Submitted: January 16, 2019
from United States District Court for the Eastern District of
Missouri - St. Louis
SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.
COLLOTON, CIRCUIT JUDGE.
Duffner, along with her late husband Carl, sued the City of
St. Peters, Missouri, to challenge a city ordinance that
requires at least fifty percent of their residential yard to
contain turf grass. The district court dismissed the lawsuit,
ruling that the Duffners failed to show that the ordinance
violated the Due Process Clause of the Fourteenth Amendment
or the Eighth Amendment's prohibition against excessive
fines and penalties. The Duffners appealed, and we affirm the
dismissal of the substantive due process claim on the
alternative ground that it is barred by res
judicata. We conclude that the Eighth Amendment claim is
not ripe for adjudication, so we remand that claim with
directions to dismiss it for lack of
2002, the Duffners purchased a residential property in St.
Peters. Soon after their purchase, the Duffners converted
their yard into a garden of flowers and ornamental greenery.
Six years later, the City enacted an ordinance requiring,
among other things, that turf grass cover at least half the
area of a residential yard. Violation of the ordinance is a
misdemeanor punishable by a fine of ten to two hundred fifty
dollars, ten days' imprisonment, or both, for each day
that the violation continues.
2014, a city official sent the Duffners a letter, notifying
them that their lawn apparently did not comply with the turf
grass ordinance. The Duffners applied for a variance to
exempt their property from compliance. The City granted a
partial variance that would require the Duffners to plant at
least five percent of their property with turf grass, and
notified the Duffners they were required to comply with the
variance by December 1, 2014. The Duffners declined to
Duffners sued the City in state court, alleging that the
ordinance violated the Fourteenth Amendment and provisions of
Missouri state law. The circuit court dismissed the petition
without prejudice, ruling that it lacked jurisdiction because
the Duffners failed to exhaust their administrative remedies.
The Duffners appealed. The Missouri Court of Appeals ruled
that the circuit court mistakenly dismissed the substantive
due process claim for lack of jurisdiction, but affirmed the
dismissal on the alternative ground that the complaint failed
to state a claim because it did not allege action by the City
that was "truly irrational." Duffner v. City of
St. Peters, 482 S.W.3d 811, 822-23 (Mo.Ct.App. 2016).
The court remanded the remaining claims to the circuit court.
On remand, the Duffners moved to amend their petition to add
new federal claims and "to more clearly state the facts
and legal principles applicable to this matter." But the
court denied their motion as untimely, and the Duffners
voluntarily dismissed their petition.
Duffners later sued the City in the federal district court,
filing a five-count complaint that alleged a substantive due
process claim, an Eighth Amendment claim, and several
state-law claims. The City moved for summary judgment on all
counts, and the district court granted the motion. The court
ruled that the substantive due process claim was not barred
by res judicata, but granted summary judgment for
the City on the merits of the Duffners' facial and
as-applied challenges to the ordinance. The court also
dismissed the Duffners' Eighth Amendment claim on the
ground that the ordinance's penalty provision was not an
excessive fine or otherwise contrary to the Eighth Amendment.
The court declined to exercise supplemental jurisdiction over
the remaining state-law claims. The Duffners appealed, and we
review the district court's grant of summary judgment
de novo. We may affirm on any ground supported by
the record. Woodworth v. Hulshof, 891 F.3d 1083,
1088 (8th Cir. 2018).
first address Duffner's substantive due process claim.
The City contends that res judicata, or claim
preclusion, bars Duffner from filing the same claim that was
already dismissed in Missouri state court. To determine
whether Duffner's claim is barred by res
judicata, we look to the law of Missouri, the forum that
rendered the first judgment. See C.H. Robinson Worldwide,
Inc. v. Lobrano, 695 F.3d 758, 764 (8th Cir. 2012).
