OF PINE LAWN,
Defendant.

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Case No. 4:15CV00462 AGF

MEMORANDUM AND ORDER
This action was filed by Plaintiff Mary Sykes under 42 U.S.C. § 1983 against the
City of Pine Lawn, Missouri (“Pine Lawn”); and the mayor (Sylvester Caldwell), eight
aldermen, a building administrator (Brian Cunningham), a Builder’s Commissioner
(Raymond Winston), and a police officer of the city (Steven Blakely). The matter is
before the Court on Pine Lawn’s motion to dismiss two counts of Plaintiff’s complaint.
For the reasons set forth below, the motion shall be granted. The Court will also order
Plaintiff to show cause why the remaining count should not be dismissed for failure to
state a claim.
BACKGROUND
Plaintiff alleges in her four-count complaint that Defendants harassed her and her
family, and caused them to be evicted, , from the home they were leasing, without due
process of law. She further alleges that, in connection with these events, police entered

her home without a warrant, and wrongfully arrested Plaintiff and members of her family,
forcing them to post bond to secure their release.
Count 1 of the complaint seeks damages under 42 U.S.C. § 1983 on the assertion
that city officials deprived Plaintiff of property without sufficient process, in violation of
the Fourteenth Amendment; Count 2 seeks damages under state tort law for negligent
infliction of emotional distress; Count 3 seeks punitive damages based the foregoing
allegations; and Count 4, also brought under § 1983, asserts that Caldwell, Cunningham,
Winston, and Blakely, in their official and individual capacities, conspired to violate
Plaintiff’s civil rights through false arrests, illegal searches, and harassment.1
On the motion of Pine Lawn, Plaintiff’s claim for punitive damages was stricken
with respect to Pine Lawn, because municipalities are immune from punitive damages.
(Doc. No. 9.) On June 9, 2015, Defendants Caldwell, Cunningham, Winston, and
Blakely were dismissed from the action (without prejudice), in their individual capacities,
due to Plaintiff’s failure to serve them.2 (Doc. No. 22.)
On June 1, 2015, Pine Lawn filed the present motion for partial dismissal, directed
toward Counts 2 and 4 of the complaint. Specifically, Pine Lawn argues that Count 2

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Although the caption of the complaint lists eight aldermen of Pine Lawn, they are not
mentioned in the body of the complaint. Thus, Plaintiff fails to state a claim against
these defendants.
2

The Court need not address whether these Defendants were properly served in their
official capacities, because as will be discussed, all claims against them in their official
capacities fail as a matter of law. In addition, with these Defendants dismissed in their
individual capacities, the claim for punitive damages fails as to them.
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alleging emotional distress3 is barred by Pine Lawn’s sovereign immunity under Missouri
Revised Statute § 537.600. Pine Lawn contends that, because Plaintiff has not pleaded a
waiver of, or exception to, sovereign immunity in this case, Count 2 should be dismissed
for failure to state a claim upon which relief may be granted.
With respect to Count 4, Pine Lawn asserts that following the dismissal of the
individual Defendants in their individual capacities, they are all being sued only in their
official capacities. Because official capacity suits are actually suits against the body that
the officials represent, Pine Lawn argues that Count 4, in effect, alleges that the city
conspired with itself. Pine Lawn contends that employees of a city and a government
cannot conspire with the city as a matter of law, and thus Count 4 fails to state a claim.
Plaintiff has not filed a response to Pine Lawn’s motion, and the time to do so has passed.
DISCUSSION
To survive a motion to dismiss, a complaint must contain sufficient factual matter,
which, when accepted as true, states “a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements,” will not pass muster. Id. The reviewing court must accept
the plaintiff’s factual allegations as true and construe them in the plaintiff’s favor, but is
not required to accept the legal conclusions the plaintiff draws from the facts alleged. Id.;

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In its motion to dismiss, Pine Lawn discusses Count 2 as a claim for intentional
infliction of emotional distress, but the Court notes that Plaintiff’s claim is actually one
for negligent infliction of emotional distress. However, this distinction does not alter the
substance of Pine Lawn’s motion, nor its outcome.
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Retro Television Network, Inc. v. Luken Comm’cns, LLC, 696 F.3d 766, 768-69 (8th Cir.
2012).
Negligent Infliction of Emotional Distress
Under Missouri Revised Statute § 537.600, public entities generally enjoy
sovereign immunity as it existed at common law, unless immunity is waived, abrogated,
or modified by statute. Richardson v. City of St. Louis, 293 S.W.3d 133, 136 (E.D. Mo.
2009). Under this doctrine, municipalities are entitled to sovereign immunity only when
they are engaged in “governmental” functions – ones performed for the common good of
all – but not when engaged in “proprietary” functions – those performed for the special
benefit or profit of the municipality acting as a corporate entity. Id.; Jungerman v. City of
Raytown, 925 S.W.2d 202, 204 (Mo. 1996), abrogated on other grounds by Southers v.
City of Farmington, 263 S.W.3d 603 (Mo. 2008). If sovereign immunity applies, it does
not need to be pled as an affirmative defense, and it is the plaintiff’s burden to show that
the defendant has waived such immunity, or that a statutory exception to immunity
applies. Richardson, 293 S.W.3d at 137.
Here, Plaintiff alleges that she suffered emotional distress due to the actions of
Winston revoking her occupancy permit, and harassment by Pine Lawn police officers.
The regulation of building permits and the actions of police officers are both
governmental functions performed for the common good, rather than actions for the
special profit of Pine Lawn, and therefore Pine Lawn is entitled to sovereign immunity
with respect to claims arising from these actions. See Jungerman, 925 S.W.2d at 204-05

