Collins v. Pine Law, City of et al

Filing 103

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant City of Pine Lawns motion to dismiss is GRANTED with respect to Counts I through III, and VII through XI, and DENIED with respect to Counts IV, V, and VI. ECF. No. 89 . IT IS FURTHER ORDERE D that Plaintiff shall have seven days after the date of this Memorandum and Order to show cause in writing why his claim under the Missouri Sunshine Law (Count IV) should not be dismissed as barred by the statute of limitations. Signed by District Judge Audrey G. Fleissig on 03/31/2017. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RICKEY COLLINS,

)
)
Plaintiff,
)
)
)
v.
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CITY OF PINE LAWN, MISSOURI, et al., )
)
Defendants.
)

Case No. 4:15CV1231 AGF

MEMORANDUM AND ORDER
This action was removed from state court, and is before the Court on the motion
(ECF No. 89) of Defendant City of Pine Lawn, Missouri (“Pine Lawn”) to dismiss the
claims of Plaintiff Rickey Collins asserted against it in the Second Amended Complaint
(the “Complaint”), for failure to state a claim upon which relief can be granted. Plaintiff
asserts 11 claims against Pine Lawn, arising out of his termination as the Chief of Police
for Pine Lawn.1 For the reasons set forth below, the motion to dismiss will be granted in
part and denied in part.
BACKGROUND
Currently before the Court is Plaintiff’s third iteration of the complaint. Plaintiff
amended his initial complaint twice, each time after one or more Defendants filed

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The Complaint also contains a twelfth claim against Pine Lawn, under the
Racketeering Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961, et
seq. (Count XII). However, the Court dismissed this claim in a prior Memorandum and
Order, issued on June 10, 2016. ECF No. 70.
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motions to dismiss or for summary judgment. At issue in the current motion are the
claims against Pine Lawn in the Complaint2 (ECF No. 64).
Plaintiff served in his capacity as Chief of Police for Pine Lawn since May 2007.
Defendant Sylvester Caldwell is the former mayor of Pine Lawn, and Defendant Donnell
Smith was the City Attorney for Pine Lawn. Plaintiff alleges that as Chief of Police, he
learned about illegal activities conducted by Caldwell, and informed the Federal Bureau
of Investigation (“FBI”) about such activities. Plaintiff claims the information he
provided to the FBI may have led to the identification of witnesses in an extortion
scheme involving Caldwell. Plaintiff alleges that he also reported Caldwell’s activities to
elected officials, and reported that Caldwell had fired Pine Lawn police officers without
cause. Plaintiff alleges that “Pine Lawn officials were informed that Collins would be
reporting the Mayor to the authorities,” and that his reports of the Mayor’s illegal activity
resulted in a hostile work environment that culminated in his termination. ECF No. 64 at
6.
With respect to his termination, Plaintiff claims that the Board of Aldermen for
Pine Lawn suspended and later terminated him without an adequate hearing in a meeting
that was not in compliance with the Missouri Sunshine Law, Mo. Rev. Stat. § 610.010, et.
seq. He claims that Pine Lawn did not post a notice of the meeting 24 hours in advance,
the notice did not contain sufficient details of the meeting’s agenda, and the notice was

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More than a month before Pine Lawn filed this motion, Defendant Smith filed a
motion to dismiss Plaintiff’s claims against him. The Court granted that motion on
March 6, 2017.
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not posted in a conspicuous location. Plaintiff alleges he informed the Board of
Aldermen of the impropriety of the meeting, but they proceeded.
Counts I through XI of the Complaint are brought against Pine Lawn. Counts I
through IV are state-law claims for common law “whistleblower” liability (Count I),
“common law retaliation – violation of state constitution” (Count II), “common law
retaliation – acting as a witness” (Count III), and violation of the Missouri Sunshine Law
(Count IV). With respect to each of these claims, Plaintiff alleges that “Pine Lawn has
procured liability insurance that would provide coverage for” the claim. ECF No. 64 at
8-12. Counts V through X are federal claims under 42 U.S.C. § 1983, alleging violation
of Plaintiff’s constitutional right to free speech (Count V), free association (Count VI),
equal protection / protection from discrimination (Count VII and X),3 due process with
respect to liberty interests (Count VIII), and due process with respect to property interests
(Count IX). Count XI is a federal claim alleging violation of 42 U.S.C. § 1981.
ARGUMENTS OF THE PARTIES
Pine Lawn argues that Plaintiff’s state-law claims are barred by sovereign
immunity. According to Pine Lawn, Plaintiff’s allegations regarding insurance coverage
for the claims at issue—which seek to invoke a statutory exception to Missouri’s
sovereign immunity statutes—are conclusory and should be disregarded. Alternatively,
Pine Lawn has attached a copy of its insurance policy and argues that it conclusively

