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17JE-CC00084

IN THE CIRCUIT COURT OF THE 23RD JUDICIAL CIRCUIT
OF MISSOURI AT HILLSBORO, JEFFERSON COUNTY, MISSOURI

CHRISTINA ANN PRYOR, )
f/k/a CHRISTINA ANN COLLINS, )
)
Plaintiff, )
)
v. ) Case No.
)
CITY OF HERCULANEUM, )
)
Serve: Mayor Bill Haggard )
Herculaneum City Hall )
1 Parkwood Court )
Herculaneum, MO 63048 )
)
CHIEF MARK TULGETSKE, ) JURY TRIAL DEMANDED
in his individual capacity only, )
)
Serve: Herculaneum Police Department )
1 Parkwood Court )
Herculaneum, MO 63048 )
)
MAYOR BILL HAGGARD, )
in his individual capacity and, )
in his official capacity, )
)
Serve: Herculaneum City Hall )
1 Parkwood Court )
Herculaneum, MO 63048 )
)
OFFICER BLAKE COLLINS, )
in his individual capacity, )
)
Serve: Herculaneum Police Department )
1 Parkwood Court )
Herculaneum, MO 63048 )
)
KENNETH CHAILLAND, )
)
Serve: 821 Scenic Drive )
Herculaneum, MO 63048 )
)
EDITH JANE CHAILLAND, )
Electronically Filed - Jefferson - January 31, 2017 - 10:10 AM
)
Serve: 821 Scenic Drive )
Herculaneum, MO 63048 )
)
HERCULANEUM CEMETERY )
COMPANY, )
)
Serve: Mayor Bill Haggard )
Herculaneum City Hall )
1 Parkwood Court )
Herculaneum, MO 63048 )
)
Defendants. )

INTRODUCTION – NOT PART OF PETITION

Investigate Cemetery and Get Beat Up

Christina Pryor and her family own a plot at the Herculaneum Cemetery. The

Herculaneum Cemetery Company, a benevolent corporation, operates the Cemetery. Pryor

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

and injunctive relief.

PETITION: CIVIL RIGHTS AND EQUITABLE ACCOUNTING

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

and Equitable Accounting:

PARTIES

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1. Plaintiff Christina Ann Pryor, f/k/a Christina Ann Collins, is an individual residing in

Jefferson County, Missouri.

2. The City of Herculaneum, (“Herculaneum” or “the City”), is a properly formed city of

the fourth class in Jefferson County, Missouri.

3. Defendant Police Chief Mark Tulgetske is and was at all relevant times the Chief of the

City of Herculaneum Police Department.

4. Plaintiff sues Chief Tulgetske in his individual capacity only.

5. Defendant Mayor Bill Haggard:

a. Is the Mayor of the City of Herculaneum, and

b. Is listed on the website of the Herculaneum Cemetery Company as the Cemetery

“contact”.

6. Plaintiff sues Mayor Haggard for purposes of the:

a. Conspiracy Count in his individual capacity, and

b. Monell Count in his official capacity.

7. Defendant Police Officer Blake Collins1 is and at all relevant times has been a police

officer with the City of Herculaneum.

8. Plaintiff sues Officer Collins in his individual capacity only.

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.

SUBJECT MATTER JURISDICTION

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

and Fourteenth Amendments to the United States Constitution.

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

Accounting and related relief.

VENUE

14. The incidents upon which this suit is based occurred in the County of Jefferson, State of

Missouri.

COLOR OF STATE LAW

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

State of Missouri, and its political subdivisions.

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

acting under color of state law.3

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

19. Plaintiff demands a jury trial.

FACTS

History, Size, Legal Status of Herculaneum Cemetery

20. Early in the 20th Century local residents began using the land where the Herculaneum

Cemetery is located as a cemetery.

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

surface rights to the land where the Cemetery is located.

22. The Herculaneum Cemetery Company still owns that land.

23. The Cemetery encompasses approximately 4.44 acres.

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

the incorporation of the Herculaneum Cemetery Company”, recorded in the Jefferson

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

Company “to promote and maintain a cemetery.4

28. Rev. St. 1899, § 1395 related to benevolent corporations.

29. As of this filing the Herculaneum Cemetery Company is listed on the Missouri Secretary

of State website as a benevolent corporation, last visited, December 13, 2016.

