Académique Documents
Professionnel Documents
Culture Documents
17JE-CC00084
Christina Pryor and her family own a plot at the Herculaneum Cemetery. The
became suspicious about the Cemetery’s finances and its relationship with the City of
Herculaneum. She and the caretaker argued about a lantern. Police Chief Mark Tulgetske came
to the scene and told Pryor to “Leave”. She sat down in her car and said “I am Dumb Ass”. In
retaliation Chief Tulgetske arrested her and applied excessive force, requiring surgery. Others
conspired with Chief Tulgetske to violate Pryor’s rights. Pryor sues for civil rights violations
Comes now Plaintiff Christina Ann Pryor, f/k/a Christina Ann Collins, by counsel W.
Bevis Schock, Mark Hammer and Nicole Chiravollatti, and states for her Petition: Civil Rights
PARTIES
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1. Plaintiff Christina Ann Pryor, f/k/a Christina Ann Collins, is an individual residing in
3. Defendant Police Chief Mark Tulgetske is and was at all relevant times the Chief of the
“contact”.
7. Defendant Police Officer Blake Collins1 is and at all relevant times has been a police
9. Kenneth Chailland is an individual, and was at the relevant time the Caretaker of the
Cemetery.
10. Edith Jane Chailland is an individual, is the spouse of Kenneth Chailland, and was at the
relevant time involved with her spouse in the management of the Cemetery.
1
No relation to Plaintiff.
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11. Plaintiff brings this action, in part, pursuant to 42 U.S.C. §1983 and §1988 and the Fourth
12. State courts have concurrent jurisdiction with the federal courts over 42 U.S.C. 1983
actions.2
13. Additionally, Plaintiff has state law claims related to the cemetery for an Equitable
VENUE
14. The incidents upon which this suit is based occurred in the County of Jefferson, State of
Missouri.
15. At all relevant times Chief Tulgetske, Officer Blake Collins, and Mayor Haggard acted
under color of state law. Particularly, at all relevant times Chief Tulgetske acted under
the color of the laws, statutes, ordinances, regulations, policies, customs and usages of the
16. Kenneth Chailland and Edith Chailland were willing participants in a joint action with
public servants including Chief Tulgetske, Officer Blake Collins, and Mayor Haggard all
17. In the alternative Mayor Haggard was a willing participant in a joint action with public
servants including Chief Tulgetske, Officer Blake Collins, all acting under color of state
law.
2
Felder v. Casey, 487 U.S. 131, 139 (1988).
3
Johnson v. Outboard Marine Corp., 172 F.3d 531, 536 (8th Cir. 1999); see also Dossett v. First
State Bank, 399 F.3d 940, 950 (8th Cir. 2005).
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18. Plaintiff asserts municipal liability against the City of Herculaneum because Mayor
Haggard, as the Chief Executive Officer of the City, participated in the conspiracy
described here, and therefore the City’s unconstitutional conduct was also undertaken under
color of state law and/or the City was the moving force in the misconduct.
JURY DEMAND
FACTS
20. Early in the 20th Century local residents began using the land where the Herculaneum
21. Pursuant to deed of December 3, 1915 at Book 79 Page 143 in the Recorder of Deeds
office of Jefferson County, Missouri, the Herculaneum Cemetery Company obtained the
24. There are approximately 1000 to 1300 bodies buried at the Cemetery.
25. The Cemetery is located within the city limits of the City of Herculaneum.
26. The surface rights include the property down to and including the depth at which bodies
are buried.
27. On January 25, 1902, pursuant to a judicial decree, in the case styled: “In the matter of
County Recorder of Deeds office on March 29, 2002, Book 53, page 324, pursuant to
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Rev. St. 1899, § 1395, an association of eight persons formed the Herculaneum Cemetery
29. As of this filing the Herculaneum Cemetery Company is listed on the Missouri Secretary
30. The Herculaneum Cemetery Company is and always has been a benevolent corporation.
Cemetery Company is subject to what is now RSMo. Chapter 352, “Religious and
Charitable Associations”.
32. All non-city owned cemeteries such as the Herculaneum Cemetery are also subject to the
33. Pursuant to the Cemetery Endowed Care Fund Law, Missouri recognizes two kinds of
34. Under RSMo. 214.280 and as of August 28, 1994 all cemeteries had to either (1) register
4
See RSMo. 352.020 allowing incorporation of benevolent corporations to operate cemeteries.
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36. The Internal Revenue Service’s website containing a list of all charities whose donors
may take a deduction has no listings either for “Herculaneum Cemetery Company” or
37. On information and belief and on inference, the Herculaneum Cemetery Company has
neither a formal endowment operating document creating an endowed care trust fund, nor
39. The Herculaneum Cemetery Company in some ways conducts its business as though it is
an endowed cemetery.
40. Under RSMo. 214.310 “Any cemetery operator who… represents to the public that
perpetual, permanent, endowed, continual, eternal care, care of duration or similar care
will be furnished cemetery property sold shall create an endowed care trust fund.”
