Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane...
-
Upload
leviathan57 -
Category
Documents
-
view
215 -
download
0
Transcript of Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane...
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 1/45
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SHAUN MISSEY, )
)Plaintiff, ))
v. ) Cause No. 4:13-CV-568
)THE CITY OF ARNOLD, MISSOURI, ) JURY TRIAL REQUESTED
)
and )
)ROBERT SWEENEY, individually and )
in his official capacity as City Attorney )
for the City of Arnold. ))
and )
)
DIANE WALLER, individually and in )her official capacity as City Clerk of )
the City of Arnold, )
)Defendants. )
COMPLAINT
COMES NOW Plaintiff Shaun Missey (hereinafter “Plaintiff” or “Missey”), by and
through his undersigned counsel, and for and in support of his complaint against the defendants,
states as follows:
PARTIES, JURISDICTION & VENUE
1. Missey is an individual with his primary place of residence in the Eastern District
of Missouri, Eastern Division.
2. Defendant City of Arnold (hereinafter “City” or “Arnold”), Missouri, is a third-
class city under Missouri law, which is located in the Eastern District of Missouri,
Eastern Division.
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 2/45
2
3. Defendant Robert Sweeney (hereinafter “Sweeney”) is an individual with his
primary place of residence and business located in the Eastern District of Missouri, Eastern
Division. He is sued in both his individual and official capacities. He is the City Attorney for the
City of Arnold, Missouri.
4. Defendant Diane Waller (hereinafter “Waller”) is the City Clerk for the City of
Arnold. She is sued in both her individual and official capacities.
5. The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331.
6. Plaintiff invokes the supplemental jurisdiction of this Court to hear and decide
claims arising under state law pursuant to 28 U.S.C. § 1367.
7. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) because all
Defendants reside or are located in the district and all of the events complained of herein
occurred in the district.
8. Plaintiff requests a jury trial pursuant to Federal Rule of Civil Procedure 38(b).
ALLEGATIONS COMMON TO ALL COUNTS
9. On December 11, 2012, Missey filed to be a candidate for the public office of
Councilman for Ward 1 in the City using the City’s official form for such filing, which is
attached hereto and incorporated by reference herein as Exhibit 1.
10. The City’s prescribed form for a resident to declare his/her candidacy for public
office is set forth at § 7.5 of the Code of Ordinances of the City of Arnold (hereinafter “City
Code”), which does not require a candidate to make any declaration regarding unpaid taxes.
11. Under Missouri law and the City Code, a resident seeking municipal office in the
April 2, 2013 general election could declare his/her candidacy at any time between December 11,
2012 and January 15, 2013. See §§ 115.127.5 R.S.Mo. and 7.3 of the City Code.
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 3/45
3
12. Ballots for the declared candidates were to be submitted to election authority
(county clerk) for printing on January 22, 2013 pursuant to § 7.7 of the City Code for the April 2
election.
13. On January 18, 2013, Waller on behalf of the Defendants mailed Missey notice
that his name would not appear on the ballot because purportedly under §115.342 R.S.Mo., he
was not eligible to be a candidate for the Arnold City Council due to an alleged personal
property tax delinquency. Exhibit 2 attached hereto and incorporated by reference as if fully set
forth herein.
14. Waller took the position that Missouri law requires candidates to have all taxes
paid before the last day for filing, which for the April 2, 2013 election was January 15, 2013.
15. At the time Defendants mailed the January 18, 2013 notice to Missey, they were
aware that § 115.342 R.S.Mo. did not apply to candidates for municipal office by reason of
§ 115.305 R.S.Mo., which provides:
This subchapter shall not apply to candidates for special district offices, township
offices in township organization counties, or city, town and village offices; provided that, cities of the fourth class, except those in a county of the first class
with a charter form of government and which adjoins a city not within a county,
may elect, only by ordinance, to hold primary elections in accordance with the provisions of sections 115.305 to 115.405 or in accordance with the provisions
of sections 78.470, 78.480 and 78.510, and the ordinance shall state which of
these provisions of law are being adopted.
16. At the time Defendants mailed the January 18, 2013 notice to Missey, they were
also aware that § 115.342 R.S.Mo. did not apply to him by reason of Sweeney’s Memo to Waller
dated January 21, 2011, which is attached hereto and incorporated by reference as if fully set
forth herein as Exhibit 3.
17. The personal property tax delinquency alleged by Defendants supposedly
stems from Missey’s October 12, 2011 purchase of a 2005 Dodge Grand Caravan, which Missey
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 4/45
4
sought a personal property tax waiver for from the Collector of Revenue of Jefferson County
(hereinafter “Collector of Revenue”) on November 28, 2011. Additionally, Missey registered the
vehicle with the State of Missouri on the same day. Exhibits 4-a and 4-b attached hereto and
incorporated by reference herein.
