United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-3673

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Neighborhood Enterprises, Inc.; * 

Sanctuary in the Ordinary; Jim Roos, *

* 

Appellants, * 

* Appeal from the United States

v. * District Court for the 

* Eastern District of Missouri.

City of St. Louis; St. Louis * 

Redevelopment Corporation; Land * 

Clearance for Redevelopment * 

Authority; Land Clearance for * 

Redevelopment Authority Board of * 

Commissioners; Judith Doss, in an * 

official capacity as a member of the * 

LCRA Board of Commissioners; * 

Chris Goodson, in an official * 

capacity as a member of the LCRA * 

Board of Commissioners; Artie * 

Whitmore, in an official capacity as a * 

member of the LCRA Board of * 

Commissioners; Matthew S. McBride, * 

in an official capacity as a member of * 

the LCRA Board of Commissioners; * 

Larry Williams, in an official capacity *

as a member of the LCRA Board of * 

Commissioners; Rodney Crim, in an * 

official capacity as Executive Director * 

of the LCRA and the SLDC, *

* 

Appellees. *

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1

The Honorable James M. Rosenbaum, United States District Judge for the

District of Minnesota, sitting by designation. 

2

SITO is a nonprofit corporation that buys and holds residential properties in

the St. Louis area to make low-income housing available to persons in need.

3

NEI is a housing management company that develops and manages the

residential properties owned by SITO.

4

Jim Roos is the founder of both SITO and NEI.

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Submitted: June 11, 2008

Filed: August 29, 2008

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Before SMITH and GRUENDER, Circuit Judges, and ROSENBAUM,1

 District

Judge.

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SMITH, Circuit Judge.

Sanctuary In the Ordinary (SITO),2

 Neighborhood Enterprises, Inc. (NEI),3 and

Jim Roos4

 (collectively "the plaintiffs"), sought declaratory and injunctive relief

against the City of St. Louis ("the City"), the St. Louis Development Corporation

(SLDC), the Land Clearance for Redevelopment Authority (LCRA), the LCRA Board

of Commissioners ("the LCRA Board"), members of the LCRA Board in their official

capacities, and the executive director of the LCRA and the SLDC in his official

capacity (collectively "the defendants"), over the LCRA's denial of the plaintiffs' sign

permit application. The district court ruled that the City's Department of Public Safety,

Division of Building and Inspection ("the Building and Inspection Division") made

the decision to deny the permit, and thus the Building and Inspection Division, not the

defendants, was the proper defendant to the suit. Because the plaintiffs had already

initiated a separate suit against the Building and Inspection Division and the City over

the permit denial, the district court granted the defendants' motion to dismiss this case.

We reverse.
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I. Background

From 2000 to 2004, the City, in conjunction with the SLDC and the LCRA,

exercised eminent domain to condemn 24 buildings owned by SITO. To protest the

condemnations, Roos had a mural—a large red circle with a slash across the words

"End Eminent Domain Abuse"—painted on the side of another SITO-owned

residential building not taken by the city. The Building and Inspection Division issued

SITO, care of NEI, an "illegal sign" notice for the mural. The notice stated that

permits were required for "signs" of the type displayed on the building.

On May 14, 2007, NEI filed a sign permit application with the City's Building

and Inspection Division. On May 17, 2007, an LCRA employee sent a letter to the

Building and Inspection Division, a copy of which was sent to NEI, stating that the

sign permit did not have the LCRA's approval because it ran afoul of sign regulation

ordinance 64831. Specifically, the letter stated that "[t]he applicant may contest this

'denial' at either the 5/22 or 6/26 LCRA Board meeting."

After it received the LCRA letter, the Building and Inspection Division notified

NEI that the sign permit application was denied because it did not meet certain

requirements set out in the City Zoning Code. The denial letter from the Building and

Inspection Division also informed NEI that it could appeal the denial to the City's

Board of Adjustment (BOA).

