GREEN v. MISSOURI

t there was a "seamless conspiracy" to arrest him, as evidenced by board member Clinkscale's signal to McCrary, who signaled to Kestner Miller, who signaled back to McCrary, who signaled to the police officers to arrest Green.

To establish a 42 U.S.C. § 1985(3) conspiracy claim, a plaintiff must show "(1) the existence of a civil conspiracy; (2) that the purpose of the conspiracy was to deprive her either directly or indirectly of her civil rights; (3) that a conspirator did an act in furtherance of the object of the conspiracy; and (4) damages, shown by demonstrating either injury to the person or property or the deprivation of a civil right."Mettler v. Whitelegde, 165 F.3d 1197, 1206 (8th Cir. 1999). To avoid summary judgment, the plaintiff must allege with particularity and demonstrate with specific material facts that the defendants reached an agreement. City of Omaha Employees Betterment Ass'n v. City of Omaha, 883 F.2d 650, 652 (8th Cir. 1989); Reasonover v. St. Louis County, Missouri, 447 F.3d 569, 582 (8th Cir. 2006). While those allegations may include circumstantial evidence, Green must point "to at least some facts that would suggest that [defendants] reached an understanding to violate [his] rights."City of Omaha Employees Betterment Ass'n, 883 F.2d at 652;Reasonover, 447 F.3d at 582.

Although Green has submitted evidence that a series of nods and hand signals that communicated "come forward" or "come here" were made by Clinkscale, Kestner Miller and McCrary, Green has not provided any evidence that there was a "meeting of the minds" between Defendant Police Officers and others to violate Green's rights. Defendant Police Officers testified that they did not come to an agreement with any person regarding Green. The evidence shows that Defendant Police Officers were summoned by McCrary who either asked them to arrest Green or to eject him from the meeting because Green was making loud outbursts. There is simply no evidence that Defendant Police Officers conspired to deprive Green of his constitutional rights. Moreover, in order to prevail on a claim for civil conspiracy under 42 U.S.C. § 1985, the plaintiff must prove a deprivation of a constitutional right or privilege. White v. McKinley, 519 F.3d 806, 814 (8th Cir. 2008). As discussed above, Green has not established that Defendant Police Officers deprived him of a constitutional right or privilege. As a result, Defendant Police Officers are entitled to judgment on Green's conspiracy claim. 6. Negligence by Defendant Police Officers

Defendant Police Officers argue that there is no cause of action for negligent use of force or negligent abusive treatment under Missouri law and Green has not identified any Missouri case involving negligent abusive treatment or use of force. If there is a cause of action for negligent use of force or abusive treatment, Defendant Police Officers are entitled to immunity under the doctrine of official immunity. "Official immunity provides protection to public officials from liability for negligence related to the performance of their discretionary acts." Conway v. St. Louis County, 254 S.W.3d 159, 164 (Mo. Ct. App. 2008). It does not shield officers from liability for their ministerial acts. The purpose is "to protect individual public officers who, despite imperfect information and limited resources must exercise discretion in performance of their duties." Id. A discretionary act is one where a public official must exercise reason and discretion in determining how an act should be done or what course to pursue. Id. A ministerial act is an act that is clerical in nature and must be performed without regard to the officer's judgment or opinion concerning the propriety of the act to be performed. Id.

Official immunity does not apply to discretionary acts done in bad faith or with malice. Blue v. Harrah's North Kansas City, LLC, 170 S.W.3d 466, 479 (Mo. Ct. App. 2005). Both bad faith and malice generally require an actual intent to cause injury. Id.

A defendant acts with malice when he wantonly does that which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial or injurious to another. An act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference to the rights of others. . . .

Bad faith, although not susceptible of concrete definition, embraces more than bad judgment or negligence. It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another.

Id. Because Green has produced no evidence that Defendant Police Officers' actions in using force on him were done in bad faith or with malice, Defendant Police Officers are entitled to official immunity on Green's negligence claim. As a result, I will grant judgment on this claim.

7. Malicious Abuse of Process

The elements of an abuse of process claim are: (1) the defendant made an illegal, improper, perverted use of process, a use 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) damages resulted.Duvall v. Lawrence, 86 S.W.3d 74, 84-85 (Mo. Ct. App. 2002). "The essence of abuse of process is not the commencement of an action without justification, but it is the misuse of process for an end other than that which it was designed to accomplish." Guirl v. Guirl, 708 S.W.2d 239, 245 (Mo. Ct. App. 1986). There is no evidence that Defendant Police Officers had an improper purpose or that their participation in the prosecution of Green was used to compel Green to do some collateral thing that he could not be legally be compelled to do. Duvall, 86 S.W.3d at 85. As a result, I will grant judgment to Defendant Police Officers on this claim.

8. False Imprisonment

Under Missouri law, an action for false imprisonment must be brought within two years after the cause of action has accrued. Mo. Rev. Stat. § 516.140. A cause of action for false imprisonment accrues at the time the plaintiff is released from imprisonment. Stafford v. Muster, 582 S.W.2d 670, 680 (Mo. 1979). Green testified he was arrested around 9:00 p.m. on November 18, 2003 and was bonded out around midnight. Therefore, Green's cause of action accrued on November 19, 2003, at the latest, and the statute of limitations for false imprisonment ran on November 19, 2005. Green filed this lawsuit on November 17, 2006. Green's false imprisonment claim is time-barred, and Defendants are entitled to judgment on this claim.

