# Gaines v. Windsor C-1 School Board

> District Court, E.D. Missouri · July 16, 2024

URL: https://www.frixlaw.com/law-library/cases/10651950

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** July 16, 2024
- **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

DANIEL GAINES , )
)
Plaintiff, )
)
v. ) No. 4:23 CV 1207 CDP
)
WINDSOR C-1 SCHOOL BOARD, et al., )
)
Defendants. )

MEMORANDUM AND ORDER

Presently pending before the Court are several motions to dismiss plaintiff
Daniel Gaines’ pro se amended complaint wherein Gaines alleges that the
defendants – the Windsor C-1 School Board and its members, the superintendent
of the Windsor C-1 School District, the principal of Windsor High School, and the
Jefferson County Circuit Court and Sheriff’s Department and various of their
employees – violated his rights under the First, Fourth, and Fourteenth
Amendments to the United States Constitution and conspired to violate his civil
rights, all in relation to his protestation of the Windsor High School’s manner of
traffic control at the school. He brings this action under 42 U.S.C. §§ 1983 and
1985. For the following reasons, the allegations in Gaines’ amended complaint
fail to state a claim upon which relief can be granted, and I will grant the
defendants’ motions to dismiss. I will deny Gaines’ request for oral argument.
I. Legal Standard

The purpose of a Rule 12(b)(6) motion to dismiss is to test the legal
sufficiency of the complaint. When reviewing a Rule 12(b)(6) motion, I assume
the factual allegations of the complaint are true and construe them in plaintiff’s
favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). “[T]he tenet

that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The complaint must contain sufficient factual matter, accepted as true, to state a
claim for relief “that is plausible on its face.” Id. The “factual allegations must be

enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at
555. The issue in determining a Rule 12(b)(6) motion is not whether the plaintiff
will ultimately prevail, but whether he is entitled to present evidence in support of

his claims. See Skinner v. Switzer, 562 U.S. 521, 529-30 (2011); Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974).
In addition to the complaint, I may consider exhibits that are attached to the
complaint, matters of public record, and materials necessarily embraced by the

complaint, without having to convert the motion to one for summary judgment.
Humphrey v. Eureka Gardens Pub. Facility Bd., 891 F.3d 1079, 1081 (8th Cir.
2018); Ryan v. Ryan, 889 F.3d 499, 505 (8th Cir. 2018). Materials necessarily

embraced by the complaint include “documents whose contents are alleged in a
complaint and whose authenticity no party questions, but which are not physically
attached to the pleading.” Ryan, 889 F.3d at 505 (internal quotation marks and

citations omitted). Accordingly, in determining defendants’ motions to dismiss
here, I consider Gaines’ amended complaint as well as the police reports and order
of protection attached to Gaines’ responses to the motions, as those are matters of

public record. The order of protection and petition therefor are also documents
necessarily embraced by and consistent with Gaines’ amended complaint, as are
the letters from the Windsor C-1 School District banning Gaines from school
property. I will not consider the other exhibits attached to Gaines’ responses

because they are neither documents whose contents are alleged in his amended
complaint nor matters of public record.1
II. Background

On August 23 and 24, 2023, Gaines was at Windsor High School to pick up
his children after school. He observed Officer William Scott, a deputy sheriff with
the Jefferson County Sheriff’s Department, block the driveway of the lower
parking lot, preventing vehicles from leaving that lot. When Gaines asked Scott

about it on August 24, Scott responded that the school had asked him to block the

1 The video and audio recordings Gaines submitted with his responses are thoroughly
summarized and indeed quoted at length in his amended complaint, the allegations of which I
must consider true in determining the motions to dismiss. I do not consider any content in those
recordings beyond what is summarized and/or quoted in the amended complaint.
lot’s exit so that school buses could leave the property before student drivers were
released. Gaines videorecorded his encounter with Scott as well as the stopped

student traffic on August 24, and he told Scott that the process violated the
students’ Fourth Amendment rights. Gaines also approached students on the
parking lot, telling them that their rights were being violated.