Following the appeal procedure directed by the Building and Inspection

Division's letter, NEI and SITO filed an appeal with the BOA, and the BOA

subsequently upheld the denial of the permit. Additionally, in accordance with the

letter from the LCRA, NEI and SITO also appeared at the LCRA Board meeting to

appeal the LCRA's "denial" of the sign permit application. At the board meeting, the

LCRA Board passed a resolution wherein it expressly "denied" the sign permit

application and "authorized and directed" LCRA's executive director "to take any and

all other necessary and proper actions to effectuate the intent of the Resolution and

Ordinance # 64831."
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The plaintiffs filed two separate lawsuits relating to the denials of their sign

permit application. In this case, they sued the defendants seeking administrative

review of the LCRA Board's denial of their permit, claiming that: (1) neither the

LCRA or the LCRA Board had authority to grant, deny, or otherwise act on sign

permit applications; (2) the LCRA's decision was made based on unlawful procedure

because the LCRA did not follow the requirements of the Missouri Administrative

Procedure Act; (3) the LCRA's decision was unconstitutional because it violated the

due process and free speech protections provided by the United States and Missouri

Constitutions; (4) the LCRA's decision was not supported by competent and

substantial evidence on the record as a whole; and (5) the LCRA Board's decision was

arbitrary, capricious, and unreasonable. The complaint also sought recovery under 42

U.S.C. § 1983 for alleged violations of free speech and due process.

In a separate suit, the plaintiffs challenged the BOA's denial of their sign

permit. In that case, the plaintiffs made a civil rights complaint against the City, the

BOA, the individual members of the BOA in their official capacity, and the City's

zoning administrator in her official capacity, seeking injunctive relief and alleging that

the BOA's decision was improper because it: (1) utilized a facially unconstitutional

zoning code to limit the plaintiffs' freedom of speech; (2) was an unconstitutional

exercise of prior restraints; and (3) deprived the plaintiffs of equal protection in

violation of the Fourteenth Amendment. That complaint also sought recovery pursuant

to § 1983 for alleged violations of free speech and due process.

The defendants in each case moved to dismiss the respective complaint filed

against them. In the case before us, the defendants asserted that the resolution passed

by the LCRA Board was not a final decision entitled to judicial review nor was it a

decision that determined the legal rights, duties, or privileges of any person. Thus, the

defendants argued, the plaintiffs failed to state a claim upon which relief could be

granted. The district court agreed and granted the motion to dismiss, ruling that the

plaintiffs' alleged harm resulted from the denial of their sign permit. The court also

ruled that the Building and Inspection Division, not the LCRA nor its Board, had the
5

In the plaintiffs' other suit, the district court dismissed the individual members

of the BOA and the Zoning Administrator, but denied the motion to dismiss as to the

City and the BOA. The issues from that case are not before us on this appeal.

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authority to grant or deny the permits, and thus plaintiffs should have sued the

Building and Inspection Division instead. Likewise, the district court ruled that the

plaintiffs' constitutional and civil rights allegations against the defendants, other than

the City, failed because none of these entities or individuals in their official capacities

made the final decision to deny the sign permit. Additionally, because the City was

also a named defendant in the plaintiffs' other lawsuit, the district court dismissed it

from the instant suit as duplicative. Thus, the district court granted the motion to

dismiss all claims in this case.5

II. Discussion

On appeal, the plaintiffs contend that the district court erred in dismissing their

complaint for failure to state a claim. We agree.

"We review de novo the grant of a Rule 12(b)(6) motion to dismiss for failure

to state a claim, accepting the facts alleged in the complaint as true and granting all

reasonable inferences in favor of [the plaintiffs], the nonmoving party." Stufflebeam

v. Harris, 521 F.3d 884, 886 (8th Cir. 2008). In this case, the district court granted the

defendants' Rule 12(b)(6) motion, reasoning that because the plaintiffs' alleged harm

resulted from the denial of their sign permit and none of the defendants had the

authority to issue the permit, nor made the final decision to deny the permit, the

plaintiffs failed to state a claim upon which relief could be granted. The district court's

dismissal, however, was in error. 