30. The Herculaneum Cemetery Company is and always has been a benevolent corporation.

31. As a benevolent corporation organized by an association of persons the Herculaneum

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

Cemetery Endowed Care Fund Law, RSMo. 214.270 - 214.410.

33. Pursuant to the Cemetery Endowed Care Fund Law, Missouri recognizes two kinds of

cemeteries, “endowed care cemeteries” and “nonendowed cemeteries”.

34. Under RSMo. 214.280 and as of August 28, 1994 all cemeteries had to either (1) register

the Missouri Department of Professional Registration as an endowed cemetery, or (2)

failing such registration, be deemed a nonendowed cemetery.

35. The Herculaneum Cemetery:

a. Is not now registered with the Missouri Department of Professional Registration

as an endowed cemetery, and

b. On information and belief, has never has been so registered.

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

“Herculaneum Cemetery Association”, last visited December 13, 2016.

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

a formal endowment financial account.

38. The Herculaneum Cemetery is a nonendowed care cemetery.

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

Regulations” in which it stated that it sold “perpetual care”.

42. Under RSMo. 214.370 advertising, contracts and related materials issued by a

nonendowed cemetery must note that fact on those documents.

43. The Herculaneum Cemetery does not note that fact on any such documents.

44. The Herculaneum Cemetery is not owned by the City of Herculaneum.

45. The Herculaneum Cemetery Company in some ways conducts its business as though it is

owned by the City of Herculaneum.

46. For example, the website of the Jefferson County Assessor, last visited June 3, 2016, lists

the address of the Herculaneum Cemetery Company as:

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:

a. The address of the Cemetery is 821 Scenic Drive, and

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

corporation is run by an association.

50. For many years up to and including approximately all of the 1990’s the Cemetery was

properly managed by an Association.

51. By approximately 2000 all the then members of the Association had either died or

resigned except a man named Robert Francis.

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,

d. Managing burials including paying grave digging firms,

e. Managing landscaping such as mowing, etc., and

f. Maintaining order.

54. In approximately 2009 Robert Francis ceased performing any functions in connection

with the cemetery.

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

the cemetery, at:

821 Scenic Drive
Herculaneum, MO 63048

56. In the 1990’s Kenneth Chailland started mowing and performing other routine

maintenance at the Cemetery.

57. In approximately 2009 Kenneth Chailland began operating the cemetery and became its

de facto full time caretaker.

58. In approximately 2009 Kenneth Chailland’s wife, Edith Chailland, began performing

record keeping and treasury work for the cemetery.

59. After approximately 2009 the Chaillands began taking money from members of the

public to reserve spaces in the cemetery,

60. On information and belief some or all of such funds were in the form of checks payable

to the “Herculaneum Cemetery Company” and/or the “Herculaneum Cemetery

Association”.
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61. Under RSMo. 214.370:

Every operator of a nonendowed cemetery shall…

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

the Herculaneum Cemetery, or that it is open to the public.

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.

66. Under RSMo. 214.345.1

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

endowed care trust fund.”

68. As of 2009 and through August of 2014 there was no oversight of any kind, including by

any Association, over Kenneth Chailland and Edith Chailland as to:

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a. Record keeping,

b. Grounds keeping,

c. Finances,

d. Grave locations,

e. Salaries of the Chaillands,

f. In-kind payments to the Chaillands,

g. Payments to vendors such as grave diggers, or

h. Any other issues.

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

71. Rule III.C of that document states:

“Internment rights are sold in accordance with the rules of the State of Missouri
regarding endowed care cemeteries.

72. Rule IV of that document states:

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

an endowed care cemetery.

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75. The implication in that document that the Herculaneum Cemetery is an endowed

cemetery is materially false.

Sale of Cemetery Plots by “Herculaneum Cemetery Association”

76. In the years before August 2014 the Chaillands sold plots at the Cemetery with the

seller’s name stated as the “Herculaneum Cemetery Association”.

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”.

Plaintiff’s Family Owns Herculaneum Cemetery Plot – Plaintiff a Regular Visitor

78. Several members of Plaintiff’s family are buried at the Cemetery, including Plaintiff’s

mother, sister, and two nephews.

