Wolf v. Jefferson County Missouri et al

Filing 95

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the motions to dismiss the amended complaint [Docs. ##81, 83, 85, 86, 88, 90, 92, 93] are granted. IT IS FURTHER ORDERED that all other pending motions [Docs. ##16, 23, 28, 30, 37, 47, 49, 52, 71, 73] are moot. An order of dismissal will be entered separately. Signed by District Judge Carol E. Jackson on 1/20/2016. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JAMES E. WOLF,
Plaintiff,
vs.
JEFFERSON COUNTY, MISSOURI, et al.,
Defendants.

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Case No. 4:15-CV-1174-CEJ

MEMORANDUM AND ORDER
This matter is before the Court on defendants’ motions to dismiss the
amended complaint for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). The
issues are fully briefed.
I.

Background

Plaintiff James E. Wolf, pro se, brings this action seeking damages and
injunctive relief for alleged violations of his civil rights.

In the amended complaint,

plaintiff alleges that in 2003 he began building a house in Jefferson County,
Missouri. Much of the construction was completed by 2006, despite several “stop
work orders” that delayed the project.

Although plaintiff finished the house in

2011, he is not allowed to live in it.
Plaintiff alleges that defendant Jefferson County has “to inspect the house or
to issue plaintiff an occupancy permit. Plaintiff alleges that criminal charges have
been brought against him for building the house. Plaintiff contends that Jefferson
County is corrupt and that its agencies and departments have engaged in
unspecified “illegal labor racketeering.”
Also named as defendants are Local 1, International Brotherhood of Electrical

Workers, AFL-CIO, Local 36, Sheet Metal Workers Union, and Local 562, Plumbers’
and Pipefitters’ Association (collectively, “the unions”).1

Plaintiff alleges that the

unions “control” the County and directed the County not to issue plaintiff an
occupancy permit or a mechanic’s license.

Plaintiff further alleges that the unions

engaged in unlawful employment practices, including “blackballing,” harassment,
and retaliation against plaintiff and his company.
The amended complaint also makes reference to fair housing violations, hate
crimes, and disability discrimination.

Plaintiff seeks (1) an injunction permitting

him to occupy the house; (2) an order that a host of entities, governments, and
individuals be charged with various federal crimes2; (3) an order “forcing” the State
of Missouri “to redress its lack of government” “management” by “tak[ing] control
of the licensing program” and instituting a “fair system of government”; (4) the
creation of a federal oversight committee to effect the same; and (5) damages.
II.

Legal Standard

The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal
sufficiency of the complaint. Fed. R. Civ. P. 12(b)(6). The factual allegations of a
complaint are assumed true and construed in favor of the plaintiff, “even if it strikes
a savvy judge that actual proof of those facts is improbable.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007) (citing Swierkiewicz v. Sorema N.A., 534 U.S.
506, 508 n.1 (2002)); Neitzke v. Williams, 490 U.S. 319, 327 (1989) (“Rule
12(b)(6) does not countenance . . . dismissals based on a judge’s disbelief of a
complaint’s factual allegations.”); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)

1

Neither the original nor the amended complaint was served on Local 36, Sheet Metal Workers Union.
Thus, no motion to dismiss has been filed on its behalf. Nevertheless, the reasons supporting
dismissal of this action against the other defendants apply equally to the claims against Local 36.
2
The amended complaint cites 18 U.S.C. §§ 241–242, 245, 249, and 42 U.S.C. §§ 3631, 14141.

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(stating that a well-pleaded complaint may proceed even if it appears “that a
recovery is very remote and unlikely”). The issue is not whether the plaintiff will
ultimately prevail, but whether the plaintiff is entitled to present evidence in
support of his claim. Scheuer, 416 U.S. at 236. A viable complaint must include
“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550
U.S. at 570; see id. at 563 (stating that the “no set of facts” language in Conley v.
Gibson, 355 U.S. 41, 45–46 (1957), “has earned its retirement”); see also Ashcroft
v. Iqbal, 556 U.S. 662, 678–84 (2009) (holding that the pleading standard set forth
in Twombly applies to all civil actions).

“Factual allegations must be enough to

raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
III.