Around noon on the following day, August 25, Dr. Jason King,
Superintendent of the Windsor C-1 School District, informed Gaines that a parent
had complained of Gaines’ conduct and language. Gaines responded to King that
what was occurring at the school violated the law, including the Fourth

Amendment.
Later in the afternoon of August 25, Gaines went to the high school to pick
up his children, and he again observed Scott blocking the lower parking lot. The

high school principal, Dr. Rachel Montgomery, was with Scott. While
videorecording with his cellphone, Gaines approached Scott and Montgomery and
told them – using profanities and obscenities – that what they were doing was
illegal and that he intended to pursue legal action to enjoin their conduct.2 Gaines

also threatened to stand in front of the school buses to prevent them from leaving,

2 “There will also be court documents filed Monday to get the injunction against you
motherfuckers for pulling this bullshit. I’ll see you motherfuckers in court. Have a good
weekend, be ready for the lawsuit stupid fucks.” (ECF 29, Amd. Compl. at ¶ 46.) To
Montgomery: “[D]on’t worry, Dr. King will be getting another email about you too, bitch, don’t
worry.” (Id. at ¶ 47.) See also n.3, post.
and he challenged Scott to arrest him. Calling Scott a “jackboot thug” (ECF 29,
Amd. Compl. at ¶ 92), Gaines then stood in front of the buses and taunted Scott:

[A]re you ready? . . . I’m not asking if you want to [arrest me], I’m
asking if you’re ready. . . . [Y]ou’re gonna need help cause when you
try to illegally put your hands on me, I have the legal right to,
according to the U.S. Supreme Court to defend myself. So, are you
ready? Are you ready?

(Id. at ¶¶ 92-96.) Gaines moved away from the buses and asked Scott if he would
stop blocking cars illegally, to which Scott replied, “[A]s soon as the last bus goes
by.” (Id. at ¶ 99-100.) Gaines then said,
[N]o, no, no, no, no, I’m talking going forward on Monday? Y’all
gonna illegally block these cars? Cause I’m telling you now, I give
my word as a combat veteran, that if they block these cars on Monday
those buses don’t fucking move. You got my word on it. And I’d
bring help cause I’m gonna be fucking ready, and I’m swinging on
anybody who puts a hand on me. Cop or not, watch.

(Id. at ¶ 101.) Gaines returned to his vehicle and, while driving away, continued to
shout profanities and obscenities at Scott and Montgomery.3
Superintendent King contacted Gaines later on August 25 and reported that
he had received several complaints from parents regarding Gaines “cuss[ing] at the
High School Principal and threaten[ing] to punch the School Resource Officer[.]”
(ECF 29, Amd. Compl. at ¶ 104.) On Sunday, August 27, King sent Gaines a letter

3 “Gaines entered his vehicle and began to leave while yelling out the window at me stating I
was a ‘dumb mother fucker’ and then yelling at Dr. Montgomery calling her a ‘fat fucking
cunt.’” ECF 41-2, Scott police rep., at p. 3; see also ECF 49-5, Montgomery petn. for order of
prot., at p. 8.
via email informing him that he was banned from school district property for 365
days, citing school policy and parents’ complaints based in part on their children’s

accounts. (Id. at ¶ 105; ECF 41-3, King Letter dated Aug. 27, 2023.)
Gaines returned to the high school property on the morning of Monday,
August 28. Officer Scott and Officer John O’Brien, another deputy sheriff,

approached Gaines and informed him that he was violating the school district’s
trespass notice and asked him to leave. Gaines disputed that he was trespassing, to
which Scott responded that he would be placed under arrest if he did not leave the
property. Gaines then left the property and went to the Jefferson County Sheriff’s

Department where he spoke with Major Andy Sides. Sides informed Gaines that
the no-trespass ban would be enforced against him, but Gaines responded that he
intended to return to the school to show Superintendent King his videos of the

alleged illegal conduct.
Gaines returned to the high school later that day and was met by Officers
Scott and O’Brien. Scott informed Gaines that Major Sides had instructed him to
issue a citation to Gaines if he were to come onto school property, but to not arrest

him. When Gaines objected, Scott issued a citation to Gaines for violating
Jefferson County Ordinance No. 205-160 – Trespassing.
On August 28, 2023, Judge C. W. Yates of the Jefferson County Circuit

