# Blakeney v. City of Pine Lawn, Missouri

> District Court, E.D. Missouri · August 7, 2020

URL: https://www.frixlaw.com/law-library/cases/10233493

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** August 7, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10233493

## How later opinions describe it (automated extraction)

- noting that it was the mayor and city council of a fourth-class city who had “final authority on the police department’s policies”
- finding that local governments may be liable if the alleged constitutional violation is official policy or establish through a custom or usage
- applying Missouri law to a three fire chiefs’ claims of wrongful termination violating their due process rights

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

STEVE BLAKENEY, )
)
Plaintiff, )
)
v. ) Case No. 4:19-cv-02017-SNLJ
)
CITY OF PINE LAWN, MISSOURI, et al. )
)
Defendants. )

MEMORANDUM AND ORDER
This matter comes before the Court on twelve motions. Plaintiff’s first amended
complaint was filed midway between the myriad motions, mooting several of them
directed to a since-nullified complaint. See Thomas v. United Steelworkers Local 1938,
743 F.3d 1134, 1139 (8th Cir. 2014) (an amended complaint nullifies the original
complaint). As such, the following motions are DENIED AS MOOT: defendant City of
Pine Lawn’s motion to dismiss (ECF #40), defendant Missouri Public Entity Risk
Management Fund’s (“MOPERM”) motion to dismiss (ECF #45), defendants Anthony
Gray, Brian Krueger, and Donnell Smith’s motion to dismiss (ECF #48), defendants
Lashawn Colquitt, Willie Epps, Clarence Harmon, Paul Rinck, and John Struckhoff’s
motion to dismiss (ECF #53), and MOPERM’s substitute motion to dismiss (ECF #55).
That leaves the following motions to be decided: plaintiff’s motion to disqualify
judge (ECF #42), defendant City of Pine Lawn’s motion to dismiss (ECF #67),
defendants Gray, Krueger, and Smith’s motion to dismiss (ECF #69), defendant
MOPERM’s motion to dismiss (ECF #73), defendants Colquitt, Epps, Harmon, Rinck,
and Struckhoff’s motion to dismiss (ECF #80), defendant MOPERM’s motion for
sanctions (ECF #96), and defendant Donnell Smith & Associates, LLC.’s (“Smith &
Associates”) motion to dismiss (ECF #108).

I. BACKGROUND
Plaintiff, a former police officer for Pine Lawn, Missouri, brings more than 150
counts against Pine Lawn and various employees thereof alleging they retaliated against
him and worked to use the judicial process in their favor after he attempted to
whistleblow about various circumstances of corruption within Pine Lawn’s ranks. Before

this case was filed, plaintiff was convicted and sentenced in October 2016 to 51 months
in prison involving claims that he orchestrated the arrest of mayoral candidate Nakisha
Ford during a 2013 mayoral election. Prior to that, plaintiff was also terminated by
unanimous vote of the Pine Lawn Board of Alderman in December, 2014, allegedly
because he drugged or otherwise managed to incapacitate two women (one a police

officer) after meeting with them at a bar—both women having “woken up at [plaintiff’s
home” with “no memory” of what happened. Plaintiff says these events and outcomes,
among many others, were based on falsities perpetrated by the various defendants to
make plaintiff “look like a terrible person and a bad police officer.” In total, plaintiff says
he diligently tried to expose Pine Lawn’s mass corruption and paid the price for doing so

through a total destruction of his livelihood and reputation.
Plaintiff brings various counts to this effect, including whistleblowing, retaliation,
intentional infliction of emotional distress, several Section 1983 claims based on
provisions of the U.S. Constitution, invasion of privacy, abuse of process, malicious
prosecution, and civil conspiracy. Defendants have filed many motions to dismiss
arguing, similarly with each other, that sovereign immunity and the applicable statute of
limitations bar plaintiff’s claims. In addition, defendants attack the elements of plaintiff’s

claims or point to pleading deficiencies as further reason to dismiss them. In several
instances, plaintiff concedes that certain counts should be dismissed; but, many others
remain in dispute. The Court endeavors to address each of the many remaining arguments
below.
II. ANALYSIS

A. Plaintiff’s Motion to Disqualify Judge, ECF #42
The Court begins with plaintiff’s motion to disqualify. Plaintiff asserts that, in this
case, he is seeking “damages related to the sentence imposed by this Court,” which was
influenced by “false, misleading, and illegally/improperly offered [] evidence”
perpetrated by defendants. He alleges that “[t]his Court will likely be a material witness

in this proceeding.” He also points out how this Court, when imposing its sentence in the
underlying criminal matter, said “[Blakeney is] the one who has become a disgrace.”
None of these arguments suffice to justify disqualification. 28 U.S.C. § 455(a)
states that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify
himself in any proceeding in which his impartiality might reasonably be questioned.” A

“party introducing a motion to recuse carries a heavy burden of proof; a judge is
presumed to be impartial and the party seeking disqualification bears the substantial
burden of proving otherwise.” In Re Steward, 828 F.3d 672, 682 (8th Cir. 2016). A “party
is not entitled to recusal merely because a judge is ‘exceedingly ill disposed’ toward
them, where the judge’s ‘knowledge and the opinion it produced were properly and
necessarily acquired in the course of the proceedings.’” Id. (quoting Liteky v. United
States, 510 U.S. 540, 551 (1994)).

As it has already in a separate case, this Court’s comment about Blakeney being a
“disgrace” was “a comment related to Blakeney’s misconduct as a police officer” that
was “based solely on the evidence presented to this Court.” Blakeney v. United States,
4:19-cv-00079-SNLJ, ECF #32 (E.D. Mo. Aug. 2, 2019). If, from this case, the evidence
previously relied upon turns out to have been false or misleading as plaintiff now argues,

nothing in his motion even remotely hints at the impossibility for this Court to remain
impartial as to those revelations. Terse as his arguments are, plaintiff does nothing to
carry the “heavy burden of proof” his motion imposes. In Re Steward, 828 F.3d at 682.
Nor does plaintiff’s bald suggestion that “this Court will likely be a material witness”
require recusal. Those comments—taken alone and in the vacuum for which they were

argued in plaintiff’s brief—are self-serving, subjectively based, and nothing but
conjecture. Section 455(a) “establishes an objective standard” and “is not intended to give
litigants a veto power over sitting judges, or a vehicle for obtaining a judge of their
choice.” White v. National Football League, 585 F.3d 1129, 1138 (8th Cir. 2009)
(emphasis added). Plaintiff’s motion to disqualify is denied.
B. Defendant City of Pine Lawn’s Motion to Dismiss, ECF #67
Defendant City of Pine Lawn’s Rule 12(b)(6) motion notes 17 counts have been
filed against it.1 Through the briefing, plaintiff conceded that certain counts should be

legally dismissed, including Counts II, X, XI, and XVI. Those counts are so dismissed.
Another count, Count IV, contains strikethrough lines, fails to state a legally cognizable
claim (referred to simply as “Missouri Common Law”), and appears to be inadvertently
included in the complaint—certainly plaintiff does nothing to defend it. It will also be
dismissed. Many arguments have been made regarding the remaining 12 counts, but the

threshold issue of sovereign immunity takes center stage. The Court begins there.
i. State Sovereign Immunity Applicable to Plaintiff’s State Claims
Sovereign immunity “protects governmental entities from tort liability.” State ex
rel. Alsup v. Kanatzar, 588 S.W.3d 187, 190 (Mo. banc. 2019). It is the rule, rather than
the exception, Metro. St. Louis Sewer Dist. v. City of Bellefontaine Neighbors, 476

S.W.3d 913, 922 (Mo. banc. 2016), and as such “is not an affirmative defense but is part

