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Case: 4:14-cv-02055-HEA Doc.

#: 33 Filed: 05/08/15 Page: 1 of 12 PageID #: 359

UNITED STATES DISTRICT COURT OF THE


EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SAM FERRY,
RICHARD SIMPSON, and
MICHELLE TYLER,
Plaintiffs,
v.
DIANNE CRITCHLOW, et al.
Defendants,

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Cause No. 4:14-cv-02055 HEA

DEFENDANT BURNS MEMORANUM IN SUPPORT OF MOTION TO DISMISS


COMES NOW Defendant Angela Burns (hereinafter referred to as Burns), by and
through counsel, and pursuant to Fed. R. Civ. P. 12, hereby requests this Court to dismiss
Plaintiffs Amended Complaint based upon the failure to state a claim. In support of this request,
Burns states as follows:
I.

BACKGROUND
On February 3, 2014, Plaintiffs Sam Ferry, Richard Simpson, and Michelle Tyler

(Plaintiffs) filed a Petition in the Circuit Court of Jefferson County, State of Missouri. On or
about November 14, 2014, Plaintiffs filed a First Amended Petition in the Circuit Court of
Jefferson County. On March 20, 2015, Burns filed a Motion to Dismiss. (Doc. 24) On April 29,
2015, in response to Burns Motion to Dismiss, Plaintiffs filed their Amended Complaint. (Doc.
No. 29)
The Amended Complaint contains two separate counts. In Count I, Plaintiffs allege a
claim pursuant to Sections 1983 and 1985 and the First and Fourteenth Amendments against

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Defendants Dianne Critchlow, Jamie Critchlow, Dan Baker, Angela Burns, and William Brengle.
In Count II, Plaintiffs allege a defamation claim against Defendants Dianne and Jamie Critchlow.
Since the Amended Complaint still fails to state any claim against Burns, all claims
against Burns must be dismissed with prejudice.
II.

LEGAL STANDARD
The notice pleading standard of Federal Rule of Civil Procedure 8(a)(2) requires a

plaintiff to give a short and plain statement plausibly suggesting that the pleader is entitled to
relief. Bell Atlantic v. Twombly, 550 US 544, 557 (2007). Under this standard, a claim is
facially plausible where the pleaded factual content allows the court to draw a reasonable
inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 120 S.Ct.
1937, 1940 (2009). [W]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, a plaintiffs obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. Twombly, 550 U.S. at 555. The Iqbal Court then
expanded the reach of Twombly holding that all federal civil complaints must contain more than
an unadorned, the-defendant-unlawfully-harmed-me accusation. Iqbal, slip op. at 14. Thus,
application of this standard suggests a two-step analysis under which the Court may first
determine (1) whether there are factual allegations in the complaint sufficient to entitle the
plaintiff to the assumption of truth, and if so, (2) a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief. Iqbal, 120 S.Ct. at
1950.
When ruling on a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure
to state a claim, the Court does not accept as true any allegation that is a legal conclusion. Iqbal,

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120 S.Ct. at 1949-1950. If the claims are only conceivable, not plausible, the complaint must be
dismissed. Twombly, 550 U.S. at 570.
The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is to test the
legal sufficiency of a complaint so as to eliminate those actions which are fatally flawed in their
legal premises and designed to fail, thereby sparing litigants the burden of unnecessary pretrial
and trial activity. Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001). A complaint
must be dismissed for failure to state a claim if it does not plead enough facts to state a claim to
relief that is plausible on its face. Twombly, 550 U.S. at 560. Furthermore, a complaint will not
suffice if it tenders naked assertions devoid of further factual enhancement. Iqbal, 556 U.S. at
678.
For the reasons set forth before, Plaintiffs Amended Complaint must be dismissed.

III.

LEGAL ANALYSIS
On April 29, 2015, the Plaintiffs filed a Response to Burns Motion to Dismiss. Plaintiffs

simultaneously filed an Amended Complaint. The Amended Complaint essentially adds four (4)
new paragraphs to the previously filed petition. (Amended Complaint, 15-18).
In reviewing Plaintiffs Response to the Motion to Dismiss and Amended Complaint, it is
unclear what is being alleged against Burns. The documents imply that the claim against Burns
is based upon a conspiracy to retaliate against the Plaintiffs. Since the Amended Complaint does
not clearly state any claim against Burns, this motion will address both potential claims that may
be included in Count I of the Amended Complaint; more specifically, a First Amendment
retaliation claim pursuant to Section 1983 and a claim for conspiracy to interfere with civil rights
pursuant to Section 1985.

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A.

