Metro Publishing Group et al v. Murphy

Filing 29

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that defendants' motions to dismiss [Docs. ## 13 , 16 and 24 ] are granted. A separate order of partial dismissal will be entered.. Signed by District Judge Carol E. Jackson on 2/17/16. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
METRO PUBLISHING GROUP, INC. and
MICHAEL C. WILLIAMS,
Plaintiffs,
vs.
JAMES W. MURPHY, in his official
capacity as Sheriff of the City of
St. Louis, Missouri, et al.,
Defendants.

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Case No. 4:15-CV-1886-CEJ

MEMORANDUM AND ORDER
This matter is before the court on the motions of defendants James W.
Murphy and I.B. Property, LLC to dismiss plaintiffs’ second amended complaint for
failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6). Also before the court
is the motion of defendant Michael E. Boyd to dismiss Counts I and II of the second
amended complaint.

Plaintiffs have not responded to the motions, and the time

permitted for doing so has expired.
I.

Background

According to the second amended complaint, plaintiffs Michael C. Williams
and Metro Publishing Group, Inc., were tenants of a building located at 2900 North
Market Street, St. Louis, Missouri 63106 (hereinafter, “the 63106 property”) where
they were engaged in the business of publishing a newspaper. The plaintiffs’ lease
was due to expire on December 19, 2019.
Defendant James W. Murphy is the Sheriff of the City of St. Louis, Missouri
and is sued here in his official capacity only. Plaintiffs allege that during the period
February 3, 2010 through April 5, 2010 Murphy “had a duty to notify plaintiffs” that

their personal property that was located at the 63106 property “was subject to
ejectment.”

Murphy was also obligated “to accurately and legally post notice of

execution of attachment and possession of premises” arising from a civil action
concerning the 63106 property.

However, Murphy “erroneously posted notice of

execution” at 2900 Market Street, St. Louis, Missouri 63103.

The posting of the

notice at the wrong address “denied plaintiffs due process, the right to timely
vacate” the 63106 property, the right to “keep safe their property,” and the right to
“timely file a Motion to Quash execution.” As a result, plaintiffs’ personal property
was destroyed “during the process of execution of possession supervised by”
Murphy.
Plaintiffs initiated this action in a Missouri state court on February 5, 2015.
After the case was removed pursuant to 28 U.S.C. § 1331, plaintiffs amended the
complaint. In Count I of the second amended complaint, plaintiffs seek damages
resulting from Murphy’s “failure to lawfully post notice of execution” and “service of
process.”

In Count II, plaintiffs assert a claim under 42 U.S.C. § 1983, alleging

that Murphy “under color of state law, denied plaintiffs notice of eviction and
ordered plaintiffs not to interfere with the ejectment and destruction of their
property.” In Count III, plaintiffs allege that defendants Michael Ernest Boyd and
I.B. Property, LLC, acting under color of law, “engaged” Murphy to destroy
plaintiffs’ property in order to stop the publication of plaintiffs’ newspaper, and that
Boyd and I.B. Property violated plaintiffs’ rights under the First Amendment and the
Due Process Clause.

Neither Boyd nor I.B. Property is identified in the second

amended complaint. Further, the complaint does not describe any specific acts by
Boyd or I.B. Property.

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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)
(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
Counts I and II

There are no allegations against Boyd in Counts I and II.

Therefore, his

motion to dismiss those counts will be granted.
In Count I, plaintiffs allege that they were injured by Murphy’s actions that

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were performed in his official capacity as Sheriff of the City.

Missouri imposes a

three-year statute of limitations on “[a]n action against a sheriff . . . upon a liability
incurred by the doing of an act in his official capacity and in virtue of his office, or
by the omission of an official duty . . . .” Mo. Rev. Stat. § 516.130(1); see Dilley v.
Valentine, 401 S.W.3d 544, 551–53 (Mo. Ct. App. 2013). The plaintiffs complain of
official acts that Murphy performed in February through April 2010, nearly five
years before plaintiffs brought suit. The claims against Murphy in Count I are thus
time-barred and will be dismissed.
“To state a claim under 42 U.S.C. § 1983, a plaintiff must show that he was
deprived of a right secured by the Constitution and the laws of the United States
and that the deprivation was committed by a person acting under color of state
law.”

Alexander v. Hedback, 718 F.3d 762, 765 (8th Cir. 2013).

Count II is brought against Murphy in his official capacity only.