Discussion

The federal statutes enumerated in the amended complaint, 18 U.S.C.
§§ 241–242, 245, 249, and 42 U.S.C. §§ 3631, 14141, do not confer on plaintiff a
private right of action by which he could sue the defendants. See United States v.
Maybee, 687 F.3d 1026, 1030 (8th Cir. 2012) (describing the requirements for the
United States to prosecute a person for a hate crime under 18 U.S.C. § 249);
United States v. J.H.H., 22 F.3d 821, 824–28 (8th Cir. 1994) (describing the
requirements for the United States to prosecute a person under 18 U.S.C. § 241
and 42 U.S.C. § 3631); Wolf v. Hoene Ridge Subdivision, No. 4:15-CV-1140-RLW,
2015 WL 8665406, at *2–3 (E.D. Mo. Dec. 11, 2015) (dismissing another suit by
this same plaintiff; finding no private right of action under 18 U.S.C. §§ 241–242,
and 42 U.S.C. § 3631 and holding that plaintiff did not state a claim that the
defendants violated his rights protected by 42 U.S.C. §§ 3603–3606); Perkins v.
Univ. of Kan. Med. Ctr., No. 13-2530-JTM, 2014 WL 1356042, at *4 (D. Kan. Apr.

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7, 2014) (holding that 18 U.S.C. § 249 does “not authorize a private right of
action”); Guthrie v. Franklin Cnty., No. 4:07-CV-2108-CEJ, 2008 WL 815733, at *3
(E.D. Mo. Mar. 24, 2008) (holding that “plaintiffs cannot sustain a cause of action
under 42 U.S.C. § 14141, which allows only the Attorney General of the United
States to seek injunctive relief from unconstitutional patterns or practices by law
enforcement officials”); John’s Insulation, Inc. v. Siska Const. Co., 774 F. Supp.
156, 163 (S.D.N.Y. 1991) (explaining that 18 U.S.C. Ҥ 245, which permits federal
prosecution for interference with a list of federally protected activities, confers
neither substantive rights nor a private right of action for damages”). Therefore,
the claims asserted by plaintiff on the basis of those statutes will be dismissed.
In considering a motion to dismiss based on Rule 12(b)(6), the court is
required to “accept as true all factual allegations in the complaint and draw all
reasonable inferences in favor of the nonmoving party,” but the court is “not bound
to accept as true ‘[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements,’ or legal conclusions couched as factual
allegations.”

McDonough v. Anoka Cnty., 799 F.3d 931, 945 (8th Cir. 2015)

(quoting Iqbal, 556 U.S. at 678); see Twombly, 550 U.S. at 555–56, 570.

The

scant facts alleged as to Gary Parham, PayneCrest Electric, Multimedia KSDK, Inc.,
Mike Rush, the State of Missouri,3 St. Louis County, Missouri, and the City of
Arnold, Missouri fail to state plausible, non-speculative, non-conclusory claims for
relief against each of those defendants.

Therefore, the claims against these

defendants will be dismissed.
Plaintiff claims Jefferson County should have issued him an occupancy permit
3

Because no plausible claim is alleged against the State of Missouri, it is unnecessary to separately
address the State’s argument that it is entitled to sovereign immunity.

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and a license needed to operate his company, and that the County has charged him
with unspecified crimes.

None of those allegations are supported by sufficient

factual bases to state any plausible claim for relief against the County.

See

McDonough, 799 F.3d at 945.
Whether the County was required to issue plaintiff an occupancy permit or a
business license is a question of law. The amended complaint does not allege facts
from which a reasonable inference could be drawn that the County may have been
legally required to do so. See Keveney, 304 S.W.3d at 104.
Likewise, plaintiff has failed to allege facts sufficient to support claims of
harassment, disability discrimination, or breach of contract. See Hill v. Walker, 737
F.3d 1209 (8th Cir. 2013) (describing elements of a cause of action under the
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq.); Wolf, 2015 WL
8665406, at *3–4 (dismissing this same plaintiff’s ADA claims because, assuming
plaintiff has a qualifying disability, the ADA is designed to “remedy discrimination in
employment (Title I), in the services of public entities (Title II), and in places of
public accommodation (Title III)”; and this plaintiff had not claimed any Title Iqualifying employment relationship with the defendants in that case; he had not
stated a Title II claim, because he had failed to allege “what public service benefit
he was entitled to or how he was excluded from said public benefit”; and he had
not stated a Title III claim, because he was “claiming discrimination in the use of
his own private home, not to services in a place of public accommodation”
(quotation marks and citations omitted)); State v. Wooden, 388 S.W.3d 522, 525
(Mo. 2013) (en banc) (citing Mo. Rev. Stat. § 565.090.1 and defining harassment
under Missouri law); Keveney v. Mo. Military Acad., 304 S.W.3d 98, 104 (Mo. 2010)