41. In April 2016 the “Herculaneum Cemetery Association” sent out new “Rules and
42. Under RSMo. 214.370 advertising, contracts and related materials issued by a
43. The Herculaneum Cemetery does not note that fact on any such documents.
45. The Herculaneum Cemetery Company in some ways conducts its business as though it is
46. For example, the website of the Jefferson County Assessor, last visited June 3, 2016, lists
1 Parkwood Court
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Herculaneum, MO 63048
47. That is the address for the City of Herculaneum City Hall.
48. The City of Herculaneum website, last visited November 30, 2016, states that:
b. The “contact” for the Cemetery is “Bill Haggard”, who is the Mayor of
Herculaneum.
c. The phone numbers to call are: 636-475-5476, which is the main number of City
Hall, and 314-852-4964, which is the personal cell phone number of Mayor
Haggard.
Association
49. Pursuant to RSMo. Chapter 352 “Religious and Charitable Associations” a benevolent
50. For many years up to and including approximately all of the 1990’s the Cemetery was
51. By approximately 2000 all the then members of the Association had either died or
52. From 2000 up until approximately 2009, as the only known surviving member of the
Association, and presumably as a one man association, Robert Francis operated the
Cemetery,
53. To “operate the cemetery” is defined herein to mean to conduct at least the following
tasks:
a. Selling plots, including plots for those just deceased and for those doing advance
planning,
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b. Conducting the cemetery’s finances,
c. Maintaining records,
f. Maintaining order.
54. In approximately 2009 Robert Francis ceased performing any functions in connection
Chaillands Take Over, Accept Funds for Grave Sites, Non-Compliance with Regulations
55. Since approximately 1990 Kenneth Chailland and his wife, Edith Chailland, have owned
and lived in the house adjacent to the eastern side of the Cemetery, on a parcel not part of
56. In the 1990’s Kenneth Chailland started mowing and performing other routine
57. In approximately 2009 Kenneth Chailland began operating the cemetery and became its
58. In approximately 2009 Kenneth Chailland’s wife, Edith Chailland, began performing
59. After approximately 2009 the Chaillands began taking money from members of the
60. On information and belief some or all of such funds were in the form of checks payable
Association”.
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61. Under RSMo. 214.370:
have printed or stamped at the head of all contracts, deeds, statements, letterheads,
and advertising material, used in any connection with the sale of burial space in a
nonendowed cemetery, the statement: “This is a nonendowed cemetery.” in
lettering equivalent to a minimum of ten point number two black type, and shall
not sell any lot or interment space therein unless and until the purchaser thereof is
informed that the cemetery is a nonendowed cemetery.
62. The house at 821 Scenic Drive has no indication, such as signage, that it is an office for
63. The City Hall of the City of Herculaneum contains no such sign.
64. The written advertising documents and other materials of the Herculaneum Cemetery
including the November 23, 2009 Rules and Regulations and the April 2016 Rules and
Regulations, and the letter accompanying the latter soliciting donations, also contain no
such notice.
65. The portion of the website of the City of Herculaneum which mentions the cemetery has
no such notice.
Any cemetery operator who negotiates the sale of burial space in any cemetery
located in this state shall provide each prospective owner of burial space a written
statement, which may be a separate form or a part of the sales contract… If the
burial space is in a nonendowed cemetery … the cemetery operator shall state he
has elected not to establish an endowed care trust fund.”
67. On information and belief prior to 2014 the contracts for sale of burial spaces in the
Herculaneum Cemetery have not stated that the operator “has elected not to establish an
68. As of 2009 and through August of 2014 there was no oversight of any kind, including by
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a. Record keeping,
b. Grounds keeping,
c. Finances,
d. Grave locations,
69. In November 2009 the Chaillands created and distributed a one page document titled:
Herculaneum Cemetery
Rules and Regulations
70. Just below the title on that document appears the following language:
Effective November 23, 2009 the following rules and regulations were adopted by
the Herculaneum Cemetery Association
Herculaneum Cemetery, Herculaneum, Missouri
“Internment rights are sold in accordance with the rules of the State of Missouri
regarding endowed care cemeteries.
The Herculaneum Cemetery Association may at any time, with or without notice,
adopt new rules and regulations or amend existing rules and regulations.
73. The Missouri Secretary of State has no record of the business name “Herculaneum
Cemetery Association”.
74. The statement in Rule III.C that “internment rights are sold in accordance with the rules
of the State of Missouri regarding endowed care cemeteries” implies that the cemetery is
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75. The implication in that document that the Herculaneum Cemetery is an endowed
76. In the years before August 2014 the Chaillands sold plots at the Cemetery with the
77. At least since 2009 and continuing into the present Bill Haggard has sold plots at the
Cemetery with the seller’s name stated as the “Herculaneum Cemetery Association”.
78. Several members of Plaintiff’s family are buried at the Cemetery, including Plaintiff’s
79. The location of the Plaintiff’s family’s plot is just inside the Cemetery gates on the inside
80. During the two to three years before August 8, 2014 Plaintiff visited the family plot
approximately once per month and sometimes several times per month.
81. Plaintiff’s plot includes a grave, already paid for, which is reserved for her currently
living father.
82. That grave is next to a grave in an adjacent plot owned by non-related parties.
83. Soon before August 2014 the gravestone for the grave in the adjacent plot disappeared.
85. The gravestone for the grave in the adjacent plot has never been replaced.
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86. During 2014 Plaintiff became concerned that the gravesite reserved for her father would
87. Plaintiff eventually learned from Tom Reichard, an investigator for the State Office of
Endowed Care Cemeteries of the State of Missouri, c/k/a as “the Endowment”, that when
her father died she would have to be present when his grave was dug to see if the grave
88. Plaintiff learned from the same people that if the grave digger were to run up against the
neighboring coffin it would not be possible for her father to be buried at the grave site for
89. During 2013 Plaintiff observed that the quality of maintenance at the Cemetery was
decreasing.
