Moore v. City of St. Louis et al

Filing 71

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Defendant City of St. Louis and Mayor Krewson's Motion to Dismiss 33 is GRANTED. IT IS FURTHER ORDERED that Defendant Peter and Paul Community Services, Inc.'s Motion to Dismiss 40 is GRA NTED. IT IS FURTHER ORDERED that Defendant St. Patrick Center's Motion to Dismiss 52 is GRANTED. IT IS FURTHER ORDERED that on the Court's own motion, Defendant Biddle House is DISMISSED. IT IS FINALLY ORDERED that Plaintiff's Motion for Preliminary Injunction 6 and Renewed Motion for Preliminary Injunction 11 are DENIED as moot. A separate judgment of dismissal will accompany this Memorandum and Order.. Signed by District Judge John A. Ross on 3/27/18. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DISTRICT
EDWARD ALLEN MOORE,

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Plaintiff,
v.
CITY OF ST. LOUIS, et al.,
Defendants.

No. 4:17-CV-01912 JAR

MEMORANDUM AND ORDER
This matter is before the Court on motions to dismiss filed by Defendants City of St.
Louis and Mayor Lyda Krewson (Doc. No. 33); Peter and Paul Community Services, Inc. (Doc.
No, 40); and St. Patrick Center 1 (Doc. No. 52). Plaintiff was granted several extensions of time
to respond to the motions (Doc. Nos. 44, 46, 63, 70), and most recently up to and including
March 21, 2018 (Doc. No. 68). To date he has not responded. The Court will, therefore, rule on
Defendants’ unopposed motions.
I.

Background

Plaintiff Edward Allen Moore, proceeding pro se, filed this action on July 5, 2017,
pursuant to 42 U.S.C. § 1983 for alleged violations of his civil rights, against the City of St.
Louis (“the City”); St. Louis Mayor Lyda Krewson (“Mayor Krewson”); Biddle House
Opportunity Center 2 (“Biddle House”); St. Patrick Center (“St. Patrick”); Peter and Paul
Community Services, Inc. (“Peter and Paul”); Biddle House Staff Person Keneesha Unknown;

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Although St. Patrick Center has never been served, following the issuance of an alias summons on
November 13, 2017, it filed a motion to dismiss on December 8, 2017.

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Biddle House and staff members were served on July 21, 2017; no answer was filed.

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Biddle House Staff Person Emma Unknown; and Six John Doe Biddle House Staff Persons.
(Doc. No. 1) In his original complaint and motions for injunctive relief, Plaintiff asserted he was
a homeless resident of the City of St. Louis seeking services from Biddle House, a facility owned
by the City which purportedly “serves the needs of the homeless and is staffed by St. Patrick
Center,” and serviced by Peter and Paul. Plaintiff alleged that in June of 2017, he was given a
“routing” slip 3 at Biddle House that allowed him to take showers, do laundry and obtain meals.
Plaintiff further alleged that after he became an “outspoken critic” of Biddle House, voicing his
criticisms on certain media websites as well as on Defendants’ websites, Biddle House began to
retaliate against him by denying him services. Plaintiff sought an ex parte hearing on his motion
for temporary restraining order, but was instructed to notify Defendants of his intent to seek a
hearing prior to being given a hearing date.
On July 10, 2017, Plaintiff amended his complaint to add a claim that he was being
denied an overnight bed by Biddle House. (Doc. No. 7) On July 13, 2017, he filed a second
amended complaint (Doc. No. 8), and renewed his motions for temporary restraining order and
preliminary injunction (Doc. Nos. 9, 11). Plaintiff alleged that Biddle House was refusing to
renew his routing slip, effectively cutting him off from services, including food, laundry,
showers and a bed.
Based on Plaintiff’s allegations in his renewed motion for temporary restraining order,
the Court held an emergency hearing on July 13, 2017. A representative from the City testified
that Plaintiff was in good standing at Biddle House, able to receive services there, and provided
Plaintiff with contact information in order to attain services. On July 14, 2017, this Court denied
Plaintiff’s motion for temporary restraining order and renewed motion for temporary restraining

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A routing slip identifies services available to homeless persons at Biddle House.

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order based on his failure to present any evidence showing a likelihood of success on the merits
or a threat of irreparable harm (Doc. No. 17). His motion for reconsideration was denied on
August 4, 2017. (Doc. No. 32)
Plaintiff alleges three claims against Defendants in his second amended complaint. First,
he alleges that all of the Defendants, in their individual and official capacities, retaliated against
him in violation of the First Amendment by failing to provide him services at Biddle House.
Second, Plaintiff alleges he was denied property, in violation of the Fourteenth Amendment,
when Defendants kept his clothing at Biddle House after an alleged verbal dispute. Lastly,
Plaintiff asserts that Defendants deprived him of procedural due process in violation of the
Fourteenth Amendment. Plaintiff seeks compensatory and injunctive relief in connection with his
claims.
II.