9. False Arrest

The Missouri Supreme Court has explained that false arrest is simply another name for the tort of false imprisonment. Highfill v. Hale, 186 S.W.3d 277, 280 (Mo. 2006) ("False imprisonment, also called false arrest, is the confinement, without legal justification, by the wrongdoer of the person wronged."). As discussed above, any cause of action Green may have had for false arrest is barred by the statute of limitations. Accordingly, Defendants are entitled to judgment on Green's false arrest claim.

B. Claims Green brings against the Members of the Board of Police Commissioners, Chief Mowka, and Secretary Nocchiero 1. Constitutional claims under Monell

The only claims Green appears to bring against the Police Board under Monell are for the Police Department's policy and practice of authorizing excessive force and verbal abuse, and for failure to train or supervise officers to prevent the use of excessive force and verbal abuse. A municipality cannot be held liable under § 1983 solely because it employs a tortfeasor. Monell v. Dep't of Social Servs., 436 U.S. 658, 691 (1978). "[I]n other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory."Id. A local government can, however, be liable when its policy or custom is responsible for the constitutional violation. Id. at 694. In order for municipal liability to attach, the employee must have committed a constitutional violation. McCoy v. City of Monticello, 411 F.3d 920, 922 and n. 3 (8th Cir. 2005). Because, as discussed above, none of Defendant Police Officers used excessive force and there is no evidence Green experienced verbal abuse, the Police cannot be held liable under Monell.

As described in the background section, Count III asserts the Police Board had a policy and practice to allow and a policy and practice to authorize, acquiesce to, and cover up the use of excessive force. Green further assets the Police Department had a policy and practice of authorizing its officers to verbally abuse detainees, and that these policies and practices caused Green to experience a constitutional deprivation. Green also claims the Police Department failed to adequately train, direct, supervise or control Defendant Police Officers concerning the use of excessive force and verbal abuse.

2. Respondeat superior for intentional torts

In Counts IX and X, Green seeks damages from the St. Louis City Police Department for the intentional torts Defendant Police Officers committed within the scope of their employment. The Police Board argues that sovereign immunity bars Green's claims against it because it is a state created entity. Although the Supreme Court of Missouri held that the Board is an "agency of the state" in Smith v. State, 152 S.W.3d 275, 278 (Mo. 2005), the Eighth Circuit has rejected that as a basis for Eleventh Amendment sovereign immunity. Thomas v. St. Louis Bd. Of Police Comm'rs, (8th Cir. 2006). As a result, the Police Board cannot avail itself to the protections of Eleventh Amendment sovereign immunity.

"Under respondeat superior, an employer is liable for damages from the misconduct of its employee acting within the course and scope of employment." Stanley v. City of Independence, 995 S.W.2d 485, 487 (Mo. 1999). "[T]he police board, as an employer, cannot be held liable under the doctrine of respondeat superior unless the employee is found liable." Bittner v. City of St. Louis Police Bd. Of Comm'rs, 925 S.W.2d 495, 498 (Mo. Ct. App. 1996). In this case, none of the Defendant Police Officers were liable for intentional torts (i.e. false imprisonment, false arrest, abuse of process) against Green. Therefore, Green's claims under respondeat superior against the Police Board fail as a matter of law.

3. Negligent training, supervision, and control of police officers

In Count XIV, Green seeks damages from the St. Louis City Police Department for negligently failing to train, supervise, and control its police officers in "the use of deadly force and other matters incidental to the exercise of police functions." Although Green's complaint is frequently difficult to interpret, it is clear that Green's claims concerning constitutional violations are brought in Counts I and III. I therefore interpret Count XIV to address the negligent training, supervision, and control that gave rise to Green's state law claims.

The sole argument that the Police Board makes for judgment on this claim is that Green's claims are barred by sovereign immunity. As discussed above, both the Supreme Court and the Eighth Circuit have held that the St. Louis Board of Police Commissioners is not protected by Eleventh Amendment sovereign immunity. Although the Board cannot avail itself to the protections of the Eleventh Amendment, because this is a state-law claim, I must also analyze the possibility of state-law immunity.

The substantive law of Missouri controls Green's state law claims. St. Paul Fire Marine Ins. Co. v. Missouri United Sch. Ins. Council, 98 F.3d 343, 345 (8th Cir. 1996). I must therefore determine how the Missouri Supreme Court would decide the issue. To do so, I must first consider any pertinent decisions of the Missouri Supreme Court. Troknya v. Cleveland Chiropractic Clinic, 280 F.3d 1200, 1207 (8th Cir. 2002). If none are available, I must look to lower court decisions and other reliable state law authorities. Id.

The Missouri Supreme Court has repeatedly stated that the St. Louis Police Board is a state agency. Hodges v. City of St. Louis, 217 S.W.3d 278, 281 (Mo. 2007); Smith v. State, 152 S.W.3d 275, 278 (Mo. 2005); State ex rel. Sayad v. Zych, 642 S.W.2d 907, 910 (Mo. 1982). Opinions from the Missouri Courts of Appeals indicate that the Police Boards of St. Louis and Kansas City are entitled to statutory sovereign immunity under Mo. Rev. Stat. § 537.600 unless the claims involve motor vehicle accidents or injuries caused by dangerous property conditions. Bittner v. City of St. Louis Bd. Of Commr's, 925 S.W.2d 495, 499 (Mo. Ct. App. 1996); Fantasma v. Kansas City, Mo. Bd. Of Police Commr's, 913 S.W.2d 388, 391 (Mo. Ct. App. 1996). Because Green's claims do not implicate either exception to § 537.600, the Police Board is entitled to statutory sovereign immunity on Green's claims of negligent training, supervision, and control of the police officers. As a result, I will grant summary judgment to the Police Board on this claim.