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(distinguishing governmental functions from proprietary functions, and listing police
actions as an example of a municipality’s standard governmental functions).
Plaintiff has not pled in her complaint that an exception to sovereign immunity
applies, nor has she alleged that Pine Lawn waived its immunity in this case. Plaintiff
also failed to respond to Pine Lawn’s motion and show that sovereign immunity does not
apply to Defendants’ actions, for example, by arguing that they were not governmental in
nature. Therefore, the Court concludes that Count 2 against Pine Lawn is barred by §
537.600, and will be dismissed. See Jackson v. East Prairie Police Dep’t, No.
1:05CV00115 LMB, 2006 WL 156717, at *4 (E.D. Mo. Jan 20, 2006) (dismissing state
tort claims against a municipality and its police force, because plaintiff failed to show
that the relevant actions were proprietary rather than governmental, or that a waiver or
exception to sovereign immunity applied); Richardson, 293 S.W.3d at 138 (affirming the
dismissal of state negligent and intentional tort claims against a municipality because its
challenged actions were governmental in nature).
Civil Conspiracy
To state a claim for conspiracy under 42 U.S.C. § 1983, a plaintiff must show that
“(1) defendants conspired to deprive her of a constitutional right; (2) at least one of the
alleged co-conspirators engaged in an overt act in furtherance of the conspiracy; and (3)
the overt act injured her.” Pitts v. City of Cuba, 913 F. Supp. 2d 688, 708 (E.D. Mo.
2012) (citation omitted). The first prong requires a “meeting of the minds” between at
least two conspirators. Barstad v. Murray Cnty., 420 F.3d 880, 887 (8th Cir. 2005).
Governmental entities cannot conspire with themselves, nor with their employees acting
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in the scope of their official capacities. Anzaldua v. NE Ambulance & Fire Protection
Dist., No. 4:13CV01257 ERW, 2014 WL 466234, at *8 (E.D. Mo. Feb. 5, 2014);
Barstad, 420 F.3d at 887.
The Court agrees with Pine Lawn that Plaintiff’s Count 4 fails to state a claim for
conspiracy under § 1983. Because no individual Defendants remain in Count 4, the
conspiracy claim is one against Pine Lawn, through its officials acting within the scope of
their duties. A conspiracy requires the meeting of at least two minds, and cannot exist
between government employees who, in their official capacities, constitute but a single
entity. Thus, the Court will dismiss Count 4 for failure to state a claim. See Runs After v.
United States, 766 F.2d 347, 354 (8th Cir. 1985) (dismissing a conspiracy claim against
tribal officials in their official capacities, acting within the scope of their official duties,
because “an entity or governmental body cannot conspire with itself”).
Due Process Claims
The only count remaining in Plaintiff’s complaint is Count 1, in which she asserts
violations of her due process rights under the Fourteenth Amendment. To state a claim
under 42 U.S.C. § 1983, a plaintiff must show that (1) the action in question occurred
under color of state law, and (2) the action is a deprivation of a federal constitutional or
statutory right. Parrat v. Taylor, 451 U.S. 527, 535 (1981). In order to state such a claim
against a state or municipality, a plaintiff must also show that the alleged constitutional
deprivation occurred as a result of an official custom or policy. Grayson v. Ross, 454
F.3d 802, 811 (8th Cir. 2006); Humbolt v. Jefferson County, Mo., No. 4:15CV415 SNLJ,
2015 WL 3506610, at *2 (E.D. Mo. June 3, 2015).
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Following the dismissal of Defendants Caldwell, Cunningham, Winston, and
Blakely in their individual capacities, the only Defendants in Count 1 are Pine Lawn and
its officials, in their official capacities, which are also effectively claims against Pine
Lawn itself. See Kentucky v. Graham, 473 U.S. 159, 165 (1985) (explaining that a suit
against a public official in his official capacity is actually a suit against the entity for
which the official is an agent).
Although Defendants have not moved to dismiss Count 1 of the complaint, on
review, the Court concludes that Plaintiff has failed to allege that any of the disputed
actions were part of an official policy or custom of Pine Lawn. Rather than dismiss this
count sua sponte at this point, the Court will order Plaintiff to show cause why this count
should not be dismissed for failure to state a claim. Any response to the Order to show
cause shall include a proposed amended complaint. Of course, all allegations in such an
amended complaint must comply with Federal Rule of Civil Procedure 11(b)(3), which
requires that factual contentions in a pleading “have evidentiary support, or, if
specifically so identified, will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery.” Fed. R. Civ. P. 11(b)(3).
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant’s motion to dismiss Counts 2 and 4
of Plaintiff’s complaint is GRANTED. (Doc. No. 20.)

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IT IS FURTHER ORDERED that Plaintiff shall have up to and including July
20, 2015, to show cause why Count 1 of the complaint should not be dismissed for failure
to state a claim. Failure to do so will result in dismissal of this count.

AUDREY G. FLEISSIG
UNITED STATES DISTRCIT JUDGE
Dated this 9th day of July, 2015

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