Under Missouri law, principles of res judicata bar a
claim if "a final judgment on the merits has been
rendered involving the same claim sought to be precluded in
the cause in question." Brown v. Simmons, 335
S.W.3d 481, 485 (Mo.Ct.App. 2010). "The dismissal of a
petition for failure to state a claim, without prejudice,
does not preclude a plaintiff from reasserting the claim
on new factual allegations." Bachman v.
Bachman, 997 S.W.2d 23, 25 (Mo.Ct.App. 1999) (emphasis
added). But Missouri law "does not . . . permit refiling
of a petition previously determined not to state a
claim." Id. at 26. In other words, a judgment
of dismissal for failure to state a claim, even without
prejudice, bars another trial court from considering a
subsequent petition when "the petition in the second
action was in all material respects the identical petition
which was previously dismissed for failure to state a
contends that res judicata does not bar her
substantive due process claim because the decision of the
state court of appeals affirmed a dismissal without
prejudice, and the Duffners attempted to amend their petition
during the state court proceeding. To be sure, when a
plaintiff suffers a dismissal without prejudice and then
elects not to plead further, the dismissal amounts
to an adjudication on the merits and precludes relitigation
of the claim that was dismissed. Mahoney v. Doerhoff
Surgical Servs., Inc., 807 S.W.2d 503, 506 (Mo. 1991).
But electing to plead further does not necessarily avoid
preclusion: even when a dismissal is without prejudice,
"the doctrine of res judicata precludes a plaintiff from
re-filing a petition that was dismissed for failing to state
a claim when it relies on the same substantial facts as those
previously alleged." Dunn v. Bd. of Curators of the
Univ. of Mo., 413 S.W.3d 375, 377 (Mo.Ct.App. 2013);
see Bachman, 997 S.W.2d at 25-26. Duffner's
unsuccessful attempt to amend her pleadings in state court,
therefore, does not avoid the bar of res judicata if
her claim in federal court merely repackages the same
petition that was previously dismissed in state court for
failure to state a claim.
argues that the federal court complaint "added dozens of
additional allegations to provide a factual basis" that
the ordinance is truly irrational, but a comparison of the
state court petition and the federal court complaint does not
bear out this assertion. The "additional
allegations" that Duffner cites either recharacterize
previously alleged facts, state or explain legal conclusions,
or provide facts irrelevant to the substantive due process
claim. The only new and pertinent factual allegation is that
a city official "stated as part of 'the City's
position' in regard to the Duffners' request for a
total exemption from the requirements of the Turf Grass
Mandate that the Duffners' plants are 'very
attractive and well kept,' and that 'there is a lot
of ground cover which is low to the ground and, therefore,
gives an appearance, height, and scale that is similar to
grass.'" But this allegation does not make the
complaint materially different from the state court petition.
There, the Duffners pleaded that their lawn was a
"well-tended garden full of flowers and ornamental
greenery" that "gives an appearance, height, and
scale similar to grass." The additional assertion that a
city official agreed with these facts is "a difference
which lacks substantive significance." Bachman,
997 S.W.2d at 26. The substantive due process claim raised in
federal court is therefore barred by res judicata.
argues alternatively that if the court does not declare the
turf grass requirement unconstitutional, then the
ordinance's penalty provision violates the Eighth
Amendment's prohibition against excessive fines and cruel
and unusual punishments. The City argues that this claim is
not ripe for review because no fines or penalties have been
assessed against Duffner.
determine whether a claim is ripe for judicial review, we
evaluate "(1) the fitness of the issues for judicial
decision and (2) the hardship to the parties of withholding
court consideration." Nat'l Park Hosp. Ass'n
v. Dep't of Interior, 538 U.S. 803, 808 (2003). In
United States v. Williams, 128 F.3d 1239 (8th Cir.
1997), this court held that a prisoner's Eighth Amendment
challenge to a restitution statute was not ripe, because he
did not assert that he had suffered or was about to suffer
the disputed punishment-i.e., imprisonment for
nonpayment of restitution obligations. Id. at 1242.
Williams relied on Cheffer v. Reno, 55 F.3d
1517 (11th Cir. 1995), which opined ...