Pitts v. City of Cuba (913 F. Supp. 2d 688, 2012)

United States District Court for the Eastern District of Missouri 2012-12-19

Citations

Full opinion text

MEMORANDUM AND ORDER

E. RICHARD WEBBER, Senior District Judge.

This matter comes before the Court on Defendants, City of Cuba, City of Cuba Police Department, Ralph Bayliss, Les Murdock, Maurice Grant, Harold Halbert, Faye Howard, Kenny Killeen, Kevin Copling, Kent Robinson, Paul Crow, Doug Shelton, Jason Wilkerson, and Tim Bailey’s Motion for Summary Judgment [ECF No. 180]. For the reasons set forth below, their motion is granted in part, and denied in part.

I. BACKGROUND

On February 16, 2010, Plaintiffs Sharon Pitts (“Plaintiff Pitts”), Lisa King (“Plaintiff King”), Marilyn Copling (“Plaintiff Copling”), and Daniel Pitts, (collectively, “Plaintiffs”), acting pro se, filed a complaint against twenty-two individuals and eight public entities [ECF No. I]. Plaintiffs filed an Amended Complaint on January 31, 2011 [ECF No. 89]. Plaintiffs set forth twenty-four counts of alleged constitutional and civil rights violations. In their Amended Complaint, Plaintiffs allege eighteen claims (pertaining to Counts I, II, III, V, VI, VII, VIII, X, XI, XII, XIV, XV, XVI, XVII, XIX, XX, XXI, and XXIV), against Defendants: City of Cuba, City of Cuba Police Department, Ralph Bayliss (“Defendant Bayliss”), Les Murdock (“Defendant Murdock”), Maurice Grant (“Defendant Grant”), Harold Halbert (“Defendant Halbert”), Faye Howard (“Defendant Howard”), Kenny Killeen (“Defendant Killeen”), Kevin Copling (“Defendant Copling”), Kent Robinson (“Defendant Robinson”), Paul Crow (“Defendant Crow”), Doug Shelton (“Defendant Shelton”), Jason Wilkerson (“Defendant Wilkerson”), and Tim Bailey (“Defendant Bailey”) (collectively, “Defendants”), for violations of their rights under 42 U.S.C. §§ 1983,1985, and 1986; First, Fourth, Fifth, Eighth, and Fourteenth Amendments of the United States Constitution. On September 24, 2012, Defendants filed a Motion for Summary Judgment [ECF No. 180] alleging that there existed no genuine dispute as to any material fact, and that Defendants were entitled to judgment as a matter of law. Plaintiffs filed their Response in Opposition to Defendants’ Motion for Summary Judgment (“Response in Opposition”) on November 5, 2012 [ECF Nos. 200, 201]. Defendants filed their Reply on November 16, 2012 [ECF No. 209].

In compliance with E.D. Mo. 7-4.01(E), Defendants filed a Statement of Undisputed Material Facts [ECF No. 180-1] in support of their Motion for Summary Judgment. Plaintiffs filed a Statement of Undisputed Material Facts on November 5, 2012 [ECF No. 202], Plaintiffs do not make reference to the facts set forth by Defendants in their Statement of Undisputed Material Facts, nor do they note the paragraph number from the Defendants’ listing of facts, as required by this Court’s Local Rules.

The Statement of Undisputed Material Facts submitted by Plaintiffs contains many factual assertions that are wholly irrelevant for purposes of evaluating Defendants’ Motion. Because Plaintiffs failed to abide by local rules, and controvert the matters set forth by Defendants in their Statement of Uncontroverted Material Facts, the assertions are deemed admitted. See Jones v. United Parcel Serv., Inc., 461 F.3d 982, 991 (8th Cir.2006) (concluding that the district court did not abuse its discretion in deeming defendants’ statements admitted, as plaintiffs’ statement of controverted facts and response to defendants’ uncontroverted facts violated local rules).

The essence of Plaintiffs’ case revolves around several key events. On February 28, 2008, Plaintiffs Pitts and King were visiting at the home of their parents, William (Leroy) Copling and Plaintiff Marilyn Copling, when an altercation occurred. Their father left his residence and went to his son, Kevin Copling’s home, where a 911 call was placed on his behalf, alleging abuse by Plaintiffs Pitts and King. Plaintiffs Pitts and King remained at their parents’ home, and also placed a call to 911, alleging that their father assaulted them. This incident led to the arrests of Plaintiffs Pitts and King on elder abuse charges on March 7, 2008. On April 24, 2008, a 911 call was made by Plaintiff Pitts in reference to a possible threat against Plaintiffs, which was conveyed by the 911 operator as an alleged disturbance at Plaintiff Copling’s home. As a result of this call, Defendant Shelton prepared a probable cause statement, alleging that Plaintiff Pitts filed a false report. Plaintiff Pitts was also issued a citation for trespassing at the Wagon Wheel Motel in 2008, and was arrested on January 21, 2010, by Defendant Wilkerson, for the assault of her brother, Dennis Copling. Plaintiffs have filed many complaints with the Cuba Police Department and the Cuba City Council. Numerous 911 calls have been made reporting alleged harassment and domestic abuse. Plaintiffs name several Defendants as members of an alleged conspiracy to deprive Plaintiffs of their constitutional rights in retaliation for their many complaints.

The following facts are those deemed admitted as Plaintiffs failed to controvert them. On February 28, 2008, Officer Doug Shelton took a statement from Leroy Copling in which Copling claimed to have been physically assaulted by Lisa King and verbally abused by both King and Sharon Pitts. Officer Doug Shelton observed red marks on Leroy Copling’s neck which Shelton believed were consistent with Copling’s claim. Officer Shelton also interviewed Sharon Pitts, Lisa King, and Marilyn Copling about the incident. Lisa King claimed to have a video of the incident on her cellular phone, but refused to turn the phone over to Officer Shelton. Marilyn Copling claimed to have a recording of the incident, to which Officer Shelton listened at the scene. Officer Shelton ultimately filed probable cause statements against Sharon Pitts and Lisa King for the crime of Elder Abuse. Warrants were issued for Sharon Pitts’ and Lisa King’s arrests for Elder Abuse. On March 7, 2008, Sharon Pitts was arrested by a Highway Patrol Officer pursuant to the warrant for Elder Abuse. On March 7, 2008, Lisa King was arrested by Paul Crow pursuant to the warrant for Elder Abuse. On March 7, 2008, Paul Crow seized a cellular phone belonging to Lisa King. The cell phone seized by Chief Crow was the same phone Ms. King claimed to have video recordings of the February 28, 2008, incident on it. Chief Crow applied for and was granted a warrant to review the con-' tents of the cell phone. Lisa King’s cell phone was returned to her once her criminal charges for Elder Abuse had been resolved.