C. Claims against School Security Officers 1. First Amendment

McCrary and Kestner Miller argue that because the School Board meeting was a designated (or limited) public forum and Green made loud outbursts and used inappropriate language, they were permitted to eject Green from the meeting. They also assert that because Green claims he was sitting quietly and not saying anything at the time of his arrest, as a matter of law, they could not have violated his First Amendment rights. I do not address whether McCrary and Kestner Miller are entitled to qualified immunity because they did not assert qualified immunity as a defense in their motion for summary judgment.

One of McCrary and Kestner Miller's arguments relies on a disputed material fact, whether Green was silent at the meeting or made loud outbursts, which in itself would defeat their motion for summary judgment. Both of their arguments indicate a fundamental misapprehension about the nature of Green's First Amendment claims. The focal point of McCrary and Kestner Miller's First Amendment argument is what types of restrictions the School Board could place on Green's speech. They spend substantial energy discussing the type of forum the School Board meeting was, the types of permissible restrictions on speech in that forum, and how those restrictions applied to Green's claim to show that they did not impermissibly restrain Green's speech at the School Board meeting.

But Green's First Amendment claim is not that his speech was restricted at the School Board meeting. Instead, Green's claim is that Defendant Police Officers and School Security Officers retaliated against him for his past civil rights activities and his speech during the comment section of the meeting. Indeed, this is one of the few areas where his claims are relatively clear. On page 4 of Green's complaint, he asserts:

Defendant Police Officers recognized Green's claim as one for retaliation and argued that the claim fails because their conduct was not motivated by Green' civil rights activities. Green's response in opposition makes it clear that his First Amendment claims are for retaliation. For example, he argues, "Green was singled out for retribution," and "And for what could Mr. Green be singled out other than for his past exercise of his First Amendment Rights, over the last fifty years and also for his exercise of free speech in critical and public opposition to the Slay majority slate. . . ."

11c Plaintiff Green because of his race (Black) and his history of lawful civil rights activities for many decades and his lawful and appropriate exercise of First Amendment Rights of free speech and assembly, Plaintiff was arrested at a St. Louis School Board meeting on November 18, 2003 hereafter herein [sic], the only person arrested at that meeting, by the collaborative conspiratorial action or acquiescence of the then School Board of the City of St. Louis, Board Members. This action against Plaintiff was because of his exercise of and to prevent further exercise of his U.S. Constitution [sic] protected rights under the First, Fourth, Fifth, Eighth, Thirteen [sic] and Fourteenth Amendments and violation of 42 U.S.C. 1981, 1982, 1983 and common law and to deny him equal protection of the law and privileges and immunities.

11d Plaintiff's arrest, prosecution [sic] (which resulted in acquittal) arose out of unlawful [sic] November 18, 2003 arrest at the school board meeting in which Plaintiff was exercising his Rights of free speech and assembly and was in [sic] result of the acted on conspiracy and common plan to deny Plaintiff his Constitutional rights and equal protection of the law and rights of free speech and assembly and because of his race (Black) by the Defendant Police Officers and Defendant School Security Officers who acted against Plaintiff because of his race and exercise of his Constitutional rights of free speech and assembly. . . .

As discussed above, citizens have the right to exercise their First Amendment freedoms without facing retaliation from government officials. Baribeau, 596 F.3d at 481. Although a party opposing summary judgement "may not rely merely on allegations or denials in its own pleading," that obligation attaches only "[w]hen a motion for summary judgment is properly made as supported." Fed.R.Civ.P. 56(e)(2). To obtain summary judgment, the movant must show there is no genuine issue of material fact and "that the movant is entitled to judgment as a matter or law." Fed.R.Civ.P. 56(c)(2). McCrary and Kestner Miller have not shown and did not argue in their motion for summary judgment that they are entitled to judgment on Green's First Amendment retaliation claim. In their reply, McCrary and Miller claim that Green has failed to provide facts supporting his theory that he was arrested as retribution for his prior civil rights activity and that Green has the burden to establish every element. As a general rule, courts will not consider arguments raised for the first time in a reply. Barham v. Reliance Standard Life Ins. Co., 441 F.3d 581, 584 (8th Cir. 2006). As a result, I will deny McCrary and Kestner Miller judgment on this claim.

2. Fourth Amendment claims

McCrary and Kestner Miller argue that they cannot be liable for violating Green's Fourth Amendment rights because Green admits that they did not personally participate in his arrest. "The Fourth Amendment covers only `searches and seizures.'" County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998). A person is seized under the Fourth Amendment if a state agent," by means of physical force or show of authority terminates or restrains his freedom of movement." Brendlin v. California, 551 U.S. 249, 254 (2007). In this case, it is undisputed that neither McCrary nor Kestner Miller physically detained or confined Green. McCrary and Kestner Miller are therefore entitled to summary judgment on Green's Fourth Amendment claims.