Court issued an ex parte order of protection against Gaines upon the petition of
Principal Montgomery. (ECF 41-4, order of prot., petn.) After a hearing on
September 19 at which Gaines participated, Judge Yates granted a full order of

protection against him. (ECF 29, Amd. Compl. at ¶¶ 187, 192.)
On September 28, 2023, the Windsor C-1 School District informed Gaines
that the school board considered his appeal of the no-trespass ban and that, by a

vote of 6-0, the board upheld Gaines’ ban from school property for 365 days.
(ECF 49-6, Dubis Letter dated Sept. 28, 2023.)
Gaines filed this action on September 26, 2023. On November 1, 2023, he
filed an amended complaint in which he alleged that the conduct set out above

violated his constitutional rights as well as the rights of Windsor High School
students. He brings claims against the Windsor C-1 School Board and its
individual board members; Superintendent King and Principal Montgomery; the

Jefferson County Sheriff’s Department, Major Sides, and Officers Scott and
O’Brien; and the Jefferson County Courthouse and Judge Yates. Specifically, in
his four-count amended complaint, Gaines alleges:
• Count 1 – that, in retaliation for Gaines exercising his First Amendment
right to criticize government action:
a) Superintendent King and the Windsor C-1 School Board banned him
from school property;
b) Principal Montgomery, with Superintendent King’s assistance, applied
for and received an order of protection against him; and
c) Officers Scott and O’Brien threatened to arrest him and issued a trespass
citation on the instruction of Major Sides.

• Count 2 – that, in violation of the Fourth Amendment right to be free from
unlawful seizure:
a) with the consent of Superintendent King and the Windsor C-1 School
Board, Officer Scott and Principal Montgomery unlawfully detained
Windsor High School students by preventing them from leaving the school
parking lot;
b) Officers Scott and O’Brien threatened to arrest him for trespass and
issued a trespass citation on the instruction of Major Sides and at the urging
of Superintendent King; and
c) Judge Yates threatened him with contempt of court for making a public
comment on a social media platform.

• Count 3 – that, in violation of Gaines’ Fourteenth Amendment right to due
process:
a) Judge Yates deprived him the opportunity to defend himself and present
evidence on Principal Montgomery’s petition for order of protection; and
b) Judge Yates considered improper evidence in determining to grant a full
order of protection against him, thereby permitting Principal Montgomery to
abuse the process in obtaining such order.

• Count 4 – that, in violation of 42 U.S.C. § 1985, the Windsor C-1 School
Board, Superintendent King, Principal Montgomery, the Jefferson County
Sheriff’s Department, and Judge Yates conspired to deprive him of his civil
rights as set out in the amended complaint.4

Gaines seeks damages in the amount of $5.7 million as well as injunctive relief “to
prevent the school from blocking vehicles on the publicly accessible areas as well

4 In response to defendants Yates and the Jefferson County Courthouse’s motion to dismiss, as
well as the Jefferson County Sheriff’s Department’s motion to dismiss, Gaines raises a new legal
theory that municipal liability attaches to those defendants for their failure to train their
employees. (See ECF 42, 44.) A plaintiff is not permitted, however, to raise new allegations or
theories in a response opposing a motion to dismiss. See Uddoh v. United Healthcare, 254 F.
Supp. 3d 424, 429 (E.D.N.Y. 2017). Cf. New Jersey Carpenters Pension & Annuity Funds v.
Biogen IDEC, Inc., 537 F.3d 35, 57 (1st Cir. 2008) (within court’s discretion to decline
advancement of new theory first produced in response to motion to dismiss). Even so, Gaines’
new legal theory would fail given that, as discussed below, the Jefferson County Sheriff’s
Department and Courthouse are not suable entities under § 1983, and immunity doctrines and §
1983 itself bar money damages and injunctive relief, respectively, against Yates in the
circumstances of this case.
as to block any future or further retaliation or abuse of process.” (ECF 29, Amd.
Compl. at p. 26, ¶ B.)

