Simon v. Jones

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

YITZCHAK SIMON, )

)

Plaintiff, )

)

v. ) Case No. 4:23 CV 955 CDP

)

TISHAURA ONEDA JONES, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

Plaintiff Yitzchak Simon was formerly employed at St. Patrick’s Center

(SPC) as a Coordinated Street Outreach Worker. He brings this civil rights action

alleging that SPC terminated his employment in response to a threat made by

defendant Tishaura Oneda Jones, Mayor of the City of St. Louis. Specifically, he

alleges that the Mayor threatened to withhold government funding from SPC

because of Simon’s protected speech made at and during the City’s

decommissioning of a homeless encampment near the Riverfront on March 24,

2023. Simon asserts that the City’s then-Director of Human Services, defendant

Yusef Scoggin, provided the information to Mayor Jones regarding Simon’s

speech and purported actions that formed the basis for the Mayor’s threats. In

Counts I through III of his amended complaint, Simon brings claims under 42

U.S.C. § 1983 against both Jones and Scoggin in their official and individual

capacities, alleging First Amendment retaliation, civil conspiracy, and violation of

due process. In Count IV of the amended complaint, Simon brings an alternative

claim under state law, alleging that Jones and Scoggin tortiously interfered with his

employment relationship or agreement. Defendants move for summary judgment

on all claims.

Upon careful review of defendants’ motion and the materials and briefs

submitted in support of each side’s position, I will grant summary judgment to

both defendants on Count II (conspiracy) in its entirety. I will also grant summary

judgment to both defendants on the claims raised in Counts I (retaliation) and III

(due process) to the extent those claims are brought against them in their official

capacities. I will deny summary judgment to the extent Counts I and III are

brought against the defendants in their individual capacities, as genuine issues of

material fact remain in dispute between the parties on the claims and on

defendants’ assertion of qualified immunity. Finally, because genuine issues of

material fact remain on Simon’s state law claim of tortious interference raised in

Count IV, I will deny summary judgment on that claim as well.

Count II

I will grant defendants summary judgment on the § 1983 claim of civil

conspiracy raised in Count II of the amended complaint. To the extent the claim is

brought against the defendants in their official capacities, I first note that a claim

against a public official in his or her “official capacity” is simply “another way of

pleading an action against [the governmental] entity of which [the] officer is an

agent.” Kentucky v. Graham, 473 U.S. 159, 165 (1985). Consequently, “an

official-capacity suit is, in all respects other than name, to be treated as a suit

against the entity.” Id. Therefore, Simon’s conspiracy claim against Jones and

Scoggin in their official capacities is a claim against the City. Id.; see also

Burbridge v. City of St. Louis, Mo., 430 F. Supp. 3d 595, 621 n.20 (E.D. Mo.

2019).

The intracorporate conspiracy doctrine recognizes that a legal entity and its

agents, when acting in their official capacities, are a single “person” that cannot

conspire with itself. Ziglar v. Abbasi, 582 U.S. 120, 153 (2017); Brimager v. City

of Moscow Mills, 706 F. Supp. 3d 838, 849 (8th Cir. 2023) (citing L.L. Nelson

Enters. v. Cnty. of St. Louis, 673 F.3d 799, 812 (8th Cir. 2012)). See also Kelly v.

City of Ohama, Neb., 813 F.3d 1070, 1078 (8th Cir. 2016) (“a conspiracy by its

nature involves multiple parties”). Although the Eighth Circuit has not yet applied

the doctrine to conspiracy claims under 42 U.S.C. § 1983, it has nevertheless held

in the § 1985 context that a local government entity cannot conspire with itself

through its agents acting in their official capacities. Id.; L.L. Nelson, 673 F.3d at

812. In the circumstances of this case, the reasoning applies equally to Simon’s §

1983 conspiracy claim against Jones and Scoggin in their official capacities. See

Jackson v. City of Cleveland, 925 F.3d 793, 818-20 (6th Cir. 2019). As Simon’s

conspiracy claim against Jones and Scoggin in their official capacities is a claim

against the City, and the City cannot conspire with itself, I will grant summary

judgment to Jones and Scoggin on the claim.

Jones and Scoggin are also entitled to qualified immunity to the extent

Simon brings his § 1983 conspiracy claim against them in their individual

capacities. Given the uncertain applicability of the intracorporate conspiracy

doctrine to § 1983 conspiracy claims, see Street v. Leyshock, 41 F.4th 987, 900

(8th Cir. 2022) (citing Faulk v. City of St. Louis, Mo., 30 F.4th 739, 749 (8th Cir.