90. In approximately May 2013 Plaintiff and/or her then fiancé now husband, Roy Pryor,
initiated conversations about the conditions at the Cemetery with, among others:
e. Tom Reichard, the Director of the “State Office of Endowed Care Cemeteries”, a
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91. In approximately 2013 Plaintiff asked James Kasten, the Herculaneum City
92. Mr. Kasten stated that Herculaneum was a poor town, and asked Plaintiff what she
93. Mr. Kasten would say neither who ran the cemetery nor engage in further conversation.
94. In approximately May 2013 Plaintiff expressed her concerns to Mayor Haggard.
95. Mayor Haggard said he would take Plaintiff’s concerns to the City of Herculaneum City
96. Plaintiff told Mayor Haggard that under Missouri law a non-registered, nonendowed
cemetery such as the Herculaneum Cemetery could not sell a plot or open a grave without
an Association.
98. Mayor Haggard told Plaintiff that he would “get an Association together”.
99. Mayor Haggard stated to Plaintiff that he was in possession of the Cemetery plot map.
100. Plaintiff learned that Mayor Haggard was selling Cemetery plots.
101. In approximately May 2013 Plaintiff spoke about her concerns to Kenneth Chailland, the
Caretaker.
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b. There was not enough money to weed-eat or to care for ornaments and flowers
105. During 2013 Plaintiff expressed her concerns about the cemetery to Herculaneum City
106. Officer Blake Collins told Plaintiff it “was a civil suit and there was nothing he could do
about it.”
107. In approximately November 2013 Plaintiff contacted Tom Reichard of “the Endowment”,
a. It appeared that a stone was missing from the grave next to her father’s reserved
grave, and therefore Plaintiff would have to be present when her father’s grave
was dug,
b. He had inquired and the Chaillands would not produce their financial records and
also could not recall the name of the bank which had held the cemetery’s funds
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109. In approximately May 2013 Plaintiff spoke about her concerns to Jefferson County
110. Mr. Wegge first told Plaintiff that he did not have any information about this situation but
a. Met with the City of Herculaneum city attorney, Dennis Tesreau, Mayor Haggard,
b. Learned from the Mayor that the Chaillands were transferring money to their
c. Told the Chaillands to open a new account at Eagle Bank with $5,000.00 of their
112. In various conversations Plaintiff and her Husband learned that Mayor Haggard and/or
Kenneth Chailland and/or Edith Chailland were selling lots in the cemetery at different
prices.
113. On information and belief there is not now and never has been a published price list.
114. On information and belief soon thereafter Kenneth Chailland and Edith Chailland opened
115. At that time Kenneth Chailland and Edith Chailland transferred an unknown amount of
money, but on information and belief $5,000,00 (five thousand dollars), from their own
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Other Than Trust Account No Action in Response to Plaintiff’s Concerns
116. On information and belief other than the Chailland’s transfer of personal funds to the
Eagle Bank account no person took any action in response to Plaintiff’s concerns.
117. Soon after Plaintiff’s conversations with the above persons Plaintiff had a conversation
with Edith Chailland in which Edith Chailland stated to Plaintiff that when a visitor to the
Cemetery would leave any sort of ornament or flower arrangement near a grave or grave
stone it would create additional work for her Husband, Kenneth Chailland, the Caretaker
because:
b. The wind might knock over the ornament or flower arrangement, and.
118. At all relevant times there has been a sign at the cemetery stating that no one could leave
120. Rule I.A. of the “Rules and Regulations” for the Cemetery as issued by the Chaillands as
121. Despite the rules and the signage during August 2014 many people left ornaments at
122. As of August 2014 approximately five or more other families throughout the cemetery
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The Lantern at Plaintiff’s Family Plot – Initial History
123. In early August 2014 Plaintiff and her sister, Kelly Young, were visiting the cemetery
and saw a solar lantern on the grave stone of Plaintiff’s deceased nephew.
124. That grave stone is square, approximately 14 inches by 10 inches and sits flat on the
ground.
125. Neither Plaintiff nor Kelly Young knew who had left the lantern on that gravestone.
126. Inside a small plastic baggie there was a note attached to the lantern stating that the
lantern had to be removed. At the bottom the note appeared the words “Herculaneum
Cemetery Association”, which Plaintiff interpreted to mean that the note was written by
127. As Plaintiff and Kelly Young were examining the note Kenneth Chailland came out and
a. On July 4, 2014 someone had put the solar lantern on the grave stone,
b. It lit up the cemetery at night and looked like a “Christmas Tree Light,” and
c. It had to be removed.
128. Kenneth Chailland described in detail the person who had left the lantern.
129. Kenneth Chailland’s description matched that of Plaintiff’s deceased nephew’s girlfriend,
Rachel Ferguson.
130. During the conversation Plaintiff insisted to Kenneth Chailland that her family had a right
131. Kelly Young took home the lantern and the note.
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Meeting at Cemetery between Plaintiff and Mayer Haggard, August 6, 2014
133. On the evening of August 6, 2014 Plaintiff and her then fiancé now Husband, Roy Pryor,
and Plaintiff’s brother, Robert Collins, met with Mayor Haggard at the Cemetery.
b. She could bring back the lantern and he would speak to Kenneth Chailland about
it.