18. Upon information and belief, Missey seeking a personal property tax waiver in
October 2011 provided notice to the Collector of Revenue and/or Assessor that Missey owned
personal property in Jefferson County, which should have resulted in Jefferson County issuing
Missey an assessment form in 2012 for him to declare his personal property.
19.
Additionally, § 137.116. R.S.Mo. requires the Department of Revenue to transmit
on January first of each year to each county assessor a list of motor vehicles, etc. registered with
the Department of Revenue having a personal property situs in the county for purposes of
preparing assessment lists of all tangible personal property in the county.
20. No form for declaring personal property was received by Missey in 2012 from
Jefferson County.
21. On January 18, 2013, when Defendants sent the letter to Missey telling him that
he would be removed from the April 2, 2013 ballot because delinquent on his personal property
tax, Missey was not delinquent on any personal property tax, as evidenced by the public Online
Property Inquiry maintained by the Collector of Revenue and available to Defendants.
22. On February 6, 2013, Missey through counsel, advised the City, through Waller,
that Missey was not delinquent on any personal property tax, as evidenced by the Collector of
Revenue’s Online Personal Property Inquiry and Waller’s own correspondence dated January 18,
2013. Exhibit 5 attached hereto and incorporated by reference herein.
23. Even though Missey was not delinquent on any personal property tax as
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 5/45
5
evidenced by the Collector of Revenue’s records, Defendants failed and refused to restore
Missey to the ballot despite the demand contained in his February 6, 2013 correspondence.
24. In removing Missey from the ballot, no notice was provided to him about this
alleged property tax delinquency until the notice was mailed to him on January 18, 2013, after
the period for declaring as a candidate had expired on January 15, 2013, and therefore, according
to Waller, after the time for correcting any alleged tax delinquency.
25. Missey was not able to address this alleged property tax delinquency on January
21, 2013 because City Hall was closed the next business day after the notice was mailed to him
due to the Martin Luther King Holiday.
26. When Missey contacted Waller on January 22, 2013 about her January 18, 2013
correspondence in an attempt to address and/or resolve the issue, she advised him that there was
nothing he could do to address this alleged property tax delinquency and that he was disqualified
from the ballot.
27. On February 13, 2013, after Missey challenged his removal from the ballot on
February 6, 2013 because he owed no personal property tax, Sweeney issued a memorandum to
Waller and Police Chief Robert Shockey accusing Missey of engaging in a scheme to defraud the
taxing authorities of monies to which they were entitled.
28. Sweeney’s February 13, 2013 memorandum accusing Missey of being a tax cheat
was released to the Arnold Patch, and now appears on the Arnold Patch website for the world to
see, as part of the Defendant’s efforts to discredit and embarrass him and to politically neutralize
him, even though he was already illegally removed from the ballot by Defendants. See Exhibits
6-a and 6-b attached hereto and incorporated by reference herein.
29. In addition to Defendants removing Missey from the April 2, 2013 Arnold
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 6/45
6
City Council ballot, they removed Ward 3 candidate Rodney M. Mullins (hereinafter “Mullins”)
from the ballot for allegedly not paying municipal service fees by January 15, 2013.
30. On January 16, 2013, Mullins’ wife was contacted by Waller and told that he was
being provided with a “courtesy call” that he was disqualified from the ballot. Even though
Mullins wife offered to immediately pay any outstanding municipal service fees, even though
Mullins had already paid the bill by mail, Waller told Mrs. Mullins that nothing could be done.
31. The original check Mullins mailed to the City to timely pay his municipal service
fees was deposited into the City’s account six (6) days after Mullins was disqualified from the
City Council election. When Mullins requested a copy of the envelope he used to pay his
municipal service fees, it appeared to have been altered.
32. As a result of the removal of Missey and Mullins from the April 2, 2013 City
Council ballot by Defendants, the Ward 1 and Ward 3 Council seats are uncontested and will be
filled by Phil Amato (discussed in more detail below) and Jason Fulbright.
33. Upon information and belief, Jason Fulbright and Phil Amato are political allies
of Ron Counts, (hereinafter “Counts”) current Mayor of the City, and of Sweeney. Counts
previously attempted to appoint Fulbright to the Arnold Planning Commission without success.
34. Upon information and belief, Sweeney is a political ally of Counts and has
a financial interest in Counts and his political allies maintaining a majority on the Council so that
Sweeney is not replaced as the City Attorney as he was in December 2009.