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Counts VII and X assert nearly identical claims, though one is titled “Right to
Equal Protection” and the other “Discriminatory Motive.” In both Counts, Plaintiff
alleges that he was “treated differently than others in the same situation and the
discriminatory treatment was based on an impermissible purpose or motive.” ECF No.
63 at 16, 21.
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shows that the claims are not covered. Pine Lawn argues that Count IV, alleging
violation of the Missouri Sunshine Law, is not only barred by sovereign immunity but
also fails because, even assuming that Plaintiff has adequately alleged facts
demonstrating that the board meeting at issue violated the Sunshine Law (which Pine
Lawn states that it does not concede), Plaintiff’s claim is barred by the Sunshine Law’s
one-year statute of limitations.
With respect to Plaintiff’s federal claims, Pine Lawn incorporates the arguments
raised by Smith in his motion to dismiss, including that Plaintiff failed to state a due
process or equal protection claim.
Pine Lawn further argues that Plaintiff fails to adequately allege municipal
liability under § 1983 because his claims lack any factual allegations of an
unconstitutional policy or custom as the moving force behind the alleged deprivation of
rights. Pine Lawn argues that “the final policymaker in a fourth class city [like Pine
Lawn] is the collective of the mayor and the board of alderm[e]n” pursuant to Mo. Rev.
Stat. § 79.110. ECF No. 90 at 5. Pine Lawn argues more specifically that, under Mo.
Rev. Stat. § 79.240 (2013), the Mayor could not have removed an appointive officer
without the majority approval of the Board of Aldermen, and that Plaintiff’s allegations
regarding the Board of Aldermen’s purported wrongful termination of Plaintiff are either
conclusory or fail to state a claim as a matter of law.
Finally, Pine Lawn argues that Plaintiff fails to state a § 1981 claim because he has
not alleged any facts in support of such a claim.

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In response to Pine Lawn’s motion, Plaintiff argues that sovereign immunity does
not apply to his state-law claims for retaliatory discharge because those claims allege
intentional actions and involve proprietary functions not subject to sovereign immunity.
Plaintiff also argues that sovereign immunity does not apply to his Sunshine Law claim
because that claim alleges a statutory violation, rather than a tort claim. Plaintiff does not
address or make any argument with respect to the insurance policy attached to Pine
Lawn’s motion. Nor does Plaintiff respond to Pine Lawn’s assertion that his Sunshine
Law claim is barred by the statute of limitations.
With respect to his federal claims, Plaintiff argues that he has adequately stated
claims for municipal liability for constitutional violations under § 1983. Specifically,
Plaintiff argues that he has pled sufficient facts to establish that “persons with policy
making authority were involved with the deprivation of rights” alleged here. ECF No. 93
at 11.
Plaintiff also argues that he has pled sufficient facts to establish the underlying
constitutional violations. With respect to his First Amendment claims, he argues that he
has adequately pled that his speech on matters of public concern, namely, his reporting of
illegal activities to internal supervisors and to the FBI and press, and his “association
with the FBI and press” in this regard, were motivating factors in Pine Lawn’s decision to
terminate him. With respect to his equal protection and discrimination claims, Plaintiff
simply argues that he has “pled sufficient facts” to make out a violation. Regarding his
due process claims, Plaintiff points to Chapter 84 of the Missouri Revised Statutes to
argue that he had a constitutionally protected interest in continued employment. Plaintiff
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also argues that he has adequately pled a deprivation of his liberty interest in his
reputation by pleading that “[f]alse and stigmatizing statements were made in connection
with the employee’s discharge in public, without a meaningful opportunity for [Plaintiff]
to clear his name.” ECF No. 64 at 18.
Plaintiff does not address Pine Lawn’s arguments with respect to his § 1981 claim.
DISCUSSION
To survive a motion to dismiss for failure to state a claim, a complaint must
contain “sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
The court must accept the complaint’s factual allegations as true and construe them in the
plaintiff’s favor, but it is not required to accept the legal conclusions the complaint draws
from the facts alleged. Id. at 678. “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.” Id.; see also McDonough v. Anoka Cty.,
799 F.3d 931, 945 (8th Cir. 2015).
Counts I through III (state-law retaliatory discharge claims)
Counts I through III are common law retaliatory discharge claims predicated upon
the public-policy exception to the at-will employment doctrine recognized by Missouri
courts. The Missouri Supreme Court has made clear that municipalities are immune from
claims unless an exception to immunity applies. See Kunzie v. City of Olivette, 184
S.W.3d 570, 573 (Mo. 2006) (holding that whistleblower claims and other retaliatory