3. Fourteenth Amendment claims

McCrary and Kestner Miller argue they are entitled to judgment on Green's Fourteenth Amendment Equal Protection Clause claim because there is no evidence his removal from the School Board meeting was based on his race. As discussed above, to prevail on his claim, Green, as a threshold matter, show that McCrary and Kestner Miller treated him differently than similarly-situated audience members based on his race. There is simply no evidence that the decision to remove Green from the School Board meeting was based on race. As a result, McCrary and Kestner Miller are entitled to judgment on Green's Equal Protection Clause claim. I will also grant them summary judgment on Green's Due Process Clause argument for the same reasons I granted Defendant Police Officers judgment on Green's Fourteenth Amendment Due Process clause claims, namely that Green's excessive force claim must be brought under the Fourth Amendment, and not the Fourteenth Amendment. Additionally, I will dismiss without prejudice any claims Green brings against McCrary and Kestner Miller

under the Privileges and Immunities Clause for failure to state a claim for the reasons discussed above.

4. 42 U.S.C. § 1981 claim

In their motion for summary judgment, McCrary and Kestner Miller recognize that Green alleges they violated his statutory civil rights under 42 U.S.C. § 1981 in Count II. Although McCrary and Kestner Miller argued that Green's §§ 1983 and 1985 claims fail, they did not set forth any argument why they are entitled to judgment on Green's § 1981 claim. As a result, I will not grant judgment to McCrary and Kestner Miller on Green's § 1981 claim.

5. 42 U.S.C. § 1985 conspiracy claim

Green contends that McCrary and Kestner Miller, along with Defendant Police Officers and the Police Board, conspired to violate his constitutional rights. McCrary and Kestner Miller argue that they are entitled to judgment on Green's conspiracy claims because Green has failed to establish that they violated any of his constitutional rights, that they did not ask Defendant Police Officers to arrest Green, and that there is no evidence that they formed an agreement to violate Green's constitutional rights. Green argues that there was a "seamless conspiracy" to arrest him, as evidenced by Board Member Clinkscales' signal to McCrary, who signaled to Kestner Miller, who signaled back to McCrary, who signaled to the police officers to arrest Green.

As discussed above, to establish a 42 U.S.C. § 1985(3) conspiracy claim, a plaintiff must show "(1) the existence of a civil conspiracy; (2) that the purpose of the conspiracy was to deprive her either directly or indirectly of her civil rights; (3) that a conspirator did an act in furtherance of the object of the conspiracy; and (4) damages, shown by demonstrating either injury to the person or property or the deprivation of a civil right." Mettler, 165 F.3d at 1206. Green must allege with particularity and demonstrate with specific material facts that the defendants reached an agreement. City of Omaha Employees Betterment Ass'n, 883 F.2d at 652; Reasonover, 447 F.3d at 582. While those allegations may include circumstantial evidence, Green must point "to at least some facts that would suggest that [defendants] reached an understanding to violate [his] rights."City of Omaha Employees Betterment Ass'n, 883 F.2d at 652;Reasonover, 447 F.3d at 582.

McCrary and Kestner Miller first argue that because Green has failed to show that they violated any of his constitutional rights, his claim for conspiracy fails. In order to prevail on a claim for civil conspiracy under 42 U.S.C. § 1985, the plaintiff must prove a deprivation of a constitutional right or privilege.White, 519 F.3d at 814. McCrary and Kestner Miller rely on their earlier arguments to show that Green cannot prove they violated any of his constitutional rights. As discussed above, McCrary and Kestner Miller have failed to show that they did not violate Green's First Amendment rights.

McCrary and Kestner Miller also argue that they are entitled to judgment as a matter of law because it is "undisputed" that they did not ask any St. Louis City police officers to arrest Green at the School Board meeting. Both McCrary and Kestner Miller testified that they did not ask any police officers to arrest Green. While Defendant Police Officers testified in their affidavits that McCrary asked for their assistance in requesting Green to leave the auditorium, some of Defendant Police Officers provided a slightly different account in their answers to Green's second interrogatories. In response to the question whether they heard any statements from School Board Member or School Board Security Officers on November 18, 2003, Doetzel stated, "Defendant has no specific recollection of any statement of comment of any School Board Member on the referenced date. Further answering, please see CN # 03-138991." Knox and Regan stated, "With regard to statements or comments by Board Security Officers, please see CN# 03-138991." That document, the police report, states "Charles McCrary summoned Lt. John Podolak and Sgt. David Doetzel to his location and informed us that

Percy G. Refused to leave on his own and requested that Percy G. Be arrested for Peace Disturbance." Accordingly, it is not "undisputed" that McCrary did not ask the police officers to arrest Green. McCrary and Kestner Miller also argue that Green's conspiracy claim fails because Defendant Police Officers had probable cause to arrest Green. Green alleges McCrary and Kestner Miller conspired to deprive him of his constitutional rights, including his First Amendment rights. If McCrary and Kestner Miller conspired to have Green arrested and ordered Green to leave the auditorium in retaliation for Green's First Amendment activities and Defendant Police Officers had probable cause to arrest Green based on that order, the fact that McCrary and Miller succeeded in manufacturing probable cause for Defendant Police Officers to arrest Green cannot undermine Green's claim that McCrary and Kestner Miller conspired to have him arrested.