35. Missey is not a political ally of Counts or Sweeney, which upon information and
belief, is the reason he was removed from the April 2, 2013 ballot under false pretenses by the
Defendants.
36. Additionally, Sweeney is legal counsel for the North Jefferson Ambulance
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 7/45
7
District.
37. At the same time Missey and Mullins were removed from the Arnold City
Council ballot, Ron Woehrle was removed as a Board candidate for the North Jefferson
Ambulance District for allegedly not paying his personal property tax.
38. Upon information and belief, he was removed from the North Jefferson
Ambulance District ballot by Sweeney and others because he is not an ally of Sweeney’s and his
allies on that Board.
39. Sweeney is also the City Attorney for the City of Byrnes Mill.
40.
Byrnes Mill Mayor Susan Gibson was in arrears on her personal property
tax on January 15, 2013, the filing deadline for the April 2, 2013 general election. Unlike the
other candidates set forth above, Gibson remained on the Byrnes Mill ballot after she paid her
personal property tax on January 22, 2013.
41. Upon information and belief, Gibson is a political ally of Sweeney’s and
Sweeney’s allies on the Byrnes Mill Board of Aldermen.
42. This same issue was raised in the City during the 2011 City Council election
because Council candidates Bill Moritz (hereinafter “Moritz”) and Randy Crisler (hereinafter
“Crisler”) were delinquent in paying their personal property taxes. Crisler did not pay his 2010
personal property tax until on or about February 22, 2011. Moritz did not pay his 2010 personal
property tax until on or about January 19, 2011.
43. Upon information and belief, both Moritz and Crisler are political allies of
Counts and Sweeney. Neither paid their personal property tax before the filing deadline for the
April 2011 election, which was January 18, 2011.
44. As set forth above, during the 2011 City Council election, Sweeney took the
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 8/45
8
position in a legal memorandum directed to Waller that § 115.342 R.S.Mo. did not apply to
municipal elections, that § 115.352 R.S.Mo. imposed no duty on the City Clerk to determine the
tax delinquency status of municipal candidates, and that it was the Department of Revenue’s
responsibility to enforce § 115.342 R.S.Mo. Sweeney further directed Waller to share his legal
opinion with the Mayor and Council. See Exhibit 3.
45. As a result of Sweeney’s legal opinion to the City, neither Moritz,
nor Crisler, were removed from the April 5, 2011City Council election ballot, and they were
ultimately elected to the Arnold City Council, where they have voted as allies of Counts and
Sweeney.
46. The actions alleged herein were part of a custom and/or policy on the part of the
City, were made or ratified by those with final policymaking authority, represents the policy of
the City, resulted from the City’s failure to adequately supervise and/or control its appointed
officials and/or employees, and/or constitutes a deliberate and/or conscious choice on the part of
the City to violate the Constitutional rights of others.
47. Upon information and belief, the City maintains a policy or policies of insurance
with respect to tort claims filed against it and/or its elected and/or appointed officials, and
therefore, to the extent that the City or any of its officials may attempt to assert a defense of
sovereign immunity with respect to any tort claim raised herein, it/they has/have waived such
defense under the provisions of §537.610 R.S.Mo. by maintaining such policy or policies of
insurance.
COUNT I
FIRST AMENDMENT RETALIATION
COGNIZABLE UNDER 42 U.S.C. SECTION 1983
For Count I of Plaintiff’s cause of action against all Defendants, Plaintiff states as
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 9/45
9
follows:
48. Plaintiff incorporates by reference as if fully set forth herein, all proceeding
paragraphs of this complaint.
49. As set forth above, Missey is not a political ally of Counts or Sweeney, and if
elected would likely have kept the balance of power on the Council with the faction that are not
Counts and Sweeney allies.
50. Defendants purposefully and intentionally removed Missey from the ballot for a
pretexual reason to ensure that Counts/Sweeney’s ally, Fullbright, ran unopposed in Ward 1, and
therefore, would be elected to office.
51. Missey’s political speech and/or political affiliation was a motivating factor
and/or played a part in the Defendants’ decision to remove Missey from the ballot.
52. Removing Missey from the ballot because of his political speech and/or affiliation
violated his rights secured by the First Amendment to the United States Constitution made
applicable to the states by the Fourteenth Amendment.
53. The actions of the Defendants complained of herein were taken under color of
state law and in violation of Missey’s rights secured by the First and Fourteenth Amendments to
the United States Constitution, a claim actionable under 42 U.S.C. § 1983.