On October 7, 2008, Officer Jason Wilkerson was dispatched to the Wagon Wheel Motel in Cuba, Missouri. At the time, the Wagon Wheel Motel was owned by the Armstrong family. Upon arrival, Officer Wilkerson was informed by the owners of the Wagon Wheel Motel that Sharon Pitts had been there, despite their prior warnings that she was not welcome on their property and that, this day, Pitts had refused to leave even when commanded to do so. Wilkerson later received written statements from the Armstrongs setting forth their complaint against Sharon Pitts. On the day of the incident, Officer Wilkerson interviewed Sharon Pitts, who claimed she had been assaulted by one of the Armstrongs. Officer Wilkerson issued Ms. Pitts a citation for trespassing based on the verbal statements he had taken from the Armstrongs.

On April 24, 2008, Officer Doug Shelton received a call from dispatch alerting him to a possible disturbance at the residence of Marilyn and Leroy Copling. Sharon Pitts had called dispatch asking for an officer to investigate threats. The dispatcher told Officer Shelton, “The third party report states that there’s a female threatening her father and mother and would like an officer to: respond.” Officer Shelton responded to the Copling residence and, once there, talked with Marilyn Copling, who told Officer Shelton there was no one there threatening her and there had not been anyone there all day. Officer Shelton determined he had probable cause to believe Sharon Pitts had committed the crime of Filing a False Police Report, and so filled out a probable cause statement to that effect. ,

On January 21, 2010, Officer Jason Wilkerson investigated a complaint by Sharon Pitts that she had been attacked by her brother, Dennis Copling. Officer Wilkerson went to Dennis Copling’s place of business to interview him regarding the allegation, and while there, observed a tear in Copling’s jacket. Dennis Copling reported that Sharon Pitts had grabbed his collar, pulled him toward her, and, in the process, ripped his jacket. Officer Wilkerson interviewed other employees who were present when the incident occurred and determined that the other employees’ stories matched Dennis Copling’s account of the event. Based on the verbal witness statements, Officer Wilkerson, determined he had probable cause to arrest Sharon Pitts.

During the period between January 1, 2007, and February 18; 2010, Sharon Pitts made forty-six calls to-911 dispatch. During the same period, Lisa King made eight calls to 911 dispatch, and Marilyn Copling made four calls. Pitts, King, and Copling have made numerous complaints to the Cuba City Council about Cuba Police officers and Kevin Copling. Pitts, King, and Copling have also made numerous complaints about the Cuba Police Department and its officers to other law enforcement agencies, including but not limited to, the Crawford County Sheriffs Office, the Missouri Highway Patrol, the Federal Bureau of Investigation, and the United States Department of Justice. None of Plaintiffs’ many complaints has been substantiated by any agency. -

II. LEGAL STANDARD

A court shall grant a motion for summary judgment only if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Lynn v. Deaconess Medical Center, 160 F.3d 484, 486 (8th Cir.1998) (citing Fed.R.Civ.P. 56(c)). Material facts are those “that might affect the outcome of the suit under the governing law,” and a genuine dispute is one “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., All U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). There is no genuine issue as to any material fact if the nonmoving party has failed to “make a showing sufficient to establish the existence of an- element essential to that party’s case ...” Celotex Corp. v. Catrett, All U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The party seeking summary judgment bears the initial responsibility of informing the court of the basis of its motion and identifying those portions of the affidavits, pleadings, depositions, answers to interrogatories, and admissions on file which it believes -demonstrates the absence of a genuine issue of material fact. Celotex, All U.S. at 323, 106 S.Ct. 2548. When such a motion is made and supported by the movant, the nonmoving party may not rest on her pleadings but must produce sufficient evidence to support the existence of the essential elements of her case on which she bears the burden of proof. Id. at 324, 106 S.Ct. 2548. In resisting a properly supported motion for summary judgment, the plaintiff has an affirmative burden to designate specific facts creating a triable controversy. Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1113 (8th Cir.2004). The non-moving party must “substantiate [their] allegations with sufficient probative evidence that would permit a finding in [their] favor based on more than mere speculation, conjecture, or fantasy.” Wilson v. Int’l. Bus. Mach. Corp., 62 F.3d 237, 241 (8th Cir.1995).

Further, the Court notes that it is “not required to speculate on which portion of the record the nonmoving party relies, nor is it obligated to wade through and search the entire record for some specific facts that might support the nonmoving party’s claim.” White v. McDonnell Douglas Corp., 904 F.2d 456, 458 (8th Cir.1990) (quoting InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989)).

III. PLAINTIFFS’ CLAIMS AGAINST THE CITY OF CUBA POLICE DEPARTMENT AND THE CITY OF CUBA

The counts alleged against the Cuba Police Department and the City of Cuba, respectively, are:

1.. Count XXI: Cuba Police Department — Police Misconduct (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, and 14th Amendments).

2. Count XXIV: City of Cuba (42 U.S.C. §§ 1983 and 1986, and 1st, 4th, 5th, 8th, and 14th Amendments).

Both of these counts are followed by various allegations. Plaintiffs additionally incorporate by reference a lengthy factual narrative consisting of over 300 preceding paragraphs. Also, it is noted that, although Plaintiffs cite violations of the 1st, 4th, 5th, 8th, and 14th Amendments, they offer no explanation or factual support for how their particular rights were violated.

A. Count XXI: City of Cuba Police Department

In Count XXI of the Amended Complaint [ECF No. 89], Plaintiffs claim violations, under 42 U.S.C. § 1983, of their 1st, 4th, 5th, 8th, and 14th Amendment rights. Plaintiffs generally allege that the City of Cuba Police Department (“CPD”) developed and maintained policies or customs exhibiting deliberate indifference to the violation of constitutional rights [ECF No 89, ¶ 308]. Plaintiffs also maintain that it was the policy and/or custom of the CPD to inadequately supervise or train its officers. Id. at ¶ 314.

Defendants do not discuss the allegations against the CPD separately, but instead incorporate the CPD into their discussion of the City of Cuba’s § 1983 liability. This Court finds, however, that under § 1983, a claim for relief must allege that a person acting under the color of state law deprived Plaintiffs of a constitutional right. Although Plaintiffs name the CPD as a Defendant, a police department is not usually considered a “person” within the meaning of § 1983. See Dean v.. Barber, 951 F.2d 1210, 1214 (11th Cir.1992) (holding that police and sheriffs departments are not usually considered legal entities subject to suit); Ketchum v. City of West Memphis, 974 F.2d 81, 82 (8th Cir. 1992) (holding that the West Memphis Police Department and Paramedic Services are departments or subdivisions of the City government and not separate juridical entities).