135. On inference and on information and belief as Plaintiff met with various persons about
the situation at the cemetery at least some of those persons informed each other, that
136. In early August Kenneth Chailland and Chief Tulgetske discussed the Plaintiff’s inquiries
137. Kenneth Chailland told Chief Tulgetske a woman had come to his door to complain about
an issue related to placing ornaments on the graves, and/or that he was having trouble
with a person whose family would not accept his directive not to leave a lantern on one of
the family grave markers, and that the woman had been orally aggressive but that she
138. Chief Tulgetske responded that if the woman gave him “any more trouble” and “would
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139. A few weeks before the incident Plaintiff called the Herculaneum Police Department
number to ask for help with her concerns about the cemetery and spoke again to Officer
Blake Collins.
a. The Caretaker, Kenneth Chailland, and his Wife, Edith Chailland, were not letting
her leave a lantern on a family gravestone even though they were letting others do
b. The Chaillands had no right to tell her what she could and could not do,
c. Kenneth Chailland was leaving notes on Plaintiff’s family grave stones asserting
141. Officer Blake Collins spoke to his superior or superiors about this situation but has no
c. Spoke to Plaintiff again and informed her that the Herculaneum Police
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143. In the early afternoon of August 8, 2014 Plaintiff, Plaintiff’s sister, Kelly Young, and
Young’s eight year old grandchild again went to the cemetery to visit her family’s grave
sites.
144. Plaintiff and Young parked their cars on the cemetery road just inside the cemetery and
148. Young and Plaintiff were standing approximately 30-40 feet apart - Plaintiff near the
149. Kenneth Chailland screamed to Plaintiff and Young that they could not put a lantern on a
grave stone.
a. She and her family had “every right” to put the lantern on the grave stone, and
b. She had spoken to Mayor Haggard and he said it was alright to put a lantern on a
grave stone and that the Mayor had said he was going to talk to Mr. Chailland
about it.
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b. If he took the lantern she was going to get a lawyer.
a. Kenneth Chailland called the City Hall phone number, and spoke to Chief
Tulgetske,
b. Kenneth Chailland told Chief Tulgetske that Plaintiff was at the cemetery
insisting that she had a right to leave a lantern on a grave stone, and
a. The City of Pevely handles dispatch for the City of Herculaneum, and
b. Officer Blake Collins was dispatched by Pevely dispatch to “keep the peace” at
a. Chief Tulgetske heard the City of Pevely’s dispatch call on his radio, and
157. Chief Tulgetske and Officer Blake Collins arrived at the Cemetery at approximately the
same time.
158. Officer Blake Collins parked his patrol car in the driveway of the Chailland’s house.
159. Chief Tulgetske pulled up very fast on the shoulder of the road in front of the Cemetery.
160. At that time Kelly Young was near her car arguing with Edith Chailland.
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161. Chief Tulgetske said to Kelly Young, “Are you done yet?”, or words to that effect.
163. Officer Blake Collins told Edith Chailland to go into her house,
166. When Chief Tulgetske arrived he approached Plaintiff aggressively yelling, “Leave,
Leave, Leave”.
171. Plaintiff closed the door of the vehicle and put on her seat belt. .
174. Chief Tulgetske put his head slightly inside the car’s passenger compartment, close to
b. Neither officer had reasonable suspicion or probable cause to believe Plaintiff had
committed a crime.
Arrest by Laying on of Hands and Handcuffs, Torn Labram, Improper Lift by Handcuffs
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177. After Plaintiff called Chief Tulgetske a “dumb-ass” he grabbed at the front driver’s side
car door handle, missed getting a grip the first time, and then grabbed it again and opened
the door.
178. Chief Tulgetske reached into the vehicle and unbuckled Plaintiff’s seat belt.
179. Plaintiff’s left hand was on the steering wheel but not gripping it tightly.
182. Chief Tulgetske pulled Plaintiff out of the vehicle by her left wrist.
183. Chief Tulgetske swung Plaintiff around by her arm so that she was facing away from
him.
184. Chief Tulgetske grabbed Plaintiff’s right arm and aggressively yanked it back behind her
body.
186. Chief Tulgetske’s yank on Plaintiff’s right arm tore Plaintiff’s right labrum.
188. Chief Tulgetske screamed for Officer Blake Collins to bring handcuffs.
192. Officer Blake Collins and Chief Tulgetski picked Plaintiff up off the ground by the
handcuffs.
193. The picking up of Plaintiff by the handcuffs caused Plaintiff extreme pain.
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195. According to Edith Chailland, Officer Blake Collins stated to her at a later time that Chief
Tulgetske had arrested Plaintiff because Plaintiff called Chief Tulgetske a “fat ass” and
Officers Take Plaintiff to the Pevely Police Station, Officer Collins Verbally Abusive
198. Officer Blake Collins drove Plaintiff to the City of Pevely Municipal Police Station.
200. In the booking process Officer Blake Collins was verbally abusive toward Plaintiff,
stating:
a. When the finger print machine malfunctioned “I’m going to “shoot the f—king
b. Other “F-Bombs”.
