# Austell v. City of Pagedale

> District Court, E.D. Missouri · December 21, 2023

URL: https://www.frixlaw.com/law-library/cases/10239653

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** December 21, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10239653

## How later opinions describe it (automated extraction)

- applying pleading standard from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) to determine whether proposed amended complaint stated a claim

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JANET L. AUSTELL, )
)
Plaintiff, )
)
v. ) No. 4:22-CV-01006-AGF
)
CITY OF PAGEDALE, et al., )
)
)
Defendants. )

MEMORANDUM AND ORDER
This matter is before the Court on Pro Se Plaintiff Janet Austell’s motion for leave
to file an amended complaint. Doc. No. 38. Defendant City of Pagedale (the “City”) has
opposed Plaintiff’s motion on the basis that Plaintiff has failed to remedy the issues with
her complaint and amendment is futile because the proposed amended complaint fails to
state a claim. For the reasons set forth below, Plaintiff’s motion will be granted in part
and denied in part.
BACKGROUND

Prior Complaint
Plaintiff initially filed a complaint on September 23, 2022, alleging violations
under 42 U.S.C. §§ 1981, 1983, and 1988; conspiracy to violate civil rights under 42
U.S.C. § 1985; violations of the Equal Protection Clause of the Fourteenth Amendment;
and asserting a claim for Declaratory Judgment. Doc. No. 1. Plaintiff alleged that the
City of Pagedale, and a number of its employees—Eddie Simmons, Sam J. Alton, Officer
Justin Cull, and Officer Brown—violated her civil rights and conspired to violate her
civil rights by issuing a number of improper warnings and citations against her property
located at 1539 Farris Avenue.1 In response, Defendants filed motions to dismiss the

complaint on the basis of res judicata, failure to state a claim under Fed. R. Civ. P.
12(b)(6), and failure to comply with Fed. R. Civ. P. 8(a)(2) and 8(d)(1). Doc. Nos. 20,
22.
On July 31, 2023, the Court dismissed Plaintiff’s complaint. Doc. No. 37.
Specifically, the Court found that Plaintiff’s allegations regarding the alleged incidents

that occurred in 2018 and 2019 were barred by res judicata because they were previously
litigated in Austell v. City of Pagedale, et al., Case No. 4:19-cv-02596-SRC. Such claims
were dismissed with prejudice. The Court further found that the claims against Eddie
Simmons, Sam Alton, Officer Brown, and Officer Cull were redundant of the claims
against the City because the individuals were only sued in their official capacities.

Additionally, the Court held that Plaintiff had failed to state a claim under (1) 42 U.S.C. §
1981 because she failed to allege her membership in a protected class and Defendants’
intent to discriminate on the basis of Plaintiff’s race; (2) 42 U.S.C. § 1983 because she
failed to allege that there is a policy or custom adopted by the City regarding the issuance
of meritless warnings/citations or that the ordinances themselves are unconstitutional; (3)

42 U.S.C. § 1985 because Plaintiff failed to allege any facts to suggest a “meeting of the
minds” in her conspiracy claim; and (4) 42 U.S.C. § 1988 because pro se litigants are not

1 A detailed summary of Plaintiff’s allegations in her original complaint can be
found in the Court’s previous order issued on July 31, 2023. Doc. No. 37.
entitled to attorney fees and because all of her substantive claims had been dismissed.
Lastly, the Court dismissed Plaintiff’s claim for declaratory judgment because a
declaratory judgment cannot be a standalone cause of action and all of Plaintiff’s

substantive claims had been dismissed. The Court granted Plaintiff 30 days to seek leave
to file an amended complaint.
Amended Complaint
On August 14, 2023, Plaintiff timely filed a motion for leave to amend her
complaint. Doc. No. 38. Her motion included a proposed amended complaint in

compliance with Local Rule 4.07. Plaintiff’s amended complaint removes all claims
prior to July 2021; the claims against Eddie Simmons, Sam Alton, Officer Justin Cull and
Officer Brown; her claims under 42 U.S.C. § 1981, 1985, and 1988; and her claim for
declaratory judgment. As such, the only claim in Plaintiff’s proposed amended complaint
is a violation under 42 U.S.C. § 1983 against the City of Pagedale.

Defendant City of Pagedale opposes Plaintiff’s leave to amend on the basis that
amendment is futile because Plaintiff’s proposed amended complaint fails to state a
claim. Doc. No. 39. Plaintiff filed a response to Defendant’s opposition and included a
new amended complaint, which Plaintiff claims satisfies the deficiencies cited in
Defendant’s opposition. Doc. No. 40. In reply, Defendant argues that Plaintiff’s

amended complaint provided in Doc. No. 40 should not be considered by the Court
because it was not filed within the 30 days prescribed by the Court in its previous order
and is therefore untimely. Doc. No. 41.
The Court has compared the amended complaint filed by Plaintiff on August 14,
2023 (Doc. No. 38-1) and the second amended complaint filed by Plaintiff on September
8, 2023 (Doc. No. 40). The second amended complaint clarifies Plaintiff’s claims and

includes the referenced exhibits, but it does not contain any new causes of action or
significant new factual allegations. In light of these minor changes, and the liberal
construction of complaints afforded to pro se plaintiffs,2 the Court will consider
Plaintiff’s second proposed amended complaint for the purposes of this motion for leave
to amend.