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discharge claims are tort claims involving governmental functions and, as such, subject to
sovereign immunity).
In this case, as in Kunzie, which involved substantially similar retaliatory
discharge claims, “the only applicable exception would be the municipality’s
procurement of liability insurance” so as to invoke Mo. Rev. Stat. § 537.610.1. Id. at
574. “Section 537.610.1 allows political subdivisions of the state to purchase liability
insurance for tort claims and waives sovereign immunity ‘only to the maximum amount
of and only for the purposes covered by such policy of insurance’ or self-insurance plan.”
Id. (quoting Mo. Rev. Stat. § 537.610.1); see also Epps v. City of Pine Lawn, 353 F.3d
588, 594 (8th Cir. 2003) (“To penetrate a claim of immunity under section 537.610.1, a
plaintiff is required to demonstrate the existence of insurance that covered the plaintiff’s
claim.”).
Pine Lawn has attached the applicable MOPERM insurance policy to its motion to
dismiss, and Plaintiff does not challenge the authenticity of this policy or suggest that
another policy exists that would apply here. Therefore, the Court may consider the policy
as “necessarily embraced by the pleadings” without converting Pine Lawn’s motion into
one for summary judgment. See Ashanti v. City of Golden Valley, 666 F.3d 1148, 1151
(8th Cir. 2012) (“Documents necessarily embraced by the pleadings [which may be
considered on a motion to dismiss] include documents whose contents are alleged in a
complaint and whose authenticity no party questions, but which are not physically
attached to the pleading”); Noah v. Saint Louis Cty., Mo., No. 4:06CV591 CDP, 2007