All defendants move to dismiss Gaines’ amended complaint.
III. Discussion

As an initial matter, I note that Gaines did not specify in his amended
complaint that he was suing the individual defendants in their personal capacities.
“[A]bsent a clear statement that officials are being sued in their personal capacities,
we interpret the complaint as including only official-capacity claims.” Murphy v.
State of Ark., 127 F.3d 750, 754 (8th Cir. 1997) (internal quotation marks and

citation omitted); see also Gibson v. Hadzic, No. 4:22-CV-00163 SPM, 2023 WL
6214856, at *3 (E.D. Mo. Sept. 25, 2023). The requirement that personal-capacity
claims be specifically pled applies to pro se plaintiffs. Gibson, 2023 WL 6214856,

at *3. Because Gaines did not specifically plead personal-capacity claims against
the defendants, I construe the amended complaint to assert official-capacity claims
only.
A. Jefferson County Sheriff’s Department

I will dismiss Gaines’ claims against the Jefferson County Sheriff’s
Department. Departments of county governments are not legal entities subject to
suit under § 1983. See Ketchum v. City of W. Memphis, Ark., 974 F.2d 81, 82 (8th

Cir. 1992) (departments of local governments are not “juridical entities suable as
such”). “A local governmental entity, such as a county sheriff’s department, which
lacks the capacity to be sued under the applicable state law may not be sued in

federal court under the provisions [of] Federal Rule of Civil Procedure 17.”
Catlett v. Jefferson Cnty., 299 F. Supp. 2d 967, 968-69 (E.D. Mo. 2004). There is
no provision under Missouri law establishing the Jefferson County Sheriff’s

Department as a distinct legal, corporate entity. It is therefore not subject to suit
under 42 U.S.C. § 1983 and will be dismissed from this action.
B. Jefferson County Courthouse and Judge Yates
To the extent Gaines’ amended complaint names the Jefferson County

Courthouse as a defendant, I will dismiss the court from this action. Missouri
courts are not suable entities under § 1983. See Harris v. Missouri, No. 4:23-CV-
1319 NCC, 2024 WL 2131758, at 2 (E.D. Mo. May 13, 2024). “[A] suit against a

state court is, in effect, a suit against the State of Missouri, Engel v. Missouri Cts.,
No. 4:20-CV-1258 SPM, 2020 WL 7493195, at *2 (E.D. Mo. Dec. 21, 2020), and
the State of Missouri is absolutely immune from liability under § 1983 in absence
of a waiver. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 63 (1989)

(state is not a “person” under § 1983); Alsbrook v. City of Maumelle, 184 F.3d 999,
1010 (8th Cir. 1999) (en banc) (§ 1983 suit cannot be brought against state
agency). This absolute bar includes suits seeking injunctive relief against states

and their agencies, not just suits seeking monetary damages. Monroe v. Arkansas
State Univ., 495 F.3d 591, 594 (8th Cir. 2007).
I will likewise dismiss Gaines’ claims against Judge Yates. To the extent

Gaines seeks money damages against Yates, the State’s sovereign immunity bars
the claim because Gaines sues Yates in his official capacity only. Kentucky v.
Graham, 473 U.S. 159, 165-66 (1985) (official-capacity suits are actions against

the state agency of which the officer is an agent); Serna v. Goodno, 567 F.3d 944,
952 (8th Cir. 2009) (Eleventh Amendment bars damages claims against the states);
Rodgers v. Univ. of Mo. Bd. of Curators, 56 F. Supp. 3d 1037, 1049-50 (E.D. Mo.
2014) (official-capacity suits barred by sovereign immunity). Moreover, the

doctrine of judicial immunity bars Gaines’ claims for damages against Yates, given
that the actions of which Gaines complains were taken in Yates’ judicial capacity
in a matter over which he had jurisdiction. See Schottel v. Young, 687 F.3d 370,

373-74 (8th Cir. 2012).
To the extent Gaines seeks injunctive relief in the form of an order blocking
Yates from further retaliation or abuse of process, § 1983 provides for injunctive
relief against a judicial officer only when “a declaratory decree was violated or

declaratory relief was unavailable.” 42 U.S.C. § 1983. Gaines does not allege that
declaratory relief was unavailable or that a declaratory decree was violated.
Consequently, § 1983 bars Gaines’ claim against Yates for injunctive relief.