SECTION 1983 CLAIM

In Count I Plaintiffs Amended Complaint, the Plaintiffs are plausibly alleging a First
Amendment retaliation claim against all of the Defendants, including Burns. As previously
noted, the Complaint contains very little in the way of allegations made against Burns.
To establish a prima facie case of First Amendment retaliation, a plaintiff must show: (1)
that he or she engaged in constitutionality protected conduct; (2) that the defendant took adverse
action against him that would chill a person of ordinary firmness from continuing in the activity;
and (3) that the adverse action was motivated in part by the plaintiffs exercise of his
constitutional rights. Scheffler v. Molin, 743 F.3d 619, 621 (8th Cir. 2014).
Courts note that it would trivialize the First Amendment to hold that harassment for
exercising the right of free speech was always actionable no matter how unlikely to deter a
person of ordinary firmness from that exercise. See Naucke v. City of Park Hills, 284 F.3d 923,
928 (2002).
In the Amended Complaint, the Plaintiffs did not allege any new conduct specific to
Burns compared to the previously filed petition. The allegations against Burns, excluding the
allegations of conspiracy, remain the same. Plaintiffs allege that there is an IP address registered
to Angela Burns for use at the home address of Burns and Baker. (Amended Complaint, 45)
Plaintiffs further allege that Burns and Baker used their home IP address to post comments on
the website. (Amended Complaint, 53). The Petition quotes one comment that the Plaintiffs
allege came from the home IP address of Burns and Baker. The publication provides:
It is amazing how people believe complete nut jobs! Cant believe people would listen
to that one crazy guy with the weird eye. I know him from Boy Scouts and he says some
really strange things that do not sound right. I am pretty sure he has a close where he
hangs up newspaper clippings of board members and wears clown make up while cutting
up teddy bears. That guy is crazy!

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(Petition, 62(h))
The Complaint further alleges that the post was made by Burns and Baker, and was
specific to Plaintiff Simpson. (Amended Complaint, 58(h)) The rest of the Complaint is
devoid of any specific allegations against Burns. Outside of the one identified publication, the
Complaint does not allege any additional conduct or acts done by Burns against the Plaintiffs. In
fact, a majority of the Complaint alleges that inappropriate comments were posted by Defendants
Dianne and Jamie Critchlow, and that those comments were specific to the Plaintiffs.
A review of the Complaint reveals that Plaintiffs Ferry and Tyler did not specifically
plead a First Amendment retaliation claim against Burns. Rather, Plaintiffs Ferry and Tyler
attempt to plead a Section 1985 conspiracy claim against Burns. (Amended Complaint, 60, 61)
Therefore, the sole First Amendment retaliation claim brought against Burns is on behalf of
Plaintiff Simpson.
As required by the legal standard, this Court must assume Burns made the post, and that
the post had some relation to Plaintiff Simpson.1 The real issue before this Court is whether a
single post on a website is an adverse action that would chill a person of ordinary firmness
from continuing in the activity. Courts have routinely held that conduct which is much more
excessive than that alleged of Burns is not actionable. Therefore, Plaintiff Simpsons claim
against Burns that his constitutional rights were violated based upon a post on an internet forum
concerning him must be dismissed.
In Evenstad v. Herberg, the plaintiff brought suit against state officials and employees for
alleged violations of his First Amendment rights. Evenstad v. Herberg, 994 F.Supp.2d 995 (D.
Minn. 2014). The defendants filed a motion to dismiss claiming that the plaintiff failed to state a
1

Burns denies posting any comments about any of the Plaintiffs. This will be addressed in a
future dispositive motion, if necessary.
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proper claim against the defendants. Id. at 999. The court noted that the plaintiff properly stated
a claim against some of the defendants, whose alleged conduct included confiscating documents
from him, refusing medical treatment, and putting him in personal isolation.

Id. at 1001.

However, the court also found that the plaintiff did not state a claim against one of the
defendants who allegedly made a threatening statement to him. Id. More specifically, one
defendant made the statement that Well be ramping things up to the plaintiff. Id. The court
held that the statement to the plaintiff was not an adverse action and was not sufficiently
threatening to chill a person of ordinary firmness from continuing a protected activity, and
therefore, dismissed the retaliation claim against the specific individual that made the comment.
Id.
In Scheffler v. Molin, a citizen filed suit against a city building inspector alleging
violations of his First Amendment rights. Scheffler v. Molin, 743 F.3d 619 (8th Cir. 2014). The
citizen argued that his First Amendment rights were violated when the defendant retaliated
against him by yelling at him, calling him a criminal, and calling the police when the citizen
was attempting to exercise his First Amendment right of speech and his right to petition the
government for redress of grievances. Id. at 620-621. The court determined that the defendant
did not violate the citizens First Amendment right, noting that the citizen did not experience any
concrete consequences. Id. at 622. The Court further noted that although the conduct may
have been disrespectful, it did not violate any First Amendment rights. Id.
In Naucke v. City of Park Hills, supra, plaintiffs brought suit against the city and city
administrator alleging retaliation for exercise of free speech rights. Naucke, 284 F.3d at 923.
The plaintiff alleged that the defendants retaliated against her exercise of free speech rights by
conducting a public audit of an association while she was the president of the association,