202. A commanding officer, Pevely Lt. Greg Long, came in and having heard the outburst
about shooting the finger print machine admonished Officer Blake Collins that Officer
Blake Collins’s comment was not appropriate in front of Plaintiff, a person in custody.
204. Approximately 20 years earlier Plaintiff suffered an injury and surgery to the same
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205. Immediately after her release from the Pevely jail Plaintiff went to the emergency room,
received treatment, and was told by an Emergency Room doctor to consult an orthopedic
specialist.
207. Since then Plaintiff has undergone two surgeries to repair her shoulder.
208. All treatment to Plaintiff’s shoulder since August 8, 2014 has been to correct the injuries
209. After each such surgery Plaintiff underwent follow-up physical therapy.
210. Plaintiff’s injuries have partially healed but she continues to have pain and problems with
213. Chief Tulgetske gave Plaintiff summonses to the municipal court of the City of
Herculaneum for:
b. Resisting Arrest.
216. At the conclusion of the City’s case the trial judge dismissed the peace disturbance
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217. After twenty minutes deliberation the jury found Plaintiff not guilty on the resisting arrest
charge.
DAMAGES
g. Loss of liberty interest in being free from facing a wrongful criminal charge.
Special Damages
220. Plaintiff incurred medical bills for the initial injury and the physical therapy, actually paid
and total incurred, which are unknown as of this filing and are to be determined.
221. Plaintiff incurred attorney’s fees for the criminal case in the amount of $20,000.00.
5
See Boogher v. Bryant, 86 Mo. 42 (Mo. 1885); and see also Owen v. G.E. Info. Tech. Solutions,
Inc., 05-3498CV-S-RED, 2006 WL 680902 (W.D. Mo. 2006) for the proposition that to bring an
action for malicious prosecution a party needs to prevail on all Counts of the criminal case, but
need not prove no probable cause for each Count.
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222. Based on present knowledge Plaintiff’s physical injuries will never wholly heal and are
thus permanent.
223. In pursuit of her federal civil rights claims, Plaintiff is incurring reasonable attorney’s
224. Plaintiff seeks her reasonable attorney’s fees and costs under 42 U.S.C. 1988 for the
225. All of the conduct of all the individual Defendants were not based on only mistaken but
immunity.7
226. There was no conflicting information that could not be immediately resolved.8
227. The individual Defendants were plainly incompetent and/or knowingly violated the law.9
COUNT I
FOURTH AMENDMENT
UNCONSTITUTIONAL SEIZURE OF THE PERSON
AGAINST CHIEF TULGETSKE AND OFFICER BLAKE COLLINS
229. Chief Tulgetske and Blake Collins arrested Plaintiff without a warrant.
230. At the time of their arrest of Plaintiff neither Chief Tulgetske nor Blake Collins had
reasonably trustworthy information which would have justified a prudent person in the
6
42 U.S.C. 1988; Lefemine v. Wideman, 133 S. Ct. 9, 10 (2012).
7
Dowell v. Lincoln County, 762 F.3d. 770, 777 (8th Cir. 2014).
8
Borgman v. Kedley, 646 F.3d. 518, 522 (8th Cir. 2011).
9
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015).
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position of Chief Tulgetske or Blake Collins in believing that Plaintiff had committed ...
an offense.10
231. Neither Chief Tulgetske nor Officer Blake Collins had a reasonable suspicion that
Plaintiff had committed an offence, and so Chief Tulgetske and Blake Collins lacked
232. Plaintiff has a well established Fourth and Fourteenth Amendment right to be free of
Punitive Damages
233. The actions of Chief Tulgetske and Blake Collins as described in this Count were:
b. Taken in the face of a perceived risk that they would violate federal law.
Prayer
WHEREFORE, Plaintiff prays for judgment for compensatory damages and punitive
damages under 42 U.S.C. 1983 against Chief Tulgetske and Blake Collins for unconstitutional
seizure of her person, for costs including attorney’s fees and taxable and non-taxable costs under
42 U.S.C. 1988, and for such other relief as the court finds to be just, meet and reasonable.
COUNT II
FOURTH AMENDMENT
EXCESSIVE FORCE
AGAINST CHIEF TULGETSKE AND OFFICER BLAKE COLLINS SEPARATELY
235. Under the totality of the circumstances it was unreasonable for Chief Tulgetske to use
force to:
10
Flynn v. Brown, 395 F.3d 842, 844 (8th Cir. 2005).
11
Hannah v. City of Overland, Mo., 795 F.2d 1385, 1389 (8th Cir.1986).
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a. Pull Plaintiff from her car by her wrist,
236. Under the totality of the circumstances it was unreasonable for Blake Collins and Chief
237. Plaintiff has a well established Fourth Amendment constitutional right to be free of
unreasonable force.12
238. In the alternative because the arrest itself was unlawful the use of any force was
unlawful.13
Punitive Damages
239. The actions of Chief Tulgetske and Blake Collins as described in this Count were:
b. Taken in the face of a perceived risk that they would violate federal law.
Prayer
WHEREFORE, Plaintiff prays for judgment for compensatory damages and punitive
damages under 42 U.S.C. 1983 against Chief Tulgetske and Blake Collins separately for
excessive force, for costs including attorney’s fees and taxable and non-taxable costs under 42
U.S.C. 1988, and for such other relief as the court finds to be just, meet and reasonable.