Justice Network, Inc. v. Craighead Cnty., 931 F.3d 753, 763 (8th Cir. 2019).
C. Windsor C-1 School Board, Board Members, and Superintendent King

I will dismiss Gaines’ claims against the Windsor C-1 School Board, its
members, and Superintendent King.
To the extent Gaines contends that the school board and King violated the
high school students’ Fourth Amendment rights by unlawfully detaining them on

the school’s parking lot, Gaines does not have standing to bring claims on behalf of
anyone other than himself. Casey-El v. City of St. Louis Dep’t of Pub. Safety, No.
4:22-CV-1225-AGF, 2022 WL 17250170, at *2 (E.D. Mo. Nov. 28, 2022); see
also FDA v. Alliance for Hippocratic Med., 602 U.S. ___, No. 23-235, 2024 WL

2964140 (June 13, 2024) (plaintiffs who suffer no personal injury lack standing to
challenge government entity’s regulation of others). Gaines does not assert a
Fourth Amendment claim on his own behalf against these defendants.

Gaines also asserts that the school board and King retaliated against him for
engaging in conduct protected by the First Amendment. Gaines specifically claims
that King banned him from school property and that the school board unanimously
approved the ban in retaliation for his criticism of Officer Scott’s refusal to permit

vehicles to leave the school parking lot, for “cussing” at Scott and Principal
Montgomery, and for videorecording the encounters. Because the conduct for
which King and the school board instituted the ban is not protected under the First

Amendment, I will dismiss Gaines’ claim of First Amendment retaliation against
them.
Gaines asserts that he enjoys a First Amendment right to speak and express

himself on school property because it is public property funded by taxpayer
money. Public schools, however, are non-public forums unless school authorities
open the facilities for general use by the public or for limited use by some segment

of the public, such as a club or organization. Hazelwood Sch. Dist. v. Kuhlmeier,
484 U.S. 260, 267 (1988); see also Mo. Rev. Stat. § 177.031 (school board controls
school property and has discretion to open it to public or limited public use).
Neither exception applies in the circumstances of this case.

Nevertheless, regardless of the public or non-public nature of the forum,
“‘[t]rue threats’ of violence is [an] historically unprotected category of
communications.” Counterman v. Colorado, 600 U.S. 66, 74 (2023). “True

threats are ‘serious expression[s]’ conveying that a speaker means to ‘commit an
act of unlawful violence.’” Id. (quoting Virginia v. Black, 538 U.S. 343, 359
(2003)). What makes a threat “true” for First Amendment purposes is not the
mental state of the actor, but what the statement conveys to “the person on the

other end.” Id. “True threats subject individuals to ‘fear of violence’ and to the
many kinds of ‘disruption that fear engenders.’” Id. (quoting Black, 538 U.S. at
360). Accordingly, true threats are outside the protection of the First Amendment.

Counterman, 600 U.S. at 80. See also United States v. Colhoff, 833 F.3d 980, 985
(8th Cir. 2016) (threats of violence are unprotected speech).
Here, the facts alleged in Gaines’ amended complaint show that Gaines

made a true threat that he would commit a violent act against Officer Scott and
possibly others on school property:
99. Plaintiff then stated, “are y’all gonna stop blocking cars . . .
illegally?”

100. Officer Scott then replied, “as soon as the last bus goes by.”

101. Plaintiff then said, “no, no, no, no, no, I’m talking going
forward on Monday? Y’all gonna illegally block these cars? Cause
I’m telling you now, I give my word as a combat veteran, that if they
block these cars on Monday those buses don’t fucking move. You got
my word on it. And I’d bring help cause I’m gonna be fucking ready,
and I’m swinging on anybody who puts a hand on me. Cop or not,
watch.”

(ECF 29, Amd. Compl., at ¶¶ 99-101.) The statement that he will be “fucking
ready” as a “combat veteran” to “swing[] on anybody who puts a hand on me” was
not hyperbole nor made in jest. See Counterman, 600 U.S. at 74. And, when
viewed in the context of Gaines’ highly agitated and confrontational state, his
baiting Scott to arrest him for stepping in front of school buses (ECF 29, Amd.
Compl. at ¶¶ 46-47, 87, 90-96), and threatening that he would “defend” himself if
Scott tried to arrest him for blocking school bus traffic (id. at ¶ 96 – “you’re gonna
need help cause when you try to illegally put your hands on me, I have the legal
right . . . to defend myself. So, are you ready? Are you ready?”), Gaines conveyed
a real possibility that violence would follow immediately or the following school
day, engendering fear in persons receiving and witnessing the threat. (ECF 49-7,
King Letter dated Aug. 27, 2003 – “You were . . . heard stating that you would