79. The location of the Plaintiff’s family’s plot is just inside the Cemetery gates on the inside

of the eastern entrance to the Cemetery’s U-shaped gravel road.

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.

Concerns About Sufficient Width for Grave of Plaintiff’s Father

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.

84. Under RSMo. 214.385:

If the operator of any cemetery or another authorized person moves a grave
marker, memorial or monument in the cemetery for any reason, the operator or
other authorized person shall replace the grave marker, memorial or monument to
its original position within a reasonable time.

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

be too narrow to accommodate her father because of the neighboring grave.

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

digger would run up against the neighboring coffin.

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

which he had already paid.

Plaintiff Becomes Concerned About Cemetery Upkeep, Finances, Alerts Officials

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:

a. James Kasten, the Herculaneum City Administrator,

b. Bill Haggard, the Herculaneum Mayor,

c. Caretaker Kenneth Chailland,

d. Defendant Blake Collins, a Herculaneum City Police Officer,

e. Tom Reichard, the Director of the “State Office of Endowed Care Cemeteries”, a

Missouri agency charged with regulation of cemeteries, and

f. Forrest Wegge, the Jefferson County Prosecuting Attorney.

Conversation with James Kasten, the Herculaneum City Administrator

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91. In approximately 2013 Plaintiff asked James Kasten, the Herculaneum City

Administrator, about the management of the cemetery.

92. Mr. Kasten stated that Herculaneum was a poor town, and asked Plaintiff what she

“expected out of it”.

93. Mr. Kasten would say neither who ran the cemetery nor engage in further conversation.

Conversation with Mayor Haggard

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

Attorney, Dennis Tesreau, and to a City of Herculaneum City Council meeting.

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.

97. Mayor Haggard acknowledged there was no 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.

Conversation with Kenneth Chailland, Caretaker

101. In approximately May 2013 Plaintiff spoke about her concerns to Kenneth Chailland, the

Caretaker.

102. He seemed irritated by Plaintiff’s inquiry about conditions at the cemetery.

103. Kenneth Chailland told Plaintiff that:

a. He just cut the grass, and

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b. There was not enough money to weed-eat or to care for ornaments and flowers

left by family members.

104. Kenneth Chailland was unwilling to engage in further conversation.

Conversation with Officer Blake Collins

105. During 2013 Plaintiff expressed her concerns about the cemetery to Herculaneum City

Police Officer Defendant Blake Collins.

106. Officer Blake Collins told Plaintiff it “was a civil suit and there was nothing he could do

about it.”

Conversation with Tom Reichard, Missouri Official

107. In approximately November 2013 Plaintiff contacted Tom Reichard of “the Endowment”,

to discuss her concerns.

108. Tom Reichard stated to Plaintiff that:

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

before they took over,

c. The Endowment would not be directly involved because the Herculaneum

Cemetery was a “nonendowed cemetery”, and

d. He had spoken to some city officials regarding the situation.

Conversation with Prosecuting Attorney Forrest Wegge

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109. In approximately May 2013 Plaintiff spoke about her concerns to Jefferson County

Prosecuting Attorney Forrest Wegge.

110. Mr. Wegge first told Plaintiff that he did not have any information about this situation but

that he would look into it.

111. In a conversation soon thereafter Forrest Wegge told Plaintiff he had:

a. Met with the City of Herculaneum city attorney, Dennis Tesreau, Mayor Haggard,

the Chaillands, and Chief Tulgetske,

b. Learned from the Mayor that the Chaillands were transferring money to their

personal accounts, and

c. Told the Chaillands to open a new account at Eagle Bank with $5,000.00 of their

own money “unless they wanted to be sued”.

Sales at Various Prices, No Published Price List

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.

Chaillands Open New Account at Eagle Bank and Transfer Funds

114. On information and belief soon thereafter Kenneth Chailland and Edith Chailland opened

an account at Eagle Bank in the name of either Herculaneum Cemetery Association or

Herculaneum Cemetery Company.

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

personal funds to that account.

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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.

At the Cemetery, According to Chaillands: Flower Arrangements Yes, Ornaments No

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:

a. The ornament or flower arrangement must be cleaned up,

b. The wind might knock over the ornament or flower arrangement, and.

c. Sometimes ornaments and containers break.