1 For context, the counts include:
Count I—Missouri Common Law Whistleblower
Count II—Missouri Common Law Retaliation, Violation of State Constitution
Count III—Missouri Common Law Retaliation, Acting as a Witness
Count IV—Missouri Common Law
Count V—Intentional Infliction of Emotional Distress
Count VI—Violation of U.S. Constitution, Right to Free Speech (Section 1983)
Count VII—Violation of U.S. Constitution, Right to Freedom of Association (Section 1983)
Count VIII—Violation of U.S. Constitution, Right to Procedural Due Process (Section 1983)
Count IX—Violation of U.S. Constitution, 14th Amend. Right to Equal Protection (Section 1983)
Count X—Violation of 42 U.S.C. § 1981
Count XI—Violation of Privacy Act 5 U.S.C. §552a(b)
Count XII—Abuse of Process
Count XIII—Malicious Prosecution
Count XIV—Invasion of Privacy, Intrusion Upon Selection
Count XV—Invasion of Privacy, Publication of Private Facts
Count XVI—Whistleblower Act 2017
Count CLXX—Civil Conspiracy, Malicious Prosecution
of the plaintiff’s prima facie case.” St. John’s Clinic, Inc. v. Pulaski Cty. Ambulance
Dist., 422 S.W.3d 469, 471 (Mo. App. S.D. 2014) (compiling cases), cited approvingly in
Newsome v. Kansas City, Mo., 520 S.W.3d 769, 776 (Mo. banc. 2017). Accordingly,

“plaintiff must plead with specificity facts demonstrating his claim falls within an
exception to sovereign immunity.” Parish v. Novus Equities Co., 231 S.W.3d 236, 242
(Mo. App. E.D. 2007); Stat ex rel. City of Lee’s Summit v. Garrett, 568 S.W.3d 515, 519
(Mo. App. W.D. 2019) (accord); see also State ex rel. City of Kansas City v. Harrell, 575
S.W.3d 489, 492 (Mo. App. W.D. 2019) (to survive dismissal, petition must plead

specific facts that, taken as true, establish an exception to the rule of sovereign
immunity).
As applied to municipalities, sovereign immunity is not all-encompassing but is,
instead, limited in several respects. First, “municipalities are not provided immunity for
proprietary functions—those performed for the benefit or profit of the municipality as a

corporate entity.” Southers v. City of Farmington, 263 S.W.3d 603, 609 (Mo. banc.
2008). But, municipalities “are immune for government functions—those performed for
the common good.” Id. Second, sovereign immunity is statutorily waived for injuries
caused by the negligent operation of a motor vehicle by public employees and for injuries
caused by the dangerous conditions of public property, § 537.600.1(1)-(2) RSMo, as well

as when liability insurance is purchased to cover tort claims other than those just
described—though only in an amount of and for the purposes covered by the insurance
purchased. See § 537.610.1 RSMo; see also § 71.185 RSMo (liability insurance
purchased by municipalities to cover “tort liability for governmental acts”).
Plaintiff says immunity does not exist here both because Pine Lawn was engaged
in a proprietary function and because it purchased insurance covering his claims. Those
arguments are diametrically opposed, though. Proprietary functions are never immunized

and simply do not come under the purview of sovereign immunity, whereas insurance
acts as a waiver to otherwise applicable immunity. See, e.g., Gregg v. City of Kansas
City, 272 S.W.3d 353, 359 (Mo. App. W.D. 2008) (treating proprietary function and
insurance arguments in the disjunctive). This is seen specifically in Section 71.185,
which allows a municipality to carry liability insurance, and thus waive immunity, for

injuries “caused while in the exercise of [] governmental functions.” § 71.185.1, RSMo
(emphasis added); see also Southers, 263 S.W.3d at 609 (“municipalities are not provided
immunity for proprietary functions”). In any event, this Court assumes, arguendo, that
plaintiff makes these arguments in the alternative.
Regarding propriety function, plaintiff argues “the complaint more than

adequately plead (sic) claims that allow the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged,” suggesting he could add the “magic
words ‘proprietary function’” in a “single sentence” if this Court were truly concerned
about the sufficiency of his complaint. He goes on, “[t]here can be no public function []
attendant to intentionally thwarting justice, wrongfully terminating, defaming, wrongfully

accusing, and then incarcerating [him] for a crime he did not commit,” thus “[t]he
conduct [he alleges] against Pine Lawn can ONLY be interpreted as proprietary.”
That argument misses the mark. Foremost, plaintiff is required to “plead with
specificity facts which indicate that the City was engaged in a proprietary function.” State
ex rel. City of Lee’s Summit, 568 S.W.3d at 520 (emphasis added). Using the so-called
magic words of “proprietary function” is nothing more than injecting a legal conclusion
into the pleadings. Moreover, not every tort is a proprietary function. In evaluating

whether a particular function is governmental or proprietary, “a court must look to the
nature of the activity performed, not the nature of the tort.” Crouch v. City of Kansas
City, 444 S.W.3d 517, 523 (Mo. App. W.D. 2014) (internal citations omitted). Further,
the “particular defendant’s conduct and the motives behind it are less important than the
generic nature of the activity.” A.F. v. Hazelwood School Dist., 491 S.W.3d 628, 634

(Mo. App. E.D. 2016). So, plaintiff must demonstrate through specific factual allegations
that he was injured through Pine Lawn’s exercise of its corporate powers, viewed
broadly. See State ex rel. City of Kansas City, 575 S.W.3d at 493; Southers, 263 S.W.3d
at 609. In other words, he must demonstrate Pine Lawn was engaged in an activity “for
profit or for the special benefit of the municipality” that injured him. Bennartz v. City of

Columbia, 300 S.W.3d 251, 259 (Mo. App. W.D. 2009).
Plaintiff’s complaint provides a veritable mountain of facts emphasizing
particularized conduct and motives by Pine Lawn and its employees to build his claims,
but none of it can be generalized into an activity that would constitute a proprietary
function. The balance of his allegations revolves around employment-related concerns.

But, “[p]ersonnel decisions and the internal administration of operating a municipal
department” are government, not proprietary, functions. Id. (quoting Kunzie v. City of
Olivette, 184 S.W.3d 570, 574 (Mo. banc. 2006)). Thus, plaintiff’s claims for wrongful
discharge and constructive discharge, including when couched in terms of
whistleblowing and retaliation (Counts I and III), have “consistently been found to be
barred by sovereign immunity.” Id.; see also Brooks v. City of Sugar Creek, 340 S.W.3d
201, 206 (Mo. App. W.D. 2011) (termination of city police officer was government

function entitled to sovereign immunity even if alleged conduct by superiors was based
on personal motives to protect close friend of police chief). Similarly, plaintiff’s claim for
emotional distress (Count V) is tied to no specific activity that would constitute a
proprietary function—it belies logic to believe Pine Lawn, as a corporate entity, gains
profit or a special benefit from imposing emotional distress upon its employees. See

Duncan v. Creve Couer Fire Protection Dist., 802 S.W.2d 205, 207 (Mo. App. E.D.
1991) (sovereign immunity applied to claim for intentional infliction of emotional
distress). The same goes for plaintiff’s invasion of privacy, abuse of process, malicious
prosecution, and civil conspiracy (based on malicious prosecution) claims (Counts XII,
XIII, XIV, XV, CLXX)—all are derivative and do not reveal the proprietary function

plaintiff relies on. See Hazlett v. City of Pine Lawn, 2013 WL 4482864 at *2 (E.D. Mo.
Aug. 19, 2013); Burgett v. Kansas City Area Transp. Authority, 2013 WL 4027439 at *2
(W.D. Mo. Aug. 7, 2013); Smith v. New Liberty Hosp. Dist. of Clay Cty., 339 S.W.3d 573
(Mo. App. W.D. 2011) (per curiam); Fischer v. Steward, 2010 WL 147865 at *12 (E.D.
Mo. Jan. 11, 2010). In total, plaintiff’s claims—all tied to issues of personnel

management and internal administration of Pine Lawn Police Department—are either
incidental to a governmental function, or else fail to reveal (with specificity) the
independent corporate nature of Pine Lawn’s activities; certainly, his claims do not
comport with any traditional understanding of proprietary functions. See, e.g., Parish v.
Novus Equities Co., 231 S.W.3d 236 (Mo. App. E.D. 2007) (provision of water for
private use); Thomas v. City of Kansas City, 92 S.W.3d 92 (Mo. App. W.D. 2002)
(operation of drainage system); Larabee v. City of Kansas City, 697 S.W.2d 177 (Mo.