Legal Standard

The purpose of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is to
test the legal sufficiency of the complaint. “To survive a motion to dismiss, 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) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). Although pro se complaints are to be construed liberally, “they still must allege
sufficient facts to support the claims advanced.” Stringer v. St. James R-1 Sch. Dist., 446 F.3d
799, 802 (8th Cir. 2006) (quoting Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). “[P]ro se
litigants must set [a claim] forth in a manner which, taking the pleaded facts as true, states a
claim as a matter of law.” Id. (internal quotation omitted).
III.

Discussion

A. Peter and Paul Community Services and St. Patrick Center
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To state a claim under § 1983, a plaintiff must allege that he has been deprived of a
constitutional right by a person acting under color of state law. Sabri v. Whittier All., 833 F.3d
995, 999–1000 (8th Cir. 2016) (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 942 (1982)).
Importantly, “[o]nly state actors can be held liable under Section 1983.” Carlson v. Roetzel &
Andress, 552 F.3d 648, 650 (8th Cir. 2008). There is no allegation that Peter and Paul and St.
Patrick, both private non-profit organizations, are state actors. However, a private party may be
held liable under § 1983 if it is a “willful participant in joint action with the State or its agents.”
Mershon v. Beasley, 994 F.2d. 449, 451 (8th Cir. 1993).
To hold a private party liable under § 1983, a plaintiff must allege, at the very least, “that
there was a mutual understanding, or a meeting of the minds, between the private party and the
state actor.” Miller v. Compton, 122 F.3d 1094, 1098 (8th Cir. 1997); Mershon, 994 F.2d. at 451.
The facts alleged with respect to a mutual understanding or conspiracy must be specific and may
not be merely conclusory. Deck v. Leftridge, 771 F.2d 1168, 1170 (8th Cir. 1985). A threadbare
recital of an element of a cause of action is insufficient to sustain a § 1983 claim against a private
party. 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”).
Plaintiff has alleged no facts plausibly suggesting that Peter and Paul and/or St. Patrick
acted in concert with state authorities to violate his constitutional rights. 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”). Although Plaintiff alleges that St. Patrick “staffed” the
Biddle House and that Peter and Paul “supervised” the Biddle House (FAC ¶ 7), a private
corporation cannot be held liable under § 1983 on a theory of respondeat superior. Johnson v.
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The Bridge, No. 4:14-CV-884 JAR, 2014 WL 2711795, at *2 (E.D. Mo. June 16, 2014) (citing
Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995)). Instead, a private corporation will only be
liable for its own unconstitutional policies. Id. (quoting Sanders v. Sears, Roebuck & Co., 984
F.2d 972, 975-76 (8th Cir. 1993); Monell v. Dep’t of Soc. Serv., 436 U.S. 658, 690-91 (1978)).
In this case, Plaintiff has not identified any such policy.
Even if Peter and Paul and St. Patrick were state actors, Plaintiff has not alleged any facts
to support a First Amendment retaliation claim or Fourteenth Amendment due process claim
against either of them. To successfully plead a First Amendment retaliation claim, a plaintiff
“must show (1) that he engaged in a constitutionally protected activity; (2) that the defendant
took adverse action against him that would chill a person of ordinary firmness from continuing in
the activity; and (3) that the adverse action was motivated in part by [the plaintiff’s] exercise of
his constitutional rights.” Scheffler v. Molin, 743 F.3d 619, 621 (8th Cir. 2014). Plaintiff alleges
in a conclusory manner that his First Amendment right to free speech was violated when all of
the named Defendants retaliated against him for his criticism of Biddle House and/or condoned
retaliation. There are, however, no specific allegations of adverse action taken by either Peter
and Paul or St. Patrick.
To state a procedural due process claim pursuant to § 1983, a plaintiff must show that he
has been deprived of a constitutionally protected life, liberty, or property interest. Mulvenon v.
Greenwood, 643 F.3d 653, 657 (8th Cir. 2011) (quoting Davenport v. Univ. of Ark. Bd. of Trs.,
553 F.3d 1110, 1114 (8th Cir. 2009)). Plaintiff alleges he was deprived of his property and
procedural due process “pursuant to de facto official policy” when Biddle House refused to
return his clothes after he had used the laundry services. Again, there are no specific allegations
of adverse action taken by either Peter and Paul or St. Patrick or identification of any
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unconstitutional policy.
Because Plaintiff’s allegations, even liberally construed, do not give rise to actionable
claims against either Peter and Paul or St. Patrick under § 1983, their motions to dismiss will be
granted.
B. City of St. Louis
To state a claim for municipal liability under § 1983 against the City4, Plaintiff must
identify a governmental policy or custom that resulted in the alleged constitutional violation.
Monell, 436 U.S. at 690-91; Brockinton v. City of Sherwood, 503 F.3d 667, 674 (8th Cir. 2007).
A governmental policy “involves a deliberate choice to follow a course of action ... made from
among various alternatives by an official who has the final authority to establish governmental
policy.” Jane Doe A. v. Special Sch. Dist. of St. Louis County, 901 F.2d 642, 645 (8th Cir.
1990). A governmental custom involves “a pattern of persistent and widespread ... practices
which bec[o]me so permanent and well settled as to have the effect and force of law.” Id. at 646.
While a plaintiff need not specifically plead or identify an unconstitutional policy or
custom to survive a motion to dismiss, at the very least, a plaintiff must allege facts which would
support the existence of such a policy or custom. See Crumpley-Patterson v. Trinity Lutheran
Hosp., 388 F.3d 588, 591 (8th Cir. 2004). Failure to include “any ‘allegations, reference, or
language by which one could begin to draw an inference that the conduct complained of ...
resulted from an unconstitutional policy or custom’ renders the complaint deficient.” Id. (quoting
Doe v. Sch. Dist. of Norfolk, 340 F.3d 605, 614 (8th Cir. 2003)); see also Iqbal, 556 U.S. 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.”).
4

Moore’s claims against Mayor Krewson in her official capacity are in actuality only against the City.
See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989).

