# Abernathy v. White

> District Court, E.D. Missouri · September 30, 2019

URL: https://www.frixlaw.com/law-library/cases/10231873

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** September 30, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

WILMA ABERNATHY, )
)
Plaintiff, )
)
v. )
) Case No. 4:19-CV-00009-NAB
)
)
RACHEL WHITE, et al., )
)
)
Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court on the motion of Defendants Rachel White (“White”),
Mary Mans (“Mans”), Robbin Russell (“Russell”), Reginald Brown (“Brown”), and Karen
Nelson (“Nelson”) (collectively “Individual Defendants”)1, to dismiss Plaintiff Wilma
Abernathy’s (“Plaintiff” or “Abernathy”) complaint for failure to state a claim on which relief
may be granted, and on the basis of various absolute immunities. (Doc. 23). The motion to
dismiss was originally filed by Defendants Mans and White, and subsequently, the other
Individual Defendants moved to join in the motion. (Docs. 30 and 36). For the reasons set forth
below, the Individual Defendants’ motion to dismiss Counts I, II, and V, as well as the motions
for joinder, will be granted. Count III of the complaint will be dismissed without prejudice, as
the Court declines to exercise supplemental jurisdiction over that claim.

1 Rachel White is being sued individually and in her capacity as former Mayor of the City of Bel-Ridge,
Missouri. As mayor, White was also a member of the Board of Aldermen of Bel-Ridge at all times relevant. See Mo.
Rev. Stat. § 79.120. Mary Mans is sued individually and in her capacity as a former Alderwoman of the City of Bel-
Ridge. Robbin Russell is sued individually and in her capacity as Alderwoman of the City of Bel-Ridge. Reginald
Brown is sued individually and is his capacity as Alderman of the City of Bel-Ridge. Karen Nelson is sued individually
and in her capacity as Alderwoman of the City of Bel-Ridge. The City of Bel-Ridge is also a Defendant in the
complaint, but did not join in the instant motion to dismiss. The City of Bel-Ridge recently filed a separate motion to
dismiss that is currently pending before the Court.
I. BACKGROUND
Plaintiff, a current member of the Board of Aldermen of the City of Bel-Ridge, Missouri,
(“City”) seeks to hold Defendants liable for certain events that occurred during 2017 and 2018

when Abernathy was serving in a prior term on the Board of Aldermen. Plaintiff alleges that on
October 30, 2017, she “cooperated with the initiation of a formal complaint to the Missouri
Attorney General” regarding alleged violations of the Missouri Sunshine Law2 by the City. (Doc.
3 at 3). At that time, Plaintiff signed an affidavit setting forth alleged Sunshine Law violations,
and her affidavit was subsequently forwarded to the Missouri Attorney General as an enclosure
to a letter prepared by attorney Michael K. Daming, who indicated that he represented the
interests of Glenn Tope, a resident of the City of Bel-Ridge. Id.
Plaintiff alleges that, in retaliation for her cooperation with the Sunshine Law complaint,
the Individual Defendants, on February 15, 2018, instituted impeachment proceedings against

her. Id. The bill of impeachment set out five charges against Plaintiff, including violations of
closed records laws, accepting funds meant as donations to the City and converting them to her
personal use, and providing false statements in the affidavit Plaintiff signed. (Doc. 27 at 3). She
further alleges that on March 6, 2018, the Individual Defendants adopted an amended bill of
impeachment, and finally, in July 2018, the impeachment proceeding was permanently
abandoned. Id. Plaintiff also alleges that the Individual Defendants voted in favor of a fine that
the City wrongfully imposed against her as a sanction for voicing her objections to the
impeachment proceedings, and then approved the withholding of her salary to satisfy the fine.
Id. Plaintiff acknowledges that her full salary was later paid to her, but complains that she
suffered overdraft fees and reputational harm as a result of the fine.