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WL 1018671, at *2 (E.D. Mo. Mar. 29, 2007) (considering insurance policy attached to
motion to dismiss to determine whether tort claims were barred by sovereign immunity).
As Pine Lawn argues, a review of the insurance policy’s terms conclusively
demonstrates that Plaintiff’s claims are not covered. The only “claims on causes of
actions established by Missouri Law” which are covered under the policy are those
arising out of injuries resulting from the operation of motor vehicles or dangerous
conditions of property. ECF No. 90-1. The policy further states that nothing in the
policy “shall be construed to broaden the liability of [Pine Lawn] beyond the provisions
of section 537.600 to 537.610 [the sovereign immunity sections] of the Missouri
statutes.” Id. The policy’s plain terms fail to cover Plaintiff’s retaliatory discharge
claims. See Topps v. City of Country Club Hills, 272 S.W.3d 409, 418 (Mo. Ct. App.
2008) (finding that a nearly identical MOPERM policy was unambiguous and plainly
contained “no provisions . . . to potentially create liability for an employee whistle
blower claim”); Epps, 353 F.3d at 595 (finding sovereign immunity protection for a
retaliatory discharge claim against Pine Lawn where the MOPERM policy specifically
cited Missouri’s sovereign-immunity statutes and noted that liability would not be
broadened beyond the limits of those statutes). Because Pine Lawn has demonstrated that
it is immune from Plaintiff’s retaliatory discharge claims in Counts I through III, these
claims will be dismissed.
Count IV (Missouri Sunshine Law claim)
As noted above, Pine Lawn argues that Plaintiff’s claim under the Missouri
Sunshine Law is barred by the statue’s one-year statute of limitations. Mo. Rev. Stat. §
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610.027.5, provides that “[s]uit for enforcement [of the Sunshine Law] shall be brought
within one year from which the violation is ascertainable and in no event shall it be
brought later than two years after the violation.” In actions alleging a violation of the
Sunshine Law, damages are “ascertainable” “when the fact of damage can be discovered
or made known, rather than when a plaintiff actually discovers injury or wrongful
conduct.” Colombo v. Buford, 935 S.W.2d 690, 695 (Mo. Ct. App. 1996); Bartis v. City
of Bridgeton, No. 406-CV-1574 JCH, 2007 WL 1486024, at *6 (E.D. Mo. May 18, 2007)
(applying the statute of limitations to a claim by a police officer that in terminating him,
the defendants violated the Missouri Sunshine Act). Here the damages alleged would
have been ascertainable at the time of termination. See Bartis, 2007 WL 1486024, at *6.
A court may dismiss a claim as barred by the statute of limitations if the complaint
itself establishes that the claim is time-barred. Jessie v. Potter, 516 F.3d 709, 713 n.2
(8th Cir. 2008). Here, Plaintiff’s suit was filed in state court on May 7, 2015, and while it
seems clear that this was more than one year after the statute of limitations began to run,
the Complaint does not include the date of termination, nor does the record otherwise
establish that date. Accordingly, the Court will allow Plaintiff seven days after the date
of this Memorandum and Order to show cause why his claim under the Missouri
Sunshine Law should not be dismissed as barred by the statute of limitations.
Counts VI and VII (First Amendment Retaliation)
The First Amendment guarantees every citizen a right to engage in free speech,
without governmental restriction. See Wickersham v. City of Columbia, 481 F.3d 591,
597 (8th Cir. 2007). Because “public employees do not surrender all of their First
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Amendment rights by reason of their employment,” a public employer may not penalize
its employee for exercising his constitutionally protected right to freedom of speech—
that is if he “‘spoke as a citizen on a matter of public concern.’” Barnes v. City of
Charlack, Mo., 183 F. Supp. 3d 956, 959 (E.D. Mo. 2016) (quoting Garcetti v. Ceballos,
547 U.S. 410, 417 (2006)). To establish a First Amendment retaliation claim, a plaintiff
must allege that: “(1) he engaged in activity protected by the First Amendment; (2) the
defendants took an adverse employment action against him; and (3) the protected conduct
was a substantial or motivating factor in the defendants’ decision to take the adverse
employment action.” Lyons v. Vaught, 781 F.3d 958, 961 (8th Cir. 2015).4
Here, Pine Lawn does not argue, nor can it, that Plaintiff’s speech and related
associations were not protected. See Belk v. City of Eldon, 228 F.3d 872, 878 (8th Cir.
2000) (“Speech that criticizes a public employer in his capacity as a public official . . .
addresses matters of public concern.”). And Plaintiff’s allegations that his termination
followed his reports to Pine Lawn officials and the authorities about the Mayor’s illegal
activities, while thin with respect to timing and context of the relevant events, are
sufficient at this stage to give rise to a reasonable inference that Plaintiff’s protected
conduct was a “substantial or motivating factor” in his firing.

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The same test applies to Plaintiff’s “freedom of association” claim in Count VI,
which references Plaintiff’s “association with the FBI and/or the press,” reasonably
inferred to mean Plaintiff’s association with these entities in the context of his
whistleblowing. See Morris v. City of Chillicothe, 512 F.3d 1013, 1018 (8th Cir. 2008)
(“[T]he First Amendment restrains the government from retaliating against a public
employee based on the employee's speech or associations.”) (emphasis added); Lloyd v.
City of St. Charles, Mo., 617 F. Supp. 2d 830, 834 (E.D. Mo. 2008) (applying Garcetti
test to “public employees who argue that they were terminated for exercise of their right
to free association”).
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Pine Lawn’s primary argument in support of dismissal of Plaintiff’s First
Amendment retaliation claim is that Pine Lawn cannot be liable for the decision to
terminate Plaintiff. Pine Lawn is correct that “[u]nder 42 U.S.C. § 1983, a municipality
may not be held vicariously liable for the unconstitutional acts of employees.” See
Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999) (citing Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 694 (1978)). As recently explained by the Eighth Circuit,
[a]n action can constitute official municipal policy only if the
decisionmaker in question possesses final authority to establish municipal
policy with respect to the action ordered. [Courts] look to applicable state
and local law to determine where final policymaking authority rests. A
single decision by a municipal authority can in some circumstances
constitute official policy.
Bolderson v. City of Wentzville, Mo., 840 F.3d 982, 985 (8th Cir. 2016) (citations
omitted).
Here, Plaintiff alleges that Pine Lawn’s Board of Aldermen terminated him. The
Court rejects Pine Lawn’s argument that the Complaint merely asserts a claim against the
Board of Aldermen for violating the Missouri Sunshine Law and not a claim asserting
that the termination itself was wrongful. Pine Lawn acknowledges, correctly, that the
Board of Aldermen was the decisionmaker possessing final authority with respect to
termination of the Chief of Police. See Mo. Rev. Stat. § 79.240 (2013); see also Sexton v.
Martin, 210 F.3d 905, 910 (8th Cir. 2000); Wright v. City of Salisbury, Mo., 656 F. Supp.
2d 1013, 1027 (E.D. Mo. 2009). Thus, Pine Lawn’s motion to dismiss will be denied
with respect to the First Amendment retaliation claim.