Additionally, McCrary and Kestner Miller argue that Green "cannot identify a single fact" to support his argument that they conspired to cause his arrest. "The question of the existence of a conspiracy to deprive [a plaintiff] of [his or her] constitutional rights should not be taken from the jury if there is a possibility the jury could infer from the circumstances a `meeting of the minds' or understanding among the conspirators to achieve the conspiracy's aims." White, 519 F.3d at 816. "Because the elements of a conspiracy are rarely established through means other than circumstantial evidence, and summary judgment is only warranted when the evidence is so one-sided as to leave no room for any reasonable difference of opinion as to how the case should be decided[,] [t]he court must be convinced that the evidence presented is insufficient to support any reasonable inference of a conspiracy." Id. at 816. Here, although both McCrary and Kestner Miller deny having reached an agreement with "any St. Louis City police officers, or any other named defendants," they do not deny having reached an agreement with any person, including Clinkscale. This "unexplained gap" in the materials submitted by McCrary and Kestner Miller is sufficient to support a reasonable inference of conspiracy when coupled with the series of signals between McCrary, Kestner Miller, and Clinkscale, which may be evidence of a conspiracy. Adickes v. S. H. Kress Co., 398 U.S. 144, 153-54, 158. A nod of the head or hand gesture could also indicate the parties were simply acting in concert and had not come to an agreement beforehand. But neither McCrary nor Kestner Miler testified that they did not reach an agreement with Clinkscale or any other individual. "Because the elements of conspiracy are rarely established through means other than circumstantial evidence, and here there is sufficient evidence to support a reasonable inference of conspiracy, summary judgment [is] not appropriate." White, 519 F.3d at 816.

Unlike McCrary and Kestner Miller, Defendant Police Officers testified that they came to no agreement with other officers, any other defendant or any other person.

6. Negligence

McCrary and Kestner Miller argue that they are entitled to judgment on Green's negligence claims because there is no evidence they used any force against him. "To establish a claim for negligence under Missouri law, the plaintiff must prove: (1) the existence of a duty on the part of the defendant to protect the plaintiff from injury, (2) a failure of the defendant to perform that duty, and (3) an injury proximately caused by the defendant's failure." Blevens v. Holcomb, 469 F.3d 692, 694 (8th Cir. 2006). Assuming arguendo that a tort for the negligent use of excessive force exists under Missouri law, Green has failed to show that McCrary and Kestner Miller breached their duty in any way or were the proximate cause of Green's injuries. Green admits that neither McCrary nor Kestner Miller used any force against him. The undisputed evidence shows that the only force used against Green was by Defendant Police Officers. As a result, McCrary and Kestner Miller are entitled to summary judgment on Green's claim of negligence.

7. Malicious abuse of process

As discussed above, "[t]he essence of abuse of process is not the commencement of an action without justification, but it is the misuse of process for an end other than that which it was designed to accomplish."Guirl, 708 S.W.2d at 245. "The test is whether the process has been used to accomplish some unlawful end, or to compel [the] defendant to do some collateral thing which he could not be compelled to do legally." Barnard v. Barnard, 568 S.W.2d 567, 571 (Mo. Ct. App. 1978). Green claims that McCrary and Miller used the criminal process to dissuade him from asserting his rights against them and other defendants. While the initiation of a criminal proceeding to compel a person to refrain from asserting his rights would constitute an abuse of process, cf. Ritterbusch v. Holt, 789 S.W.2d 491, 494 (Mo. 1990) (defendants initiated criminal proceeding to compel plaintiff to pay for damages to an automobile), there is no evidence that McCrary and Kestner Miller participated in the prosecution of Green to compel him to refrain from asserting his rights against them or do any other collateral thing that he could not be legally be compelled to do. Duvall, 86 S.W.3d at 85. As a result, I will grant judgment to McCrary and Kestner Miller on this claim.

8. False arrest and false imprisonment

As discussed above, Green's claims of false imprisonment and false arrest are barred by the statute of limitations. As a result, McCrary and Kestner Miller are entitled to judgment on these claims. D. Claims Green brings against SAB

It is difficult to ascertain which, if any, counts Green has brought against SAB. SAB interpreted Green's complaint as if Green brings Counts I and Count IV against it, and moved for summary judgment on both counts. It is clear that in his Second Amended Complaint, Green brought Count IV against the School Board, among others, but Count IV of Green's Fourth Amended Complaint concerns only "Defendant Officers, and School Security Officers, said Chief and Board of Commissioners, acting and operating as St. Louis Missouri Police Department." There does not appear to be any allegation that SAB was involved in the conspiracy alleged in Count IV, and the count does not assert liability under Monell.

As discussed earlier, Green may bring Count I against the SAB for constitutional violations under Monell. Although it is not clear whether Count I is brought against SAB, it is clear that Green has not provided any evidence the School District had a policy or custom that caused a violation of his constitutional rights. As a result, SAB is entitled to summary judgment on all claims brought against it.

E. Claims Green brings against the Prosecutors, Slay, as Mayor of the City of St. Louis, and the City of St. Louis

In their statement of uncontroverted material facts, City Defendants suggested Count XVII, which is for malicious prosecution in violation of 42 U.S.C. §§ 1981, 1983 and 1985, was the only count asserted against them. Green denied this and stated that other portions of the Complaint direct claims against City Defendants. Because Green did not identify which counts he claims to assert against City Defendants, I ordered him to specify the counts. Green responded that Counts III, IV, and X are purportedly brought against City Defendants. I have reviewed Green's Fourth Amended Complaint and conclude that no reading of Counts III, IV and X would have put City Defendants on notice that those counts were brought against them. I agree with City Defendants that only Count XVII is brought against them. In Count XVII, Green claims David Miller, Bouhasin, Slay, and the City of St. Louis conspired to deprive Green of his rights of free speech, free assembly and equal protection under the United States Constitution by prosecuting him in retaliation for exercising his constitutional rights.