App. W.D. 1985) (demolition of private property); Davis v. City of St. Louis, 612 S.W.2d
812 (Mo. App. E.D. 1981) (street sweeping); St. Joseph Light & Power Co. v. Kaw
Valley Tunneling, Inc., 589 S.W.2d 260 (Mo. banc. 1979) (sewer construction).
Plaintiff’s alternative argument—that sovereign immunity was waived because of
the purchase of insurance—is made in a single sentence, repeated in most every claim,

which is simply that “Pine Lawn has a policy of insurance which provides coverage for
the conduct Plaintiff has alleged against Pine Lawn,” or that plaintiff “has procured
liability insurance [for] claims such as this.” It thus appears this argument was more of
an afterthought or a fall-back position that plaintiff tacitly concedes is tenuous. Indeed,
plaintiff offers no support for this position in any of the briefing other than the one

sentence itself and, instead, plaintiff relies almost exclusively on his failed argument that
the conduct in question was proprietary, not governmental.
The insurance exception to sovereign immunity is quite narrow, the extent of
which is “expressly dictated, and limited, by the terms of the insurance policy.” Topps v.
City of Country Club Hills, 272 S.W.3d 409, 415 (Mo. App. E.D. 2008). And “plaintiff

shoulders the burden of proving the existence of an insurance policy, and that the terms
of the policy cover the claims asserted by the plaintiff against the municipality.” Id. In
fact, because a lack of sovereign immunity is “part of the plaintiff’s prima facie case,” St.
John’s Clinic, Inc., 422 S.W.3d at 471, plaintiff is required—upfront—to “plead[] with
specificity those facts giving rise to an exception to sovereign immunity.” Hazelwood
School Dist., 491 S.W.3d at 633 (emphasis added).
Through 271 pages of allegations covering many months, many defendants, and

more than 150 counts, plaintiff simply concludes that the relevant defendant (in this case,
Pine Lawn) “has procured liability insurance” for “claims such as this.” It is difficult to
tell what concrete claims have formed from the sprawling list of allegations such that
they can be judged against the availability of insurance. In that regard, the roving nature
of plaintiff’s complaint makes it nearly impossible to tell what the relevant policy period

is and what the relevant incident or occurrence might be. Still, in Kunzie v. City of
Olivette, the Missouri Supreme Court was content with an allegation that “[plaintiff]
alleges that the city maintains liability insurance ‘to handle the consequences of
employment related actions brought against them.’” 184 S.W.3d 570, 574 (Mo. banc.
2006). How this meets the specificity requirement is, frankly, unclear—the hurdle

appears exceptionally low. In fact, more recent caselaw from the Missouri Court of
Appeals suggests that additional specificity is required. See, e.g., Hazelwood School
Dist., 491 S.W.3d at 635 (pleading allegation that school “has insurance[,] which
provides coverage for the incident in question” deemed insufficient where it was not tied
to the details of any particular incident covering many allegations of wrongdoing);

Hendricks v. Curator of Univ. of Mo., 308 S.W.3d 740, 747 (Mo. App. W.D. 2010)
(pleading allegation that “at all relevant times herein pertinent the Defendants … waived
the application of sovereign immunity in that [they were] covered by the [insurance]
plan” deemed a legal conclusion insufficient to avoid dismissal); see also McConnell v.
West Bend Mut. Ins. Co., -- S.W3d --, 2020 WL 2529019 at *7-8 (Mo. App. W.D. May
19, 2020) (allegations failing “to establish how coverage [] applie[d]” rendered allegation
“a legal conclusion, wholly lacking in supportive facts” that was insufficient “to preclude

dismissal”). Nonetheless, on the basis of Kunzie, plaintiff’s bare-bones allegations seem
to suffice, and it therefore behooves defendants to show—rather than simply tell—that
insurance coverage does not exist for plaintiff’s many claims. On the record before it, this
Court cannot determine whether the insurance waiver exception to sovereign immunity
applies against Pine Lawn.

All that said, the state law claims against Pine Lawn, save one, must still be
dismissed on the merits. That is because the underlying claims against individual
defendants, on which the claims against Pine Lawn are dependent, must be dismissed.
Pine Lawn is merely a body politic that relies on its “agents and servants … [to] act.”
State ex rel. State Highway Commission v. City of St. Louis, 575 S.W.2d 712, 719 (Mo.

App. E.D. 1978); see also Rail Switching Servs., Inc. v. Marquis-Missouri Terminal,
LLC., 533 S.W.3d 245, 255 (Mo. App. E.D. 2017). As will be explained, the claims
against the individual defendants either do not pass muster on the pleadings or plaintiff
has simply abandoned the individual defendant claims (in both their individual and
official capacities). Those state law claims against Pine Lawn will be dismissed in kind—

including Counts I, III, V, XII, XIII, XIV, and CLXX. See B.A.B., Jr. v. Bd. of Educ. of
City of St. Louis, 698 F.3d 1037, 1041 (8th Cir. 2012) (applying Missouri law and noting
official capacity suits are “equivalent to a suit against the government entity itself” and
personal capacity suits are suits against the individual); accord Kentucky v. Graham, 473
U.S. 159, 165 (1985). That leaves only Count XV, invasion of privacy, that will proceed
forward as it is parallel to Count CXVII against Colquitt (in his official capacity) that
also proceeds forward as explained below in Section D.iii.

ii. Monell Liability and Plaintiff’s Federal Claims
That leaves plaintiff’s remaining federal claims, which all come under 42 U.S.C. §
1983. These claims rely on the same conduct animating plaintiff’s state law claims—that
is, Pine Lawn’s purported retaliation against plaintiff affecting his employment. But,
plaintiff additionally notes an “unofficial policy or custom” by Pine Lawn to engage in

such acts, which is apparently an invocation of so-called Monell liability. See Monell v.
Dept. of Social Servs. of City of New York, 436 U.S. 658, 690-691 (1978) (finding that
local governments may be liable if the alleged constitutional violation is official policy or
establish through a custom or usage). He also asserts that various co-defendants were
“final policymakers,” thus using the magic words to invoke another angle of Monell

liability. See City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (Monell liability
also reaches “a decision on a single occasion” that may constitute “an unconstitutional
municipal policy” when made by final policymakers). Deriving from federal law, Monell
liability goes beyond a municipality’s state-granted immunities and must, therefore, be
considered independently of them. See Howlett By and Through Howlett v. Rose, 496
U.S. 356, 376 (1990); see also Webb v. City of Maplewood, 889 F.3d 483, 485-486 (8th