54. As a direct and proximate result of Missey’s illegal removal from the ballot by
Defendants, particularly when he was publicly accused of being a tax cheat as the reason for his
removal, he has sustained and will continue to sustain damages.
55. As a direct and proximate result of the actions of the Defendants, Missey has
suffered and will continue to suffer emotional pain, mental anguish, inconvenience, humiliation,
embarrassment, loss of enjoyment of life, stress, and loss of personal and professional reputation.
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 10/45
10
56. The conduct of Defendants Sweeney and Waller as alleged herein was reckless
and callously indifferent to the Constitutional rights of Missey, malicious and wanton with
respect to those rights, and therefore, an award of punitive damages is warranted and necessary
to punish Sweeney and Waller and to deter them and others from the same or similar
transgressions in the future.
WHEREFORE, Plaintiff prays this Court to enter judgment in his favor and against
Defendants and thereafter:
A. Award damages to Plaintiff resulting from his removal from the ballot, particularly when
Defendants publicly claimed that the reason for his removal was because he is a tax
cheat;
B. Award damages to Plaintiff for his emotional pain and suffering, mental anguish,
inconvenience, humiliation, embarrassment, loss of enjoyment of life, stress, and loss of
personal and professional reputation;
C. Award Plaintiff punitive damages against Defendants Sweeney and Waller in their
individual capacities in such sum as this Court believes will serve to punish them
and to deter them and others from like conduct;
D. Award Plaintiff the costs of this action, together with his reasonable attorneys’ fees; and
E. Grant such other and additional relief as may appear to the Court to be equitable and just
under the circumstances.
COUNT II
VIOLATION OF PLAINTIFF’S EQUAL PROTECTION
RIGHTS COGNIZABLE UNDER 42 U.S.C. § 1983
For Count II of Plaintiff’s cause of action against all Defendants, Plaintiff states as
follows:
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 11/45
11
57. Plaintiff incorporates by reference as if fully set forth herein, all preceding
paragraphs of this complaint.
58. By disqualifying Missey in 2013 while allowing Crisler and Moritz to remain on
the ballot in 2011, Defendants intentionally treated Plaintiff differently from others similarly
situated.
59. No rational basis existed for the difference in treatment and this difference in
treatment bears no rational relationship to a legitimate City interest.
60. Defendants have selectively applied the law in a discriminatory way, and
therefore, purposefully and/or intentionally discriminated against Missey.
61. The actions of the Defendants complained of herein were taken under color of
state law and in violation of Missey’s right to equal protection under the laws secured by the
Fourteenth Amendment to the United States Constitution, a claim cognizable under 42 U.S.C.
§ 1983.
62. As a direct and proximate result of Missey’s illegal removal from the ballot
by Defendants, particularly when he was publicly accused of being a tax cheat as the reason for
his removal, he has sustained and will continue to sustain damages.
63. As a direct and proximate result of the actions of the Defendants, Missey has
suffered and will continue to suffer emotional pain, mental anguish, inconvenience, humiliation,
embarrassment, loss of enjoyment of life, stress, and loss of personal and professional reputation.
64. The conduct of Defendants Sweeney and Waller as alleged herein was reckless
and callously indifferent to the Constitutional rights of Missey, malicious and wanton with
respect to those rights, and further taken with an illegitimate animus and/or for improper reasons,
and therefore, an award of punitive damages is warranted and necessary to punish Sweeney and
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 12/45
12
Waller and to deter them and others from the same or similar transgressions in the future.
WHEREFORE, Plaintiff prays this Court to enter judgment in his favor and against
Defendants and thereafter:
A. Award damages to Plaintiff resulting from his removal from the ballot, particularly when
Defendants publicly claimed that the reason for his removal was because he is a tax
cheat;
B. Award damages to Plaintiff for his emotional pain and suffering, mental anguish,
inconvenience, humiliation, embarrassment, loss of enjoyment of life, stress, and loss of
personal and professional reputation;
C. Award Plaintiff punitive damages against Defendants Sweeney and Waller in their
individual capacities in such sum as this Court believes will serve to punish them
and to deter them and others from like conduct;
D. Award Plaintiff the costs of this action, together with his reasonable attorneys’ fees; and
E. Grant such other and additional relief as may appear to the Court to be equitable and just
under the circumstances.
COUNT III
VIOLATION OF PLAINTIFF’S NAME CLEARING HEARING
RIGHTS PURSUANT TO THE FOURTEENTH AMENDMENT
COGNIZABLE UNDER 42 U.S.C. §1983
For Count III of Plaintiff’s cause of action against all Defendants, Plaintiff states as
follows:
65. Plaintiff incorporates by reference as if fully set forth herein, all preceding
paragraphs of this complaint.