ARGUMENT OF PARTIES
Defendant argues that Plaintiff’s motion for leave to amend her complaint should
be denied as futile because Plaintiff has failed to state a claim upon which relief can be
granted. Specifically, Defendant argues that Plaintiff has failed to allege facts
demonstrating that the City’s issuance of “warnings” and “citations” was conducted

pursuant to an official City policy, custom, or deliberately indifferent failure to train or
supervise. Defendant also argues that to the extent Plaintiff is alleging a Fourteenth
Amendment procedural due process violation, she has failed to allege a constitutionally
deficient procedure. Defendant further argues that Plaintiff’s proposed amended
complaint fails to properly request relief because she fails to provide proof of actual

injury, establish her right to injunctive relief, and indicate that her alleged constitutional
deprivation caused injury. Lastly, Defendant argues that Plaintiff has improperly sought

2 See Estelle v. Gamble, 429 U.S. 97,106 (1976)
punitive damages against a municipality.
In response, Plaintiff argues that she properly alleged a violation of her
constitutional rights under § 1983 and that Defendant knowingly committed this violation

through its established and continued practice of improperly issuing false and meritless
ordinance violations. Plaintiff argues that these violations deprived her of the use of her
land and resulted in the improper removal of her personal property. Plaintiff further
argues that she has properly alleged procedural due process violations because the
citations were issued by Defendant without proper notice of which ordinances were

violated, and her property was removed without a warrant, court order, arraignment, trial,
or proper notice. Lastly, Plaintiff asserts that her claims for relief are proper under the
circumstances.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 15(a)(2), the Court must freely grant a

motion for leave to amend “when justice so requires.” See Sherman v. Winco Fireworks,
Inc., 532 F.3d 709, 715 (8th Cir. 2008). However, there is no absolute right to amend.
Id. Denial of leave to amend is appropriate under certain situations, including futility of
the amendment. See id. (quoting Moses.com Secs., Inc. v. Comprehensive Software Sys.,
Inc., 406 F.3d 1052, 1065 (8th Cir. 2005)); see also Hillesheim v. Myron’s Cards and

Gifts, Inc., 897 F.3d 953, 955 (8th Cir. 2018) (citation omitted). “[W]hen a court denies
leave to amend on the ground of futility, it means that the court reached a legal
conclusion that the amended complaint could not withstand a Rule 12 motion . . . . ” In
re Senior Cottages of Am., LLC, 482 F.3d 997, 1001 (8th Cir. 2007). When determining
whether an amended complaint states a claim, the Court accepts as true all factual
allegations contained in the proposed amended complaint. Id. (citing Mattes v. ABC
Plastics, Inc., 323 F.3d 695, 698 (8th Cir. 2003)); see also Zutz v. Nelson, 601 F.3d 842,

850-51 (8th Cir. 2010) (applying pleading standard from Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) to determine whether proposed amended complaint stated a claim).
Further, the Court construes pro se complaints liberally. See Estelle v. Gamble,
429 U.S. 97,106 (1976). A “liberal construction” means that if the essence of an
allegation is discernible, the district court should construe the plaintiff’s complaint in a

way that permits his or her claim to be considered within the proper legal framework.
Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, a plaintiff “still must
allege sufficient facts to support the claims advanced.” Stone v. Harry, 364 F.3d 912,
914 (8th Cir. 2004). The Court “‘will not supply additional facts, nor will [the Court]
construct a legal theory for plaintiff that assumes facts that have not been pleaded.’” Id.

(quoting Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989)).
DISCUSSION
§ 1983 Claim
In order for a municipality, such as the City of Pagedale, to be held liable for a
§ 1983 violation, the plaintiff must allege that the municipality has committed a

constitutional violation through an (1) official municipal policy, (2) an unofficial custom,
or (3) a deliberately indifferent failure to train or supervise. Corwin v. City of
Independence, Mo., 829 F.3d 695, 699 (8th Cir. 2016) (internal citations and quotation
marks removed); see Monell v. Dept. of Soc. Servs. of the City of New York, 436 U.S.
658, 690 (1978). “[A] ‘policy’ is an official policy, a deliberate choice of a guiding
principle or procedure made by the municipal officer who has final authority regarding
such matters.” Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999) (citation

omitted). A “custom” is demonstrated by:
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.