Cir. 2018).
Once again, however, plaintiff’s allegations are alarmingly terse. In alleging an
unofficial custom, plaintiff states: “Pine Lawn an (sic) unofficial custom or practice of
the type of conduct alleged in this count which has been shown through the repeated acts
of final policymakers including [] defendants Sylvester Caldwell, Anthony Gray, Brian
Krueger, and Donnell Smith.” This Court is not required to accept such conclusory

allegations as true. See Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). There is simply no
attempt by plaintiff to show a “continuing, widespread, and persistent pattern of
unconstitutional misconduct,” Bolderson v. City of Wentzville, Mo., 840 F.3d 982, 986
(8th Cir. 2016), and pointing solely to his own experiences, though it may show
continuity and/or persistence, fails to show that the alleged conduct was so widespread as

to have “the force of law.” Praprotnik, 485 U.S. at 127; see also Russell v. Hennepin
Cty., 420 F.3d 841, 849 (8th Cir. 2005) (widespread pattern of constitutional misconduct
not shown by plaintiff’s own circumstances alone); Diggs v. City of St. Louis, 2020 WL
1248653 at *2 (E.D. Mo. Mar. 16, 2020) (claims of retaliation against plaintiff related
only to his “individual experience” and did not exhibit a “widespread” custom of

whistleblowing retaliation).
And even when considering plaintiff’s final policymaker arguments, which might
allow “a single occasion” to “establish an unconstitutional municipal policy,” Praprotnik,
485 U.S. at 123, the conclusory nature of plaintiff’s allegations are laid bare when
considering, specifically, his claim that Caldwell, Gray, Krueger, and Smith are the so-

called “final policymakers” of Pine Lawn. He does not dispute that Pine Lawn is a fourth-
class city under Missouri law, which this Court has itself recently determined to be the
case. See Collins v. City of Pine Lawn, Mo., 2017 WL 1196477 at *5 (E.D. Mo. Mar. 31,
2017). And he does not deny that, in a fourth-class city, it is the “mayor and board of
aldermen,” collectively, who have “management and control of the city and its finances”
pursuant to § 79.110, RSMo. See Atkinson v. City of Mountain View, Mo., 709 F.3d 1201,
1206 (8th Cir. 2013) (noting that it was the mayor and city council of a fourth-class city

who had “final authority on the police department’s policies”); Copeland v. Locke, 613
F.3d 875, 882 (8th Cir. 2010) (“Under Missouri state law, the mayor and the board of
aldermen of a [Fourth Class City] are the final policymakers for the ‘good government of
the city [and] the preservation of peace and good order.’”). In fact, he seems to concede
Section 79.110 is applicable, but argues that “does nothing to vitiate Pine Lawn’s

liability.” That’s a curious stance however because, of Caldwell, Gray, Krueger, and
Smith, only Caldwell is actually implicated by Section 79.110—being the former mayor
of Pine Lawn—and he was only permitted a tie-breaking vote when the board of
aldermen were otherwise stalemated. See § 79.120, RSMo. Moreover, only “with the
consent of a majority of all members elected to the board of aldermen” is a mayor

permitted to “remove from office any appointive officer of the city.” § 79.240 RSMo.
Plaintiff’s “final policymaker” argument is, thus, specious at best. Indeed, plaintiff’s
complaint acknowledges that he was appointed by the board of aldermen to the position
of “Commander of Operations and Criminal Investigations” and that it was, ultimately,
their decision to remove him from that position. Therefore, it does not matter what

Caldwell, Gray, Krueger, or Smith did for purposes of his Monell claims—they are not
the final policymakers, here, and Pine Lawn cannot otherwise be held liable for their
conduct through respondeat superior. See Hamilton v. City of Hayti, Mo., 948 F.3d 921,
929 (8th Cir. 2020) (“a municipality may not be held liable under § 1983 for the
constitutional violations of its employees”). Plaintiff’s federal Section 1983 claims
(Counts VI, VII, VIII, and IX) fail.
C. Defendants Gray, Krueger, and Smith’s Motion to Dismiss, ECF #69

Defendants Gray, Krueger, and Smith track 52 claims against them in total.2 But,
they are the same standard formulations as those made against Pine Lawn—variations of
state law claims alleging wrongful discharge, invasion of privacy, abuse of process,
malicious prosecution and civil conspiracy, as well as various Section 1983 claims based
on the U.S. Constitution. This is made clear by plaintiff’s memorandum in opposition,

which frequently confuses Gray, Krueger, and Smith for Pine Lawn; many of the

2 The counts include:

Count XXXIV (Krueger), Count LIV (Smith), Count CXIX (Gray)—Mo. Law, Whistleblower
Count XXXV (Krueger), Count LV (Smith), Count CXX (Gray)—Mo. Law Retaliation, Violation of
State Constitution
Count XXXVI (Krueger), Count LVI (Smith), Count CXXI (Gray)—Mo. Law Retaliation, Acting as a
Witness
Counts XXXVIII & LII (Krueger), Count LVIII (Smith), Count CXXIII (Gray)—Intentional Infliction of
Emotional Distress
Count XXXIX (Krueger), Count LIX (Smith), Count CXXIV (Gray)—§ 1983, Free Speech
Count XL (Krueger), Count LX (Smith), Count CXXVI (Gray)—§ 1983, Freedom of Association
Count XLI (Krueger), Count LXI (Smith), Count CXXVII (Gray)—§ 1983, Procedural Due Process
Count XLII (Krueger), Count LXII (Smith), Count CXXVIII (Gray)—§ 1983, 14th Amend. Equal
Protection
Count XLIII (Krueger), Count LXIII (Smith), Count CXXIX (Gray)—§ 1981
Count XLIV (Krueger), Count LXIV (Smith), Count CXXX (Gray)—Privacy Act 5 U.S.C. §552a(b)
Count XLV (Krueger), Count LXV (Smith), Count CXXXI (Gray)—Abuse of Process
Count XLVI (Krueger), Count LXVI (Smith), Count CXXXII (Gray)—Malicious Prosecution
Count XLVIII (Krueger), Count LXVII (Smith), Count CXXXIII (Gray)—Invasion of Privacy, Intrusion
Upon Seclusion
Count XLIX (Krueger), Count LXVIII (Smith), Count CXXXIV (Gray)—Invasion of Privacy,
Publication of Private Facts
Count L (Krueger), Count LXIX (Smith), Count CXXXV (Gray)—Whistleblower Act 2017
Count LI (Krueger), Count CXXII (Gray)—Mo. Common Law, Unspecified
Count LIII (Krueger), Count LXX (Smith)—Intentional Interference with Economic Relationship
Count CLXIX (Krueger, Smith, and Gray)—Civil Conspiracy, Abuse of Process
Count CLXX (Krueger, Smith, and Gray)—Civil Conspiracy, Malicious Prosecution
arguments are nearly identical, if not completely identical, and even incorrectly address
the claims against Pine Lawn rather than those against defendants. As he did with Pine
Lawn, plaintiff concedes the counts alleging a violation of the 5 U.S.C. § 552a(b)—

Counts XLIV, LXIV, and CXXX—should be dismissed. Further, as this Court has
tracked the arguments, plaintiff only responded to a limited number of arguments
involving intentional infliction of emotional distress, violations of procedural due process
(§1983), abuse of process, malicious prosecution, and conspiracy (based on abuse of
process and malicious prosecution). He did not respond to defendants’ arguments made

against the following claims: state law whistleblowing (Counts XXXIV, LIV, CXIX),
retaliation (Counts XXXV, XXXVI, LV, LVI, CXX, CXXI), free speech under Section
1983 (Counts XXXIX, LIX, CXXIV), freedom of association under Section 1983
(Counts XL, LX, CXXVI), equal protection under Section 1983 (Counts XLII, LXII,
CXXVIII), Section 1981 claims (Counts XLIII, LXIII, CXXIX), invasion of privacy

(Counts XLVIII, XLIX, LXVII, LXVIII, CXXXIII, CXXXIV), “Whistleblowing Act
2017” (Counts L, LXIX, CXXXV), unspecified “Missouri common law” (Counts LI,
CXXII), or intentional interference with a business relationship (Counts LIII, LXX). The
failure to respond to arguments in a motion to dismiss constitutes an abandonment of
those claims. Thomas v. Walmart Stores, LLP., 2014 WL 117645 at *2 (E.D. Mo. Jan 13,