return the following day and commit a crime on District property[.] . . . We
received a parent complaint about your behavior. . . . You threatened to punch our
school resource officer, a uniformed police officer. . . . You were weaving in

between students and scaring them[.]”) Cf. Counterman, 600 U.S. at 74 (true
threats do not include statements that in context do not convey a real possibility of
violence, such as “I’m going to kill you for showing up late.”).
Gaines’ assertion that his statements merely expressed his intent to defend

himself does not change the “true threat” nature of them. “The existence of the
threat depends not on the mental state of the author, but on what the statement
conveys to the person on the other end.” Counterman, 600 U.S. at 74 (internal

quotation marks and citation omitted). See also Colhoff, 833 F.3d at 985 (“[A]
‘true threat’ is ‘a statement that a reasonable recipient would have interpreted as a
serious expression of an intent to harm or cause injury to another.’” (quoting Does
v. Pulaski Cnty. Special. Sch. Dist., 306 F.3d 616, 624 (8th Cir. 2002) (en banc))).

In view of the context and environment within which Gaines made his
statements and his aggressive behavior while making them, a reasonable person
receiving or witnessing the statements would interpret them as a serious threat of

violence, subjecting them to fear of violence or injury. The statements, therefore,
are not protected by the First Amendment. Consequently, because defendants’
action in banning Gaines from entering upon school property was motivated by

true threats and not the exercise of protected conduct, Gaines’ claim of First
Amendment retaliation fails. In re Kemp, 894 F.3d 900, 906 (8th Cir. 2018).
D. Principal Montgomery

I will also dismiss Gaines’ claims against Principal Montgomery.
For the reasons set out above, Gaines’ Fourth Amendment claim against
Montgomery that she did not permit high school students to leave the parking lot
fails for lack of standing. To the extent Gaines asserts that, with Superintendent

King’s assistance, Montgomery sought an order of protection against Gaines in
retaliation for exercising his First Amendment rights, the claim fails because
Gaines’ relevant speech is not protected under the First Amendment.

Gaines alleges in the amended complaint that Principal Montgomery was
with Officer Scott on August 25, that he got out of his vehicle and approached both
Scott and Montgomery, that he engaged in a profanity-laced rant against both Scott
and Montgomery regarding the parking-lot matter, and that he then made the

threatening statements described above that he would return to school on Monday
ready to fight. (As described above, Gaines indeed returned to school property on
Monday, August 28.) On August 30, Gaines was served with an order of

protection that was issued by the Jefferson County Circuit Court upon
Montgomery’s August 28 petition in which she stated, inter alia, that Gaines
approached her on August 25, screamed profanities and obscenities at her, and

stated that there should be multiple officers at school on Monday because he would
be back to fight. Montgomery also stated in the petition that Gaines continued to
yell obscenities at her as he drove away. Montgomery stated that she reported to

her superiors that she feared for her safety because Gaines’ irrational and
emotional behavior appeared to be “hyper-focused” on her. Montgomery stated
that that fear increased on Monday, August 28, when she learned that Gaines was
on school grounds in violation of the no-trespass ban issued by the district. (ECF

49-5, order of prot., petn.)
As discussed above, true threats are not protected by the First Amendment,
and Gaines’ statement made on August 25 that he would return on Monday

“fucking ready” to swing at anybody who put a hand on him constituted a true
threat. Accordingly, Montgomery’s seeking an order of protection based on that
statement is alone sufficient to withstand Gaines’ First Amendment challenge. But
Montgomery’s petition invoked not only Gaines’ true threat of coming to school

and being ready to fight on Monday, but also his actual appearance on school
grounds on Monday which caused Montgomery to fear that Gaines intended to
follow through on his threat. Because Montgomery’s petition for order of

protection was based on Gaines’ true-threat statements and follow-up conduct that
caused her to fear violence and disrupted her sense of safety – which is not
protected speech – I will dismiss Gaines’ claim of First Amendment retaliation

against Principal Montgomery. See In re Kemp, 894 F.3d at 906. Gaines’ claim
that Superintendent King’s assistance to Montgomery in filing the petition
constituted retaliation fails for the same reason.