As this Court discussed in its January 7, 2011 Memorandum and Order, 2011 WL 53076, dismissing Defendants Crawford County Sheriffs Department, Owens-ville Police Department, and Steelville Police Department, and again addressed by the Court in its June 16, 2011, 2011 WL 2433401, and July 12, 2011 Memorandums and Orders, 2011 WL 2708459, dismissing Defendants Lake Area Narcotics Group and South Central Drug Task Force, respectively, CPD is similarly “not [a] juridical entit[y] suable as such,” rather, it is merely a subdivision of a larger governmental body. Id.; Catlett v. Jefferson County, 299 F.Supp.2d 967, 968-69 (E.D.Mo.2004) (granting motion to dismiss filed by Jefferson County Sheriffs Department, upon finding that it is not a legal entity subject to suit under 42 U.S.C. § 1983). This Court, likewise, finds that as the CPD is not a juridical entity suable under § 1983, Count XXI will be dismissed. Therefore, Defendant CPD is terminated as the sole count against it will be dismissed.

B. Count XXIV: City of Cuba

In the Amended Complaint, Plaintiffs claim acts of retaliation by the City of Cuba, under § 1983 and § 1986, in violation of their 1st, 4th, 5th, 8th, and 14th Amendment rights. Plaintiffs generally allege that the City of Cuba (the “City”) developed and maintained policies or customs exhibiting deliberate indifference to the violation of constitutional rights [EOF No. 89, ¶ 368]. Plaintiffs argue that the City gained knowledge of Defendants’ pattern of unconstitutional conduct through Plaintiffs’ attendance at the City Council meetings and attempts at filing complaints. Id. at ¶¶ 367, 370. Examples of allegedly unconstitutional conduct enumerated by Plaintiffs includes: failure to respond to 911 calls placed by Plaintiffs; false charges by the CPD; and failure to stop harassment by Defendant Copling. Id. at ¶¶ 91-98, 133. Plaintiffs also maintain that it was the policy and/or custom of the City to inadequately supervise or train its employees. Id. at ¶ 373. Plaintiffs additionally allege that it was a policy or custom of the City to inadequately or improperly investigate complaints. Id. at ¶ 372.

Defendants argue that there is no liability for the city under Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Under 42 U.S.C. § 1983, a municipality may not be held vicariously liable for the unconstitutional acts of employees. See Monell, 436 U.S. at 692-3, 98 S.Ct. 2018. Liability will not attach simply because the municipality employs an alleged tort-feasor. Id. at 692, 98 S.Ct. 2018. However, a municipality may be held liable for the unconstitutional acts of its officials or employees when those acts implement or execute an unconstitutional municipal policy or custom. See Id. at 694, 98 S.Ct. 2018; see also Doe v. Wash. County, 150 F.3d 920, 922 (8th Cir.1998). For a municipality to be liable, a plaintiff must prove that a municipal policy or custom was the “moving force [behind] the constitutional violation.” Monell, 436 U.S. at 694, 98 S.Ct. 2018; see also Board of Comm’rs v. Brown, 520 U.S. 397, 400, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (holding that only “deliberate” action by a municipality can meet the “moving force” requirement). Furthermore, the terms “policy” and “custom” are not interchangeable when conducting a Monell analysis. Mettler v. Whitledge 165 F.3d 1197, 1204 (8th Cir. 1999). Rather, a “policy” is an official policy, a deliberate choice of a guiding principle or procedure made by the municipal official who has final authority regarding such matters. Id.

The City of Cuba may be subject to § 1983 liability only if it had a “policy or custom” of failing to act upon prior similar complaints of unconstitutional conduct, which caused the constitutional injury at issue. Andrews v. Fowler, 98 F.3d 1069, 1074-1075 (8th Cir.1996). There must exist a prior pattern of unconstitutional conduct that is so “persistent and widespread” as to have the effect and force of law. Id. at 1075. “To establish a city’s liability based on its failure to prevent misconduct by employees, the plaintiff must show that city officials had knowledge of prior incidents of police misconduct and deliberately failed to take remedial action.” Id.

Defendants argue that there is no policy or practice of the City of Cuba that encourages, requires, or rewards constitutional violations. They offer affidavits from Defendants Crow, Bailey, Wilkerson, and Shelton, in which each specifically states that they are aware of no policy or custom to engage in false arrests, unlawful searches, or a conspiracy to violate civil rights [ECF Nos. 188-1, 188-2, 188-3, 188-4]. Defendants maintain that Plaintiffs have not met their burden to show evidence of similar acts, or a pattern of them. This Court agrees.

Although Plaintiffs offer examples of various complaints that they have filed personally against officers and city officials (in particular, their brother, Defendant Kevin Copling, an alderman), they do not offer evidence of complaints by other citizens ■ made against city officers, or unconstitutional acts directed at other citizens that would give rise to an inference of a pattern. Even if a constitutional violation could be established as to Plaintiffs themselves, they would still need to show a requisite degree of fault by proof of a background of events that establish that the City of Cuba essentially decided to violate the Constitution. Here, there is no policy or custom specifically identified by Plaintiffs. They have failed to offer any examples of widespread misconduct, beyond their own allegations. The undisputed fact that Plaintiffs filed numerous complaints does not carry the same weight in establishing a pattern of misconduct as numerous complaints from a multiplicity of citizens.

Similarly, Plaintiffs have not offered evidence that it is the policy or custom of the City of Cuba to inadequately train and supervise its employees. As noted above, to be actionable under § 1983, the city’s failure to train must amount to deliberate indifference to the rights of the citizens of Cuba. Here, other than broad unsupported allegations in Count XXIV, Plaintiffs do not address the supervision or training of city employees. On the other hand, Defendants offer affidavits from City of Cuba Police officers (Defendants Crow, Shelton, Wilkerson, and Bailey) that they are Post-Certified and have maintained continuing education requirements [ECF Nos. 188-1, 188-2, 188-3, 188-4]. Defendants argue this is constitutionally adequate in the Eighth Circuit. See Brockinton v. City of Sherwood, Ark., 503 F.3d 667, 673 (8th Cir.2007) (maintaining that [Defendants’] use of Arkansas Law Enforcement Training Academy and remedial training met the respective constitutional standards).

Therefore, Plaintiffs have failed to establish a genuine issue of material fact as to the existence of a policy or custom resulting constitutional violations by the City of Cuba under § 1983. As such, summary judgment will be granted as to Count XXIV, and the City of Cuba will be terminated as a Defendant.