Johnson v. Douglas Cnty. Med. Dep’t, 725 F.3d 825, 828 (8th Cir. 2013).
Here, Plaintiff’s proposed amended complaint alleges that she has been subject to
a persistent pattern of unconstitutional misconduct by the City of Pagedale, specifically
the issuance of meritless ordinance warnings and citations, fabricating ordinances,
trespassing, and utilizing threats and harassing tactics as a means of enforcement.
Plaintiff further alleges that the City of Pagedale was on notice of this misconduct due to
the injunction and prior settlement agreement on this issue in two prior lawsuits, but has
continued to “knowingly and with intentional disregard and malicious intent” engage in
this improper conduct. Doc. No. 40 at ¶¶ 16-17. Lastly, Plaintiff alleges that she was
harmed as a “direct and proximate cause” of “[D]efendant’s formal and informal policies
(and/or customs).” Id. at ¶ 19. Specifically, Plaintiff alleges that she was improperly
deprived of the legal use of her land and property and Defendant improperly
destroyed/removed her personal property through their custom of improper ordinance
enforcement.
Plaintiff further alleges that Defendant failed to adopt clear written policies and

failed to properly train officers and other employees on the proper procedure for
ordinance citations, and in doing so, knowingly violated the injunctive order in 4:15-cv-
01655-RWS.
In sum, Plaintiff’s proposed amended complaint appears to plausibly state a claim
for municipal liability under § 1983. Accordingly, the Court finds that Plaintiff’s

proposed amended is not futile, and as such the Court will grant Plaintiff’s leave to
amend her complaint on this claim.
Procedural Due Process Claim
To the extent Plaintiff is alleging a procedural due process violation, the Court
disagrees that she has failed to allege a constitutionally deficient procedure. For a

procedural due process claim, Plaintiff must show (1) a liberty or property interest which
has been interfered with by the state, or one acting under color of law, and (2) that the
procedures attendant upon that deprivation were not constitutionally sufficient. See
Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989). Plaintiff’s proposed
amended complaint alleges that Defendant’s employees, acting under color of law,

entered her property and removed plants and engineering cite markers from her property
without her permission and without a warrant, court order, arraignment, or trial. Doc.
No. 40 at 31. Plaintiff further alleges that a vehicle, which she legally possessed and
controlled, was towed from her property without proper notice, a warrant, a court order,
or other court process. Id. at 32-33. Taking these allegations as true, Plaintiff has
plausibly alleged a procedural due process claim in that she had a property intertest which
was interfered with by one acting under color of state law, and that the procedures

accompanying that deprivation were not constitutionally sufficient. See Swarthout v.
Cooke, 562 U.S. 216, 219 (2011). As such, the Court finds that Plaintiff’s proposed
amendment on this issue is not futile.
Damages
Defendant argues that Plaintiff has failed to provide proof of actual injury or

indicate that her alleged constitutional deprivation caused injury. Plaintiff is not required
to prove her damages at the pleading stage. Further, Plaintiff has alleged that
Defendant’s unconstitutional ordinance citation and enforcement procedures caused her
actual injury by depriving her of her right to the use and enjoyment of her property and
her right to due process. Plaintiff also alleges that she suffered actual damages related to

the costs of the vehicle, plants, and engineering markers removed from her property.
Defendant also argues that Plaintiff has failed to demonstrate the factors required
to grant injunctive relief. Injunctive relief is a remedy, not an independent cause of
action. See Henke v. Arco Midcon, L.L.C., 750 F. Supp. 2d 1052, 1059-60 (E.D. Mo.
2010); see also Affiliated Goods Midwest Coop., Inc. v. Supervalu Inc., No. 8:16-CV-

465, 2017 WL 2222916, at *2 (D. Neb. May 19, 2017) (granting leave to amend the
complaint upon finding that “the plaintiffs’ Amended Complaint seeks injunctive relief as
a remedy for the independent causes of action alleged in Counts II and [III]” and was
therefore not futile).
Whether Plaintiff will be able to satisfy her burden and demonstrate that the
requested monetary damages and injunctive relief are proper is an issue better decided at
a later stage with more complete briefing. For the purposes of the motion before the

Court, Plaintiff’s request for injunctive relief as a remedy for her claim is not so futile as
to warrant a denial of leave to amend her complaint.
Defendant also argues that Plaintiff has improperly sought punitive damages
against a municipality. The Court agrees. It is well established that municipalities are
immune from punitive damages under 42 U.S.C. § 1983. City of Newport v. Fact

Concerts, Inc., 453 U.S. 247, 271 (1981). As such, the Court will deny Plaintiff’s motion
for leave to amend her complaint with respect to her claim for punitive damages against
the City of Pagedale.
CONCLUSION
Accordingly,

IT IS HEREBY ORDERED that Plaintiff’s leave to amend is GRANTED in
part and DENIED in part, as set forth above. Doc. No. 38. The motion to amend is
DENIED as to any claim for punitive damages against the City of Pagedale under 42
U.S.C. § 1983, but is otherwise GRANTED.
IT IS FURTHER ORDERED that the Clerk of Court shall file Doc. No. 40, p.

19-71, as Plaintiff’s Amended Complaint, which will be deemed to be limited in the
matter set forth above.
IT IS FURTHER ORDERED that Defendant shall have 14 days to file its
response to Plaintiff's Amended Complaint.

AUDREY G. FLEISSIG □
UNITED STATES DISTRICT JUDGE

Dated this 21st day of December, 2023.

11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10239653. Public record. Not legal advice.