Berry III v. 21st Circuit Court of the State of Missouri et al

Filing 5

OPINION, MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Plaintiffs First Amended Motion for Temporary Restraining Order and Preliminary Injunction, [Doc. No. #3 ], is DENIED.. Signed by District Judge Henry Edward Autrey on 11/19/2020. (AAT)

Case: 4:20-cv-01626-HEA Doc. #: 5 Filed: 11/19/20 Page: 1 of 9 PageID #: 100

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PAUL BERRY III,

)
)
Plaintiff,
)
)
v.
)
)
21ST CIRCUIT COURT OF ST. LOUIS )
COUNTY, et al.,
)
)
Defendants.
)

Case No. 4:20CV1626 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Paul Berry III’s First Amended
Motion for Temporary Restraining Order and Preliminary Injunction, [Doc. No. 3].
For the following reasons, the Motion will be denied without a hearing.
Facts and Background
Complaint
On November 7, 2011, Plaintiff Paul Berry III (“Berry”) filed a pro se
Complaint against Defendants 21st Circuit Court of St. Louis County (the “St.
Louis County Circuit Court”), Missouri Court of Appeals of the Eastern District
(the “State Court of Appeals”), and Board of Election Commissioners of St. Louis
County (the “Board of Election Commissioners”). Berry asserts that subject matter

Case: 4:20-cv-01626-HEA Doc. #: 5 Filed: 11/19/20 Page: 2 of 9 PageID #: 101

jurisdiction is satisfied under 28 U.S.C. § 1331 because the First and Fourteenth
Amendments to the United States Constitution are at issue in his Complaint.
For the statement of his claim, Berry alleges the following injury:
[Berry,] as a pro se litigant, has been denied reasonable and
meaningful access to have heard an emergency temporary restraining
order pending before the 21st Circuit Court of the State of Missouri
and the Eastern District of Missouri failed to establish reasonable and
meaningful procedures available to plaintiff to superintend by Writ of
Mandamus the failure by the 21st Circuit Court of the State of
Missouri to provide Plaintiff reasonable and meaningful access to
have heard an emergency temporary restraining order by the 21st
Circuit Court of the State of Missouri.
Berry also alleges that he has a right to “reasonable and meaningful access to the
Missouri civil court system, including requesting an emergency hearing on
temporary restraining orders.” Berry further alleges that the St. Louis County
Circuit Court and the State Court of Appeals “maintain court procedures that do
not provide reasonable and/or meaningful access to file emergency petitions to pro
se litigants, including … temporary restraining orders or appellate emergency
writs.” Berry also alleges that:
The aforementioned actions by the 21st Circuit Court of the State of
Missouri will cause Plaintiff to lose the opportunity to further petition
the 21st Circuit Court of the State of Missouri for the . . . relief
Plaintiff seeks before the 21st Circuit Court of the State of Missouri
because without the requested temporary restraining orders, Plaintiff’s
claim will assumably (sic) be dismissed as moot.
Motion for Temporary Restraining Order and Preliminary Injunction

Case: 4:20-cv-01626-HEA Doc. #: 5 Filed: 11/19/20 Page: 3 of 9 PageID #: 102

In his First Amended Motion for Temporary Restraining Order and
Preliminary Injunction, Berry seeks a temporary restraining order (“TRO”) and a
preliminary injunction prohibiting the Board of Election Commissioners from
executing the final certification of the election results of the 2020 St. Louis County
Executive general election under 115.507 RSMo “until final adjudication of the
underlying petition by this Court.” The Motion then reads:
Entry of such relief is appropriate in this case because Plaintiff is
likely to succeed on the merits, there is ongoing irreparable harm to
the Plaintiff, the ongoing harm to Plaintiff absent an injunction
outweighs any harm an injunction has caused to Defendants, and the
issuance of an injunction is in the public interest.
The factual basis supporting this relief is contained in the Verified
Amended Complaint filed herewith.
Berry then requests that this Court issue two 1 TROs: (1) prohibiting the St. Louis
County Circuit Court from taking “any further action in cause number 20SLCC05565 until further order of this Court;” and (2) prohibiting the Board of
Election Commissioners from certifying the election results of the 2020 St. Louis
County Executive general election “until further order of this Court.”
Attachments filed with the Motion
As noted above, Berry asserts in his motion that “[t]he factual basis
supporting this relief is contained in the Verified Amended Complaint filed
herewith.” Berry filed with his Motion an 84-page Attachment. This Attachment
Although Plaintiff Berry listed three requests for TROs in his Motion, two of those are substantively identical
requests for a TRO against the Board of Election Commissioners.

1

Case: 4:20-cv-01626-HEA Doc. #: 5 Filed: 11/19/20 Page: 4 of 9 PageID #: 103

begins with an untitled and uncaptioned 25-page document that contains a prayer
for relief and a jurat; assumedly, this document is the “Amended Verified
Complaint” to which the Motion refers. The Amended Verified Complaint begins
with a section titled “Introduction,” and the enumerated paragraphs that follow
contain allegations regarding Sam Page’s (“Page”) inclusion as a candidate for St.
Louis County Executive on the 2020 general election ballot. Berry alleges that
Page did not file certain required personal disclosure forms with the relevant
authorities to be included as a nominee for St. Louis County Executive. He then
alleges that the St. Louis County Counselor and/or Missouri Ethics Commission
has the duty to remove any candidate who did not file the required disclosures, and
alleges that there is no process or private right of action by which an individual St.
Louis County voter (namely, Berry) can seek removal of a candidate for failure to
file disclosure forms. Berry alleges that the Missouri Ethics Commission claims
that removing a candidate for failure to file required forms is outside its legal
authority, that such authority lies with the St. Louis County Counselor, and that
neither the Missouri Ethics Commission nor the St. Louis County Counselor
removed Page as a candidate, denying Berry relief as a St. Louis County voter.
Berry then alleges that the Board of Election Commissioners’ unofficial
publication and pending certification of “illegitimate election results” is in
violation of state law.