COUNT III
FOURTEENTH AMENDMENT
SUBSTANTIVE DUE PROCESS
AGAINST CHIEF TULGETSKE AND OFFICER BLAKE COLLINS
12
Graham v. Connor, 490 U.S. 386 (1989).
13
Hemphill v. Hale, 677 F.3d 799 (8th Cir. 2012).
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241. Plaintiff has a Fourteenth Amendment liberty interest protected by the due process clause
in being free of arbitrary government action such as being subject to the start of and
243. In initiating the charges against Plaintiff Chief Tulgetske and Officer Blake Collins
violated Plaintiff’s substantive due process right to be free of such criminal charges.
Punitive Damages
244. The actions of Chief Tulgetske and Officer Blake Collins as described in this Count were:
b. Taken in the face of a perceived risk that they would violate federal law.
Prayer
WHEREFORE, Plaintiff prays for judgment for compensatory damages and punitive
damages under 42 U.S.C. 1983 against Chief Tulgetske for violation of her right to substantive
due process, for costs including attorney’s fees and taxable and non-taxable costs under 42
U.S.C. 1988, and for such other relief as the court finds to be just, meet and reasonable.
COUNT IV
FIRST AMENDMENT
RETALIATION FOR EXERCISE OF FIRST AMENDMENT RIGHTS
AGAINST CHIEF TULGETSKE
246. The right to be free of arrest and prosecution in retaliation for exercise of First
14
Most cases suggest the rights herein fall under substantive due process but others assert
procedural due process, and by reference Plaintiff hereby asserts both, See Avery, Police
Misconduct Law and Litigation, § 2:30, footnote 19.
15
Winslow v. Smith, 696 F.3d 716, 731 (8th Cir. 2012).
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247. Plaintiff’s various statements to Chief Tulgetske were provocative and challenging but
not likely to produce a clear and present danger of a serious substantive evil that rises far
248. Plaintiff’s statements were not fighting words or close to fighting words. 18
249. A properly trained officer may reasonably be expected to exercise a higher degree of
restraint than the average citizen, and thus be less likely to respond belligerently to either
250. Each of Plaintiff’s statements to Chief Tulgetske was protected by the First Amendment.
251. Chief Tulgetske arrested, used force on and prosecuted Plaintiff because she called him a
“dumb-ass”.
252. Those actions by Chief Tulgetske were in retaliation for her exercise of First Amendment
rights,20,21 that is, Chief Tulgetske was motivated at least in part by the plaintiff engaging
in protected speech.22
253. The arrest and prosecution of Plaintiff adversely affected her use of protected speech.
254. Arrest, time in confinement, injury, fear, prosecution, and the other listed damages are the
kinds of events which would deter a person of ordinary firmness from the exercise of
16
City of Houston v. Hill, 482 U.S. 451 (1987), Gouled v. U.S., 255 U.S. 298(1921), Buffkins v.
City of Ohama, 922 F.2d 465 (8th Cir. 1990)
17
Houston v. Hill, 482 U.S. 451, 461 (1987)
18
R.A.V. v. City of St. Paul, 505 U.S. 377, 393 (1992).
19
Houston v. Hill, 482 U.S. 451, 462 (1987) and see Lewis v. City of New Orleans, 415 U.S. 130,
135 (1974).
20
Hartman v. Moore, 547 U.S. 250 (2006).
21
Abrams v. Walker, 307 F.3d. 650, 654 (7th Cir. 2002) (abrogated on other grounds Spiegla v.
Hull, 371 F.3d 938, (7th Cir. 2004).
22
Peterson v. Kopp, 754 F.3d 594, 602 (8th Cir.2014).
32
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First Amendment rights, including the utterance of the statements Plaintiff made in this
case.23
255. Chief Tulgetske cannot show he would have taken the same actions in the absence of the
protected activity, that is, in the absence of Plaintiff’s exercise of First Amendment
rights.24
256. Chief Tulgetske lacked even arguable probable cause to arrest Plaintiff.25
257. The arrest, use of force on, and prosecution of Plaintiff was therefore in violation of
Plaintiff’s rights protected by the First Amendment to the United States Constitution.
Punitive Damages
b. Taken in the face of a perceived risk that they would violate federal law.
Prayer
WHEREFORE, Plaintiff prays for judgment for compensatory damages and punitive
damages under 42 U.S.C. 1983 against Chief Tulgetske for retaliation for exercise of First
Amendment rights, for costs including attorney’s fees and taxable and non-taxable costs under
42 U.S.C. 1988, and for such other relief as the court finds to be just, meet and reasonable.
COUNT V
FOURTH AND FOURTEENTH AMENDMENT
CONSPIRACY TO SEIZE THE PERSON AND DENY SUBSTANTIVE DUE PROCESS
IN RETALIATION FOR EXERCISE OF FIRST AMENDMENT RIGHTS
AGAINST THE INDIVIDUAL DEFENDANTS
23
Garcia v. City of Trenton, 348 F.3d 726, 728 (8th Cir. 2003).
24
Kennedy v. Villa Hills, 09-6442, (6th Cir. 2011), p. 12.
25
Peterson v. Kopp, 754 F.3d 594, 602 (8th Cir.2014).