IV. PLAINTIFFS’ CONSPIRACY CLAIMS UNDER 42 U.S.C. §§ 1985 AND 1986 — COUNTS XI, XII, XIV, XV, XVI, AND XVII

Plaintiffs allege Counts XI, XII, XIV, XV, XVI, and XVII against Defendants Bayliss, Murdock, Grant, Halbert, Howard, Killeen, Copling, Robinson, Crow, Bailey, Wilkerson, and Shelton. Three of the Counts alleged against Defendants (Counts XI, XII, and XIV) are based on 42 U.S.C. § 1985, which creates a cause of action for conspiring to interfere with a person’s civil rights. Another three of the Counts alleged against Defendants (Counts XV, XVI, and XVII) are based on 42 U.S.C. § 1986, which creates a cause of action for neglect to prevent a conspiracy to- interfere with a person’s civil rights.

In order to state a claim for conspiracy under 42 U.S.C. § 1985, Plaintiffs must allege: “(1) the defendants conspired, (2) for the purpose of depriving any person or class of persons of equal protection of the laws, or of equal privileges and immunities under the laws, that (3) one or more of the conspirators did or caused to be done any act in furtherance of the conspiracy, and (4) as a result, another was injured in his person or property or deprived of having and exercising any vital privilege of a citizen.” Rollen v. Coates, No. 2:08CV34JCH, 2009 WL 2391970, at *2-3 (E.D.Mo. Aug. 3, 2009) (quoting Criswell v. City of O’Fallon, Mo., No. 4:06CV01565ERW, 2007 WL 1760744, at *5 (E.D.Mo. June 15, 2007)).

If Plaintiffs fail to state a valid conspiracy claim against Defendants under § 1985, Plaintiffs’ § 1986 claims against Defendants must also be dismissed. “A cause of action under § 1986 is dependent on a valid claim under § 1985.” Kaylor v. Fields, 661 F.2d 1177, 1184 (8th Cir.1981); see also Hayward v. Health Dep’t & Dep’t of Law, City of Independence, Mo., 98 Fed.Appx. 566, 566-67 (8th Cir.2004) (per curiam) (citing Kaylor).

In their Memorandum in Support of Defendants’ Motion for Summary Judgment [ECF No 189], Defendants argue that all of Plaintiffs’ Civil Conspiracy claims under 42 U.S.C. § 1985, against all Defendants, are subject to summary judgment due to Plaintiffs’ failure to demonstrate a class-based animus, or establish that Plaintiffs are part of a suspect class. This Court agrees. Here, Plaintiffs do not allege they are members of a suspect class, nor do they offer any evidence of a class-based animus. Therefore, Plaintiffs fail to establish that a genuine issue of material fact as to the required second element of a § 1985 claim. As such, summary judgment will be granted as to Plaintiffs’ claims against Defendants under § 1985. Because Plaintiffs fail to state valid conspiracy claims against Defendants under § 1985, Plaintiffs’ § 1986 claims against Defendants must also be dismissed. The Court correspondingly will grant summary judgment as to all Defendants on Counts XI, XII, XIV, XV, XVI, and XVII.

V. PLAINTIFFS’ CLAIMS UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT — COUNTS I, II, AND III

In the Amended Complaint, Plaintiffs allege an Equal Rights of the Law violation [ECF No. 89, ¶ 2]. Defendants understand the basis of Plaintiffs’ Equal Protection claims to be the alleged refusal of the CPD to take Plaintiffs’ complaints seriously or believe them. Defendants argue that, to the extent that Plaintiffs are claiming a violation of the Equal Protection Clause of the Fourteenth Amendment, it does not apply, as Plaintiffs are not and have not alleged that they are members of a protected class. “To state a claim under the Equal Protection Clause, a § 1983 plaintiff must allege that a state actor intentionally discriminated against the plaintiff because of membership in a protected class.” Nolan v. Thompson, 521 F.3d 983, 989 (8th Cir.2008); Henry v. Metro. Sewer Dist., 922 F.2d 332, 341 (6th Cir.1990) (citing Johnson v. Morel, 876 F.2d 477, 479 (5th Cir.1989) (en banc)). If Plaintiffs do not assert that they are members of a protected class, they must prove that they were “treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” . See Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (stating that, to allege a “class-of-one” equal protection claim, the plaintiff must assert that “he had been intentionally treated differently than others similarly situated and that there is no rational basis for the difference in treatment”); see also Nolan, 521 F.3d at 989-990.

Defendants cite to deposition testimony in which Plaintiffs allege that their calls to the Cuba Police are treated differently than other citizens, but offer no examples of the alleged disparity. Plaintiffs’ response to this argument is to “object” to it, and state that they have filed “numerous complaints” that “fall on deaf ears.” As such, Plaintiffs are simply re-iterating their former allegations, versus offering controverting evidence in the record of a disparity in treatment. Defendants further argue that even if an equal protection violation occurred, Defendant police officers have a rational basis for treating Plaintiffs’ reports differently than other citizens. According to Defendants, Plaintiffs’ lack of credibility, based on their plethora of complaints, provides a rational basis for any disparate treatment of Plaintiffs. In the Statement of Undisputed Material Facts, it is uncontroverted that Plaintiffs, collectively, placed 58 calls to the 911 dispatch between January 1, 2007, and February 18, 2010, and that numerous complaints were made to the City of Cuba Council and to other law enforcement agencies [ECF No. 180-1, ¶¶ 31-35]. It is further undisputed by Plaintiffs that none of their complaints have been substantiated by any agency. Id. at ¶ 36.

Here, as observed by Defendants, Plaintiffs do not claim membership in a protected class. Because Plaintiffs do not allege that they are members of a protected class, they must show that the Defendant police officers systematically and “intentionally treated [them] differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook, 528 U.S. at 564, 120 S.Ct. 1073. Identifying the difference in treatment is especially important in class-of-one cases for statistical reasons. Nolan, 521 F.3d at 990 (emphasis added). In the absence of a large number of disadvantaged people sharing a single characteristic, “there is no way to know whether the difference in treatment was occasioned by legitimate or illegitimate considerations without a comprehensive ... canvassing of all possible relevant factors.” Id. (citing Jennings v. City of Stillwater, 383 F.3d 1199, 1213-14 (10th Cir.2004)). A class-of-one plaintiff must therefore “provide a specific and detailed account of the nature of the preferred treatment of the favored class,” especially when the state actors exercise broad discretion to balance a number of legitimate considerations. Id. (citing Jennings, 383 F.3d at 1214-15).

Plaintiffs have failed to provide evidence sufficient to meet this high burden of proof. They cite to no specific facts which establish a difference in the treatment they received from the manner in which others were treated. Plaintiffs do not provide any evidence, much less a detailed account of the preferred treatment by others. Plaintiffs have failed to raise a genuine issue of material fact as to whether they were intentionally treated differently than others similarly situated by the CPD. Further, they do not address Defendants’ argument that the Plaintiffs’ lack of credibility provides a rational basis for any alleged differential treatment. Thus, this Court finds that there is no genuine issue of material fact as to whether Defendants violated Plaintiffs’ Equal Protection Rights under Counts I, II, and III.