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(en banc) (enumerating the elements of a breach of contract claim under Missouri
law); State v. Callen, 45 S.W.3d 888, 889 (Mo. 2001) (en banc) (citing Mo. Rev.
Stat. § 557.035 and defining a “hate crime” under Missouri law).
Nor do the conclusory allegations plausibly suggest that the County’s refusal
to issue an occupancy permit stems from a corrupt racketeering scheme or
conspiracy aimed to harm plaintiff. See Dean v. Cnty. of Gage, 807 F.3d 931, 939
(8th Cir. 2015) (identifying elements of a 42 U.S.C. § 1983 civil conspiracy claim);
Gomez v. Wells Fargo Bank, N.A., 676 F.3d 655, 660–62 (8th Cir. 2012) (describing
the requirements to assert a private right of action under 18 U.S.C. § 1964(c) for
violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18
U.S.C. §§ 1961 et seq.); Wolf, 2015 WL 8665406, at *4 (holding that this plaintiff
had not stated a RICO claim because he had failed to plausibly allege “racketeering
activity,” as defined by 18 U.S.C. § 1961, and he had failed to plausibly allege “at
least two predicate acts,” as the statute requires); Raineri Const., LLC v. Taylor,
No. 4:12-CV-2297-CEJ, 2014 WL 348632, at *5–8 (E.D. Mo. Jan. 31, 2014)
(explaining RICO’s “predicate acts” requirement).
Further, that the County allegedly charged plaintiff with unspecified crimes is
also insufficient to state any plausible claim for relief. Therefore, the claims against
Jefferson County, Missouri will be dismissed.
Finally, as to the unions, the amended complaint states in a conclusory
manner the illegal nature of their actions, and those legal conclusions do not state
plausible claims for relief. See McDonough, 799 F.3d at 945; Wooden, 388 S.W.3d
at 525; Callen, 45 S.W.3d at 889.

Additionally, the assertion that the unions

“control” the County and its licensing regime is conclusory and is not supported by

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factual allegations that, if true, might entitle plaintiff to relief on the basis of a civil
conspiracy or RICO claim. See Dean, 807 F.3d at 939; Gomez, 676 F.3d at 660–
62; Wolf, 2015 WL 8665406, at *4; Taylor, 2014 WL 348632, at *5–8.

That

plaintiff’s company cannot legally work in the County absent a license does not
state a claim because it is not plausibly alleged that the company is legally entitled
to a license.

Therefore, the conclusory allegation that the unions “pushed” the

County not to issue licenses to plaintiff and his company also does not state a
plausible claim for relief on these facts. See Dean, 807 F.3d at 939; Gomez, 676
F.3d at 660–62; Wolf, 2015 WL 8665406, at *4; Taylor, 2014 WL 348632, at *5–8.
Further, the allegations that the unions resisted plaintiff’s efforts to rejoin
them, that they refuse to work with him or his company, and that they tried to
destroy the company are bereft of factual support, and thus fail to state any claim
for relief. See 29 U.S.C. § 158(b)(1)(A) (explaining that a union has the “right” to
“prescribe

its

own

rules

with

respect

to

the

acquisition

or

retention

of

membership”); Wolf, 2015 WL 8665406, at *3–4 (explaining that a Title I ADA
claim can only arise out of an employment relationship); Keveney, 304 S.W.3d at
104 (describing Missouri contract law).

Therefore, the claims against the unions

will be dismissed.
**************
For the reasons discussed above,
IT IS HEREBY ORDERED that the

motions to dismiss the amended

complaint [Docs. ##81, 83, 85, 86, 88, 90, 92, 93] are granted.
IT IS FURTHER ORDERED that all other pending motions [Docs. ##16, 23,
28, 30, 37, 47, 49, 52, 71, 73] are moot.

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An order of dismissal will be entered separately.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 20th day of January, 2016.

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