Defendants David Miller and Bouhasin assert that they are entitled to absolute immunity for the prosecutorial decisions relating to filing and refiling the charges against Green. Green argues that prosecutors can be held liable where there is an egregious violation of 42 U.S.C. § 1983.

"[I]n initiating a prosecution and in presenting the State's case, the prosecutor is [absolutely] immune from a civil suit for damages under s 1983." Imbler v. Pachtman, 424 U.S. 409, 431 (1976). A prosecutor is also "absolutely immune from a civil conspiracy charge when his alleged participation in the conspiracy consists of otherwise immune acts." Reasonover, 447 F.3d at 580. Absolute immunity "does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty." Imbler, 424 U.S. at 429.

Prosecutors are only entitled to absolute immunity "when the prosecutor performs distinctly prosecutorial functions." McGhee v. Pottawattamie County, 547 F.3d 922, 933 (8th Cir. 2008). For example, absolute immunity does not apply when a prosecutor violated a person's rights by "obtaining, manufacturing, coercing and fabricating evidence before filing formal charges, because this is not `a distinctively prosecutorial function.'" Id. Additionally, prosecutors do not enjoy absolute immunity when they perform administrative or investigative functions. Brodnicki v. City of Omaha, 75 F.3d 1261, 1266 (8th Cir. 1996).

In this lawsuit, Green seeks to hold David Miller and Bouhasin liable for refiling charges against him after the charges had been dismissed. Green does not claim, nor has he presented any evidence, that David Miller and Bouhasin violated his rights while performing administrative or investigative activities. Instead, the evidence shows that David Miller issued the charges against Green, and Bouhasin decided to refile the charges after they were dismissed. The decision to file or refile charges is unquestionably "a distinctly prosecutorial function" that is "intimately associated with the judicial phase of the criminal process."McGhee, 547 F.3d at 933; Imbler 424 U.S. 430. As a result, David Miller and Bouhasin enjoy absolute immunity and are entitled to summary judgment.

Defendant Slay, in his capacity as Mayor of the City of St. Louis, argues that he is entitled to summary judgment because there is no evidence he conspired with any person to violate Green's rights. Green appears to argue that Slay is liable because he played a role in Green's prosecution. To establish a 42 U.S.C. § 1983 conspiracy claim, a plaintiff must show "(1) that the defendant conspired with others to deprive him of constitutional rights; (2) that at least one of the alleged co-conspirators engaged in an overt act in furtherance of the conspiracy; and (3) that the overt act injured the plaintiff," and (4) that the plaintiff was actually deprived of a constitutional right. White, 519 F.3d at 814; Askew v. Millerd, 191 F.3d 953, 957 (8th Cir. 1999). As discussed above, to establish a 42 U.S.C. § 1985(3) conspiracy claim, a plaintiff must show "(1) the existence of a civil conspiracy; (2) that the purpose of the conspiracy was to deprive her either directly or indirectly of her civil rights; (3) that a conspirator did an act in furtherance of the object of the conspiracy; and (4) damages, shown by demonstrating either injury to the person or property or the deprivation of a civil right."Mettler, 165 F.3d at 1206.

Green has presented no evidence that Slay conspired with David Miller and Bouhasin to deprive him of his constitutional rights. Slay denies having personally communicated with David Miller or Bouhasin regarding the prosecution of Green. Slay also denies requesting that David Miller or Bouhasin refile the charges against Green after they had been dismissed. There is no evidence that Slay was aware that the Defendant Police Officers lacked probable cause to arrest Green or that the prosecutors might have lacked probable cause to prosecute Green. Bouhasin testified that he decided to refile the charges against Green based on the fact that there were witnesses that wished to testify and prosecute Green, and in Bouhasin's opinion, there were sufficient facts to pursue the charges. Whether David Miller told Reinhold that Slay wanted the charges refiled or not is immaterial because there is no evidence that Slay told David Miller to refile the charges for the purpose of directly or indirectly depriving Green of his civil rights. "Speculation and conjecture are not enough to prove that a conspiracy exist[ed]." Mettler, 165 F.3d at 1206. Taking the evidence in the light most favorable to Green, there is no evidence that David Miller's decision to refile the charges against Green was part of a conspiracy to deprive Green of a constitutional right. Because there is no evidence that Slay conspired with David Miller and Bouhasin to violate Green's civil rights, Slay is entitled to judgment as a matter or law on Count XVII.

Defendant City of St. Louis argues it is entitled to judgment as a matter of law because Green has presented no evidence of an official policy or custom that would give rise to liability underMonell. Green argues that the City of St. Louis is liable for Slay's acts because Slay is the highest official in the city.

Green's argument is wrong as a matter of law. The doctrine of respondeat superior is inapplicable to suits for civil rights violations under 42 U.S.C. § 1983. Id. at 691; Glick v. Sargent, 696 F.2d 413, 414-15 (8th Cir. 1983). A municipality can only be liable for a § 1983 violation if the execution of the municipality's official policy or custom inflicts a constitutional injury. Monell, 436 U.S. at 694.

Green has presented no evidence of a city custom or policy to deprive individuals of their constitutional rights by conspiring to engage in malicious prosecutions. As a result, the City of St. Louis is entitled to summary judgment.

