Hayward v. Health Department & Department of Law ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3056
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Fairy Hayward, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Health Department and Department of *
Law, City of Independence, Missouri; * [UNPUBLISHED]
Andrew Warlen; Rose McKinley; *
William Moore; Dayla Schwartz; *
RoadOne of Kansas City; S&S Lawn, *
Inc.; Mitch Langford; William *
Piedmont; Gary Helm, *
*
Appellees. *
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Submitted: April 1, 2004
Filed: April 8, 2004
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Before BYE, McMILLIAN, and RILEY, Circuit Judges.
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PER CURIAM.
After an administrative search warrant was executed on property belonging to
Fairy Hayward, she brought this action asserting claims under 42 U.S.C. §§ 1983,
1985, and 1986 against various officials and departments of the City of Independence,
Missouri (City defendants) and two private parties, RoadOne of Kansas City
(RoadOne) and S&S Lawn, Inc. (S&S). The district court1 granted defendants’
motions to dismiss and denied Hayward’s motion for reconsideration. Hayward
appeals and we affirm.
Initially, we reject the arguments of RoadOne and S&S that this appeal is
untimely. We construe Hayward’s motion to reconsider, filed on June 16, 2003, as
a Federal Rule of Civil Procedure 59(e) motion. See Innovative Home Health Care,
Inc. v. P.T.-O.T. Assocs. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998)
(motion calling into question correctness of judgment is functionally Rule 59(e)
motion regardless of how styled). Hayward had until June 17, 2003, to file such a
motion. See Fed. R. Civ. P. 59(e) (motion to alter or amend judgment must be made
within 10 days after entry of judgment); Fed. R. Civ. P. 6(a) (when prescribed time
period is less than 11 days, intermediate Saturdays, Sundays, and legal holidays are
excluded in computing time period). Thus, Hayward’s postjudgment motion tolled
the time for her to appeal, and her notice of appeal--filed within thirty days after
entry of the order denying the motion--was timely. See Fed. R. App. P. 4(a)(1),
(a)(4)(A)(iv) (30-day time limit; timely Rule 59(e) motion tolls time to file appeal
until entry of order disposing of motion).
As to the merits, Hayward did not name the City defendants in their individual
capacities or seek leave to amend when the City defendants pointed out this
deficiency in their motion to dismiss. See Murphy v. Arkansas, 127 F.3d 750, 754
(8th Cir. 1997) (without clear statement that officials are being sued under § 1983 in
personal capacities, complaint is interpreted as including only official-capacity
claims). Hayward’s official-capacity claims against the City defendants thus
amounted to claims against only the City, but Hayward did not assert that the City had
1
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
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a policy or custom of improperly seeking, issuing, and executing administrative
search warrants. See Spencer v. Knapheide Truck Equip. Co., 183 F.3d 902, 905 (8th
Cir. 1999) (§ 1983 suit against board members in official capacities must be treated
as suit against municipality, which requires showing constitutional violations
pursuant to official policy, or misconduct that is so pervasive among non-
policymaking employees as to constitute custom or usage with force of law), cert.
denied, 528 U.S. 1157 (2000). As to the section 1983 claims against RoadOne and
S&S, Hayward’s complaint allegations were insufficient to support such claims
against these private parties. Cf. Holbird v. Armstrong-Wright, 949 F.2d 1019, 1020
(8th Cir. 1991) (per curiam) (discussing § 1983 claim against private actor). Finally,
in her complaint and response to motions to dismiss, Hayward did not assert the
requisite elements for claims under sections 1985 and 1986. See Bray v. Alexandria
Women’s Health Clinic, 506 U.S. 263, 268-69 (1993) (§ 1985(3) reaches conspiracies
motivated by “‘some racial, or perhaps otherwise class-based, invidiously
discriminatory animus’” (quoted source omitted)); Kaylor v. Fields, 661 F.2d 1177,
1184 (8th Cir. 1981) (cause of action under § 1986 is dependent on valid claim under
§ 1985).
Accordingly, we affirm. We also deny as moot appellee RoadOne’s motion to
strike Hayward’s reply brief.
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