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publicly scolding her at city council meetings, engaging in public name calling, posting a picture
of her house in a public place with a negative caption, and circulating a letter with a negative
inference. Id. at 927. The court held that the actions alleged against the defendants were not
sufficiently egregious to chill a person of ordinary firmness from continuing in that
constitutionally protected activity. Id. at 928.
Finally, in Zutz v. Nelson, members of a district board sued the defendants for a First
Amendment retaliation claim. Zutz v. Nelson, 601 F.3d 842 (2010). Specifically, the plaintiffs
alleged that the defendants falsely contended that the plaintiffs engaged in various illegal and
improper acts. Id. at 846.

The court held that although defamatory statements may have

damaged the reputation of plaintiffs, such reputational damage was insufficient to chill a person
of ordinary firmness from engaging in the protected activity. Id at 849.
Furthermore, the Plaintiffs do not allege any conduct that could be considered similar to
the conduct that was analyzed in the cases cited by the Plaintiffs. There certainly was no action
or conduct done to impede Plaintiffs access to the courts, See Van Whye v. Reisch, 581 F.3d 639,
658 (8th Cir. 2009), no denial of privileges or worsening of any working conditions, See Spencer
v. Jackson Cnty. Mo., 738 F.ed 907, 911 (8th Cir. 2013), and Plaintiffs were not subject to any
disciplinary reports and/or the confiscation and/or destruction of personal property. See Jordan
v. Hall, 2015 WL 928871 (E.D.Mo. March 4, 2015).
The above cases all involve situations in which there was some overt act and/or statement
made directly to the plaintiffs in each respective case for which the courts determined such
actions and/or statements were not an adverse action that would chill a person of ordinary
firmness from engaging in the protected activity. In the matter before this Court, the Plaintiffs
do not allege any overt act and/or statement done or made by Burns towards the Plaintiffs.

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Based upon a review of the Amended Complaint, it is clear that the Plaintiffs are not
alleging that:

Burns regulated the Plaintiffs speech;

Burns suppressed the Plaintiffs speech;

Burns restricted the Plaintiffs speech;

Burns implemented any rule, regulation, practice, and/or policy to deprive the
Plaintiffs of the ability to exercise their First Amendment rights;

Burns took any action to attempt to restrict the Plaintiffs speech;

Burns threatened them in any manner; or

that the Plaintiffs were forced to encounter concrete consequences as a result


of their speech.

In fact, there was no communication directed towards Plaintiffs, and more specifically, to
Plaintiff Simpson. There has been no action against Simpson and there certainly have not been
any threats against Plaintiff Simpson by Burns. Based upon the allegations, there is no way that
the one publication on a website chat room can be construed as an adverse action that would chill
a person of ordinary firmness from continuing in the activity. If a satirical comment, without
anything else, is considered an adverse action that would chill a person of ordinary firmness from
exercising his or her rights, the courts would be flooded with litigation.
In addition, the Plaintiffs fail to satisfy the third element of the claim as the Petition fails
to properly allege that any adverse action was motivated in part by the Plaintiffs exercise of
his/her constitutional rights. Rather, the Petition merely contains naked assertions devoid of
further factual enhancement.

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As a result, Plaintiffs Section 1983 First Amendment retaliation claim against Burns
must be dismissed.
B.

SECTION 1985 CLAIM

Plaintiffs second claim, and arguably only claim, alleged against Burns is a claim for
conspiracy to interfere with civil rights pursuant to Section 1985.
42 U.S.C. 1985 is titled Conspiracy to interfere with civil rights, and states, in
pertinent part:
(3) Depriving persons of rights or privileges. If two or more persons in any State or
Territory conspire or go in disguise on the highway or on the premises of another, for the
purpose of depriving either directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges and immunities under the laws; or for
the purpose of preventing or hindering the constituted authorities of any State or Territory
from giving or securing to all persons within such State or Territory the equal protection
of the laws; ... in any case of conspiracy set forth in this section, if one or more persons
engaged therein do, or cause to be done, any act in furtherance of the object of such
conspiracy, whereby another is injured in his person or property, or deprived of having
and exercising any right or privilege of a citizen of the United Sates, the party so injured
or deprived may have an action for the recovery of damages occasioned by such injury or
deprivation, against any one or more of the conspirators.
42 U.S.C. 1985(3).
In order to state a claim under 1985, a plaintiff must allege that: (1) the defendants
conspired, (2) for the purpose of depriving any person or class of persons of equal protection of
the laws, or of equal privileges and immunities under the laws, that (3) one or more of the
conspirators did or caused to be done any act in furtherance of the conspiracy, and (4) as a result,
another was injured in his person or property or deprived of having and exercising any vital
privilege of a citizen.