2022)), I cannot say that Jones and Scoggin would have known with any certainty

that their alleged agreement to retaliate against Simon by threatening his

employer’s funding was clearly forbidden by law such that they would be exposed

to liability for a § 1983 conspiracy claim. See Faulk, 30 F.4th at 750.

Accordingly, I will grant defendants Jones and Scoggin summary judgment

on the entirety of the conspiracy claim raised in Count II of the amended

complaint.

Counts I and III – Official Capacity

As set out above, Simon’s claims against Jones and Scoggin in their official

capacities are claims against the City. Graham, 473 U.S. at 165; Burbridge, 430 F.

Supp. 3d at 621 n.20. “[A] local government is liable under § 1983 for its policies

that cause constitutional torts. These policies may be set by the government’s

lawmakers, ‘or by those whose edicts or acts may fairly be said to represent official

policy.’” McMillian v. Monroe Cnty., 520 U.S. 781, 784 (1997) (quoting Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). “Municipal liability ‘may be

imposed for a single decision by municipal policymakers’ who possess ‘final

authority to establish municipal policy with respect to the action ordered.’”

Hamilton v. City of Hayti, 948 F.3d 921, 929 (8th Cir. 2020) (quoting Pembaur v.

City of Cincinnati, 475 U.S. 469, 480-81 (1986) (majority opinion)). “[T]he

challenged action must have been taken pursuant to a policy adopted by the official

or officials responsible under state law for making policy in that area of the city’s

business.” City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (plurality

opinion) (citing Pembaur, 475 U.S. at 482-83, and n.12, (plurality opinion)). See

also Felts v. Green, 91 F.4th 938, 942 (8th Cir. 2024).

Simon does not present any argument or evidence disputing defendants’

showing that, as Director of the Department of Human Services, Scoggin was

neither a lawmaker nor possessed final authority to establish municipal policy with

respect to distributing public funds to non-profit organizations. In short, there is no

evidence demonstrating that Scoggin’s official responsibilities included making

official policy for the City. Scoggin is therefore entitled to summary judgment to

the extent Counts I and III of the amended complaint assert § 1983 claims against

him in his official capacity.

Likewise, Simon fails to present any argument or evidence disputing

defendants’ showing that Jones did not possess unilateral, final decision-making

authority regarding the receipt or withholding of public funds to non-profit

organizations, including SPC. Although as Mayor, Jones is the chief executive

officer of the City and may subject the City to liability under Monell for certain

unilateral actions, the undisputed evidence shows that the official decision to

provide funding to certain non-profits is made by a committee comprising

representatives of the Mayor’s Office, the Board of Aldermen, and the

Comptroller’s Office; is based upon the committee’s review of applications and

bids, upon which it makes recommendations to the Board of Estimate and

Apportionment (BEA); and that the BEA then determines whether to approve the

committee’s recommendations and disburse funding. The Mayor is one of three

members of the BEA. Consequently, while the Mayor has input and could

possibly influence the BEA’s final decision, it cannot be said on the information

before the Court that funding decisions are hers alone to make and thus that her

alleged singular threat to withhold funding from SPC represented an official policy

of the City. I will therefore grant summary judgment to defendant Jones to the

extent Counts I and III of the amended complaint assert § 1983 claims against her

in her official capacity.

Counts I and III – Individual Capacity

Defendants contend that they are entitled to qualified immunity on Simon’s

individual-capacity claims of First Amendment retaliation and violation of due

process raised in Counts I and III of the amended complaint.

Qualified immunity protects government officials who are sued in their

individual capacities for money damages under § 1983. Bishop v. Glazier, 723

F.3d 957, 961 (8th Cir. 2013); Wolfe v. City of Town & Country, 599 F. Supp. 3d

784, 790 (E.D. Mo. 2022). The qualified immunity analysis involves two

inquiries: (1) whether there has been a violation of a constitutional right; and (2)

whether that right was clearly established at the time of the violation. See Pearson

v. Callahan, 555 U.S. 223, 236 (2009). “The party asserting immunity always has

the burden to establish the relevant predicate facts, and at the summary judgment

stage, the nonmoving party is given the benefit of all reasonable inferences.”

White v. McKinley, 519 F.3d 806, 813 (8th Cir. 2008). “[I]f there is a genuine

dispute concerning predicate facts material to the qualified immunity issue, there

can be no summary judgment.” Morris v. Zefferi, 601 F.3d 805, 808 (8th Cir.

2010) (internal quotation marks omitted) (alteration in Morris).

At all times relevant to Simon’s allegations, the law was clearly established

that a government official may not retaliate against an individual for his exercise of

his First Amendment right to free speech by inducing another to take adverse

action against him on account of such speech where the adverse action would not

have otherwise occurred. See Hartman v. Moore, 547 U.S. 250 (2006); Scott v.