VI. PLAINTIFFS’ CLAIMS AGAINST DEFENDANTS BAYLISS, MUR-DOCK, GRANT, HALBERT, HOWARD, KILLEEN, AND ROBINSON

As an initial matter, Plaintiffs make allegations against the following Defendants in both their individual and official capacities [ECF No. 89, ¶ 1]. Plaintiffs’ claims against Defendants in their official capacity are deemed to be actions against the City of Cuba. A suit against a public employee in his or her official capacity is merely a suit against the public employer. Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir.1999). As noted above, in section III(B), for a municipality to be liable for the unconstitutional acts of its officials or employees, a plaintiff must prove that a municipal policy or custom was the moving force behind the constitutional violation. Monell, 436 U.S. at 694, 98 S.Ct. 2018. This Court has already concluded that Plaintiffs have failed to establish a genuine issue of material fact as to the existence of a unconstitutional policy or custom by the City of Cuba. Therefore, claims against Defendants in their official capacity, need not be further addressed by the Court, and such claims alleged in official capacity will be dismissed.

Plaintiffs individually name Defendants Bayliss, Murdock, Grant, Halbert, Howard, Killeen, and Robinson in the following Counts:

1. Count I: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;

2. Count II: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;

3. Count III: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th, and 14th Amendments), asserted by Plaintiff Marilyn Copling;

4. Count XI: Conspiracy to interfere with civil rights (42 U.S.C. § 1985 and 1st, 4th, 14th Amendments), asserted by Plaintiff Sharon Pitts;

5. Count XII: Conspiracy to interfere with civil rights (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;

6. Count XIV: Conspiracy to interfere with civil rights (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Marilyn Copling;

7. Count XV: Neglect to prevent conspiracy (42 U.S.C. § 1986 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;

8. Count XVI: Neglect to prevent conspiracy (42 U.S.C. § 1986 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;

9. Count XVII: Neglect to prevent conspiracy (42 U.S.C. § 1986 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Marilyn Copling.

Defendants Bayliss, Murdock, Grant, Halbert, and Howard were elected aider-man for the City Of Cuba at times relative to the Amended Complaint. Defendant Killeen served as the mayor of Cuba, and Defendant Robinson was employed as city attorney.

A. Claims Against the Board of Alderman and Mayor — Defendants Bayliss, Murdock, Grant, Halbert, Howard, and Killeen

Defendants argue that Plaintiffs do not allege that any member of the Cuba Board of Alderman, other than Kevin Copling, took any individual action which forms the basis of the lawsuit. Thus, Defendants maintain that the actions taken by the Board as a whole, give rise to liability only in its official capacity, not individual capacity. Defendants posit that Plaintiffs, even though they named members of the Board in Counts I, II, III, XI, XII, XIV, XV, XVI, XVII as individuals, only intended to sue them in their official capacity. Defendants then subsume the actions of the Board (as a whole) into their discussion of the liability of the City of Cuba, which has been deemed subject to summary judgment under Monell. Plaintiffs do not address Defendants’ characterization of the liability of the Board (and Defendants Bayliss, Murdock, Grant, Halbert, Howard, and Killeen).

In general, Plaintiffs do not address Defendants’ arguments in their responses to Defendants’ Motion. (See Plaintiffs’ Response to in Opposition to Defendant’s City of Cuba, et. al’s Motion for Summary Judgment (“Response”) [ECF No. 200], the Memorandum of Law in Support of Plaintiffs Response in Opposition (“Memorandum in Opposition”) [ECF No. 201], and Plaintiffs Supplement Response in Opposition (“Supplement”) [ECF No. 204] (grammatical mistakes in the originals)). Instead, Plaintiffs merely state, in their Memorandum in Opposition, that Defendants violated Plaintiffs’ constitutional rights under §§ 1983, 1985, and 1986, and then list numerous eases and exhibits. Notably, Plaintiffs do not tie any case or exhibit to a particular claim. Nor do Plaintiffs respond directly to legal arguments made by Defendants. As such, the Court has attempted to parse through these allegations and over 90 exhibits, to find a genuine issue of material fact as to the stated claims.

Upon review of the lengthy Amended Complaint, the Court attempted to discern any actions taken by the mayor or Board members. Plaintiffs relate instances of attending City council meetings to file' complaints regarding allegations of misconduct by the Cuba 'Police Department- and harassment by Kevin Copling [ECF No. 89, ¶¶ 107, 155, 160, 164]. Plaintiffs maintain that on different occasions, the Council refused to listen to Plaintiffs’ complaints, refused to take written complaints, and denied their request to contact the Missouri State Highway Patrol. Id. at ¶¶ 165, 173, 174, 222. Although these allegations refer to the actions by the City Council, as a whole, and not a particular member, Plaintiffs do make a few specific references to individual city officials. Plaintiffs claim that the Mayor, Defendant Killeen, told them to contact the Missouri State Highway Patrol themselves, to get an attorney, “and refused to do anything about Defendants violating [Plaintiffs’] constitutional rights, choosing to listen to the city attorney: Kent Robinson’s advise.” Id. at ¶¶ 174, 222 (grammatical and spelling mistakes in original). In their Response, Plaintiffs also noted that Defendant Bayliss, an alderman, disclosed to Plaintiff Pitts that the City of Cuba had a meeting and decided that they were not going to do anything about her complaints [ECF No. 200, ¶ 4].

1. Counts I, II, and III

Counts I, II, and III allege violations of Plaintiffs’ rights in retaliation for exercising free speech rights under 42 U.S.C. § 1983. As previously determined, this Court finds that any claims against Defendants in their official capacity under § 1983 fail to establish a genuine issue of material fact. Defendants do not discuss the liability of the mayor or Board in their individual capacities under Counts I, II, and III, maintaining that most of the alleged acts do not implicate individual board members, but involve the Board as a whole. The Court agrees that any assertions which cannot be identified with an individual Defendant cannot give rise to individual liability under § 1983. By the plain terms of 42 U.S.C. § 1983, two, and only two allegations, are required in order to state a cause of action under § 1983: the complaint must allege that (1) some person has deprived the plaintiff of a federal right; and (2) the person who has deprived the plaintiff of that right acted under color of state law. See Zutz v. Nelson, 601 F.3d 842, 848 (8th Cir. 2010) (quoting Schmidt v. City of Bella Villa, 557 F.3d 564, 571 (8th Cir.2009)). Moreover, “[l]iability under section 1983 requires a causal link to, and direct responsibility for, the deprivation of rights” protected by the Constitution. Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (internal citations omitted). Thus, in order to state a cognizable Section 1983 claim, a complaint must set forth specific factual allegations showing what each named defendant allegedly did, or failed to do, that allegedly violated the plaintiffs federal constitutional rights. Egziabher v. Pearce, No. 5:11CV5048, 2011 WL 1598715, at *2 (W.D.Ark. Mar. 28, 2011). As such, the actions of the Board as a whole will not be deemed to be the acts of Defendants Bayliss, Murdock, Grant, Halbert, Howard, Killeen, and Robinson as individuals. Also, although Plaintiffs describe Defendant Killeen, the mayor, as the “presiding city official over the Cuba City Council meetings” [ECF No. 89, ¶22], “42 U.S.C. § 1983 does not permit suit based on a respondeat superior theory of liability.” Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir.1985). Thus, individual liability cannot be attributed to the Mayor under § 1983 for the Board’s actions.