It is immaterial, for purposes of the plaintiffs' § 1983 claim, that the LCRA had

no authority to deny the plaintiffs' sign permit application because the LCRA actually

took action to deny the permit. Moreover, the plaintiffs plausibly alleged that the

LCRA, a municipal entity, acted under color of state law when it interfered with their
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constitutionally protected speech in violation of their First and Fourteenth Amendment

rights. In West v. Atkins, 487 U.S. 42 (1988), the Supreme Court explained that "[t]o

state a claim under § 1983, a plaintiff must allege the violation of a right secured by

the Constitution and laws of the United States, and must show that the alleged

deprivation was committed by a person acting under color of state law." Id. at 49. The

Court went on to state:

The traditional definition of acting under color of state law requires that

the defendant in a § 1983 action have exercised power "possessed by

virtue of state law and made possible only because the wrongdoer is

clothed with the authority of state law." United States v. Classic, 313

U.S. 299, 326 (1941). In Lugar v. Edmondson Oil Co., [457 U.S. 922

(1982)], the Court made clear that if a defendant's conduct satisfies the

state-action requirement of the Fourteenth Amendment, "that conduct

[is] also action under color of state law and will support a suit under §

1983." Id. at 935. In such circumstances, the defendant's alleged

infringement of the plaintiff's federal rights is "fairly attributable to the

State." Id. at 937.

To constitute state action, "the deprivation must be caused by the

exercise of some right or privilege created by the State . . . or by a person

for whom the State is responsible," and "the party charged with the

deprivation must be a person who may fairly be said to be a state actor."

Ibid. "[S]tate employment is generally sufficient to render the defendant

a state actor." Id., at 936, n.18. It is firmly established that a defendant

in a § 1983 suit acts under color of state law when he abuses the position

given to him by the State. See Monroe v. Pape, 365 U.S. [167, 172

(1961)]. Thus, generally, a public employee acts under color of state law

while acting in his official capacity or while exercising his

responsibilities pursuant to state law.

West, 487 U.S. at 49–50 (citations omitted).

Following this precedent, we hold that the plaintiffs have alleged a valid claim

under § 1983. Plaintiffs alleged that the LCRA violated their constitutional rights to

free speech and due process, and the LCRA was clearly acting—or purporting to

act—under color of state law. Although it is undisputed that the Building and
6

In Screws, the Supreme Court explained:

It is clear that under 'color' of law means under 'pretense' of law. Thus

acts of [state actors] in the ambit of their personal pursuits are plainly

excluded. Acts of [state actors] who undertake to perform their official

duties are included whether they hew to the line of their authority or

overstep it. If . . . the statute was designed to embrace only action which

the State in fact authorized, the words 'under color of any law' were

hardly apt words to express the idea.

325 U.S. at 111.

7

In Rogers, we reiterated:

An official acts under color of state law even if he abuses the position

given him by the State while acting in his official capacity or while

exercising his responsibilities pursuant to state law. The issue depends

on the nature and circumstances of the officer's conduct and the

relationship of that conduct to the performance of his official duties.

152 F.3d at 798 (internal punctuation, quotations, and citations omitted).

8

In Little, the Eleventh Circuit reversed, in part, the district court's dismissal of

plaintiff's complaint for failure to state a claim, concluding that plaintiff's assertion

that a resolution passed by the city council infringed upon his first amendment and

due process rights, viewed in the light most favorable to plaintiff, properly stated

cognizable § 1983 causes of action, as the resolution in question could be "fairly

characterized as a 'decision officially adopted and promulgated' by the City Council

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Inspection Division was the state actor with actual authority to issue the denial of the

permit, the plaintiffs properly asserted that the LCRA acted under color of law when

it denied the permit, provided an appeal of the denial, issued a resolution of the LCRA

Board denying the permit, and authorized its executive director to take action "to

effectuate the intent of the Resolution." Even though the LCRA acted outside of its

authority, the plaintiffs have nonetheless sufficiently alleged that the LCRA acted

under the color of law in purporting to deny the permit. See Screws v. United States,

325 U.S. 91, 111 (1945);6 Rogers v. City of Little Rock, Ark., 152 F.3d 790, 798

(8th Cir. 1998);7 see also Little v. City of N. Miami, 805 F.2d 962, 967 (11th Cir.

1986).8
of North Miami." 805 F.2d at 967 (emphasis omitted) (quoting Monell v. Dept. of Soc.

Serv. of City of New York, 436 U.S. 658, 690 (1978)).

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The district court's summary dismissal of all the plaintiffs' claims based on the

defendants' absence of authority missed the gravamen of plaintiffs' § 1983 claim—

defendants' purported exercise of authority infringed upon their constitutional rights.

The case should proceed further in the litigation process.

III. Conclusion

Accordingly, we reverse the dismissal and remand the case for further

proceedings in accordance with this decision.

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