66. Missey has a constitutionally protected liberty interest in not being removed from
the ballot in a publicly stigmatizing way.
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 13/45
13
67. Defendants reasons for removing Missey from the ballot stigmatized him by
seriously damaging his standing and association in the community and/or by foreclosing
employment opportunities that might otherwise be available by accusing Missey of being a tax
cheat.
68. Defendants made the reason for Missey being removed from the ballot
public by making statements to the media and when they publicly released Sweeney’s February
13, 2013 memorandum to the Patch.
69. As set forth in paragraphs 21 and 22 above, Missey denies the reason he was
removed from the ballot.
70. The actions of the Defendants complained of herein were taken under color
of state law and in violation of Missey’s rights secured by the Fourteenth Amendment to the
United States Constitution, a claim cognizable under 42 U.S.C. § 1983.
71. As a direct and proximate result of Missey’s illegal removal from the ballot
by Defendants under the stigma of being a tax cheat, he has sustained and will continue to
sustain damages.
72. As a direct and proximate result of the actions of the Defendants, Missey
has suffered and will continue to suffer emotional pain, mental anguish, inconvenience,
humiliation, embarrassment, loss of enjoyment of life, stress, and loss of personal and
professional reputation.
73. The conduct of Defendants Sweeney and Waller as alleged herein was reckless
and callously indifferent to the Constitutional rights of Missey, malicious and wanton with
respect to those rights, and therefore, an award of punitive damages is warranted and necessary
to punish Sweeney and Waller and to deter them and others from the same or similar
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 14/45
14
transgressions in the future.
WHEREFORE, Plaintiff prays this Court to enter judgment in his favor and against
Defendants and thereafter:
A. Award damages to Plaintiff resulting from his removal from the ballot based upon the
publicly announced reason that he is a tax cheat;
B. Award damages to Plaintiff for his emotional pain and suffering, mental anguish,
inconvenience, humiliation, embarrassment, loss of enjoyment of life, stress, and loss of
personal and professional reputation;
C.
Award Plaintiff punitive damages against Defendants Sweeney and Waller in their
individual capacities in such sum as this Court believes will serve to punish them
and to deter them and others from like conduct;
D. Award Plaintiff the costs of this action, together with his reasonable attorneys’ fees; and
E. Grant such other and additional relief as may appear to the Court to be equitable and just
under the circumstances.
COUNT IV
VIOLATION OF PLAINTIFF’S PROCEDURAL DUE PROCESS
RIGHTS COGNIZABLE UNDER 42 U.S.C. §1983
In the alternative to, but without waiver of Counts I through III, if this Court should find
that § 115.342 R.S.Mo. applies to municipal elections, for Count IV of Plaintiff’s cause of action
against all Defendants, Plaintiff states as follows:
74. Plaintiff incorporates by reference as if fully set forth herein, paragraphs 1
through 47 of this complaint.
75. Section 115.342.3 R.S.Mo. mandates that in the case of a candidate’s alleged tax
delinquency, the Missouri Department of Revenue must investigate the claimed delinquency. If
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 15/45
15
the finding of tax delinquency is found by the Missouri Department of Revenue to be true, the
candidate is to be given thirty-days to remit any outstanding taxes. Only upon a failure to pay
the tax after the 30-day period may a candidate be disqualified from participating in the election.
76. Section 115.342.3 R.S.Mo. creates an interest substantial enough to rise to a
legitimate claim of entitlement protected by the Due Process Clause of the Fourteenth
Amendment to the United States Constitution.
77. Defendants refused and/or failed to notify the Missouri Department of Revenue of
the alleged delinquency to permit an investigation that would have established that Missey was
not delinquent on his personal property tax, nor did Defendants provide Missey with the
statutorily required 30-days to correct any alleged property tax delinquency, if such was the case.
78. Defendants purposefully failed to comply with the provisions of §115.342.3
R.S.Mo.
79. By ignoring the statutory framework, Defendants, acting under color of state law,
deprived Missey of the ability to run for public office in violation of the procedural protections to
which he was entitled pursuant to Missouri State law in contravention of the Fourteenth
Amendment to the United States Constitution, a claim cognizable under 42 U.S.C. § 1983.
80. While the state provided an adequate remedy in form and procedurally, the
Defendants intentionally did not apply this remedy before unilaterally removing Missey from the
ballot.
81. As a direct and proximate result of Missey’s illegal removal from the ballot by
Defendants in violation of his procedural due process rights, particularly when he was publicly
accused of being a tax cheat as the basis for his removal, he has sustained and will continue to
sustain damages.