33
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260. As Plaintiff began her investigation into the cemetery at least the following Defendants
came to know of her inquiries: Chief Mark Tulgetske, Mayor Bill Haggard, Officer
Blake Collins, Kenneth Chailland, and Edith Jane Chailland, (“these Defendants”).
261. These Defendants were at that time engaging in unlawful activities, including advertising
the cemetery and selling cemetery lots without proper notice to the public that the
262. These Defendants agreed to engage in conduct, including intimidation, to stop Plaintiff
263. These Defendants acted together to seize Plaintiff, use force against her, and deny
Plaintiff her rights to substantive due process by charging her with crimes she did not
commit.
264. The purpose of these actions was to hide these Defendants own misconduct in connection
266. The conduct of these Defendants as described in this Count went far beyond mere
negligence.27
26
Winslow v. Smith, 696 F.3d 716, 732 (8th Cir. 2012).
27
Winslow v. Smith, 696 F.3d 716, 732 (8th Cir. 2012).
34
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267. The conduct of these Defendants as described in this Count violated Plaintiff’s:
cause, and
b. Fourteenth Amendment liberty interest protected by the due process clause of the
subject to the start of and continuation of a criminal charge with no basis in fact.28
29
28
Most cases suggest the rights herein fall under substantive due process but others assert
procedural due process, and by reference Plaintiff hereby asserts both, See Avery, Police
Misconduct Law and Litigation, § 2:30, footnote 19.
29
Zinermon v. Burch, 494 U.S. 113, 125 (1990). See also Livers v. Schenck, 700 F.3d 340, 351-
52 (8th Cir. 2012):
Intentionally or recklessly failing to investigate other leads or manufacturing false
evidence may shock the conscience and can violate the Fourteenth Amendment's due
process clause. See Winslow v. Smith, 696 F.3d 716, 731-732 (8th Cir. 2012); Wilson v.
Lawrence Cnty., Mo., 260 F.3d 946, 955–57 (8th Cir.2001). We have referenced areas of
“reckless investigation,” which include: (1) coercing a suspect's confession; (2)
“purposely ignor[ing] evidence suggesting ... innocen[ce]”; and (3) “systemic pressure to
implicate [a suspect] in the face of evidence to the contrary.” Amrine v. Brooks, 522 F.3d
823, 833–35 (8th Cir.2008) (citing Moran v. Clarke, 296 F.3d 638, 648 (8th Cir.2002)
(en banc) (Moran I ), and Wilson, 260 F.3d at 955–56). Negligence and even gross
negligence is not enough because the state action must be “truly egregious and
extraordinary” to shock the conscience, Winslow, 696 F.3d at 735–36 (quoting Strutton v.
Meade, 668 F.3d 549, 557 (8th Cir.2012)) (internal quotation marks omitted), and so
severe as to amount to “brutal and inhumane abuse of official power,” id. (quoting
Golden ex rel. Balch v. Anders, 324 F.3d 650, 653 (8th Cir.2003)) (internal quotation
marks omitted). The “reckless[ness] standard normally contains a subjective
component.” Wilson, 260 F.3d at 956 n. 9. Law enforcement “must be faithful to the
overriding interest that ‘justice shall be done.’ ” Id. at 957 (quoting United States v.
Agurs, 427 U.S. 97, 110–11 (1976)).
30
Winslow v. Smith, 696 F.3d 716, 731 (8th Cir. 2012).
35
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269. These Defendants conspired together to deprive Plaintiff of her constitutional right to be
free of unreasonable seizure of her person and her constitutional right to substantive due
process, by seizing her and prosecuting her for crimes which she did not commit.31
270. There was more than one person involved in the conspiracy.
271. The purpose of the conspiracy was to intimidate Plaintiff into not investigating or
Cemetery.
272. Plaintiff’s speech before that time made the conspirators aware that Plaintiff was
273. These Defendants or any two of them had a meeting of the minds on the object of the
274. These Defendants or any two of them engaged in one or more acts in furtherance of the
275. Plaintiff was damaged by being subject to criminal charges ending in a jury finding of not
guilty.
277. Each of these Defendants is jointly liable for his or her co-conspirators' acts in
Recklessly
278. In taking the actions described in this Count these Defendants acted recklessly.
31
Dean v. Cty. of Gage, Neb., 807 F.3d 931, 939 (8th Cir. 2015) (Same case as Winslow, third
trip to Eighth Circuit).
36
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Punitive Damages
b. Taken in the face of a perceived risk that they would violate federal law.
Prayer
WHEREFORE, Plaintiff prays for judgment for compensatory damages and punitive
damages under 42 U.S.C. 1983 against Defendants Chief Mark Tulgetske, Mayor Bill Haggard,
Officer Blake Collins, Kenneth Chailland, and Edith Jane Chailland for conspiracy to seize the
person and deny substantive due process, for costs including attorney’s fees and taxable and non-
taxable costs under 42 U.S.C. 1988, and for such other relief as the court finds to be just, meet
and reasonable.
COUNT VI
MONELL
AGAINST CITY OF HERCULANEUM
282. Bill Haggard was personally involved in depriving Plaintiff of her constitutional rights.
283. By putting the City Hall phone number on the website of the Cemetery Mayor Haggard
Prayer
32
Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986), citing Oklahoma City v. Tuttle,
471 U.S. 808, 823 (1985) (“policy’ generally implies a course of action consciously chosen from
among various alternatives”).