2014) (compiling cases). Those claims, therefore, are dismissed.
That leaves the following claims: (1) Counts XXXVIII, LII, LVIII, and CXXIII—
claims for intentional infliction of emotional distress; (2) Counts XLI, LXI, and
CXXVII—Section 1983 claims for violation of procedural due process; and (3) Counts
XLV, XLVI, LXV, LXVI, CXXXI, CXXXII, CLXIX, and CLXX—claims for malicious
prosecution, abuse of process, and conspiracy base on the same conduct. The arguments
against each of these categories are addressed below.

i. Adequacy of Plaintiff’s Intentional Infliction of Emotional Distress Claims
Defendants say the intentional infliction of emotional distress claims fail because
“nowhere in [the] First Amended Complaint does [it] allege that defendants[’] actions
resulted in plaintiff having emotional distress that is medically diagnosable or medically
significant.” Further, the complaint “does not allege that inflicting emotional distress on

plaintiff was the sole motivation of defendants.” Plaintiff points to paragraph 371, which
states he “suffers from PTSD from termination and the abuse he underwent in prison.”
Yet again, he also asks for “leave of court to amend the complaint to add the ‘magic
words’ in the counts” if this Court is inclined to agree with defendants.
“To recover for intentional infliction of emotional distress, a plaintiff must show

(1) the defendant's conduct was extreme and outrageous; (2) the defendant acted
intentionally or recklessly; and (3) the defendant's conduct caused extreme emotional
distress resulting in bodily harm.” Gillis v. Principia Corp., 111 F. Supp. 3d 978, 986
(E.D. Mo. 2015), aff'd, 832 F.3d 865 (8th Cir. 2016). The mental injury suffered must be
“medically diagnosable and significant.” Fetick v. American Cyanamid Co., 38 S.W.3d

415, 419 (Mo. banc. 2001); Rummans v. Chester Bross Constr. Co., 2018 WL 6981249 at
*1 (E.D. Mo. Dec. 3, 2018). Moreover, the alleged misconduct “must be intended only to
cause extreme emotional distress to the victim.” Gibson v. Brewer, 952 S.W.2d 239, 249
(Mo. banc. 1997). This narrowing—to conduct targeting only the imposition of emotional
distress—is intended to prevent an emotional distress claim from “swallowing” other,
“existing forms of recover.” K.G. v. R.T.R., 918 S.W.2d 795, 799 (Mo. banc. 1996).
Thus, when “a defendant’s conduct is intended to invade other legally-protected interests

of the plaintiff … damages for mental suffering are recoverable for those other
intentional tort claims,” with “the recovery for emotional distress [being] duplicative.”
Diehl v. Fred Weber, Inc., 309 S.W.3d 309, 322 (Mo. App. E.D. 2010).
Plaintiff’s failure to allege that defendants’ purported misconduct was the sole
cause of his emotional distress is dispositive. In each of the counts at issue, plaintiff does

nothing more than reincorporate the hundreds of preceding paragraphs in his complaint—
taking special note only to say, in conclusory fashion, that insurance has been procured
for each claim (so as to waive sovereign immunity). And in plaintiff’s other claims, he
repeatedly references the emotional distress that he suffered as part of his damages. Thus,
his emotional distress claims are not independent of his other claims, and he does nothing

to attempt to separate them by alleging what—if any—conduct defendants engaged in
that was solely targeted at causing his emotional distress. Rather, the totality of the
complaint makes clear that his emotional distress claims derive from his termination.
Having failed to allege any misconduct by defendants that was solely intended to cause
emotional distress, Gibson, 952 S.W.2d at 249, plaintiff’s emotional distress claims

(Counts XXXVIII, LII, LVIII, and CXXIII) must fail.
ii. Adequacy of Plaintiff’s Procedural Due Process Claims (Section 1983)
Defendants argue that “[w]hen asserting a due process claim under § 1983 … a
plaintiff must establish a property interest to which the Fourteenth Amendment applies.”
According to their brief, “police officers of fourth-class Missouri cities do not have a
property interest in their jobs.” Plaintiff counters by pointing to Section 84.120 RSMo,
which he says gives him a property interest in his employment. Alternatively, he vaguely

points to “policies, ordinances, and regulations” that provide him “specific rights of due
process.” Finally, he says “public employees plainly [have] a property interest in
continued employment” citing Cleveland Bd. of Educ. of Loudermill, 470 U.S. 532
(1985).
Plaintiff’s first two arguments have already been rejected in a recent decision by

this Court. See Collins v. City of Pine Lawn, 2017 WL 878035 at *8 (E.D. Mo. Mar. 6,
2017). Section 84.120 does not apply to fourth-class cities such as Pine Lawn, but instead
applies only to St. Louis and Kansas City. Id. Moreover, as an appointive officer of a
fourth-class city, plaintiff is an at-will employee without a property interest in his
continued employment. § 79.240, RSMo.; see also Margiotta v. Christian Hosp.

Northeast Northwest, 315 S.W.3d 342, 345-346 (Mo. banc. 2010). Nothing about Pine
Lawn’s “policies or customs override the at-will presumption.” Crews v. Monarch Fire
Protection Dist., 771 F3d 1085, 1091 (8th Cir. 2014) (applying Missouri law to a three
fire chiefs’ claims of wrongful termination violating their due process rights); Collins,
2017 WL 878035 at *8 (accord). Nor does plaintiff identify “[an] ordinance that creates

any such right.” Collins, 2017 WL 878035 at *8. And as an “employee at will,” plaintiff
simply has “no property interest in his [] employment and [was] not entitled to procedural
due process upon [his] termination.” State ex rel. Lupo v. City of Wentzville, 886 S.W.2d
727, 731 (Mo. App. E.D. 1994) (police officers of fourth-class city could be removed for
any reason, or no reason, and had no procedural due process rights before termination).
Loudermill does not change this result—it supports it. The Supreme Court made

clear that “[p]roperty interests are not created by the Constitution, they are created and
their dimensions are defined by existing rules or understandings that stem from an
independent source such as state law.” 470 U.S. at 538. Thus, the Missouri Supreme
Court, in discussing Loudermill, has looked specifically to a police officer’s due process
rights as provided by “statute, ordinance, or [] contract.” Belton v. Bd. of Police Com’rs

of Kansas City, 708 S.W.2d 131, 137 (Mo. banc. 1986). As contrasted to this case, Belton
shows when a police officer does possess certain due process rights; in that case, the
plaintiff was a police officer for Kansas City, which by statute permits removal “only for
cause.” Id. (citing § 84.600, RSMo). Plaintiff, comparatively, is not protected by “for
cause” termination mandates. Compare § 84.600 RSMo ("[h]aving served at least six

months' probationary service … such policemen … shall be appointed to the police force
of [Kansas City] and shall thereafter be subject to discharge or removal only for cause”);
with § 79.240, RSMo ("[t]he mayor may, with the consent of a majority of all the
members elected to the board of aldermen, remove from office any appointive officer of
the city at will”). Lacking a property interest in his employment, plaintiff’s due process

claims (Counts XLI, LXI, and CXXVII) must fail.
iii. Adequacy of Plaintiff’s Malicious Prosecution, Abuse of Process, and
Conspiracy Claims
Defendants say plaintiff’s malicious prosecution claims, including the conspiracy
claims based thereon, are time-barred by § 516.140, RSMo. The parties agree that the
statute of limitations period for malicious prosecution claims is two years and that

plaintiff’s claims would ordinarily be stale by the time he filed his initial complaint.
However, plaintiff says defendants are equitably estopped from asserting the limitations
period because defendants “actively hid[], secreted, or fraudulently concealed evidence.”
He explains how “defendants manufactured and hid evidence only to produce documents
when it [was] convenient, such as at sentencing hearings.”

