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

Filing 35

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that Plaintiff's motion for leave to file an amended complaint is DENIED. (Doc. No. 30 .) IT IS FURTHER ORDERED that Count I of Plaintiffs complaint against the City of Pine Lawn is DISMISSED for f ailure to state a claim. IT IS FURTHER ORDERED that all pending motions are DENIED as moot. All claims against all parties having been resolved, this case is DISMISSED. The dismissal of the case against the individual Defendants is without prejudice. A separate Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 9/15/2015. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MARY SYKES,
Plaintiff,
v.
CITY OF PINE LAWN, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. 4:15CV00462 AGF

MEMORANDUM AND ORDER
Now before the Court is the motion of Plaintiff Mary Sykes for leave to file her
proposed amended complaint. For the reasons set forth below, this motion shall be
denied, and the case dismissed.
Plaintiff brought this action under 42 U.S.C. § 1983 against the City of Pine Lawn,
Missouri (“Pine Lawn”), and various Pine Lawn officials: the (former) mayor (Sylvester
Caldwell), eight aldermen, a building administrator (Brain Cunningham), the building
commissioner (Raymond Winston), and a police officer (Steven Blakely). Plaintiff
alleged in her four-count complaint that Defendants harassed her and her family, and
caused them to be evicted from the house they were leasing, without due process of law.
She further alleged 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.

By three separate motions, Defendants moved to strike and dismiss all claims
except the § 1983 due process claim against Pine Lawn set forth in Count I of the
complaint. By Orders dated April 2, 2015, June 9, 2015, and July 9, 2015, the Court
granted Defendants’ motions to strike and dismiss. The claims against Caldwell,
Cunnigham, Winston, and Blakely, in their individual capacities, were dismissed without
prejudice, due to Plaintiff’s failure to serve these Defendants in a timely fashion.
In the Order of July 9, 2015 (Doc. No. 24), the Court suggested that Count I failed
to state a due process claim against Pine Lawn as Plaintiff failed to allege that any of the
challenged actions were part of an official policy or custom of Pine Lawn. Rather than
dismiss this count sua sponte, the Court ordered Plaintiff to show cause why this count
should not be dismissed for failure to state a claim. The Court directed that any response
to the Order to show cause should include a (proposed) amended complaint.
On August 8, 2015, Plaintiff submitted a proposed amended complaint in which
she alleges that on June 3, 2013, Cunningham met with Plaintiff’s landlord “to evict
Plaintiff for being a nuisance.” On the same day, after the landlord said that he did not
intend to evict Plaintiff, Blakely threatened to arrest the landlord, and Cunningham
handed Plaintiff a letter from Winston stating that the occupancy permit for the house had
been revoked and that she was to vacate the premises before June 10, 2013. Plaintiff
alleges that she contacted Winston to try to resolve the matter and was told to contact the
police department. She then alleges that, “[a]s a direct and proximate result of said acts
of the Defendants, Plaintiff has suffered a loss of her property.” She asserts that
Caldwell, Winston, and Cunningham:
2

adopted a policy and custom to misapply Pine Lawn Ordinance 500.050 (which
requires residents to have an occupancy permit) in order to arbitrarily harass and
evict Plaintiff from her rented premises, to wit:
a. Revoking her lawful occupancy permit without just cause, notice or hearing;
b. Subjecting Plaintiff and her family members to harassment and unlawful arrest;
c. Requiring Plaintiff and her family members to post bond after being unlawfully
arrested.
(Doc. No. 31 at 3.)
Defendants oppose the filing of the amended complaint, arguing that it does not
cure the failure to allege a policy or custom. The Court agrees.
In order to state a due process claim against a municipality, a plaintiff must show
that the alleged constitutional deprivation occurred as a result of an official custom or
policy of the municipality. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). A
single act of a policymaker in some instances can be sufficient for a Monell claim when
“the decisionmaker possesses final authority to establish municipal policy with respect to
the action ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1985). However,
“municipal liability under § 1983 attaches where – and only where – a deliberate choice
to follow a course of action is made from among various alternatives by the official or
officials responsible for establishing final policy with respect to the subject matter in
question.” Id. at 483.
Here, the Court concludes that although Plaintiff now uses the words “policy and
custom,” the allegations in the proposed amended complaint fall short of the standard set
by Monell and Pembaur. Plaintiff does not allege that the mayor was involved in the

3

decision to send and enforce the eviction notice, nor that Winston or Cunningham was
the official responsible for establishing final policy with respect to when eviction notices
should be issued and enforced. Indeed, the complaint itself states that the challenged
actions were taken to arbitrarily harass Plaintiff and were in contravention of a Pine Lawn
ordinance. Thus, this case falls in the category of cases involving a single incident that is
insufficient to establish a “policy” that can form the basis for municipal liability under
§ 1983. See, e.g., Jenkins v. Cnty. of Hennepin, Minn., 557 F.3d 628, 634 (8th Cir. 2009);
Doe ex rel. Doe v. Sch. Dist. of Norfolk, 340 F.3d 605, 614 (8th Cir. 2003) (affirming the
dismissal of the plaintiff’s § 1983 claim against a school district where “the allegations in
the complaint indicated that [a school board member] was acting in circumvention of the
School District’s policy when the Lord’s Prayer was recited, and did not support a
conclusion that he acted with final policymaking authority”); Henneberry v. City of
Newark, No. 13-CV-05238-MEJ, 2014 WL 4978576, at *9 (N.D. Cal. Oct. 6, 2014).
“Although it is well settled that leave to amend should ‘be freely given when
justice so requires,’ Fed. R. Civ. P. 15(a), permission to amend may be withheld if the
plaintiff does not have at least colorable grounds for relief.” Doe, 340 F.3d at 615-16.
Here, in light of the above discussion, the Court will deny Plaintiff’s motion for leave to
file the proposed amended complaint.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion for leave to file an amended
complaint is DENIED. (Doc. No. 30.)

4

IT IS FURTHER ORDERED that Count I of Plaintiff’s complaint against the
City of Pine Lawn is DISMISSED for failure to state a claim.
IT IS FURTHER ORDERED that all pending motions are DENIED as moot.
All claims against all parties having been resolved, this case is DISMISSED. The
dismissal of the case against the individual Defendants is without prejudice. A separate
Judgment shall accompany this Memorandum and Order.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 15th day of September, 2015.

5