2 Mo. Rev. Stat. § 601.011 et seq.
2
Plaintiff’s complaint contains five counts: (1) Count I for Abuse of Process against all
Defendants; (2) Count II for Malicious Prosecution against all Defendants; (3) Count III for
Defamation against the Individual Defendants; (4) Count IV for Conversion against only the
City; and (5) Count V, a 42 U.S.C. § 1983 claim against all Defendants alleging violations of
her First and Fourteenth Amendment rights. As the claim for conversion in Count IV is not

directed against the individually named Defendants, the Court will not address Count IV in this
order.
Plaintiff seeks damages in excess of $25,000, plus punitive damages, attorney’s fees and
costs.
II. DISCUSSION
For a plaintiff 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“Determining whether a complaint states a plausible claim for relief will . . . be a context-specific
task that requires the reviewing court to draw on its judicial experience and common sense.” Id.
at 679. The reviewing court accepts the plaintiff’s factual allegations as true and draws all
reasonable inferences in favor of the nonmoving party. Torti v. Hoag, 868 F.3d 666, 671 (8th
Cir. 2017). But “[c]ourts are not bound to accept as true a legal conclusion couched as a factual
allegation, and factual allegations must be enough to raise a right to relief above the speculative
level.” Id. “Where the allegations show on the face of the complaint there is some insuperable
bar to relief, dismissal under Rule 12(b)(6) is appropriate.” Benton v. Merrill Lynch & Co., Inc.,
524 F.3d 866, 870 (8th Cir. 2008).

3
A. Count One—Abuse of Process
To prevail on an abuse of process claim in Missouri, a plaintiff must prove the following
elements: “(1) the defendant made an illegal, improper, perverted use of process, which was
neither warranted nor authorized by the process; (2) the defendant had an improper purpose in

exercising such illegal, perverted, or improper use of process; and (3) the plaintiff sustained
damages as a result.” Diehl v. Fred Weber, Inc., 309 S.W.3d 309, 320 (2010) (citations omitted).
The Individual Defendants argue that Plaintiff cannot state a claim for abuse of process,
because Missouri courts “routinely hold that a claim for abuse of process will only lie where the
defendant has misused duly issued court process,” and they did not do so in this case. (Doc. 27
at 15). Plaintiff does not cite to any Missouri case where the court allowed an abuse of process
claim to proceed on anything other than the issuance of court process. However, Plaintiff counters
that the “process” connected to the impeachment proceedings was sufficiently analogous to the

process that emanates from or rests upon court authority as to sufficiently state a claim for abuse
of process. Other Missouri plaintiffs have made comparable arguments, asserting that the process
involved in administrative or similar proceedings can suffice to state a claim for abuse of process,
but so far such attempts have been to no avail. See e.g., Crowe v. Horizon Homes, Inc., 116
S.W.3d 618, 623 (2003) (the defendants’ alleged actions “did not make use of a process that
emanated from or rested upon court authority” and thus “do not meet the elements of a recognized
cause of action.”); Misischia v. St. John’s Mercy Medical Center, 30 S.W.3d 848, 862 (2000)
(“Plaintiff concedes Missouri courts have not addressed this issue [as to whether “process”
unrelated to court processes may suffice to state a claim for abuse of process] . . . “but courts in
other states have held that abuse of administrative processes may give rise to a claim for abuse

of process. Again, we decline to extend the law to the case at bar.”) (overruled on other grounds).
4
Because Plaintiff alleges only the improper filing of impeachment proceedings against her, as
opposed to actions that “ma[d]e use of a process that emanated from or rested upon court
authority,” she has failed to state a claim for abuse of process under Missouri law.

B. Count Two—Malicious Prosecution
The elements of a malicious prosecution claim in Missouri are: “(1) the commencement
of an earlier suit against plaintiff, (2) instigation of the suit by defendant, (3) termination of the
suit in plaintiff’s favor, (4) lack of probable cause for the suit, (5) malice by defendant in
instituting the suit, and (6) damages to plaintiff resulting from the suit.” State ex rel. Police Ret.
Sys. v. Mummert, 875 S.W.2d 553, 555 (Mo. Banc 1994).
Defendants argue that Plaintiff’s claim must fail because Missouri courts have never
recognized a cause of action for malicious prosecution outside of the context of a civil or criminal

lawsuit. (Doc. 27 at 18). Defendants note that Missouri courts have been given multiple
opportunities to extend the tort of malicious prosecution to other types of proceedings, and have
consistently refused to do so. See, e.g., Holland v. Healthcare Servs. of the Ozarks, 347 S.W. 3d
166, 168 n.2 (Mo. Ct. App. 2011) (“No Missouri court has recognized a claim for malicious
prosecution arising from an administrative proceeding. The underlying proceeding has always
been either a civil or criminal lawsuit.”); Teefey v. Cleaves, 73 S.W.3d 813, 816 (Mo. Ct. App.
2002) (“Were we to pass favorably on [plaintiffs’] cause of action, we would be the first Missouri
court to apply a malicious prosecution claim to an administrative proceeding. No Missouri court
has recognized the claim in this context.”).
Plaintiff does not direct the Court to any Missouri case that has extended the tort of

