Grove Assisted Living, LLC v. City of Frontenac, Mo., Corp., Case No. 4:16-CV-1783 HEA

• Decision Date: 22 June 2018
• Docket Number: Case No. 4:16-CV-1783 HEA
• Court: U.S. District Court — Eastern District of Missouri
• Parties: THE GROVE ASSISTED LIVING, LLC, Plaintiff, v. CITY OF FRONTENAC, MISSOURI, A MUNICIPAL CORPORATION AND A POLITAL SUBDIVISION OF THE STATE OF MISSOURI, AND ITS MAYOR KEITH KRIEG AND BOARD OF ALDERMEN CHRIS KEHR, TOM O'BRIEN, MARGOT MARTIN, BUD GUEST, JOHN T. O'CONNELL, MIKE SCHOEDEL, DAVID BRAY, AND BRIAN WARNER, Defendants.

THE GROVE ASSISTED LIVING, LLC, Plaintiff, v. CITY OF FRONTENAC, MISSOURI, A MUNICIPAL CORPORATIONAND A POLITAL SUBDIVISION OF THE STATE OF MISSOURI,AND ITS MAYOR KEITH KRIEG AND BOARD OF ALDERMEN CHRIS KEHR,TOM O'BRIEN, MARGOT MARTIN, BUD GUEST, JOHN T. O'CONNELL,

MIKE SCHOEDEL, DAVID BRAY, AND BRIAN WARNER, Defendants.

Case No. 4:16-CV-1783 HEA

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

June 22, 2018

OPINION, MEMORANDUM AND ORDER

This matter is before the Court on Defendants' Motion to Dismiss Plaintiff's First Amended Petition, [Doc. No. 29]. Plaintiff opposes the Motion. Having determined that this Court has subject matter jurisdiction, and for the reasons set forth below, the Motion will be granted based on a failure of Plaintiff to state a claim upon which relief can be granted.

Facts and Background

The Court has previously summarized the facts alleged by Plaintiff in its previous Opinion, Memorandum and Order granting Defendants' Motion to Dismiss, [Doc. No. 25].

Plaintiff's amendments to the Petition include: 1) citing to the federal venue statute [Doc. No. 26, ¶ 4]; stating the full name of PGAV (id. at ¶ 17); stating Plaintiff's option contract expired (id. at ¶ 19); adding the R-3 zoning districts do not "expressly" recognize senior living facilities or communities as a permitted use (id. at ¶ 57); removal of reference to the equal protection clause; claims that Defendants cannot impose different standards than what is prescribed in R.S.Mo. § 89.010, et seq. (id. at ¶ 67); allegations against the Mayor and Board of Aldermen ("Defendant Board Members") in their individual capacities (id. at ¶ 67); expressly stating "Plaintiff does not allege a just compensation takings claim (id. at ¶ 69); allegations regarding the alleged exhaustion of administrative remedies (id. at ¶ 69); that conduct was arbitrary, capricious, and unreasonable (id. at ¶ 70); and that a delay in the approval process was designed to interfere with Plaintiff's contractual rights (id. at ¶ 70.H.).

Motion to Dismiss Standard

The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is to test the legal sufficiency of a complaint so as to eliminate those actions"which are fatally flawed in their legal premises and deigned to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity." Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001) (citing Neitzke v. Williams, 490 U.S. 319, 326-27 (1989)). "To survive a motion to dismiss, a claim must be facially plausible, meaning that the 'factual content. . . allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Cole v. Homier Dist. Co., Inc., 599 F.3d 856, 861 (8th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The court must "accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party." Id. (quoting Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005)).

However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," will not pass muster. Iqbal, 556 U.S. at 678. Under Fed.R.Civ.P. 12(b)(6), a party may move to dismiss a claim for "failure to state a claim upon which relief can be granted." The notice pleading standard of Fed.R.Civ.P. 8(a)(2) requires a plaintiff to give "a short and plain statement showing that the pleader is entitled to relief." Courts must assess the plausibility of a given claim with reference to the plaintiff's allegations as a whole, not in terms of the plausibility of each individual allegation. Zoltek Corp. v. Structural Polymer Group, 592 F.3d 893, 896 n. 4 (8th Cir.2010) (internal citationomitted). This inquiry is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. The court must grant all reasonable inferences in favor of the nonmoving party. Lustgraaf v. Behrens, 619 F.3d 867, 872-73 (8th Cir.2010).

Further, this Court may conduct a rational basis review at the motion to dismiss stage, as

the law is well settled in the Eighth Circuit that district courts may conduct rational basis review at the motion to dismiss stage. Carter v. Arkansas, 392 F.3d 965, 968 (8th Cir. 2004). The policy underlying the law is logical: "because all that must be shown is any reasonably conceivable state of facts that could provide a rational basis for the classification, it is not necessary to wait for further factual development in order to conduct a rational basis review on a motion to dismiss." Gilmore v. Cty. of Douglas, State of Neb., 406 F.3d 935, 937 (8th Cir. 2005) (internal quotations omitted).