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 16/45
16
82. As a direct and proximate result of the actions of the Defendants, Missey
has suffered and will continue to suffer emotional pain, mental anguish, inconvenience,
humiliation, embarrassment, loss of enjoyment of life, stress, and loss of personal and
professional reputation.
83. The conduct of Defendants Sweeney and Waller as alleged herein was reckless
and callously indifferent to the Constitutional rights of Missey, malicious and wanton with
respect to those rights, and therefore, an award of punitive damages is warranted and necessary
to punish Sweeney and Waller and to deter them and others from the same or similar
transgressions in the future.
WHEREFORE, Plaintiff prays this Court to enter judgment in his favor and against
Defendants and thereafter:
A. Award damages to Plaintiff resulting from his removal from the ballot, particularly when
Defendants publicly claimed that the reason for his removal was because he is a tax
cheat;
B. Award damages to Plaintiff for his emotional pain and suffering, mental anguish,
inconvenience, humiliation, embarrassment, loss of enjoyment of life, stress, and loss of
personal and professional reputation;
C. Award Plaintiff punitive damages against Defendants Sweeney and Waller in their
individual capacities in such sum as this Court believes will serve to punish them
and to deter them and others from like conduct;
D. Award Plaintiff the costs of this action, together with his reasonable attorneys’ fees; and
E. Grant such other and additional relief as may appear to the Court to be equitable
and just under the circumstance
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 17/45
17
COUNT V
DEFAMATION OF CHARACTER
For Count V of Plaintiff’s cause of action against Defendants Robert Sweeney and Diane
Waller, Plaintiff states as follows:
84. Plaintiff incorporates by reference all preceding paragraphs of this Complaint.
85. Defendant Sweeney publicly asserted that Plaintiff is a tax cheat (e.g., had
illegally avoided paying his personal property taxes). A nonexclusive list of the defamatory
statements made by Sweeney about Missey, include:
a. “It is in effect a city tax Missey owed that we did not get.” [Patch,
February 11, 2013]. Exhibit 7-a attached hereto and incorporated by reference herein.
b. “It is clear that [Waller], as election authority, is disinclined to certify Mr.
Shaun Missey. The primary basis for this position is Mr. Missey’s purposeful tax
avoidance.” [Sweeney Memorandum, dated February 13, 2013 quoted and published in
the Patch, February 15, 2013 ]. See Exhibits 6-a and 6-b.
c. Mr. Missey is apparently engaged in a marginally complex scheme to
purposefully defraud the taxing authorities…” [Sweeney Memorandum, dated February
13, 2013 quoted and published in the Patch, February 15, 2013]. See Exhibits 6-a and
6-b.
d. “Diane Waller did the investigation with the assistance of the (Arnold)
Police Department. They turned up the fact that Mr. Missey was involved in tax
avoidance and should be disqualified. This all could have been avoided by Mr. Missey
paying his taxes, I get frustrated with people not taking responsibility for their own
decisions. There’s this blame game. I didn’t make Mr. Missey not pay his taxes, and
Diane Waller didn’t. To attack Diane for doing her job is childish.” [Sweeney quoted in
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 18/45
18
The Leader]. Exhibit 7-b.
86. Waller and/or Sweeny caused Sweeney’s Memorandum dated February 13, 2013
to be sent to the Patch, which was then published on the internet on February 15, 2013, making it
available to the general public. See Exhibits 6-a and 6-b.
87. The statements published by Sweeney and/or Waller are false.
88. The statements published by Sweeney and/or Waller tended to expose Missey to
public contempt and ridicule and deprive him of the benefit of public confidence and
social associations.
89.
The statements published by Sweeney and/or Waller were widely read on the
internet and/or in print format through the Leader and Patch.
90. Plaintif f’s reputation was damaged by the defamatory statements published by
Sweeney and/or Waller.
91. Defendants published the statements with the knowledge that they are false, or
they acted with reckless disregard for whether the statements were true or false at a time when
they had serious doubts as to whether such statements are true.
92. As a direct and proximate result of the actions of the Defendants, Missey
has suffered and will continue suffer damages and emotional pain, mental anguish,
inconvenience, humiliation, embarrassment, loss of enjoyment of life, stress, and loss of personal
and professional reputation.
93. Punitive damages are appropriate in this case to punish Defendants and deter them
and others from like conduct in the future.