118. At all relevant times there has been a sign at the cemetery stating that no one could leave

anything on graves except floral arrangements.

119. As of October 2016 that sign was still there.

120. Rule I.A. of the “Rules and Regulations” for the Cemetery as issued by the Chaillands as

stated above reads:

Only floral arrangements are permitted on the premises. No trinkets, or keepsakes
are to be on the ground. Decorations containing glass or other fragile or
otherwise breakable material are prohibited at all times. (Emphasis in original).

121. Despite the rules and the signage during August 2014 many people left ornaments at

various graves in the cemetery.

122. As of August 2014 approximately five or more other families throughout the cemetery

had lanterns, a/k/a solar lights, on grave stones.

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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

and/or on behalf of the management of the Cemetery.

127. As Plaintiff and Kelly Young were examining the note Kenneth Chailland came out and

verbally told Plaintiff and Ms. Young that:

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

to leave a lantern on the gravestone.

131. Kelly Young took home the lantern and the note.

132. There is no statute, Herculaneum Ordinance or government regulation of any kind

making placing a lantern on a grave stone illegal.

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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.

134. At that meeting Mayor Haggard told Plaintiff:

a. She had “stumbled onto something she shouldn’t have”, and

b. She could bring back the lantern and he would speak to Kenneth Chailland about

it.

Caretaker Aware Plaintiff Suspicious and Making Inquiries

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

Plaintiff had concerns about the operation of the cemetery.

Chief Tulgetske Learns of Plaintiff’s Concerns

136. In early August Kenneth Chailland and Chief Tulgetske discussed the Plaintiff’s inquiries

about the cemetery.

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

had then apologized.

138. Chief Tulgetske responded that if the woman gave him “any more trouble” and “would

not listen”, then Kenneth Chailland was to call Chief Tulgetske.

Further Contact between Plaintiff and Officer Blake Collins

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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.

140. Plaintiff stated 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

the same thing,

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

that Plaintiff’s family members could not leave a lantern on a gravestone,

d. Plaintiff and her family were being treated unfairly, and

e. Plaintiff and her family were being singled out,

(collectively, “Plaintiff’s grievances”).

141. Officer Blake Collins spoke to his superior or superiors about this situation but has no

recall of the identity of the superior with whom he spoke.

142. Officer Blake Collins asserts that he:

a. Concluded that Plaintiff’s issues at the cemetery were a civil matter,

b. Decided to take no action himself in response to Plaintiff’s call, and

c. Spoke to Plaintiff again and informed her that the Herculaneum Police

Department would take no action in response to her call.

Plaintiff’s Visit to Cemetery, August 8, 2014, Events Before Arrival of 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

adjacent to the family plot.

145. Young had the original lantern with her.

146. Young placed the original lantern on a family grave stone.

147. Kenneth Chailland came from his house.

148. Young and Plaintiff were standing approximately 30-40 feet apart - Plaintiff near the

family gravesite and Young near her car.

149. Kenneth Chailland screamed to Plaintiff and Young that they could not put a lantern on a

grave stone.

150. Plaintiff responded in a calm voice that:

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.

151. Kenneth Chailland responded that he:

a. Did not care what the Mayor said, and

b. Had not spoken to the Mayor, and

c. He was calling the police.

152. Plaintiff responded that:

a. He should go ahead and call the police, and

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b. If he took the lantern she was going to get a lawyer.

153. Kenneth Chailland went back to the house.

Police Summoned and Come to Cemetery – Alternative Versions

154. In the alternative, according to Kenneth Chailland:

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

c. Chief Tulgetske stated that he would “be up there”.

155. In the alternative, according to Officer Blake Collins:

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

the cemetery, and

c. Officer Blake Collins responded to the cemetery.

156. In the alternative, according to Chief Tulgetske:

a. Chief Tulgetske heard the City of Pevely’s dispatch call on his radio, and

b. Went to the cemetery to provide back up.

Initial Events upon Arrival of Police

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.

22
Electronically Filed - Jefferson - January 31, 2017 - 10:10 AM
161. Chief Tulgetske said to Kelly Young, “Are you done yet?”, or words to that effect.