malicious prosecution to proceedings other than civil or criminal lawsuits, and the Court has been
unable to find any such cases. Plaintiff asserts that because she has alleged that the impeachment
5
proceeding was commenced against her, she has sufficiently satisfied that first element of the
cause of action. However, in alleging that the impeachment proceeding was an “earlier suit”
sufficient to satisfy the first element of the tort, Plaintiff is couching a legal conclusion as a factual
allegation, and the Court is not bound to accept it as true. See Torti, 868 F.3d at 671. The Court
is not inclined to supplant the judgment of the Missouri courts and extend the law in the manner

required to sustain Plaintiff’s claim. Plaintiff has failed to state a claim for the tort of malicious
prosecution, and Count II against the Individual Defendants must be dismissed.
C. Count Three—Defamation
Plaintiff alleges that the Individual Defendants made defamatory statements against her
during the impeachment proceedings, as well as during meetings of the Board of Aldermen.
Specifically, Plaintiff alleges that they called her a “liar” and a “rat.”
The Individual Defendants raise as an affirmative defense that their statements were
shielded by absolute privilege. Defendants cite to Missouri cases indicating that statements made
in legislative, judicial, quasi-judicial, or executive proceedings are absolutely privileged from
liability for defamation. See Pulliam v. Bond, 406 S.W.2d 635, 640 (Mo. banc 1966) (“The

classic examples of the application of an absolute privilege are the proceedings of legislative
bodies . . . [and] judicial proceedings.”); Remington v. Wal-Mart Stores, Inc., 817 S.W.2d 571,
574 (Mo. App. Ct. 1991) (“Statements made during the proceedings of a judicial or quasi judicial
body are absolutely privileged if they are relevant to the issues before the body.”); Barge v.
Ransom, 30 S.W.3d 889, 891 (Mo. App. Ct. 2000) (“An absolute privilege provides complete
immunity for defamation, regardless of motive.”). However, as Defendants acknowledge,
Missouri courts have not yet addressed whether this privilege extends to members of local
legislative bodies, such as the Board of Alderman.

6
Defendants contend that the clear majority view across the nation is that this type of
absolute immunity does extend to members of such local legislative bodies and their
proceedings, and this Court should apply the privilege in this case. See Restatement (Second)
Tort Sec. 590 (“A member of . . . a State or local legislative body is absolutely privileged to
publish defamatory matter concerning another in the performance of his legislative functions.”);

see also, e.g., Voelbel v. Town of Bridgewater, 747 A.2d 252 (1999) (“[T]he sounder rule of law
favors granting municipal officials, acting in a legislative capacity, absolute immunity for their
comments made during a town meeting regarding town matters.”); Noble v. Ternyik, 539 P.2d
658 (Or. 1975) (extending the privilege to member of a port commission and holding that the
“trend of judicial decisions and legal thought is to extend the absolute privilege to
communications of members of lesser legislative bodies.”).
The Court agrees that extending the privilege to local legislative bodies is the clear
majority view nationwide. However, due to the unresolved nature of this issue in Missouri, the

Court concludes that it is preferable to decline jurisdiction over this claim and allow this issue
to be resolved by the state court.3 There is no independent basis for jurisdiction over Count III,
as it does not arise under federal law and all of the parties are citizens of Missouri. At best, the
Court has only supplemental jurisdiction over this Count because it is “so related to the claims in
the action with [the Court’s] original jurisdiction that” it forms “part of the same case or
controversy under Article III of the Constitution.” 28 U.S.C. § 1367(a). However, “district courts
may decline to exercise supplemental jurisdiction over a claim . . . if the claim raises a novel or
complex issue of State law. . ..” Id. § 1367(c)(1). The Court’s exercise of its power to decline

3 The parties have not raised this issue. Nonetheless, the Court is permitted to raise the issue sua sponte. See
Porter v. Williams, 436 F.3d 917, 920 (8th Cir. 2006) (holding that a trial court may sua sponte decline supplemental
jurisdiction based on § 1367(c)(3)).
7
supplemental jurisdiction is discretionary. See Innovative Home Health Care, Inc. v. P.T.-O.T.
Assocs. of the Black Hills, 141 F.3d 1284, 1287 (8th Cir. 1998). Accordingly, the Court declines
to exercise its supplemental jurisdiction over this claim, and Count III for defamation against
the Individual Defendants is dismissed without prejudice to the Plaintiff’s ability to bring such
a claim in state court.