WHEREFORE, Plaintiff prays this Court to enter judgment in his favor and against
Defendants Robert Sweeney and Diane Waller and thereafter:
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 19/45
19
A. Award Plaintiff damages in an amount that is fair and reasonable to compensate him for
the damage to his reputation, for his financial losses, and for his emotional pain and
suffering, mental anguish, inconvenience, humiliation, embarrassment, loss of enjoyment
of life, stress, and loss of personal and professional reputation;
B. Award Plaintiff punitive damages against Defendants in such sum as this Court believes
will serve to punish them and to deter them and others from like conduct;
C. Award Plaintiff the costs of this action, together with his reasonable attorneys’ fees; and
D. Grant such other and additional relief as may appear to the Court to be equitable and just
under the circumstances.
COUNT VI
PRIMA FACIE TORT
In the alternative to but without waiver of the foregoing counts, for Count VI of
Plaintiff’s cause of action against all Defendants, Plaintiff states as follows:
94. Plaintiff incorporates by reference paragraphs 1 through 47 of this Complaint as if
fully set forth herein.
95. The Defendants named herein, due to their personal animosity towards Missey
engaged in the intentional lawful act of removing Missey from the ballot.
96. In removing Missey from the ballot, Defendants acted with the intent to injure
Missey.
97. Misssey has been injured and damaged as a direct and proximate result of
the intentional lawful act of Defendants as set forth herein.
98. There was an absence of or insufficient justification for the Defendants to remove
Missey from the ballot.
99. The acts and conduct of Defendants Sweeney and Waller, as described above
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 20/45
20
were outrageous because of their evil motive and reckless indifference to Missey’s rights,
making an award of punitive damages appropriate under the circumstances.
WHEREFORE, Plaintiff prays this Court to enter judgment in his favor and against
Defendants and thereafter:
A. Award damages to Plaintiff resulting from his removal from the ballot;
B. Award damages to Plaintiff for his emotional pain and suffering, mental anguish,
inconvenience, humiliation, embarrassment, loss of enjoyment of life, stress, and loss of
personal and professional reputation;
C.
Award Plaintiff punitive damages against Defendants Sweeney and Waller in their
individual capacities in such sum as this Court believes will serve to punish them
and to deter them and others from like conduct;
D. Award Plaintiff the costs of this action, together with his reasonable attorneys’ fees; and
E. Grant such other and additional relief as may appear to the Court to be equitable and just
under the circumstances.
COUNT VII
CONSPIRACY TO VIOLATE CONSTITUTIONAL RIGHTS
For Count VII of Plaintiff’s cause of action against Defendants Robert Sweeney and
Diane Waller, Plaintiff states as follows:
100. Plaintiff incorporates by reference all preceding paragraphs of this Complaint.
101. Defendants Sweeney, Waller, and upon information and belief others acting under
color of state law, conspired together and amongst themselves and reached a mutual
understanding to undertake a course of conduct that violated Missey’s constitutional rights. In
furtherance of this conspiracy, these Defendants, and upon information and belief unknown
others, committed the following overt acts:
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 21/45
21
a. Defendants entered into an agreement amongst themselves to illegally remove
Missey from the April 2, 2013 City Council ballot; and
b. In order to maximize the embarrassment caused to Missey and to harm his
personal and professional reputation, Defendants publicly stated that Missey was
removed from the ballot because he is a tax cheat when it became clear that he
was not delinquent on any personal property tax.
102. Defendants shared the general conspiratorial objective which was to violate
Missey’s constitutional rights and to thereafter conspired to insulate themselves from civil
liability and the consequences of their misconduct. Such conduct was taken or ratified by those
with final policymaking authority and/or is so pervasive in the City and is so effective to insulate
City personnel from civil sanction that the Defendants felt free to engage in the misconduct set
forth herein, without any fear of sanction or retribution.
103. These Defendants, and upon information and belief others involved in the
conspiracy, furthered it by participating in it from its inception or by participating in the cover-up
and/or ignoring this course of conduct so as to insulate themselves and others from liability for
the outrageous and unlawful acts of the Defendants as described herein.
104. As a direct and proximate result of the conspiracy alleged herein, Missey has
sustained and will continue to sustain damages, particularly when he was publicly accused of
being a tax cheat as the reason for his removal from the ballot.
105. As a direct and proximate result of the actions of the Defendants, Missey has
suffered and will continue to suffer emotional pain, mental anguish, inconvenience, humiliation,
embarrassment, loss of enjoyment of life, stress, and loss of personal and professional reputation.
106. The conduct of Defendants Sweeney and Waller as alleged herein was reckless
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 22/45
22
and callously indifferent to the Constitutional rights of Missey, malicious and wanton with
respect to those rights, and therefore, an award of punitive damages is warranted and necessary
to punish Sweeney and Waller and to deter them and others from the same or similar
transgressions in the future.