37
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WHEREFORE, Plaintiff prays for judgment for compensatory damages under 42 U.S.C.
1983 and Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658 (1978) against the
City of Herculaneum, for costs including attorney’s fees and taxable and non-taxable costs under
42 U.S.C. 1988, and for such other relief as the court finds to be just, meet and reasonable.
COUNT VII
EQUITABLE ACCOUNTING AND COMPLIANCE WITH NOTICE LAWS
STATE LAW CLAIM
AGAINST DEFENDANTS MAYOR HAGGARD,
KENNETH CHAILLAND AND EDITH CHAILLAND
Standing of Plaintiff
286. Because:
287. Plaintiff has peculiar right in the maintenance of the public use of the cemetery and in
288. Plaintiff has made formal complaint to the Missouri Attorney General and the Jefferson
County Prosecuting Attorney, and each has taken no action within a reasonable time.
33
Burnside v. Gilliam Cemetery Ass'n of Gilliam, 96 S.W.3d 155, 159 (Mo. Ct. App. 2003).
(Plaintiff elects not to proceed under RSMo. 352.240).
34
German Evangelical St. Marcus Congregation of St. Louis v. Archambault, 404 S.W.2d 705,
707 (Mo.1966).
38
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290. For the time period approximately 2009 through the summer of 2016 Defendants Mayor
the purposes for which the Herculaneum Cemetery Company was formed, and/or
b. Failing to give proper notice on their advertising materials and sales contracts that
291. Undersigned counsel have engaged in reasonable searches of public websites and can
292. On information and belief as of the summer of 2016 the Herculaneum Cemetery
Company formed a new Association of five members, and as of this initial filing Plaintiff
293. Plaintiff has need for discovery of the disposition of funds paid by her family members
and others to Defendants Haggard, Kenneth Chailland, Edith Chailland in order to assure
35
Burnside v. Gilliam Cemetery Ass'n of Gilliam, 96 S.W.3d 155, 158 (Mo. Ct. App. 2003).
39
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c. Its duties to the public related to the proper maintenance of cemeteries, and
294. Because various persons appear to have authority to sell gravesites and various persons
are selling gravesites at various prices, and because there is no published price list, the
295. These Defendants have a fiduciary duty to or trust relationship with Plaintiff in that these
Defendants have a duty to maintain the cemetery for the benefit of Plaintiff’s family
members already interred there and to properly maintain the cemetery so that it will be
appropriately available for the grave of Plaintiff’s father when he dies and his survivors
296. These Defendants have a duty to Plaintiff to account for funds in their hands related to
the Cemetery, particularly because they are receiving funds without complying with the
statutory notice requirement on all contracts and advertising materials that the cemetery is
a nonendowed cemetery, even as they have implied that they are an endowed cemetery.
Accounts in Question
298. The accounts in question consist of all funds in these Defendants’ hands which were
36
Cook v. Martin, 71 S.W.3d 677, 679 (Mo. Ct. App. 2002) as to four elements required for an
equitable accounting.
40
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299. Under RSMo. 352.100 a benevolent corporation shall keep a fair record of all its
proceedings, which record shall be open, at all reasonable hours, to the inspection of all
its members.
Remedy
68.01,
b. These Defendants to produce all relevant books and records and provide an
accounting including the finances and burial records of the cemetery and the
in their possession,
d. That the property of the Cemetery be vested in the new members of the
e. To order the Cemetery to comply with notice rules for nonendowed cemeteries.
Prayer
WHEREFORE, Plaintiff prays the court to appoint a master and to order these
Defendants, Mayor Haggard, Kenneth Chailland and Edith Chailland, to produce an accounting,
return to the Herculaneum Cemetery Company any wrongfully held assets, and the Herculaneum
41
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Cemetery Company to comply with the notice requirements for nonendowed cemeteries, and
costs to Plaintiff, and for such other relief as the court finds to be just, meet and reasonable.
COUNT VIII
REMOVAL OF THESE DEFENDANTS
FROM FURTHER INVOLVEMENT IN CEMETERY
STATE LAW CLAIM
AGAINST DEFENDANTS MAYOR HAGGARD,
KENNETH CHAILLAND AND EDITH CHAILLAND
302. Defendants Mayor Haggard, Kenneth Chailland and Edith Chailland (“these
Defendants”) have abused the public trust by failing to comply with Missouri law
303. The issuance and terms of an injunction rest largely in the sound discretion of the trial
court, which is vested with a broad discretionary power to shape and fashion the relief it
grants to fit particular facts, circumstances and equities of the case before it.37
304. It would serve justice for the court to order these Defendants to be removed from all
positions of responsibility with the Cemetery and have no further involvement in the
Prayer
WHEREFORE, Plaintiff prays the court to order that Defendants Mayor Haggard,
Kenneth Chailland and Edith Chailland be removed from all positions of responsibility with the
Cemetery and have no future involvement with the Herculaneum Cemetery Company.
Respectfully Submitted,
Attorneys for Plaintiff
37
Payroll Advance, Inc. v. Yates, 270 S.W.3d 428, 437 (Mo. Ct. App. 2008).
42
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W. Bevis Schock, MO32551
7777 Bonhomme Ave., Ste. 1300
St. Louis, MO 63105
wbschock@schocklaw.com
Fax: 314-721-1698
Voice: 314-726-2322
43