Finally, to the extent Gaines’ claims can be construed to assert that
Montgomery’s filing the petition for order of protection constituted an abuse of
process, the court’s order granting the petition and its later issuance of a full order
of protection demonstrates that Montgomery had a proper purpose in filing the

petition, and that her efforts accomplished the purpose for which the process was
designed. Any claim of abuse of process therefore fails. See Malloy v. Trileaf
Corp., No. 4:24 CV 506 CDP, 2024 WL 2320217, at *4 (E.D. Mo. May 22, 2024).

E. Major Sides, Officer Scott, and Officer O’Brien
I will dismiss Gaines’ claims against defendants Sides, Scott, and O’Brien,
all of whom are deputy sheriffs of the Jefferson County Sheriff’s Department.
To the extent Gaines seeks monetary relief against these defendants,

sovereign immunity bars the claims because Gaines sues them in their official
capacities only. Graham, 473 U.S. at 165-66; Serna, 567 F.3d at 952; Rodgers, 56
F. Supp. 3d at 1049-50. To the extent Gaines seeks injunctive relief in the form of

an order blocking defendants from further retaliation, his claim of retaliation fails
for the following reasons.
Gaines claims that his conduct in criticizing government actors, shouting

profanities at them, and videorecording them is protected by the First Amendment.
He asserts that Sides, Scott, and O’Brien retaliated against him for engaging in that
protected conduct by causing a citation to issue against him when he appeared at

the school for a second time on August 28, 2023. Gaines contends that Sides
instructed Scott and O’Brien to issue the citation, and that Scott and O’Brien
issued the citation after threatening arrest.
For claims asserting retaliatory prosecution or retaliatory arrest for

exercising First Amendment rights, a plaintiff must “plead and prove the absence
of probable cause” for the underlying criminal charge or arrest. Nieves v. Bartlett,
587 U.S. 391, 400-02 (2019). The absence of probable cause is a threshold

showing, which must be established before a plaintiff can proceed on a claim that
retaliation was a motivating factor behind the government actor’s conduct. Id. at
400, 404, 407-08. Here, the face of the amended complaint shows that probable
cause existed for issuance of the trespass citation to Gaines on August 28, which

defeats his claim that defendants Sides, Scott, and O’Brien caused the citation to
issue in retaliation for his protected conduct.5

5 Because Gaines does not assert that similarly-situated persons – that is, persons who engaged in
similar conduct on school property after receiving a no-trespass ban from the school district –
were not issued a citation for trespass, the exception to the no-probable-cause requirement for
As stated above, public schools are non-public forums unless school
authorities open the facilities for general use, which such circumstance is not

present here. Kuhlmeier, 484 U.S. at 267; Mo. Rev. Stat. § 177.031. Nor does a
parent have the right to unfettered access to school property. Miller v.
Montgomery Cnty. R-II Sch. Dist., Bd. of Educ., No. 2:10 CV 78 DDN, 2011 WL

1299536, at *3 (E.D. Mo. Apr. 1, 2011) (listing cases). The school district here
issued a no-trespass ban, which it had the authority to do; and it provided notice to
Gaines of the ban on August 27. See Mo. Rev. Stat. § 177.011, 177.031 (title and
control of public school property is vested in the school district, as governed by the

school board); see also Lovern v. Edwards, 190 F.3d 648, 655-56 (4th Cir. 1999)
(school officials have authority and responsibility for assuring that parents and
third parties conduct themselves appropriately while on school property, and

should never be intimidated into compromising the safety of those who use school
property) (citing Carey v. Brown, 447 U.S. 455, 470-71 (1980); Goss v. Lopez, 419
U.S. 565, 582-83 (1975); Epperson v. Arkansas, 393 U.S. 97, 104 (1968); Bystrom
v. Fridley High Sch., Indep. Sch. Dist. No. 14, 822 F.2d 747, 751 (8th Cir. 1987)).

On August 28, Gaines violated the ban twice in the presence of Officers Scott and
O’Brien. The Jefferson County ordinance upon which the citation issued, No. 205-

establishing First Amendment retaliation does not apply to his claim. See Nieves, 587 U.S. at
407.
160, provides that a person commits the crime of trespassing when that person,
inter alia:

1. Without lawful authority, or without the expressed or implied
consent of the owner or his agent, shall . . . enter on any . . . lot, or
parcel of ground; or

2. Without lawful authority, being upon the land of another, shall
fail or refuse to leave the same when requested to do so by the person
lawfully in possession thereof, his agent or representative, or of a Law
Enforcement Officer[.]