WHEREFORE, Plaintiff prays this Court to enter judgment in his favor and against
Defendants Sweeney and Waller and thereafter:
A. Award damages to Plaintiff resulting from his removal from the ballot, particularly when
these Defendants publicly claimed that the reason for his removal was because he is a tax
cheat;
B. Award damages to Plaintiff for his emotional pain and suffering, mental anguish,
inconvenience, humiliation, embarrassment, loss of enjoyment of life, stress, and loss of
personal and professional reputation;
C. Award Plaintiff punitive damages against Defendants Sweeney and Waller in their
individual capacities in such sum as this Court believes will serve to punish them
and to deter them and others from like conduct;
D. Award Plaintiff the costs of this action, together with his reasonable attorneys’ fees; and
E. Grant such other and additional relief as may appear to the Court to be equitable and just
under the circumstances.
COUNT VIII
CIVIL CONSPIRACY
For Count VIII of Plaintiff’s cause of action against Defendants Robert Sweeney and
Diane Waller, Plaintiff states as follows:
107. Plaintiff incorporates by reference all preceding paragraphs of this Complaint.
108. Defendants Sweeney and Waller, and upon information and belief other unknown
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 23/45
23
persons, or two or more of them, entered into an agreement or understanding amongst and
between themselves to do an unlawful act, to wit, to defame Missey and/or commit a prima facie
tort against him so as to prevent him from running for the Arnold City Council.
109. Defendants (constituting two or more people) had an unlawful objective to
commit the unlawful acts set forth in paragraph 108 above.
110. The Defendants, and upon information and belief other unknown persons, had a
unity of purpose, common design and understanding, and/or meeting of the minds to defame
Missey, or alternatively to commit a prima facie tort against him to ensure that he would not run
for the Arnold City Council.
111. In furtherance of the conspiracy alleged herein, Defendants, and upon information
and belief other unknown persons, took the overt acts of:
a. Removing Missey from the April 2, 2013 City Council ballot; and
b. In order to maximize the embarrassment caused to Missey and to harm his
personal and professional reputation publicly stated that Missey was removed from the
ballot because he is a tax cheat, when it became clear that he was not delinquent on any
personal property tax.
112. As a direct and proximate result of the conspiracy alleged herein, Missey has
sustained and will continue to sustain damages, particularly when he was publicly accused of
being a tax cheat as the reason for his removal from the ballot.
113. As a direct and proximate result of the actions of the Defendants, Missey has
suffered and will continue to suffer emotional pain, mental anguish, inconvenience, humiliation,
embarrassment, loss of enjoyment of life, stress, and loss of personal and professional reputation.
114. The acts and conduct of Defendants Sweeney and Waller, and other unknown co-
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 24/45
24
conspirators as described above, were outrageous because of their evil motive and reckless
indifference to Missey’s rights, making an award of punitive damages appropriate under the
circumstances.
WHEREFORE, Plaintiff prays this Court to enter judgment in his favor and against
Defendants and thereafter:
A. Award damages to Plaintiff resulting from his removal from the ballot, particularly when
Defendants publicly claimed that the reason for his removal was because he is a tax
cheat;
B.
Award damages to Plaintiff for his emotional pain and suffering, mental anguish,
inconvenience, humiliation, embarrassment, loss of enjoyment of life, stress, and loss of
personal and professional reputation;
C. Award Plaintiff punitive damages against Defendants Sweeney and Waller in their
individual capacities in such sum as this Court believes will serve to punish them
and to deter them and others from like conduct;
D. Award Plaintiff the costs of this action, together with his reasonable attorneys’ fees; and
E. Grant such other and additional relief as may appear to the Court to be equitable and just
under the circumstances.
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 25/45
25
Respectfully submitted,
PLEBAN & PETRUSKA LAW, L.L.C.
by: /s/ Lynette M. Petruska
C. John Pleban, MO24190
[email protected] Lynette M. Petruska, MO41212
2010 South Big Bend Blvd.
St. Louis, Missouri 63117(314) 645-6666 – Telephone
(314) 645-7376 – Facsimile
Attorneys for Plaintiff
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 26/45
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 27/45
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 28/45
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 29/45
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 30/45
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 31/45
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 32/45
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 33/45
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 34/45
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 35/45
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 36/45
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 37/45
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 38/45
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 39/45
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 40/45
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 41/45
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 42/45
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 43/45
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 44/45
7/29/2019 Shaun Missey Federal Civil Rights Complaint against the City of Arnold, Bob Sweeney, and Diane Waller
http://slidepdf.com/reader/full/shaun-missey-federal-civil-rights-complaint-against-the-city-of-arnold-bob 45/45