162. Kelly Young immediately ceased speaking.

163. Officer Blake Collins told Edith Chailland to go into her house,

164. Ken Chailland went into the house.

165. Edith Chailland did not go into the house.

166. When Chief Tulgetske arrived he approached Plaintiff aggressively yelling, “Leave,

Leave, Leave”.

167. Plaintiff began backing up.

168. Chief Tulgetske chest bumped Plaintiff.

169. Plaintiff continued to retreat toward her car.

Plaintiff Gets in her Vehicle, Says To Chief Tulgetske “I Am [Leaving], Dumb-Ass”

170. Plaintiff sat down in the driver’s seat.

171. Plaintiff closed the door of the vehicle and put on her seat belt. .

172. The keys were in the ignition.

173. The vehicle’s windows were open.

174. Chief Tulgetske put his head slightly inside the car’s passenger compartment, close to

Plaintiff’s head and screamed “leave and don’t come back”.

175. Plaintiff said to Chief Tulgetske: “I am Dumb Ass”.

176. At that point:

a. Plaintiff had not committed a crime, and

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.

180. Chief Tulgetske grabbed Plaintiff’s left wrist and yanked.

181. Plaintiff immediately released the steering wheel.

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.

185. Plaintiff heard a pop in her right shoulder.

186. Chief Tulgetske’s yank on Plaintiff’s right arm tore Plaintiff’s right labrum.

187. Plaintiff screamed: “Oh, my God, my arm just popped.”

188. Chief Tulgetske screamed for Officer Blake Collins to bring handcuffs.

189. Plaintiff went to her knees.

190. Plaintiff was screaming in pain.

191. Officer Blake Collins handcuffed Plaintiff.

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.

194. Plaintiff did not resist arrest at any time.

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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

that was just “the topper”.

Officers Take Plaintiff to the Pevely Police Station, Officer Collins Verbally Abusive

196. Officer Blake Collins placed Plaintiff in his patrol car.

197. Plaintiff was sobbing.

198. Officer Blake Collins drove Plaintiff to the City of Pevely Municipal Police Station.

199. Plaintiff was booked at that 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

finger print machine”, and

b. Other “F-Bombs”.

201. Plaintiff was intimidated and scared.

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.

203. Plaintiff was held in jail approximately four hours.

Injuries and Medical Care

204. Approximately 20 years earlier Plaintiff suffered an injury and surgery to the same

shoulder, which had completely healed.

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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.

206. Plaintiff consulted 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

caused by Chief Tulgetske.

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

usage of her shoulder.

211. Plaintiff may require additional surgery or treatment.

Criminal Charges against Plaintiff, No Probable Cause

212. Chief Tulgetske came to the Pevely station.

213. Chief Tulgetske gave Plaintiff summonses to the municipal court of the City of

Herculaneum for:

a. Peace Disturbance, and

b. Resisting Arrest.

214. There was no probable cause for either charge.

Criminal Trial, Plaintiff Acquitted

215. Plaintiff took the criminal charges to a jury trial.

216. At the conclusion of the City’s case the trial judge dismissed the peace disturbance

charge for lack of evidence.

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217. After twenty minutes deliberation the jury found Plaintiff not guilty on the resisting arrest

charge.

218. Plaintiff thus prevailed on all aspects of the criminal trial.5

DAMAGES

219. During and as a result of the above events Plaintiff suffered:

a. Loss of physical liberty while under arrest,

b. A torn labrum and treatment for that injury,

c. Garden variety emotional distress including terror, stress, fear, anxiety,

humiliation, embarrassment, and disgrace,

d. Loss of personal reputation in her family,

e. Fear of living in her community of Pevely adjacent to Herculaneum where Chief

Tulgetske is still as of this filing in charge of law enforcement,

f. Loss of trust in law enforcement generally, and

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.

Permanent Physical Injuries

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.
27
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222. Based on present knowledge Plaintiff’s physical injuries will never wholly heal and are

thus permanent.

ATTORNEY’S FEES AND COSTS - 42 U.S.C. 1988

223. In pursuit of her federal civil rights claims, Plaintiff is incurring reasonable attorney’s

fees and costs, including taxable and non-taxable costs.6

224. Plaintiff seeks her reasonable attorney’s fees and costs under 42 U.S.C. 1988 for the

pursuit of those claims.