D. Count V—Violations of 42 U.S.C. § 1983
To state a claim under § 1983, a plaintiff must allege (1) that the defendant acted under
color of state law; and (2) that the alleged conduct deprived the plaintiff of a constitutionally
protected federal right. Schmidt v. City of Bella Villa, 557 F.3d 564, 571 (8th Cir. 2009). Plaintiff
alleges that the Individual Defendants violated her First and Fourteenth federal constitutional
rights by instituting and pursuing her impeachment, allegedly in retaliation for her exercise of
freedom of speech. The Individual Defendants assert that they are entitled to absolute immunity
with regard to Count V.

Though Congress enacted 42 U.S.C. § 1983 to provide a remedy for violations of
constitutional rights, it “was not intended to abrogate the federal common law immunities enjoyed
by persons performing certain governmental functions.” Gorman Towers, Inc. v. Bogoslavsky,
626 F.2d 607, 611 (8th Cir. 1980). The common law grants absolute immunity to judges and
certain judicial officers acting within the scope of their judicial duties. Van de Kamp v. Goldstein,
555 U.S. 335, 341 (2009); Brown v. Grisenauer, 970 F.2d 431, 435 (8th Cir. 1992).
Considerations of public policy underlie this type of immunity, including a “concern that
harassment by unfounded litigation” could cause a “deflection of the [officer’s] energies from
his public duties and also lead the [officer] to shade his decisions instead of exercising the
independence of judgment required by his public trust.” See Van de Kamp, 555 U.S. at 341. This

8
“absolute immunity may not apply when an [officer] is not acting as an officer of the court, but
is instead engaged in . . . administrative tasks.” Id. at 342. “To decide whether absolute immunity
attaches to a particular . . . activity, one must take account of [the] functional considerations” of
the activity, including whether the activity is related to the core judicial duties of the officer. Id.
at 342, 346.

Courts have likewise held that legislators are entitled to absolute immunity for actions
taken in their legislative capacity. See Brown, 970 F.2d at 435-36 (gathering cases). Legislators
enjoy absolute immunity in order “to insure that the legislative function may be performed
independently without fear of outside interference.” Id. at 436. Legislative immunity allows
persons acting in a legislative capacity to act without concern for fear of personal liability. Bogan
v. Scott-Harris, 523 U.S. 44, 52 (1998).
In determining whether either of these absolute immunities apply, “one must take account
of [the] functional considerations” of the activity, including whether the activity is related to the
core judicial or legislative duties of the officer. Van de Kamp, 555 U.S. at 342, 346. The
“characterization of the proceeding is a question of federal law for purposes of immunity analysis

. . . [and] the various activities of most [government] officials cannot be [easily or definitively]
characterized as only administrative, legislative, or judicial.” Brown 970 F.2d at 436. This
functional approach looks not to the title of an individual, but rather, asks what function the
particular official was serving at the time of the allegedly unlawful conduct. Id. For example,
under the functional approach, the Supreme Court held that a mayor was acting in a legislative
capacity when he introduced and signed into law an ordinance, even though he was formally an
executive official. See Bogan, 523 U.S. at 55. Similarly, the Court in Brown held that the
members of the Board of Aldermen of O’Fallon, Missouri, were entitled to immunity from suit