The limited references to individual acts by Defendants Killeen and Bayliss involve instructing the Plaintiffs to get a lawyer, listening to the city attorney’s advice, and being informed that the City was not going to do anything about Plaintiffs’ complaints. A § 1983 claim must allege a violation of a constitutional right. Plaintiffs do not show how these individual actions rise to the level of a constitutional protection, nor can the Court discern a violation.

Furthermore, Plaintiffs do not specifically name any of the Defendant Board members or mayor, other than Defendant Copling, as members of an alleged conspiracy in the Amended Complaint. “To prove a § 1983 conspiracy claim, plaintiff must show: (1) defendants conspired to deprive her of a constitutional right; (2) at least one of the alleged co-conspirators engaged in an overt act in furtherance of the conspiracy; and (3) the overt act injured her.” See Askew■ v. Millerd, 191 F.3d 953, 957 (8th Cir.1999). Therefore, because Plaintiffs have failed to establish the first element, that “defendants conspired,” to the extent Plaintiffs allege a § 1983 conspiracy claim under Counts I, II, and III against Defendants Bayliss, Murdock, Grant, Halbert, Howard, and Killeen, the Court finds an absence of a genuine issue of material fact.

Therefore, the Court will grant summary judgment on Counts I,. II, and III as to Defendants Bayliss, Murdock, Grant, Halbert, Howard, and Killeen.

2. Counts XI, XII, XTV, XV, XVI, and XVII

As discussed previously, the Court will grant summary judgment as to Plaintiffs’ conspiracy claims under § 1985 and § 1986 (Counts XI, XII, XIV, XV, XVI, XVII). Thus, summary judgment is granted as to all Counts alleged against Defendants Bayliss, Murdock, Grant, Halbert, Howard, and Killeen, and they áre terminated as parties to this lawsuit.

B. Claims Against the City Attorney — Defendant Robinson

Plaintiffs allege Defendant Robinson, City of Cuba attorney, is a final decision maker and policy maker. Defendants allege he is a contract attorney who provides legal advice to the Board of Aldermen. Defendants dispute Plaintiffs’ characterization of Defendant Robinson as a decision maker, and state that there is no evidence in the record from which a fact-finder could conclude Defendant Robinson played any role other than city attorney [ECF No. 209].

1. Counts XI, XII, XIV, XV, XVI, XVII and § 1983 Conspiracy Claims Under Counts I, II, and III

Three of the Counts alleged against Defendant Robinson (Counts XI, XII, and XIV) are based on 42 U.S.C. § 1985, which creates a cause of action for conspiring to interfere with a person’s civil rights. Another three of the Counts alleged against Defendant Robinson (Counts XV, XVI, and XVII) are based on 42 U.S.C. § 1986, which creates a cause of action for neglect to prevent a conspiracy to interfere with a person’s civil rights. As discussed .previously, the Court will grant summary judgment as to Plaintiffs’ conspiracy claims under § 1985 and § 1986 (Counts XI,. XII, XIV, XV, XVI, and XVII).

Plaintiffs do not specifically name Defendant Robinson as a member of an alleged conspiracy in the Amended Complaint. Under § 1983, a “plaintiff must show: (1) defendants conspired to deprive her of a constitutional right; (2) at least one of the alleged co-conspirators engaged in an overt act in furtherance of the conspiracy; and (3) the overt act injured her.” See Askew, 191 F.3d at 957. Therefore, because Plaintiffs have failed to make a showing sufficient to establish the first element, that “defendants conspired,” to the extent Plaintiffs allege a § 1983 conspiracy claim under Counts I, II, and III against Defendant Robinson, the Court finds an absencé of a genuine issue of material fact. Thus, dismissal is proper as to civil conspiracy claims asserted against Defendant Robinson under § 1983, and Counts I, II, and III.

2. Counts I, II, III

As the conspiracy Counts against Defendant Robinson warrant dismissal, only Counts I, II, and III, alleging violations of Plaintiffs’ rights in retaliation for exercising free speech rights under 42 U.S.C. § 1983 remain. In their Amended Complaint, Plaintiffs allege Defendant Robinson advised the Council not to speak to Plaintiffs about their complaint filed against Defendant Shelton [ECF No. 89, ¶ 164]. Plaintiffs also assert that Defendant Robinson told Plaintiffs to contact the Missouri State Highway Patrol themselves about their alleged treatment from the CPD.. Id. ¶ 222. Although not conceding that Defendant Robinson instructed Plaintiffs in this manner, Defendants argue, for purposes of summary judgment only, that even if Defendant Robinson had given the alleged legal advice, he is not liable under any § 1983 claim, as he is entitled to qualified immunity for actions taken in his individual capacity. Defendants argue that there was no clearly established law that would render Defendant Robinson’s legal advice violative of Plaintiffs’ constitutional rights. Defendants further note that it is the Plaintiffs’ burden to demonstrate that the law was clearly established at the time the violation occurred.

Under the doctrine of qualified immunity, officials performing discretionary functions should be shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 .(1982). Likewise, in the Eighth Circuit, a determination of whether an official is entitled to qualified immunity in a civil rights action, requires an examination of whether his or her conduct violated a constitutional right, and whether that right was clearly established. Hutson v. Walker, 688 F.3d 477, 483 (8th Cir.2012) (internal citation omitted). For the purposes of qualified immunity analysis, “clearly established” means the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. Jones v. McNeese, 675 F.3d 1158, 1161 (8th Cir.2012). Although the defendant bears the burden of proof for this affirmative defense,-the plaintiff must demonstrate that the law was clearly established. Monroe v. Ark. State Univ., 495 F.3d 591, 594 (8th Cir.2007) (citing Sparr v. Ward, 306 F.3d 589, 593 (8th Cir.2002)).