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Counts VII and X (Equal Protection and “Discriminatory Motive”)
Plaintiff fails to plausibly allege a constitutional claim for violation of his right to
equal protection, largely for the reasons discussed in the Court’s March 6, 2017
Memorandum and Order granting Smith’s motion to dismiss (ECF No. 101). In
particular, Plaintiff has not pled any factual allegations to identify what protected class he
was in; what individuals or groups of individuals, similarly situated to him, were treated
differently; or how the treatment was different. See ECF No. 101 at 20-21 (explaining
why Plaintiff failed to state an equal protection claim and citing Hager v. Ark. Dep’t of
Health, 735 F.3d 1009, 1014 (8th Cir. 2013) (dismissing equal protection discrimination
claims based on similarly conclusory allegations)).
Counts VIII and XI (Due Process)
Plaintiff’s due process claims also fail for the reasons discussed in the Court’s
March 6, 2017 Memorandum and Order. Specifically, as the Court previously held, the
statutes which Plaintiff asserts give rise to a constitutionally protected interest in
continued employment (Chapter 84 of the Missouri Revised Statutes) do not apply to
Fourth Class Cities like Pine Lawn. Rather, Chapter 79 applies to Fourth Class Cities
and provides that appointed employees like Plaintiff are at-will employees, and as such,
have no constitutionally protected interest in continued employment under the Due
Process Clause. See ECF No. 101 at 17-18 (discussing relevant statutes).
And although Plaintiff may have a protected liberty interest in his reputation, his
due process claim based on this interest fails because, as the Court previously explained,
his formulaic recitation of the elements of such a claim are insufficient. See Iqbal, 556
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U.S. at 678. Plaintiff has not pled any factual allegations to suggest who made the
allegedly false and stigmatizing statements (so as to ascertain whether those statements
are attributable to Pine Lawn), what the statements were, or in what context they were
made. Nor has he pled that he requested a name-clearing hearing. See ECF No. 101 at
19-20 (explaining why Plaintiff failed to state a due process claim for deprivation of a
liberty interest in his reputation and citing Crooks v. Lynch, 557 F.3d 846, 849 (8th Cir.
2009) (setting forth elements of such a due process claim and noting that the plaintiff
must prove he requested and was denied a name-clearing hearing)).
Count XI (Section 1981)
“To state a claim under § 1981, a plaintiff must plead: (1) that the plaintiff is a
member of a protected class; (2) that the defendant intended to discriminate on the basis
of race; and (3) that the discrimination on the basis of race interfered with a protected
activity as defined in § 1981.” Elmore v. Harbor Freight Tools USA, Inc., 844 F.3d 764,
766 (8th Cir. 2016). The allegations in support of these § 1981 elements “must contain
facts which state a claim as a matter of law and must not be conclusory.” Gregory v.
Dillard’s, Inc., 565 F.3d 464, 473 (8th Cir. 2009) (en banc).
Plaintiff has failed to plead any facts to indicate that he is a member of a protected
class or that Pine Lawn intended to discriminate against him on the basis of race. Indeed,
the Complaint does not even allude to race. As such, the Court will dismiss Count XI.
Cf. Becton v. St. Louis Reg’l Pub. Media, Inc., No. 4:16-CV-1419 CAS, 2017 WL
769900, at *4 (E.D. Mo. Feb. 28, 2017) (dismissing § 1981 claim where the “plaintiff’s

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complaint allege[d] only that he is African American and then ma[de] a bare, conclusory
assertion that he was terminated because of his race”).
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant City of Pine Lawn’s motion to
dismiss is GRANTED with respect to Counts I through III, and VII through XI, and
DENIED with respect to Counts IV, V, and VI. ECF. No. 89.
IT IS FURTHER ORDERED that Plaintiff shall have seven days after the date
of this Memorandum and Order to show cause in writing why his claim under the
Missouri Sunshine Law (Count IV) should not be dismissed as barred by the statute of
limitations.

__________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 31st day of March, 2017.

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