Case: 4:20-cv-01626-HEA Doc. #: 5 Filed: 11/19/20 Page: 5 of 9 PageID #: 104

The Amended Verified Complaint then includes requests for relief against
the St. Louis County Counselor, or in the alternative the Missouri Ethics
Commission,2 as well as against the Board of Election Commissioners.
The next section heading reads “Factual Allegations Applicable to All
Counts.” This includes a statement that the “1st and 14th Amendments to the United
States Constitution and/or 28 U.S.C. § 1654 provides that state courts must provide
all litigants, including pro se litigants, reasonable and meaningful access to state
civil courts to file suit and be heard,” and the allegation that the St. Louis County
Circuit Court and State Court of Appeals have failed to provide Berry an
opportunity to be heard on “an emergency and writ relief on the matter further
states (sic) in this statement of facts.” The following enumerated paragraphs state
Missouri laws and St. Louis County ordinances regarding financial disclosures that
are required to be filed by certain candidates for elected office, namely, candidates
for St. Louis County Executive. These statements culminate in allegations that
Page’s most recent required disclosure statements “are each void of specific and
required financial disclosure information,” do not bear a date stamp from the St.
Louis County Clerk, do not cover the proper dates, does not contain certain
information about Page’s anesthesiology business, and does not identify Page’s
wife and son as being employed by companies that transact business with St. Louis

2

Plaintiff has not sought to add defendants outside of the three named in the original Complaint.

Case: 4:20-cv-01626-HEA Doc. #: 5 Filed: 11/19/20 Page: 6 of 9 PageID #: 105

County. Following these allegations, Berry makes several allegations based on
various state statutes that St. Louis County Counselor Beth Orwick, or in the
alternative, the Missouri Ethics Commission, failed to remove Page from the
ballot.
Berry then states his desired relief of a writ of mandamus, preliminary and
permanent injunction, and declaratory judgment against the St. Louis County
Counselor or, in the alternative, the Missouri Ethics Commission. He concludes
that:
56. Without immediately issuing the requested [relief] against the
Board of Election Commissioners of St. Louis County prohibiting the
certification of the vote results . . . prior to this Court’s adjudication of
the underlying facts and complaint, and enforcement by Plaintiff of
the same, may cause the requested relief Plaintiff seeks from this
Court to become time-barred and moot.
57. The Plaintiff is entitled to require the Twenty-first Circuit Court of
the State of Missouri and Missouri Court of Appeals of the Eastern
District to hear Plaintiff’s request for relief in the aforementioned
matters.
The remaining 60 pages of the attachment to the Motion are marked as exhibits
and include documents apparently from Berry’s state court action, including his
Motion for Ex Parte Restraining Order, Motion to Shorten Time, First Amended
Suggestions in Support of Plaintiff’s Motion for Ex Parte Temporary Restraining
Order, and copies of the St. Louis County Resolution and Page’s disclosure
documents referenced in the Amended Verified Complaint.

Case: 4:20-cv-01626-HEA Doc. #: 5 Filed: 11/19/20 Page: 7 of 9 PageID #: 106

Discussion
Berry seeks an immediate, ex parte TRO, that is, without written or oral
notice to the adverse party or their attorney. Under Rule 65(b), granting an ex parte
temporary restraining order is only justified if it clearly appears from specific facts
shown in the verified complaint that “immediate and irreparable injury, loss, or
damage will result.” “Ex parte temporary restraining orders are no doubt necessary
in certain circumstances, but under federal law they should be restricted to serving
their underlying purpose of preserving the status quo and preventing irreparable
harm just so long as is necessary to hold a hearing, and no longer.” Granny Goose
Foods, Inc. v. Bhd. of Teamsters, 415 U.S. 423, 439 (1974) (internal citation
omitted). The United States Supreme Court has recognized that a temporary
restraining order is an “extraordinary and drastic remedy, one that should not be
granted unless the movant, by a clear showing, carries the burden of persuasion.”
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997).
Here, Berry has failed to carry the burden of persuasion. Berry has alleged
Constitutional injuries arising from his inability to access the state courts as a pro
se litigant, specifically, his inability to have heard a motion for a temporary
restraining order and a writ of mandamus. However, he has provided nothing more
than conclusory assertions in support of these alleged injuries. Rather, the factual
allegations he puts forth deal with the wrongful inclusion of Sam Page as a

Case: 4:20-cv-01626-HEA Doc. #: 5 Filed: 11/19/20 Page: 8 of 9 PageID #: 107

candidate for St. Louis County Executive. These factual allegations in no way
inform this Court of the deprivation of access to the state courts which Berry
claims he faced. For example, Berry provides no allegations about his attempts to
have his actions heard before those courts. He does not allege any actions taken by
the St. Louis County Circuit Court or the State Court of Appeals to deny his
access. He does not allege any state statutes or rules of those courts which prevent
his access. Berry’s only allegation about being deprived of reasonable and
meaningful access to the state courts is his conclusory statement to that effect. This
conclusory assertion is wholly insufficient to meet the “clear showing” of “specific
facts” of an “immediate and irreparable injury, loss, or damage” as required for this
Court to issue an ex parte TRO. Plaintiff Berry is not entitled to an ex parte
restraining order.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s First Amended Motion for
Temporary Restraining Order and Preliminary Injunction, [Doc. No. 3], is
DENIED.
Dated this 19th day of November, 2020.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

Case: 4:20-cv-01626-HEA Doc. #: 5 Filed: 11/19/20 Page: 9 of 9 PageID #: 108