The claim in

“Because a suit

against a public employee in his or her official capacity is merely a suit against the
public employer, the [second] amended complaint was required to state a claim for
municipal liability.”

Id. (quotation marks, bracketing, and citation omitted).

“A

municipality can be liable under § 1983 only if a municipal policy or custom caused
a plaintiff to be deprived of a federal right.” Id. (citation omitted). “To establish a
claim for custom liability,” a plaintiff must plead:
(1) the existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the governmental entity’s employees;
(2) deliberate indifference to or tacit authorization of such conduct by
the governmental entity’s policymaking officials after notice to the
officials of that misconduct; and
(3) that plaintiff was injured by acts pursuant to the governmental
entity’s custom, i.e., that the custom was a moving force behind the
constitutional violation.

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Johnson v. Douglas Cty. Med. Dep’t, 725 F.3d 825, 828 (8th Cir. 2013).

“With

respect to the first element, a single deviation from a written, official policy does
not prove a conflicting custom.” Id. at 828–29.
The plaintiffs do not allege that Murphy was involved in establishing any
municipal policy that resulted in a deprivation of their constitutional rights.
Indeed, plaintiffs do not allege that a municipal policy, custom or procedure was the
cause of their injury. There is no allegation of the existence of an official city policy
or custom of placing eviction notices on the wrong properties, not notifying tenants
of the pendency of eviction proceedings, or refusing to permit tenants to secure
their personal property prior to eviction. Rather, it is alleged that Murphy deviated
from the city’s official policies in the singular instance of evicting these plaintiffs.
But a “singular deviation” does not establish an unconstitutional custom. Id.; see
also Reese v. Kennedy, 865 F.2d 186, 187 (8th Cir. 1989) (holding that, in a case
of allegedly faulty eviction proceedings, “a due process deprivation does not occur
because of an unauthorized failure of state officials to follow established state
procedures”). The second amended complaint suggests, at most, that Murphy was
negligent in posting notice of the eviction at the wrong address.
claims are not actionable under § 1983.

But negligence

Daniels v. Williams, 474 U.S. 327, 328

(1986) (the Due Process Clause “is simply not implicated by a negligent act of an
aofficial causing unintended loss of or injury to life, liberty, or property.”).
The court concludes that the second amended complaint fails to state a claim
against Murphy under § 1983. Therefore, Count II will be dismissed.
Count III
In Count III, plaintiffs allege that I.B. Property violated plaintiffs’ First

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Amendment and due process rights.

“Only state actors can be held liable under

Section 1983.” Carlson v. Roetzel & Andress, 552 F.3d 648, 650 (8th Cir. 2008)
(quotation marks and citation omitted). There is no allegation that I.B. Property is
a governmental entity. However, a “private party who willfully participates in joint
activity with the State or its agents is considered a state actor.” Youngblood v. HyVee Food Stores, Inc., 266 F.3d 851, 855 (8th Cir. 2001) (citing Adickes v. S. H.
Kress & Co., 398 U.S. 144, 152 (1970)).

To maintain a § 1983 claim against

I.B. Property, therefore, the second amended complaint must allege facts plausibly
suggesting that I.B. Property acted in concert with Murphy. See Carlson, 552 F.3d
at 651 (holding that to find “private parties liable as state actors, this court has
required joint action or conspiracy with state authorities”).
In the complaint, plaintiffs allege that I.B. Property “engaged” Murphy to
evict them, but they do not allege any facts describing how this was done. There
are no factual allegations that plausibly suggest that I.B. Property acted in concert
with Murphy to deprive plaintiffs of their rights. A threadbare recital of an element
of a cause of action is insufficient to sustain a § 1983 claim against a private entity.
See Murray v. Lene, 595 F.3d 868, 870 (8th Cir. 2010) (stating a plausible § 1983
“conspiracy claim” among state actors and non-state actors “requires allegations of
specific facts tending to show a ‘meeting of the minds’ among the alleged
conspirators”). Further, “a private party’s mere invocation of state legal procedures
does not constitute state action.” Youngblood, 266 F.3d at 855 (citation omitted).
The court concludes that Count III of the second amended complaint does
not state a plausible § 1983 claim against I.B. Property.
be dismissed as to that defendant only.

Therefore Count III will

Count III remains pending as to defendant

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Boyd.
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For the foregoing reasons,
IT IS HEREBY ORDERED that defendants’ motions to dismiss [Docs. ##13,
16 and 24] are granted.
A separate order of partial dismissal will be entered.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 17th day of February, 2016.

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