Jeff. Cnty. Ord. § 205.160.A.6
The allegations of Gaines’ amended complaint show that probable cause
existed for Officers Scott and O’Brien to issue a trespass citation to Gaines at
Major Sides’ direction when Gaines entered upon school property during the
school day on August 28, 2023, in violation of the no-trespass ban lawfully
imposed by the school district who controlled the property; and Gaines failed to
leave the property upon Officer Scott’s request.
Gaines does not plead or allege sufficient facts demonstrating the absence of
probable cause for defendants’ issuance of the trespass citation. Without this
threshold showing, and in the absence of a claim that others who engaged in
similar conduct in similar circumstances were not issued a citation, Gaines cannot
state a claim that defendants’ conduct toward him was in retaliation for exercising

6 Available at https://ecode360.com/27884782#27884909 (last visited June 25, 2024).
his First Amendment rights. Gaines’ claim for injunctive relief to bar further
retaliation by Sides, Scott, and O’Brien will therefore be dismissed.

F. Conspiracy
Gaines brings his conspiracy claim under 42 U.S.C. § 1985, asserting that
defendants Windsor C-1 School Board, King, Montgomery, the Jefferson County

Sheriff’s Department, and Yates conspired to violate his civil rights as set out in
his amended complaint. Section 1985(1) (preventing officer from performing
duties) and (2) (obstructing justice; intimidating party, witness, or juror) do not
apply to Gaines’ claim. To state a claim under § 1985(3) (depriving persons of

rights or privileges), Gaines must allege facts showing that defendants conspired
for the purpose of depriving him of equal protection of the laws, or equal privileges
and immunities under the laws. Salau v. Denton, 139 F. Supp. 3d 989, 1001 (W.D.

Mo. 2015) (quoting Davis v. Jefferson Hosp. Ass’n, 685 F.3d 675, 684 (8th Cir.
2012)). Gaines makes no such equal-protection assertions here.
Nor does Gaines state a § 1983 conspiracy claim. As discussed above,
Gaines’ claims against the sheriff’s department and Judge Yates are barred; and the

school board, Superintendent King, and Principal Montgomery did not violate his
civil rights as alleged. See White v. McKinley, 519 F.3d 806, 814 (8th Cir. 2008)
(plaintiff must prove a deprivation of a constitutional right or privilege to prevail

on a § 1983 civil conspiracy claim).
The civil conspiracy claim raised in Count 4 of the amended complaint will
therefore be dismissed.

G. Oral Argument
Gaines requests oral argument on defendants’ motions to dismiss. He does
not seek to argue the merits of the motions, however, appearing to concede their

success. Instead, he seeks to establish a record that will be “vital to what follows
this dismissal” (ECF 58 at p. 1), which he anticipates will include appeal,
additional retaliation against him and his children, sanctions and findings of
contempt against him, and imminent incidents leading to his criminal prosecution.

Because Gaines’ reasons for oral argument are not relevant to the merits of the
pending motions, and the material and memoranda before the Court are sufficient
to determine the motions, I will deny his request for oral argument. See E.D. Mo.

L.R. 4.02(A).
Accordingly, for all of the foregoing reasons,
IT IS HEREBY ORDERED that defendant Jefferson County Sheriff’s
Department’s Motion to Dismiss [30] is GRANTED.

IT IS FURTHER ORDERED that defendants Sides, Scott, and O’Brien’s
Motion to Dismiss [32] is GRANTED.
IT IS FURTHER ORDERED that defendants Yates and Jefferson County

Courthouse’s Motion to Dismiss [35] is GRANTED.
IT IS FURTHER ORDERED that defendants Windsor C-1 School Board,
Dr. Rachel Montgomery, Dr. Jason King, Dan Shaul, Dustin Schwartz, Scott
Brothers, Melanie Willis, Chris Casey, Michael Dubis, and Thomas Krupp’s
Motion to Dismiss [38] is GRANTED.
IT IS FURTHER ORDERED that plaintiff Daniel Gaines’ Request for
Oral Argument [57] is DENIED.
A separate Order of Dismissal is entered this date.

CATHERINE D. SRR
UNITED STATES DISTRICT JUDGE

Dated this 16th day of July, 2024.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10651950. Public record. Not legal advice.