Plaintiffs do not address Defendants’ assertion of Defendant Robinson’s qualified immunity under § 1983. They do reference a lengthy enumeration of cases in their Response. Upon the Court’s examination of the cases, only one of them, Murray v. City of Onawa, Iowa, 323 F.3d 616 (8th Cir.2003), is an Eighth Circuit decision. However, the Court finds it inapplicable to the instant claims against Defendant Robinson. In their Supplement, Plaintiffs “object” to Defendants’ claim that Defendant Robinson is not liable [ECF No. 204, ¶ 52], Then in a somewhat repetitive argument, Plaintiffs make multiple assertions, including that Defendant Robinson did not allow “the City of Cuba Mayor or Board of Alderman to take any kind of steps to prevent Plaintiffs Constitutional rights from being violated,” and that he is “paid by, the citizens ... to provide legal advice and keep the City from being in lawsuits.” Id. (grammatical mistakes in the original). Plaintiffs state that Defendant Robinson “over step (sic) the scope of his job and acted more like the Mayor making decisions instead of offering legal advice.” Id. Notably, however, these somewhat broad and conclusory statements are not supported by reference to any evidentiary support in the record. Nor do Plaintiffs establish that Defendant Robinson is not entitled to qualified immunity as the law was clearly established that his conduct was unconstitutional. As such* Plaintiffs have failed to meet their burden, and Defendant Robinson is entitled to qualified immunity under Counts I, II, and III. Therefore, the Court will grant summary judgment as to all Counts (I, II, III, XI, XII, XIV, XV, XVI, XVII) against Defendant Robinson, and he will be terminated as a party to this lawsuit.

VII. CLAIMS AGAINST DEFENDANTS CROW, COPLING, BAILEY, WILKERSON AND SHELTON IN THEIR INDIVIDUAL CAPACITY

A. Defendant Crow

The Counts asserted against Defendant Crow are as follows:

1. Count I: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;

2. Count II: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;

3. Count III: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th, and 14th Amendments), asserted by Plaintiff Marilyn Copling;

4. Count VI: False Arrest (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;

5. Count XI: Conspiracy to interfere with civil rights (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;

6. Count XII: Conspiracy to interfere with civil rights (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;

7. Count XIV: Conspiracy to interfere with civil rights (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Marilyn Copling;

8. Count XV: Neglect to prevent conspiracy (42 U.S.C. § 1986 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;

9. Count XVI: Neglect to prevent conspiracy (42 U.S.C. § 1986 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;

10. Count XVII: Neglect to prevent conspiracy (42 U.S.C. § 1986 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Marilyn Copling;

11. Count XX: Abuse of process (42 U.S.C. § 1985 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King.

In the Amended Complaint, Plaintiffs do not identify how Defendant Crow has allegedly violated their Constitutional rights under the above enumerated counts, but instead incorporate the lengthy recitation of facts preceding each Count. It appears that Plaintiffs make several assertions involving Defendant Crow, alleging that he arrested Plaintiff King on March 7, 2008 [ECF No. 89, ¶ 58]. Plaintiffs further maintain that he took Plaintiff King’s cell phone without permission during the arrest. Id. at ¶ 60. In an attempt to have Plaintiff Pitts arrested for elder abuse, Plaintiffs allege Defendant Crow wrote a probable cause statement, in which he states that Pitts was antagonizing her father while Plaintiff King filmed the incident. Id. at ¶ 114. Plaintiffs also maintain that Defendant Crow wrote a probable cause statement in an attempt to have Plaintiff King arrested. Id. at ¶ 115. Finally, upon the Court’s review of the Amended Complaint, although Plaintiffs make numerous references to conspiracies, Defendant Crow is only alleged as being a part of one particular plan, against all three Plaintiffs: He was named in a plan to manufacture a false criminal case against Plaintiffs because they were on a Walmart video buying condoms. Id. at ¶ 128.

I. Counts XI, XII, XIV, XV, XVI, XVII and § 1983 Conspiracy Claims Under Counts I, II, and III

As discussed previously, the Court will grant summary judgment as to Plaintiffs’ conspiracy claims under § 1985 and § 1986 (Counts XI, XII, XIV, XV, XVI, XVII). As such, the Court will turn to Plaintiffs’ conspiracy claims under § 1983 against Defendant Crow, under Counts I, II, and III. To prove a § 1983 conspiracy claim, plaintiff must show: (1) defendants conspired to deprive her of a constitutional right; (2) at least one of the alleged co-conspirators engaged in an overt act in furtherance of the conspiracy; and (3) the overt act injured her. Askew, 191 F.3d at 957. Plaintiff is additionally required to prove a deprivation of a constitutional right or privilege in order to prevail on a § 1983 civil conspiracy claim. White v. McKinley, 519 F.3d 806, 814 (8th Cir. 2008). She is not required to show that each participant in the conspiracy knew “the exact limits of the illegal plan,” but she must show “evidence sufficient to support the conclusion that the defendants reached an agreement to deprive the plaintiff of constitutionally guaranteed rights.” Id. at 816 (quoting Larson by Larson v. Miller, 76 F.3d 1446, 1458 (8th Cir.1996)). Defendants argue that a conspiracy claim under § 1983 fails as Plaintiffs neither demonstrate a constitutional violation, nor that Defendant Crow conspired.

Here, the Court concurs that Plaintiffs do not establish the element requiring a showing that Defendant Crow conspired, nor do they establish that their constitutional rights were violated. Plaintiffs only offer a mere allegation that Defendant Crow participated in a plan. This broad, conclusory allegation is not further supported by any facts offered by Plaintiffs to create a genuine material issue as to the conspiracy’s existence, or Defendant Crow’s participation in it. “Speculation and conjecture are not enough to prove a conspiracy exists.” Mettler, 165 F.3d at 1206. A mere conclusory allegation that Defendant Crow conspired to violate Plaintiffs’ rights, is not sufficient under § 1983, and summary judgment is appropriate as to any conspiracy allegation under Counts I, II, and III.

2. Counts I, II, III, VI, and XX

•Defendants argue that there are three claims against Defendant Crow brought by Plaintiff King: false arrest, false imprisonment, and unlawful search and seizure based on her arrest on March 7, 2008, and the seizure of her phone during the arrest. Defendants rely on the affirmative defense of qualified immunity to support summary judgment on these claims. Defendants argue that it is undisputed that the arrest of Plaintiff King by Defendant Crow was supported by a warrant, and therefore, Defendants conclude it was supported by probable cause [ECF No. 180-1, ¶ 9]. Defendants also refer to the undisputed fact that the probable cause statements underlying the warrants against Plaintiffs Pitts and King were prepared by Officer Shelton, not Defendant Crow. Id. at ¶ 6. As probable cause exists, Defendants argue, there is no constitutional violation.