According to plaintiff’s own complaint, he was convicted and sentenced on
October 6, 2016. By that time, all supposedly hidden information used to maliciously
prosecute him was known to him. Yet, he did not file his initial complaint until July 16,
2019—well beyond the two-year limitations period under Section 516.140. And even to
the extent it could be said that defendants hid (and continues to hide) exonerating

information, plaintiff would have been aware of the factual basis for that information
given his own, personal involvement in the circumstances leading up to his conviction.
See Channawood Holdings, LLC. v. 1209 Washington, LLC., 333 S.W.3d 480, 488 (Mo.
App. E.D. 2010) (“One cannot set up another's act or conduct as the ground of an
estoppel when he knew or had the same means of knowledge as the other to the truth.”).

More importantly, though, plaintiff cannot show a key element of his claim: a favorable
result in his favor in the underlying action; rather, he was convicted, sentenced to prison,
and served his time. A “malicious prosecution’s favorable-termination requirement is
rooted in pragmatic concerns with avoiding parallel criminal and civil litigation over the
same subject matter and the related possibility of conflicting civil and criminal
judgements.” McDonough v. Smith, 139 S.Ct. 2149, 2156-2157 (2019). The “requirement
likewise avoids allowing collateral attacks on criminal judgments through civil

litigation.” Id. at 2157. Thus, “to permit a convicted criminal defendant to proceed with a
malicious prosecution claim would permit a collateral attack on the conviction,” which
simply is not allowed by federal or state law. Heck v. Humphrey, 512 U.S. 477, 484
(1994); Anton v. Police Retirement Sys. of St. Louis, 925 S.W.2d 900, 906 (Mo. App.
E.D. 1996) ("[I]f a conviction is obtained, there is generally no cause of action for

malicious prosecution of the criminal case because an essential element of the tort is that
the case alleged to have been wrongfully prosecuted be terminated in the plaintiff's
favor."); Moffett v. Commerce Trust Co., 283 S.W.2d 591, 602 (Mo. 1955) (accord). His
claims, therefore, are not only time-barred—they fail on the elements. Counts XLVI,
LXVI, CXXXII, and CLXX will be dismissed.

The result is no different for plaintiff’s abuse of process claims. The elements for
abuse of process include an “illegal, improper, perverted use of process,” done “for an
improper purpose,” which resulted in damages. Impey v. Clithero, 553 S.W.3d 344, 349
(Mo. App. W.D. 2018). Plaintiff cursorily alleges defendants “made an illegal, improper,
perverted use of process” to secure his incarceration. But, the complaint fails to explain—

anywhere—how the underlying criminal case was being used for an ulterior purpose to
benefit the defendants (i.e. how process was being abused). A lawsuit “confined to its
regular and legitimate function” is not an abuse of process “even if [the accused] had an
ulterior motive in bringing the action.” Instead, there must be some “collateral purpose”
for which the lawsuit is then used to effectuate an illegal and improper harm upon
plaintiff. Wells v. Orthwein, 670 S.W.2d 529, 532 (Mo. App. E.D. 1984). The Missouri
Supreme Court points out a classic example of abuse of process where an otherwise

legitimate civil suit had been filed and was then used as a threat to extort money from an
opponent. Moffett, 283 S.W.2d at 599-600. Here, nowhere is it explained in the complaint
how, first, defendants themselves were in control of the process (i.e. the criminal suit) so
as to have the initial ability to abuse it or, second, how they then used that process (while
pending) to impose some form of unfair leverage or extortion over plaintiff. “Mere

allegations that defendants maliciously commenced a [criminal] suit [does] not satisfy
[the] pleading requirement[s].” Viehweg v. Taylor, 797 F.Supp. 751, 752 (E.D. Mo.
1992); see also Moffett, 283 S.W.2d at 602 (bad-faith initiation of suit “indicates a
situation more in the nature of malicious prosecution than abuse of process,” as there is
not showing in that action alone of a discrete action to abuse process). Having failed to

identify any improper use of process, plaintiff’s claims for abuse of process (Counts
XLV, LXV, CXXXI, and CLXIX) must fail.
D. Defendants Colquitt, Epps, Harmon, Rinck, and Struckhoff’s Motion to
Dismiss, ECF #80

Defendants Colquitt, Epps, Harmon, Rinck and Struckhoff track 81 claims against
them in total.3 Again, they are the same standard formulations as those made against

3 The counts include:

Count LXXI (Epps), Count LXXXVII (Harmon), Count CIII (Colquitt), Count CXXXVI (Rinck), and
CLII (Struckhoff)—Mo. Law, Whistleblower
Count LXXII (Epps), Count LXXXVIII (Harmon), Count CIV (Colquitt), Count CXXXVII (Rinck), and
CLIII (Struckhoff)—Mo. Law Retaliation, Violation of State Constitution
defendants Pine Lawn and Gray, Krueger, and Smith—variations of state law claims
alleging wrongful discharge, invasion of privacy, abuse of process, malicious prosecution
and civil conspiracy, as well as various Section 1983 claims based on the U.S.

Constitution. Many of the arguments in plaintiff’s memorandum in opposition are nearly,
if not completely, identical. As he did in response to the other defendants’ motions,
plaintiff concedes the counts alleging a violation of the 5 U.S.C. § 552a(b)—Counts
LXXXI, XCVII, CXIII, CXLVI, and CLXIII—should be dismissed. He also concedes the
wrongful-termination-related claims should be dismissed, including those against Epps

(Counts LXXI, LXXII, LXXIII, LXXIV, LXXVI, LXXVII, LXXVIII, LXXIX, LXXXI,

Count LXXIII (Epps), Count LXXXIX (Harmon), Count CV (Colquitt), Count CXXXVIII (Rinck), and
CLIV (Struckhoff)—Mo. Law Retaliation, Acting as a Witness
Count LXXIV (Epps), Count XC (Harmon), Count CVI (Colquitt), Count CXXXIX (Rinck), and CLV
(Struckhoff)—Missouri Common Law
Count LXXV (Epps), Count XCI (Harmon), Count CVII (Colquitt), Count CXL (Rinck), and CLVI
(Struckhoff)—Intentional Infliction of Emotional Distress
Count LXXVI (Epps), Count XCII (Harmon), Count CVIII (Colquitt), Count CXLI (Rinck), and CLVII
(Struckhoff)—§ 1983, Free Speech
Count LXXVII (Epps), Count XCIII (Harmon), Count CIX (Colquitt), Count CXLII (Rinck), and CLVIII
(Struckhoff)—§ 1983, Freedom of Association
Count LXXVIII (Epps), Count XCIV (Harmon), Count CX (Colquitt), Count CXLIII (Rinck), and CLIX
(Struckhoff)—§ 1983, Procedural Due Process
Count LXXIX (Epps), Count XCV (Harmon), Count CXI (Colquitt), Count CXLIV (Rinck), and CLX
(Struckhoff)—§ 1983, 14th Amend. Equal Protection
Count LXXX (Epps), Count XCVI (Harmon), Count CXII (Colquitt), Count CXLV (Rinck), and CLXI
(Struckhoff)—§ 1981
Count LXXXI (Epps), Count XCVIII (Harmon), Count CXIII (Colquitt), Count CXLVI (Rinck), and
CLXIII (Struckhoff)— Privacy Act 5 U.S.C. §552a(b)
Count LXXXII (Epps), Count XCVIII (Harmon), Count CXIV (Colquitt), Count CXLVII (Rinck), and
CLXIV (Struckhoff)—Abuse of Process
Count LXXXIII (Epps), Count XCIX (Harmon), Count CXV (Colquitt), Count CXLVIII (Rinck), and
CLXV (Struckhoff)—Malicious Prosecution
Count LXXXIV (Epps), Count C (Harmon), Count CXVI (Colquitt), Count CXLIX (Rinck), and CLXVI
(Struckhoff)—Invasion of Privacy, Intrusion Upon Seclusion
Count LXXXV (Epps), Count CI (Harmon), Count CXVII (Colquitt), Count CL (Rinck), and CLXVII
(Struckhoff)—Invasion of Privacy, Publication of Private Facts
Count LXXXVI (Epps), Count CII (Harmon), Count CXVIII (Colquitt), Count CLI (Rinck), and
CLXVIII (Struckhoff)—Whistleblower Act 2017
Count CLXX (Epps, Harmon, Colquitt, Rinck, and Struckhoff)—Civil Conspiracy, Malicious Prosecution
LXXXVI), Harmon (Counts LXXXVII, LXXXVIII, LXXXIX, XC, XCII, XCIII, XCIV,
XCV, XCVIII, CII), Colquitt (Counts CIII, CIV, CV, CVI, CVIII, CIX, CX, CXI, CXIII,
CXVIII), Rinck (Counts CXXVI, CXXVII, CXXVIII, CXXXIX, CXLI, CXLII, CXLIII,