Johnson v. City of Little Rock, 164 F. Supp. 3d 1094, 1100 (E.D. Ark. 2016); see also Knapp v. Hanson, 183 F.3d 786, 789 (8th Cir. 1999) ("Additionally, Appellants are incorrect in their contention that this issue cannot be decided on a motion to dismiss").

Plaintiff has failed to state a recognized claim under the Missouri Constitution.

Plaintiff has alleged Defendants have violated the due process clause of the Missouri Constitution, [Doc. No. 26, ¶¶ 66, 68, 70]. Plaintiff has conceded in its Memorandum in Opposition that it does not seek any remedy under the MissouriConstitution, [Doc. No. 26, p. 15]. As this claim is abandoned and as, unlike the federal legislature's enactment of 42 U.S.C. § 1983, Missouri has not enacted any enabling statute for said provision,¹ allegations concerning the Missouri Constitution fail to state a claim upon which relief may be granted.

Plaintiff has failed to state a claim under 42 U.S.C. § 1983 pursuant to the Fifth and Fourteenth Amendments to the U.S. Constitution.

Section 1983 is a remedial statute allowing for a person acting under "color of any statute, ordinance, regulation, custom, or usage, of a State or Territory or the District of Columbia" to be held liable for the "deprivation of any rights, privileges, or immunities secured by the Constitution and its laws." 42 U.S.C. § 1983. The statute is "merely a vehicle for seeking a federal remedy for violations of federally protected rights." Foster v. Wyrick, 823 F.2d 218, 221 (8th Cir. 1987). In a § 1983 action, two essential elements must be present: (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct complained of deprived a plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. DuBose v. Kelly, 187 F.3d 999, 1002 (8th Cir. 1999). Therefore, in evaluating a § 1983 claim, theprecise constitutional violation which is alleged must be identified. Rogers v. City of Little Rock, Ark., 152 F.3d 790, 796 (8th Cir. 1998).

The Court will address Plaintiff's failure to state a claim under each of the three kinds of claims under 42 U.S.C. § 1983 which may be raised under the Due Process Clause of the Fourteenth Amendment.

a. Violation of a right incorporated via the Bill of Rights;

b. Substantive due process regarding certain wrongful government actions; and

c. Procedural due process regarding a deprivation of life, liberty, or property without a fair procedure.

See Zinermon v. Burch, 494 U.S. 113, 125 (1990).

Plaintiff has failed to state a claim for violation of any incorporated right.

The only other amendment alluded to in Plaintiff's Amended Petition is the Fifth Amendment, despite Plaintiff's specific contention it does not purport to raise a takings claim, [see, Doc. No. 26, ¶¶ 66-68]. Accordingly, Plaintiff fails to state a claim upon which relief can be granted regarding the Fifth Amendment as the Fifth Amendment's due process clause applies only to federal entities. See Barnes v. City of Omaha, 574 F.3d 1003, 1006, n.2 (8th Cir. 2009) ("The Fifth Amendment's Due Process Clause applies only to the federal government or federal actions, andthe Plaintiffs have not alleged that the federal government or a federal action deprived them of property.").

Plaintiff has failed to state a claim under 42 U.S.C. § 1983 pursuant to the substantive due process clause.

As an initial matter, Plaintiff has conceded that it is not challenging any claim under the substantive due process clause regarding any executive decision, [Doc. No. 38, p. 22]. Accordingly, this Court reviews the alleged legislative actions pursuant to Griswold v. Connecticut, 381 U.S. 479 (1965)) rather than Rochin v. California, 342 U.S. 165 (1952) (executive action). See, Shrum ex rel. Kelly v. Kluck, 85 F.Supp.2d 950, 960 (D. Neb. 2000) (quoting County of Sacramento v. Lewis, 523 U.S. 833 (1998)).

The substantive due process clause regarding legislative action requires a two-step process where Plaintiff must show the following: 1) an unenumerated fundamental right (one which is, objectively, deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty such that neither liberty nor justice would exist if it were sacrificed; and 2) the law infringing on any fundamental right survives strict scrutiny—the law must be narrowly tailored to serve a compelling state interest. See Gallagher v. City of Clayton, 699 F.3d 1013, 1017 (8th Cir. 2012); see also Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972) ("Property interests, of course, are not created by the Constitution. Rather, they arecreated and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law -- rules or understandings that secure certain benefits and that support claims of entitlement to those benefits."). Plaintiff has not argued it has any fundamental liberty interest at stake, [Doc. No. 38, p. 16]. Accordingly, the legislative acts at issue need only be "rationally related to legitimate government interests." Wash. v. Glucksberg, 521 U.S. 702, 728 (1997). To prevail on a facial challenge, the plaintiffs bear the burden of "establish...