Count XVII also raises claims under 42 U.S.C. § 1981. Section 1981 provides that all persons in the United States "shall have the same right in every state and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens. . . ." 42 U.S.C. § 1981. In Jett v. Dallas Independent School Dist., 491 U.S. 701, 731-36 (1989), the Supreme Court held that 42 U.S.C. § 1983 provides the exclusive federal remedy for violations of the rights guaranteed by § 1981. As a result, I will not perform a separate analysis of Green's § 1981 claims.

At the summary judgment stage, Green stated that Count XVII was brought under both 42 U.S.C. § 1983 and 42 U.S.C. § 1985. He did not claim to assert a claim under 42 U.S.C. § 1981. I will address the § 1981 claim because Green's Fourth Amendment Complaint clearly says the act was committed in violation of § 1981 as well as other violations.

Green also makes a claim under the Missouri common law for conspiracy, malicious prosecution and abuse of process. Miller and Bouhasin have absolute immunity for their prosecutorial acts under the common law. Carden v. George, 291 S.W.3d 852, 854 (Mo. Ct. App. 2009). I will therefore only address Slay's liability. The elements of civil conspiracy under Missouri law are "(1) two or more persons; (2) with an unlawful objective; (3) after a meeting of the minds; (4) committed at least one act in furtherance of the conspiracy; and, (5) the plaintiff was thereby damaged." Rice v. Hodapp, 919 S.W.2d 240, 245 (Mo. 1996). "Conspiracy is not itself actionable in the absence of an underlying wrongful act or tort." Williams v. Mercantile Bank of St. Louis NA, 845 S.W.2d 78, 85 (Mo. Ct. App. 1993). "Stated another way, if no action on the case lies, no cause of action for conspiracy can be maintained." Chmieleski v. City Products Corp., 660 S.W.2d 275, 286 (Mo. Ct. App. 1983). It is therefore necessary to evaluate whether Green's underlying causes of action could be maintained against Slay.

"To succeed on a claim for malicious prosecution, the plaintiff has the burden of proving that the defendant instigated the prosecution of the underlying criminal case against him, without probable cause and with malice, which was terminated in his favor, and resulting in damages to him." Doyle v. Crane, 200 S.W.3d 581, 586 (Mo. Ct. App. 2006). "Malice" means "that the suit was intentionally initiated or continued without the honest belief that it was lawful when done." King v. Young, 304 S.W.3d 224, 227 (Mo. Ct. App. 2009). In Green's case, there is no evidence Slay intentionally initiated or continued the prosecution of Green without an honest belief that it was lawful. David Miller testified that he believed Green had been "screaming, yelling, [and] jumping up and down on tables," and he believed that amounted to peace disturbance. David Miller did not simply believe Green had engaged in verbal expression. He believed Green was jumping up and down on tables. Even if Slay did tell David Miller and Bouhasin to refile the charges against Green, there is no evidence Slay lacked an honest belief that the charges were without probable cause. As a result, I will grant Slay, as Mayor of the City of St. Louis, summary judgment on Green's claim of malicious prosecution and for conspiracy to do so.

"[A]buse of process is different from malicious prosecution."Moffett v. Commerce Trust Co., 283 S.W.2d 591, 599 (Mo. 1955). "The elements of an abuse of process claim are (1) the present defendant made an improper, illegal, perverted use of process, which use was neither warranted nor authorized by the process; (2) the defendant had an illegal purpose in doing so; and (3) damage resulted." Crow v. Crawford Co., 259 S.W.3d 104, 116 (Mo. Ct. App. 2008). The defendant must have acted willfully and had some ulterior purpose in the improper use of process, which can be inferred from the wrongful use of process. Id. Green has not presented evidence that Slay or the prosecutors made an improper, illegal or perverted use of process. After the charges of Green were dismissed, Bouhasin reinstated them. David Miller testified that during his tenure with the city, he had refiled charges in cases other than Green's. Even if Slay ordered the charges against Green reinstated, there is no evidence that was improper or illegal. As a result, I will grant Slay, as Mayor of the City of St. Louis, summary judgment on Green's claim of abuse of process and for conspiracy to do so.

F. Claims against Craig Hebrank, Daniel Sweeney, and Byron Willis

Rule 4(m) of the Federal Rules of Civil procedure provides, "If a defendant is not served within 120 days after the complaint is filed, the court — on motion or on its own after notice to the plaintiff — must dismiss the action without prejudice or order that service be made within a specified time." An individual may be served by

(1) following state law for serving a summons . . . or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the individual;

(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Fed.R.Civ.P. 4(e). Missouri state law permits service of process

by delivering a copy of the summons and petition personally to the individual or by leaving a copy of the summons and petition at the individual's dwelling house or usual place of abode with some person of the individual's family over the age of fifteen years, or by delivering a copy of the summons and petition to an agent authorized by appointment or required by law to receive service of process.

Mo. R. Civ. P. 54.13.

1. Hebrank

On March 25, 2010, I informed Green that Hebrank had never filed an answer to his complaint and that no one entered his or her appearance. I ordered Green to show cause why Hebrank should not be dismissed because it appeared that the November 21, 2007 service was ineffective in that did not comply with Fed.R.Civ.P. 4(e). Green responded to the Show Cause Order by submitting evidence that on February 27, 2007, Green personally served Defendant Craig Hebrank with notice of this lawsuit at his home. Green's process server submitted an affidavit that after Hebrank answered the door and acknowledged he was Craig Hebrank, the process server personally handed the summons to him. For reasons unknown to the process server, he was asked to serve Hebrank again, and he did so on November 21, 2007 by leaving the summons at the Cottleville police station. Because the record establishes that the February 27, 2007 service complied with Fed.R.Civ.P. 4(e), I will not dismiss Hebrank for lack of service.