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Here, the complaint does not sufficiently allege the existence of an official
unconstitutional policy or unofficial custom for which the City is liable under § 1983. The most
detailed allegation in the complaint regarding any policy or custom simply states that Defendants
jointly and severally, in their official and individual capacities, “pursuant to the de facto official
policy of said Defendants,” deprived Plaintiff of his property and procedural due process in
violation of the Fourteenth Amendment. (SAC ¶¶ 24, 25) The complaint describes discreet
actions taken by Biddle House staff which Plaintiff believes show that Defendants are violating
his constitutional rights (SAC ¶¶ 17, 19, 20), but does not include any allegations or references
by which the Court can reasonably infer that these actions resulted from an official City policy or
custom. Further, given the inability to rely on respondeat superior, see Monell, 436 U.S. at 691,
Plaintiff is foreclosed from asserting the City’s liability for any alleged actions taken by others.
Therefore, the pleadings are not sufficient to show actions under color of state law based
on an unconstitutional policy or custom with the sufficiency necessary to maintain a § 1983
claim against the City. See Williams v. City of Carl Junction, Mo., 480 F.3d 871, 878 (8th Cir.
2007) (failure to state a claim for a deprivation of a constitutional right is fatal to a § 1983 claim
against the municipality). The City’s motion to dismiss will, therefore, be granted.
C. Mayor Krewson
As for Plaintiff’s claims against Mayor Krewson in her individual capacity, there is no
vicarious liability under § 1983. Monell, 436 U.S. at 691. Government officials are personally
liable only for their own misconduct. S.M. v. Krigbaum, 808 F.3d 335, 340 (8th Cir. 2015).
“Liability under § 1983 requires a causal link to, and direct responsibility for, the deprivation of
rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990). Here, Plaintiff has not
alleged that Mayor Krewson was personally involved in or directly responsible for retaliation or
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deprivation of his property without due process. See Jane Doe A., 901 F.2d at 645 (setting out
standard for individual liability, which mirrors standard for municipal liability). Thus, individual
liability cannot be attributed to Mayor Krewson under § 1983 for the actions of staff at Biddle.
House. See Pitts v. City of Cuba, 913 F. Supp.2d 688 (E.D. Mo. 2012). Mayor Krewson’s
motion to dismiss will, therefore, be granted.
D. Biddle House
Because Plaintiff has failed to state a claim against the City, Mayor Krewson, Peter and
Paul, and St. Patrick, the Court will sua sponte dismiss Plaintiff’s claim against Biddle House
since its liability was founded on the same facts and law. Murphy v. Lancaster, 960 F.2d 746,
748 (8th Cir. 1992) (per curiam) (“[A] sua sponte dismissal without prior notice [to plaintiff]
under Rule 12(b)(6) is authorized … ‘when it is patently obvious the plaintiff could not prevail
based on the facts alleged in the complaint.’”); Smith v. Boyd, 945 F.2d 1041, 1042-1043 (8th
Cir. 1991) (district court may dismiss complaint sua sponte under Rule 12(b)(6) following
service of process); see Smithrud v. City of St. Paul, 746 F.3d 391, 395, 396 n.3 (8th Cir. 2014).
IV.

Conclusion

After carefully reviewing Plaintiff’s pro se complaint, and accepting all of his allegations
as true and drawing all reasonable inferences in his favor, the Court finds Plaintiff’s factual
allegations are insufficient and conclusory; and that the complaint does not provide the necessary
factual specificity to survive a Rule 12(b)(6) motion to dismiss. The Court will, therefore, grant
Defendants’ motions to dismiss and dismiss sua sponte non-movant Biddle House.
Accordingly,
IT IS HEREBY ORDERED that Defendant City of St. Louis and Mayor Krewson’s
Motion to Dismiss [33] is GRANTED.
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IT IS FURTHER ORDERED that Defendant Peter and Paul Community Services,
Inc.’s Motion to Dismiss [40] is GRANTED.
IT IS FURTHER ORDERED that Defendant St. Patrick Center’s Motion to Dismiss
[52] is GRANTED.
IT IS FURTHER ORDERED that on the Court’s own motion, Defendant Biddle
House is DISMISSED.
IT IS FINALLY ORDERED that Plaintiff’s Motion for Preliminary Injunction [6] and
Renewed Motion for Preliminary Injunction [11] are DENIED as moot.
A separate judgment of dismissal will accompany this Memorandum and Order.

Dated this 27th day of March, 2018.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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