Tempelmeyer, 867 F.3d 1067, 1070-71 (8th Cir. 2017). See also Waters v.

Churchill, 511 U.S. 661, 674-75 (1994) (Speech by private people can interfere

with government’s operation, “but this does not allow the government to suppress

it. . . . The government cannot restrict the speech of the public at large just in the

name of efficiency.”). This prohibition extends to government actions directed to

private entities who depend on government sources for their income. Cf. O’Hare

Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996) (in exercising discretion

to terminate an at-will relationship, government officials cannot impose conditions

on expressing, or not expressing, specific political views).

Likewise, the law was clearly established that because an at-will employee

has a right enforceable in law against third parties who unlawfully interfere with

his employment relation, that employee’s right to continue in employment is

sufficient to give him a constitutional cause of action challenging state action that

compelled his employer to fire him. See Truax v. Raich, 239 U.S. 33, 38 (1915).

“[T]he right to hold specific private employment and to follow a chosen profession

free from unreasonable governmental interference comes within the ‘liberty’ and

‘property’ concepts of the Fifth Amendment . . . .” Green v. McElroy, 360 U.S.

474, 492 (1959). See also Chernin v. Lyng, 874 F.2d 501, 505 (8th Cir. 1989)

(recognizing that the Supreme Court has “continued to hold that both employees

and employers have an interest in the employment relation protected from arbitrary

government action by the Due Process Clause.”) (citing Greene, 360 U.S. at 492).

Upon review of the materials submitted by the parties, and according

plaintiff Simon the benefit of all reasonable inferences, I conclude that there

remain genuine issues of dispute concerning predicate facts material to the issue of

qualified immunity on Simon’s retaliation and due process claims, including but

not limited to: the details of Simon’s conduct and the nature of his statements

made at and during the decommissioning of the Riverfront encampment on March

24, 2023; the truthfulness of Scoggin’s representations to Jones and other City

officials regarding Simon’s conduct and statements at and during the Riverfront

decommissioning; whether Jones threatened funding to SPC if it did not take

adverse employment action against Simon, the information upon which Jones

relied in making the alleged threat, and SPC’s understanding of Jones’s ability

and/or authority to affect its funding; and who at SPC made the decision to

terminate Simon’s employment, the reason(s) for termination, and the extent to

which the information Jones conveyed to SPC influenced that decision.

Because the record before the Court shows, at the very least, triable issues of

fact on the questions of whether Simon’s conduct and speech were protected by the

First Amendment, and whether and to what extent Jones and Scoggin interfered

with Simon’s employment interest either arbitrarily or because of his speech,

granting defendants summary judgment on the basis of qualified immunity is

inappropriate.

Count IV – Tortious Interference

Likewise, because genuine issues of material fact exist on the question of

whether Scoggin acted in bad faith or with malice in his representations of Simon’s

behavior at and during the Riverfront decommissioning, and whether Jones acted

in bad faith or with malice in her alleged threats to SPC that public funding would

be withheld if it did not take adverse employment action against Simon, I will deny

defendants summary judgment on their assertion that they are entitled to official

immunity on Simon’s state law claim of tortious interference with employment

relationship.

Damages

Finally, I will deny defendants’ motion for summary judgment to the extent

they argue that Simon cannot recover on his § 1983 claims because he cannot show

that he suffered any damages from defendants’ actions. As an initial matter, I note

that defendants fail to comply with Local Rule 4.01(E) in this regard by failing to

include in its Statement of Uncontroverted Material Facts any statement or citation

to the record to support their assertion. Although it is not my duty to scour the

record to find evidence supporting a party’s position on summary judgment, the

record nevertheless appears to show that genuine issues of material fact exist as to

defendants’ damages assertion as well.

Accordingly,

IT IS HEREBY ORDERED that defendants Tishaura Oneda Jones and

Yusef Scoggin’s Motion for Summary Judgment [53] is GRANTED in part and

DENIED in part as set forth in this Memorandum and Order, to wit:

Defendants Tishaura Oneda Jones and Yusef Scoggin are GRANTED

summary judgment on 1) the entirety of the claim raised in Count II of plaintiff

Yitzchak Simon’s amended complaint, and 2) the claims raised in Counts I and HI

of the amended complaint to the extent they are brought against the defendants in

their official capacities. In all other respects, defendants’ Motion for Summary

Judgment is DENIED.

This case remains set for jury trial on the two-week docket beginning May 5,

2025.

CATHERINE D.PERRY //

UNITED STATES DISTRICT JUDGE

Dated this 7th day of April, 2025.

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