NO QUALIFIED IMMUNITY FOR INDIVIDUAL DEFENDANTS

225. All of the conduct of all the individual Defendants were not based on only mistaken but

objectively reasonable beliefs and so no individual Defendants are entitled to qualified

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

228. Plaintiff incorporates all prior paragraphs.

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

even arguable probable cause to arrest Plaintiff.

232. Plaintiff has a well established Fourth and Fourteenth Amendment right to be free of

warrantless seizure of her person without probable cause.11

Punitive Damages

233. The actions of Chief Tulgetske and Blake Collins as described in this Count were:

a. Malicious or recklessly indifferent to Plaintiff's constitutional rights, and

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

234. Plaintiff incorporates all prior paragraphs.

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,

b. Swing Plaintiff around, and

c. Wrench Plaintiff’s arm in such a manner to tear her labrum.

236. Under the totality of the circumstances it was unreasonable for Blake Collins and Chief

Tulgetski to pull Plaintiff off the ground by the handcuffs.

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:

a. Malicious or recklessly indifferent to Plaintiff's constitutional rights, and

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

240. Plaintiff incorporates all prior paragraphs.

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

continuation of a criminal charge with no basis in fact.14

242. Plaintiff has a liberty interest in fair criminal proceedings.15

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:

a. Malicious or recklessly indifferent to Plaintiff's constitutional rights, and

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

245. Plaintiff incorporates all prior paragraphs.

246. The right to be free of arrest and prosecution in retaliation for exercise of First

Amendment rights is a constitutional right and is clearly established.16

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

above public inconvenience, annoyance, or unrest.17

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

fighting words or close to fighting words.19

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).
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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

258. The actions of Chief Tulgetske as described in this Count were:

a. Malicious or recklessly indifferent to Plaintiff's constitutional rights, and

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

259. Plaintiff incorporates by reference all prior paragraphs.

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).
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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

cemetery was a nonendowed cemetery, all to their personal profit.

262. These Defendants agreed to engage in conduct, including intimidation, to stop Plaintiff

from continuing her investigation.

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

with the finances of the Herculaneum Cemetery.

265. The conduct of these Defendants as described in this Count:

a. Was truly egregious and extraordinary,

b. Shocks the conscience,

c. Amounts to brutal and inhumane abuse of official power, and

d. Showed evidence of systematic pressure to implicate the Plaintiff in the face of no

evidence against her.26

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).
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267. The conduct of these Defendants as described in this Count violated Plaintiff’s:

a. Fourth Amendment right to be free of seizure of her person without probable

cause, and

b. Fourteenth Amendment liberty interest protected by the due process clause of the

Fourteenth Amendment in being free of arbitrary government action such as being

subject to the start of and continuation of a criminal charge with no basis in fact.28
29

268. Plaintiff has a liberty interest in fair criminal proceedings.30

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).
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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

challenging these Defendants in connection with the finances of the Herculaneum

Cemetery.

272. Plaintiff’s speech before that time made the conspirators aware that Plaintiff was

investigating their misconduct.

273. These Defendants or any two of them had a meeting of the minds on the object of the

conspiracy or the course of action to be taken, including the acts of constitutional

misconduct outlined herein.

274. These Defendants or any two of them engaged in one or more acts in furtherance of the

conspiracy, including the acts of constitutional misconduct outlined herein.

275. Plaintiff was damaged by being subject to criminal charges ending in a jury finding of not

guilty.

276. The evidence of the conspiracy may be circumstantial.

277. Each of these Defendants is jointly liable for his or her co-conspirators' acts in

furtherance of the conspiracy.

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).
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Punitive Damages

279. The actions of these Defendants as described in this Count were:

a. Malicious or recklessly indifferent to Plaintiff's constitutional rights, and

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

280. Plaintiff incorporates all prior paragraphs.

281. Bill Haggard is the Mayor of the 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

acted under color of state law.