9
for the Section 1983 claims brought against them by the mayor, arising from impeachment
proceedings against him. Brown, 970 F.2d at 439.
The question then, is whether the Individual Defendants were acting in a classically
legislative or judicial capacity during the impeachment proceedings against Plaintiff, sufficient

to entitle them to absolute immunity in this context. The Court finds Brown to be particularly
instructive here. The circumstances in that case are strikingly similar to the case at hand. In
Brown, after the relationship between the mayor and the board of aldermen deteriorated, the board
passed a resolution of impeachment against the mayor. Id. at 433. The board then conducted an
impeachment inquiry, after which they voted to impeach the mayor. Id. The mayor subsequently
filed a 42 U.S.C. § 1983 action against the members of the board of aldermen, alleging that the
impeachment proceedings violated his federal constitutional rights, as well as certain state laws.
Id. at 434. The defendants filed a motion to dismiss on the grounds of failure to state a claim and
absolute judicial immunity. Id. The district court concluded that the board was not entitled to

absolute immunity. Id. The Eighth Circuit reversed, holding that the board was entitled to
absolute immunity from damages liability. Id. at 435.
The Eighth Circuit analyzed the issue using the functional approach discussed above, and
found that while the act of voting to impeach “could be characterized as legislative,” the act of
voting alone “does not necessarily determine that he or she was acting in a legislative capacity.”
Id. (quotation omitted). The court determined that impeachment is not a truly legislative act, but
is rather “an act that happens to have been done by legislators.” Id. at 437. The court noted that
“classic” legislative functions are enacting ordinances or establishing municipal policy, and the
impeachment proceedings “did not involve the formulation of policy governing future conduct

for all or a class of the citizenry” in such a manner. Id. They went on to explain that “impeachment
10
proceedings are essentially judicial or adjudicatory in nature,” and “the board of aldermen, sitting
as a board of impeachment, was required to perform an adjudicatory function.” Id. As the court
noted, though, that determination did not end their immunity analysis because, to be entitled to
absolute immunity, the board of alderman, in bringing impeachment proceedings, must have been
functioning in a “‘classic’ adjudicatory” fashion “so as to justify the protection of absolute

immunity as opposed to only qualified immunity.” Id. The court proceeded to analyze the
function of the board of aldermen in impeachment proceedings according to the factors outlined
in Cleavinger and Butz, which include: “(a) the need to assure that the individual can perform his
[or her] functions without harassment or intimidation; (b) the presence of safeguards that reduce
the need for private damages actions as a means of controlling unconstitutional conduct; (c)
insulation from political influence; (d) the importance of precedent; (e) the adversary nature of
the process; and (f) the correctability of error on appeal.” Cleavinger v. Saxner, 474 U.S. 193,
202 (1985), citing Butz v. Economou, 438 U.S. 478, 512 (1978). After carefully considering all
the factors, the Eighth Circuit concluded that “on balance, the members of a municipal board of
impeachment fall on the absolute immunity side of the line for actions taken in that capacity.”

Brown, 970 F.2d at 438.
Plaintiff argues that Brown is distinguishable, because in her case the “adopted bills of
impeachment . . . were facially deficient, fatally flawed, and otherwise . . . in violation of
applicable law.” (Doc. 34 at 12). However, this allegation would not seem to distinguish her case
from Brown. In Brown, the plaintiff made similar claims about the deficiencies of his
impeachment, and in fact went on to successfully appeal to the state court, which held that he had
been improperly impeached. Brown 970 F.2d at 434. Plaintiff also argues that Brown is
distinguishable because the Individual Defendants never actually voted as a board of

11
impeachment, but rather, simply abandoned the process before seeing it through to the end.
However, Plaintiff cites no cases supporting her contention that this is a controlling distinction,
and the Court does see how the fact that the impeachment proceedings were discontinued changes
the nature of the proceedings in any material manner.
II. CONCLUSION
Accordingly, for all the reasons stated above,
IT IS HEREBY ORDERED that the motion for joinder filed by Individual Defendants
Russell, Brown, and Nelson is GRANTED. (Docs. 30 and 36).
IT IS FURTHER ORDERED that the motion to dismiss filed by the Individual
Defendants is GRANTED in full with respect to Counts I, I, and V, and those Counts are
DISMISSED WITH PREJUDICE. (Doc. 23). The Court does not address Count IV at this
time, as it was brought against only the City, and not the Individual Defendants.
IT IS FINALLY ORDERED that the Court declines to exercise supplemental
jurisdiction over Count III of the complaint, and Count IIT is DISMISSED WITHOUT
PREJUDICE.

yd tnx ffl

/ NANNETTIEA BAKER
' UNITED STATES MAGISTRATE JUDGE

Dated this 30th day of September, 2019.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10231873. Public record. Not legal advice.