A district court may dismiss a claim sua sponte under Fed.R.Civ.P. 41(b) for failure to prosecute. See Sketon v. Henry, 390 F.3d 614 (8th Cir. 2004) (affirming district court's sua sponte dismissal for failure to prosecute); see also Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (courts have inherent authority to dismiss sua sponte for failure to prosecute). Hebrank's answer was due on March 19, 2007. Although Hebrank's answer was due more than three years ago, Green never moved for entry of default or for default judgment. Even after I notified Green on March 25, 2010 that Hebrank had failed to answer, Green chose not to move for entry of default or default judgment. Green is aware that this case has been pending since 2006 and is at the dispositive motion stage, yet he has decided not to move for default against Hebrank. Because Green has failed to prosecute his claims against Hebrank for more than three years, I will dismiss all claims against Hebrank with prejudice.

2. Willis and Sweeney

On November 21, 2007, summons were purportedly executed on Daniel Sweeney and Byron Willis, both of whom were sued in their individual capacities and official capacities as officers or supervisors of the St. Louis Police Department. The return for Byron Willis states, "Left Copies at Centra [sic] Bureua [sic], St. Louis Police Dept." The return for Daniel Sweeney states, "Left copies at Defendant's work, Central Detective Bureau, St. Louis Police Dept." Neither Sweeney or Willis filed an answer, and no one entered his or her appearance to represent them.

Service can be effectuated by delivering a copy of each to an agent authorized by appointment or by law to receive service of process. Fed.R.Civ.P. 4(e)(2)(C); Mo. R. Civ. P. 54.13. The issue here is whether Green has provided sufficient evidence that the unnamed person at the Central Detective Bureau is an agent authorized by appointment or by law to receive service of process for Willis and Sweeney. Because there was no evidence in the record that the unnamed agent was authorized to accept service of process and it appeared that service on those defendants was ineffective for failing to comply with Fed.R.Civ.P. 4(e), on March 25, 2010, I ordered Green to show cause why they should not be dismissed for lack of service. In response, Green provided the affidavit of his process server that states he "had been repeatedly told that the person that received the summons in the case of Willis and Sweeney that that person had authority to receive for these present employees and officers who were in good standing as officers and that they did not want me to personally approach them to serve them on the job or in public nor at their respective homes as their addresses were not intended for security reasons to be publicly known. I knew this was the procedure also because I had been in prior years a police officer myself." I find this statement by Green's process server insufficient to establish that the unnamed individual was authorized to accept service for Willis and Sweeney. Green has failed to provide any evidence that Willis and Sweeney appointed the unnamed individual to accept service for them and has failed to cite any statute or ordinance that authorized the unnamed individual to receive service for Willis and Green. As a result, I will dismiss without prejudice all claims against Willis and Sweeney for lack of service in this matter. Even if service were valid, I would dismiss all claims against Willis and Sweeney for failure to prosecute.

Conclusion

I will grant summary judgment to all parties on Green's Fourth Amendment claims, Fifth Amendment claims, Eighth Amendment claims, Thirteenth Amendment claims, his claims under 42 U.S.C. § 1982, Green's false imprisonment and false arrest claims. I will dismiss without prejudice Green's Fourteenth Amendment Privileges and Immunities Clause claims against all parties for failure to state a claim.

I will grant summary judgment to Peek, Regan, Doetzel, Podolak, Griffin, Knox, Quinn, Freeman Morrow, Hunter, Goodson, and Slay, as current or former members of the St. Louis Board of Police Commissioners, Mokwa, Nocchiero, David Miller, Bouhasin, Slay, as Mayor of the City of St. Louis, and the City of St. Louis summary judgment on all claims made against them. I will also grant the Special Administrative Board of the Transitional School District of the City of St. Louis summary judgment on all claims made against it.

I will dismiss with prejudice all claims against Craig Hebrank for failure to prosecute, and I will dismiss without prejudice the claims against Byron Willis and Daniel Sweeney.

In short, the only claims remaining are Green's First Amendment retaliation claim, 42 U.S.C. § 1981 claim, and 42 U.S.C. § 1985 conspiracy claim against McCrary and Kestner Miller.

Accordingly,

IT IS HEREBY ORDERED that Green's Fourteenth Amendment Privileges and Immunities claims against all defendants are DISMISSED without prejudice. IT IS FURTHER ORDERED that all claims against Defendants Byron Willis and Daniel Sweeney are DISMISSED without prejudice. IT IS FURTHER ORDERED that the claims against Defendant Craig Hebrank are DISMISSED with prejudice. IT IS FURTHER ORDERED that Defendants Michael Quinn, JoAnn Freeman Morrow, Julius Hunter, Chris Goodson, and Francis Slay, in his capacity as member of the St. Louis Board of Police Commissioners, Paul Nocchiero, Joseph Mokwa, David Doetzel, Michael Regan, Andrew Griffin, Daniel Peek, John Podolak, and Brent Knox's motion for summary judgment [#248] is GRANTED. IT IS FURTHER ORDERED that Defendants Charles McCrary, Kestner Miller, and the Special Administrative Board of the Transitional School District of the City of St. Louis's motion for summary judgment [#245] is GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that Defendants David Miller, John Bouhasin, Francis Slay, as Mayor of the City of St. Louis, and City of St. Louis's motion for summary judgment [#238] is GRANTED.