Similarly, Defendants argue that the seizure of Plaintiff King’s cell phone during her arrest was constitutional, and also, that Defendant Crow was entitled to qualified immunity. Defendants maintain that seizure was proper as a search incident to an arrest and under the plain view exception. It is undisputed that Plaintiff King claimed to have video recordings on the seized phone* of the February 28, 2008 incident that gave rise to her arrest. Id. at ¶ 11. It is further uncontroverted that after the seizure, Defendant Crow applied for, and obtained a warrant to search the phone. Id. at ¶ 12.

As noted above, in the Eighth Circuit, a determination of whether an official is entitled to qualified immunity in a civil rights action requires an examination of whether his or her conduct violated a constitutional right, and whether that right was clearly established. Hutson, 688 F.3d at 483. Furthermore, although defendant bears the burden of proof for this affirmative defense, the plaintiff must demonstrate that the law was clearly established. Monroe, 495 F.3d at 594 (emphasis added). Here, Plaintiffs do not show that the law was clearly, established that an arrest pursuant to a facially valid warrant is unconstitutional. In the Eighth Circuit, Defendant Crow is entitled to qualified immunity for his arrest of Plaintiff King, as “[a]n arrest executed pursuant to a facially valid warrant generally does not give rise to a cause of action under 42 U.S.C. § 1983 against the arresting officer.” Fair v. Fulbright, 844 F.2d 567, 569 (8th Cir.1988) (internal citation omitted).

The seizure of Plaintiff King’s cell phone is analyzed under the Fourth Amendment, which guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV; Sheets v. Butera, 389 F.3d 772, 777 (8th Cir.2004). The relevant inquiry under the Fourth Amendment is whether Defendant Crow had probable cause to seize the cell phone. Probable cause for a seizure is to be determined upon the objective facts available to the officers, and exists if “the totality of facts based on reasonably trustworthy information would justify a prudent person in believing the individual [seized] had committed ... an offense at the time of the [seizure].” Id. (internal quotations and citations omitted).

Here, it is uncontroverted that Plaintiff King had previously claimed that there was evidence of the incident underlying the charges against her on her cell phone. In fact, Plaintiffs themselves offer an affidavit by Plaintiff Copling, which states that Defendant Crow seized the phone after'Plaintiff King told him she had videotaped the incident underlying the arrest [ECF No. 202-1, Exhibit I], Plaintiffs do not address Defendants’ arguments of qualified immunity, or attempt to satisfy their burden in showing that the law was clearly established in such a manner that Defendant Crow would have had notice that the seizure was unconstitutional. As such, the Court finds that a reasonable officer could find that probable cause existed to seize the phone. Thus, Defendant Crow is entitled to qualified immunity and summary judgement under the Fourth Amendment for both the arrest and seizure.

Plaintiffs also generally allege violations of their First Amendment rights under § 1983 (and Counts I, II, and III), in the form of retaliation for the exercise of those rights. Defendants argue that Plaintiffs must show that Plaintiff King would not have been arrested but for Defendant Crow’s retaliatory animus, which requires them to establish a complete lack of probable cause. In the context of a First Amendment retaliatory arrest claim, to show a violation of their rights, Plaintiffs must establish a causal connection between a defendant’s retaliatory animus and [plaintiffs’] subsequent injury. Baribeau v. City of Minneapolis, 596 F.3d 465, 481 (8th Cir.2010) (internal citations omitted). Furthermore, with a First Amendment retaliatory arrest claim, lack of probable cause is a necessary element. McCabe v. Parker, 608 F.3d 1068, 1075 (8th Cir.2010) (emphasis added). As noted earlier, it is undisputed that Plaintiff King’s arrest by Defendant Crow was supported by a facially valid warrant. Plaintiffs argue that there are errors of omission in the probable cause affidavits supporting the warrants. When considering qualified immunity, a warrant application must be “so lacking in indicia of probable cause as to render official belief in its existence unreasonable.” George v. City of St. Louis, 26 F.3d 55, 57 (8th Cir.1994). Here, Plaintiffs allege the probable cause statements, undisputedly prepared by Defendant Shelton, should have more fully presented their version of events, however, this does not render those statements facially devoid of probable cause. Even if deficient, Defendant Crow did not prepare the probable cause statements, and was entitled to rely upon them. As the Supreme Court stated in Whiteley v. Warden, “officers called upon to aid other officers in executing arrest warrants, are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause.” 401 U.S. 560, 568, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). Plaintiffs have failed to meet their burden in establishing a lack of probable cause as to Plaintiff King’s arrest, and therefore, Defendant Crow is entitled to qualified immunity, and summary judgment under § 1983 and the First Amendment.

Additionally, Plaintiffs allege, under Count XX, an abuse of process claim against Defendant Crow under § 1986. Defendants argue in a footnote, that they are unaware of any § 1985 abuse of process claim, and so do not address it. Plaintiffs have conceded, as to other named defendants not represented in the instant Motion (Defendants Frank Magel and Shane Spratt), that the abuse of process claims are brought under state law [ECF No. 193-1].

As such, “[t]he law in Missouri is well settled. To sustain an action for abuse of process, the facts must demonstrate an illegal and improper use of such process that is not warranted or authorized, an ulterior motive in exercising such process, and damages.” Wells v. Orthwein, 670 S.W.2d 529, 532 (Mo.App.E.D. 1984) (internal citation omitted). “The phrase ‘use of process’ as employed in that context refers to some willful, definite act not authorized by the process or aimed at an objective not legitimate in the proper employment of such process.” Boyer v. Carondelet Sav. & LoanAss’n, 633 S.W.2d 98, 101 n. 6 (Mo.App.E.D.1982). Assuming Plaintiffs, likewise, meant to bring an abuse of process claim against Defendant Crow under state law, the Court nevertheless finds that Plaintiffs have not shown a genuine issue of material fact as to an illegal or improper use of process. Defendants have established that the arrest of Plaintiff King and the seizure of her phone, were supported by a facially valid warrant and probable cause. As such, there are no facts alleged, or references to the record by Plaintiffs, to support a genuine issue of fact as to an illegal or improper use of process by Defendant Crow. Thus, he is entitled to summary judgment on Count XX.

This Court concludes that Defendant Crow is entitled to summary judgment on all Counts against him (I, II, III, YI, XI, XII, XIV, XV, XVI, XVII, and XX), and he is terminated as a party to this action.

B. Defendant Copling

The following Counts are alleged against Defendant Copling:

1. Count I: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Sharon Pitts;

2. Count II: Retaliation for exercising free speech rights (42 U.S.C. § 1983 and 1st, 4th, 5th, 8th, 14th Amendments), asserted by Plaintiff Lisa King;

3. Count III: Retaliation for exercising