CXLIV, CXLVI, CLI), and Struckhoff (Counts CLII, CLIII, CLIV, CLV, CLVII,
CLVIII, CLIX, CLX, CLXIII, CLXVIII).
In their initial briefing, both parties appear to have overlooked plaintiff’s Section
1981 wrongful termination / retaliation claims, and this Court is reluctant to allow
defendants to raise arguments for the first time in their reply. See Maritz Holdings, Inc. v.

Cognizant Technology Solutions U.S. Corp., 2019 WL 6910051 at *5, n. 6 (E.D. Mo.
Dec. 19, 2019) (recognizing trial courts “do not generally consider new arguments raised
in a reply brief”). However, in support of other, similar claims, plaintiff’s memorandum
in opposition did make reference to his complaint allegation that his discrimination
theory was based on the fact that “City Attorney Smith [] told Director Gray that ‘white’

supervisors had always been a problem in the Department,” which plaintiff says “clearly
and explicitly describes disparate treatment based on race.” Even with this assertion in
mind, a review of the remainder of the complaint reveals no further factual allegations
supporting the idea that Colquitt, Epps, Harmon, Rinck and Struckhoff—themselves—
were personally involved in any discriminatory act that resulted in plaintiff’s termination.

See Ajiwoju v. Cottrell, 2005 WL 1026702 at *2 (W.D. Mo. May 2, 2005) (dismissing
claims under Section 1981 where complaint failed to allege any acts of discrimination on
the part of specific defendants to show their personal involvement). To the contrary, as
was explained earlier in this Order, only the board of alderman were permitted to
removed Blakeney from his appointive office—and there is no allegation, nor reasonable
inference to be made, that they did so because of racial discrimination. See § 79.240,
RSMo. Plaintiff’s Section 1981 claims (Counts LXXX, XCVI, CXII, CXLV, and CLXI)

will be dismissed.
That leaves the following claims: (1) Counts LXXV, XCI, CVII, CXL, and
CLVI—claims for intentional infliction of emotional distress; (2) Counts LXXXII,
XCVIII, CXIV, CXLVII, and CLXIV—Abuse of Process; (3) Counts LXXXIII, XCIX,
CXV, CXLVIII, and CLXV—Malicious Prosecution; (4) Counts LXXXIV, C, CXVI,

CXLIX, and CLXVI—Invasion of Privacy, Intrusion Upon Seclusion; (5) Counts
LXXXV, CI, CXVII, CL, CLXVII—Invasion of Privacy, Publication of Private Facts;
and (6) Count CLXX—Civil Conspiracy, Malicious Prosecution. The arguments against
each of these categories are addressed below.
i. Adequacy of Plaintiff’s Intentional Infliction of Emotional Distress
Claims

Defendants, here, have joined in the arguments of Gray, Krueger, and Smith. This
Court concluded that “[p]laintiff’s failure to allege that defendants’ purported misconduct
was the sole cause of his emotional distress is dispositive” and “[having failed to alleged
any misconduct by defendants that was solely intended to cause emotional distress,” such
claims must be dismissed. The same result applies here. Accordingly, Counts LXXV,
XCI, CVII, CXL, and CLVI are dismissed.
ii. Adequacy of Plaintiff’s Abuse of Process and Malicious Prosecution
Claims, Including those Based in Conspiracy
Once again, defendants, here, have joined in the arguments of Gray, Krueger, and
Smith. Again, this Court concluded that plaintiff’s malicious prosecution claims are time-
barred under § 516.140, RSMo, and fail on their elements by failing to demonstrate a

favorable result in plaintiff’s favor in the underlying action. Further, plaintiff’s abuse of
process claims failed to show how “defendants themselves were in control of the process
[allegedly abused] or [that] they then used that process [] to impose some form of unfair
leverage or extortion over plaintiff.” The same result applies here. Accordingly, Counts
LXXXII, XCVIII, CXIV, CXLVII, and CLXIV (Abuse of Process), LXXXIII, XCIX,

CXV, CXLVIII, and CLXV (Malicious Prosecution), and CLXX (Civil Conspiracy,
Malicious Prosecution) are dismissed.
iii. Adequacy of Plaintiff’s Invasion of Privacy Claims—Intrusion Upon
Seclusion and Publication of Private Fact

Defendants say plaintiff has not alleged that they, themselves, published a private
matter of plaintiff meant to shame or humiliate him, and thus the publication of private
fact claims must fail on its elements. Further, defendants say that, while they “were in
possession of his medical records and those records were accessed by a third party
through unreasonable means,” they should not be “held liable for the unreasonable
actions of a third party” for purposes of plaintiff’s intrusion upon seclusion claim.
Plaintiff confuses defendants for co-defendants Krueger, Smith, and Gray, who he argues
were in possession of “personnel matters” that “disclosed” to the public.
Each invasion-of-privacy-related count asserts that “[t]here existed private and

secret subject matter including [plaintiff’s] medical records and personnel file” and that
plaintiff “had the right to keep the aforementioned subject matter private from third-
parties,” which was obtained by a third party “through unreasonable means.” The
complaint’s factual allegations clarify it was “Colquitt [and] Krueger [that] sent

[plaintiff’s] medical and personnel information to members of the public, including
[plaintiff’s] ex-wife under direct supervision of Mayor Caldwell.”
The parties’ arguments gloss over the nuance between a claim for intrusion upon
seclusion and a claim for unreasonable publicity to another’s private life. Three elements
encompass a claim for intrusion upon seclusion: “(1) the existence of a secret and private

subject matter; (2) a right in the plaintiff to keep that subject matter private; and (3) the
obtaining by the defendant of information about that subject matter through unreasonable
means.” St. Anthony's Med. Ctr. v. H.S.H., 974 S.W.2d 606, 609–10 (Mo. App. E.D.
1998). Whereas, the elements of an unreasonable publicity given to another’s private life
include: “(1) publication or publicity; (2) absent any waiver or privilege; (3) of private

matters in which the public has no legitimate concern; (4) so as to bring shame or
humiliation to a person of ordinary sensibilities.” Id.
There is no factual allegation asserting that the medical and personnel records
were somehow obtained through unreasonable means by defendants—nor was that
process described. Plaintiff’s conflating of the operative terms “publishing” and