284. The City is liable for the actions of Mayor Haggard.32

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”).
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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

285. Plaintiff incorporates all prior paragraphs.

Standing of Plaintiff

286. Because:

a. Plaintiff’s family owns a plot in the cemetery,

b. Plaintiff has relatives buried there, and

c. Plaintiff’s father has prepaid for a burial site in the Cemetery,

Plaintiff has a special interest in the Cemetery.33

287. Plaintiff has peculiar right in the maintenance of the public use of the cemetery and in

preventing an obstruction to the public use.34

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.

289. Plaintiff has standing to pursue an action for equitable accounting.

Mismanagement and Misuse of Funds

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).
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290. For the time period approximately 2009 through the summer of 2016 Defendants Mayor

Haggard, Kenneth Chailland and Edith Chailland (“these Defendants”), have

mismanaged or misused public charitable funds,35 and/or committed unlawful acts

including misuser or nonuser of the Herculaneum Cemetery Company franchise

including but not limited to the following acts:

a. In a material matter willfully misusing or neglecting to use Cemetery funds for

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

the Herculaneum Cemetery Company is not an endowed cemetery, and/or

c. Implying that Herculaneum Cemetery Company operates an endowed cemetery

when that is false.

291. Undersigned counsel have engaged in reasonable searches of public websites and can

find no copy of a Form 990 filed by the Herculaneum Cemetery Company.

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

has no evidence of misconduct by those persons since that time.

Elements for Legal Right to Accounting

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

that the Herculaneum Cemetery Company is functioning in a manner consistent with:

a. Its own charter,

b. Its duties to the public pursuant to its charitable purposes,

35
Burnside v. Gilliam Cemetery Ass'n of Gilliam, 96 S.W.3d 155, 158 (Mo. Ct. App. 2003).
39
Electronically Filed - Jefferson - January 31, 2017 - 10:10 AM
c. Its duties to the public related to the proper maintenance of cemeteries, and

d. Compliance with the notice requirement for nonendowed cemeteries.

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

nature of the accounts is complicated.

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

are ready to inter him in his prepaid plot.

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.

297. Plaintiff has no adequate legal remedy.36

Accounts in Question

298. The accounts in question consist of all funds in these Defendants’ hands which were

received by them for purposes related to the cemetery.

Duty to Maintain Records

36
Cook v. Martin, 71 S.W.3d 677, 679 (Mo. Ct. App. 2002) as to four elements required for an
equitable accounting.
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Electronically Filed - Jefferson - January 31, 2017 - 10:10 AM
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

300. It is in the interest of justice for the court to order:

a. Appointment of a master to review the books and records of the Herculaneum

Cemetery Company, with appointment of the Master to be governed by Rule

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

Herculaneum Cemetery Company, particularly including all donations and

gravesite sales receipts,

c. Defendants to return to the Herculaneum Cemetery Company all sums wrongfully

in their possession,

d. That the property of the Cemetery be vested in the new members of the

Association, to be held for charitable purpose for which the Herculaneum

Cemetery Company held the same, and

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

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Electronically Filed - Jefferson - January 31, 2017 - 10:10 AM
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

301. Plaintiff incorporates all prior paragraphs.

302. Defendants Mayor Haggard, Kenneth Chailland and Edith Chailland (“these

Defendants”) have abused the public trust by failing to comply with Missouri law

regarding notice that the Herculaneum Cemetery Company is a nonendowed cemetery.

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

Herculaneum Cemetery Company.

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

/s/ W. Bevis Schock .

37
Payroll Advance, Inc. v. Yates, 270 S.W.3d 428, 437 (Mo. Ct. App. 2008).

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Electronically Filed - Jefferson - January 31, 2017 - 10:10 AM
W. Bevis Schock, MO32551
7777 Bonhomme Ave., Ste. 1300
St. Louis, MO 63105
wbschock@schocklaw.com
Fax: 314-721-1698
Voice: 314-726-2322

/s/ Mark Hammer .
Mark Hammer, MO61542
The Hammer Law Firm, LLC
100 Chesterfield Business Pkwy, Ste 200
St. Louis, MO 63005
mark@thehammerlawfirm.com
Voice: (314) 651-9311

/s/ Nicole Chiravollatti .
Nicole Chiravollatti, MO57992
The Hammer Law Firm, LLC
100 Chesterfield Business Pkwy, Ste 200
St. Louis, MO 63005

43