“obtaining” is fatal to his intrusion upon seclusion claims. Id. (plaintiff could not
maintain intrusion upon seclusion claim against hospital based on its release of medical
records to patient’s wife where hospital did not unreasonably “obtain” records, but rather
obtained them in the ordinary course of business—publication not being an element of
the tort). The intrusion upon seclusion claims will, therefore, be dismissed (Counts
LXXXIV, C, CXVI, CXLIX, and CLXVI).
That leaves the unreasonable publicity claims. Only Colquitt is alleged in the

complaint to have personally published a private matter. Though the complaint is
inconsistent in asserting whether it was Colquitt or Krueger, Smith, and Gray who
published his medical and personnel information, defendants’ memorandum is still
somewhat inaccurate to suggest that “plaintiff makes no allegations whatsoever against
defendants [Colquitt, Epps, Harmon, Rinck and Struckhoff].” The claim against Colquitt

will proceed, for now, in view that defendants’ memorandum does not embrace or
acknowledge the specific claim that Colquitt, himself, published private facts (Count
CXVII). That said, there are certainly no allegations of publication made against Epps
and Rinck; therefore, the unreasonable publicity claims against them will be dismissed
(Counts LXXXV and CL). Harmon, meanwhile, is alleged to have “obtained [a] closed

police investigation report” at the direction of an unnamed “Pine Lawn official” that
“Pine Lawn released [] to the press in violation of the law.” Again, confusing Pine
Lawn’s publication of the police report with Harmon’s obtaining of it is fatal to the
unreasonable publicity claim against Harmon, which will be dismissed (Count CI).
Finally, Struckhoff is alleged to have provided plaintiff’s “ex-wife various department

information about [plaintiff] … during [his] child custody hearings.” The complaint
seems to suggest these records were not disclosed at the direction of any particular court
order or proceeding but were instead personally delivered to plaintiff’s ex-wife and/or her
attorney. The “hand-deliver[y] [of] personal documents to [plaintiff’s] ex-wife’s house”
(allegations in the complaint) is not, however, the sort of “publication” envisioned by the
tort, which encompasses “public disclosure [to] the general public” at large, not one
individual. St Anthony Med. Ctr., 974 S.W.2d at 610-611 (hospital’s delivery of medical

records to wife’s attorney did not “constitute publication as required in an action for
public disclosure of private facts”). Accordingly, the unreasonable publicity claim against
Struckhoff will also be dismissed (Count CLXVII).
E. Defendant Donnell Smith & Associates, LLC.’s Motion to Dismiss, ECF #108
Smith & Associates is treated as a distinct defendant, separate and apart from

Smith individually, on only one occasion. The complaint raises a single count against
Smith & Associates for civil conspiracy to commit malicious prosecution (Count CLXX).
“[T]he fact of conspiracy is not actionable,” rather “the action sounds in tort and is in the
nature of an action on the case upon the wrong done under the conspiracy alleged.”
Envirotech, Inc. v. Thomas, 259 S.W.3d 577, 586 (Mo. App. E.D. 2008). Here, as

explained, the underlying abuse of process and malicious prosecution claims are rejected
(see Sections C.iii, D.ii). Therefore, the conspiracy claim must also fail. Id. (“If the
underlying wrongful act alleged as part of a civil conspiracy fails to state a cause of
action, the civil conspiracy claim fails as well.”). Count CLXX will be dismissed as
against Smith & Associates.
F. Defendant MOPERM’s Motion to Dismiss, ECF #73
The complaint raises two claims against defendant Missouri Public Entity Risk
Management Fund (“MOPERM”). MOPERM is sued for alleged civil conspiracy to

commit an abuse of process (Count CLXIX) and malicious prosecution (Count CLXX).
Once again, civil conspiracy is not actionable when the underlying wrongful act has
already failed as a cause of action. See Thomas, 259 S.W.3d at 586. The underlying cause
of action has failed; accordingly, the conspiracy claims must also fail (see Sections C.iii,
D.ii). Counts CLXIX and CLXX will be dismissed as against MOPERM.

G. Defendant MOPERM’s Motion for Sanctions, ECF #96
In its final motion, MOPERM seeks sanctions against plaintiff arguing “plaintiff’s
counsel has never had a factual basis to assert that MOPERM has insurance that covers
the claims plaintiff is attempting to bring.” As such, MOPERM says plaintiff violated
Rule 11(b)’s requirement that an attorney “certifies that to the best of [their] knowledge,

information, and belief” the “factual contentions have evidentiary support” or “will likely
have evidentiary support after a reasonable opportunity for further investigation or
discovery.” FED. R. CIV. P. 11(b)(3). In essence, MOPERM takes issue with plaintiff’s
refusal to withdraw his claims against MOPERM after it provided an affidavit indicating
it had no insurance to waive sovereign immunity and, further, offered to provide a

witness for deposition to that effect.
At this time, the Court will not order sanctions. This Court agrees that it is
exceedingly rare to see MOPERM sued in tort—in fact, beyond this case, no other
caselaw appears to support such a tactic. But, as this Court explained above, the Missouri
Supreme Court seems to allow relatively terse pleadings about the insurance waiver
exception to sovereign immunity on the understanding that plaintiff, when drafting his or
her complaint, may not have access to the relevant policy. See Kunzie, 184 S.W.3d at

574. While MOPERM has indicated to plaintiff by letter that “MOPERM has no
insurance coverage for the claims asserted against it” (emphasis added), the
“interpretation of an insurance policy is a question of law.” Argonaut Great Central Ins.
Co. v. Lincoln County, Mo., 952 F.3d 992, 995 (8th Cir. 2020). There is no suggestion
MOPERM has ever outright declared to plaintiff that an insurance policy simply does not

exist for tort-related claims, and plaintiff is not required to accept MOPERM’s legal
conclusions at face value. This Court does not find the type of “litigant misconduct”
required for Rule 11 sanctions. Franklin v. Pinnacle Entertainment, Inc., 289 F.R.D. 278,
288 (E.D. Mo. Dec. 28, 2012) (quoting Kirk Capital Corp. v. Bailey, 16 F.3d 1485, 1490
(8th Cir. 1994)).

III. CONCLUSION
As the foregoing has explained, only two count survives: Count CXVII against
Colquitt for publication of private facts and the concordant Count XV against Pine Lawn.
Every other claim will be dismissed.
Accordingly,

IT IS HEREBY ORDERED that the following motions are DENIED AS
MOOT: defendant Pine Lawn’s motion to dismiss (ECF #40), defendant MOPERM’s
motion to dismiss (ECF #45), defendants Gray, Krueger, and Smith’s motion to dismiss
(ECF #48), defendants Colquitt, Epps, Harmon, Rinck, and Struckhoff’s motion to
dismiss (ECF #53), and MOPERM’s substitute motion to dismiss (ECF #55).
IT IS FURTHER ORDERED that plaintiff’s motion to disqualify judge (ECF

#42) is DENIED.
IT IS FURTHER ORDERED that defendant Pine Lawn’s motion to dismiss
(ECF #67) is GRANTED IN PART and DENIED IN PART. Count XV shall proceed.
All other relevant counts are hereby DISMISSED.
IT IS FURTHER ORDERED that defendant Gray, Krueger, and Smith’s motion

to dismiss (ECF #69) is GRANTED. All relevant counts are hereby DISMISSED.
IT IS FURTHER ORDERED that defendant MOPERM’s motion to dismiss
(ECF #73) is GRANTED. All relevant counts are hereby DISMISSED.
IT IS FURTHER ORDERED that defendant Colquitt, Epps, Harmon, Rinck, and
Struckhoff’s motion to dismiss (ECF #80) is GRANTED IN PART and DENIED IN

PART. Count CXVII against Colquitt shall proceed. All other relevant counts are hereby
DISMISSED.
IT IS FURTHER ORDERED that defendant MOPERM’s motion for sanctions
(ECF #96) is DENIED.
IT IS FURTHER ORDERED that defendant Donnell Smith & Associates,

LLC.’s motion to dismiss (ECF #108) is GRANTED. All relevant counts are hereby
DISMISSED.
So ordered this 7th day of August 2020.

/ SER Z Z sgl Lid. LL
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

35

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10233493. Public record. Not legal advice.