Dubray v. Rosebud Housing Authority, 565 F.Supp. 462, 466

(D.S.D.1983) (citing Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971)); Criswell v. City of
OFallon, MO., 2007 WL 1760744 at **4-5 (E.D. Mo. June 15, 2007).

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It is well settled that conclusory allegations of a conspiracy are insufficient to state a


claim under 1985. Rollen v. Coates, 2009 WL 2391970 (E.D. Mo. Aug. 3, 2009) quoting
Dubray, 565 F.Supp. at 466. Rather, [t]here must be some showing of facts to support a
conspiracy claim. Id. See also Alton v. Faerber, 2009 WL 2235913 at *2 (E.D. Mo. Jul. 27,
2009)(To properly plead a claim for civil conspiracy under 1983, a plaintiff must include
factual allegations showing a meeting of the minds concerning unconstitutional conduct,
although an express agreement between the purported conspirators need not be alleged, there
must be something more than the summary allegation of a conspiracy before such a claim can
withstand a motion to dismiss.). Conspiracy allegations must be supported by material facts,
not conclusory statements. Criswell v. City of OFallon, MO., 2007 WL 1760744 at **4-5 (E.D.
Mo. June 15, 2007).
In the Amended Complaint, Plaintiffs fail to assert specific facts establishing a
conspiracy claim against Burns.

Plaintiffs suggest that the conspiracy between all of the

Defendants involved the following acts: cyber-bullying, threats of baseless and costly litigation,
and threats to family members. (Amended Complaint, 17). However, Plaintiffs Complaint
plainly states that the alleged threat of baseless and costly litigation was done at the request of
Defendants Dianne Critchlow and Dan Baker. (Amended Complaint, 40). It is worth noting
that the alleged threats are letters from a law firm advising each plaintiff that they have a right to
speak at meetings, but voiced concern over the defamatory statements and/or statements made by
the Plaintiffs of carrying out physical harm. Regardless, Burns had no involvement with such
letters. Furthermore, the alleged threat towards family members was alleged to be done at the
request of Defendants Dianne Critchlow and Dan Baker. (Amended Complaint, 30). As to this
claimed act, it is worth nothing that the alleged threat was purported to be made by a third party,

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who is not a party to the lawsuit, to a family member of the plaintiff, also not a named party in
the lawsuit. The remaining allegations in the Amended Complaint simply suggest that Burns
conspired with the other Defendants to make posts on the internet, without any additional
information or facts. Obviously, on the face of the Complaint, other than a general statement of
a conspiracy, there is nothing that is alleged involving Burns.
Additionally, a conspiracy claim under Section 1985 also involves proof of a class-based
animus. Federer v. Gephardt, 363 F.3d 754, 758 (quoting Griffin v. Breckenridge, 403 U.S. 88,
102 (1971). The language requiring intent to deprive [another] of equal protection, or equal
privileges and immunities, means that there must be some racial, or perhaps otherwise classbased, invidiously discriminatory animus behind the conspirators action. Id. at n. 3.
In Plaintiffs Amended Complaint, Plaintiffs do not allege invidious discrimination or
any deprivation of the equal protection of the laws, or equal privileges and immunities.
Therefore, not only does the Amended Complaint fail to state anything specific to Burns, it also
fails to properly plead a conspiracy claim.
Plaintiffs fail to allege facts sufficient to state a claim under 1985 against Burns, as the
Plaintiffs merely assert conclusory statements, rather than material facts. In fact, Plaintiffs only
allege conclusory statements concerning Burns, which are then followed by reference to
numerous comments allegedly posted by Defendants Dianne and Jamie Critchlow, which have
nothing to do with Burns. There is no factual allegation concerning Burns that she was involved
in any conspiracy. Thus, to the extent a Section 1985 claim is pled against Burns, such claim
must be dismissed.

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CONCLUSION
For the foregoing reasons, Defendant Angela Burns hereby request this Court grant her
Motion to Dismiss, that the Court dismiss any and all claims against Defendant Angela Burns,
and grant such other and further relief as the Court deems just and proper.

ENGELMEYER & PEZZANI, LLC


/s/ Anthony M. Pezzani
by:

_____________________________
Anthony M. Pezzani, #52900MO
tony@epfirm.com
13321 North Outer Forty, #300
Chesterfield, MO 63017
Phone: 636-532-9933
Fax: 314-863-7793
ATTORNEY FOR DEFENDANTS BURNS

CERTIFICATE OF SERVICE
The undersigned counsel hereby certifies that on this 8th day of May, 2015, the foregoing
was served electronically via the Courts electronic filing system upon all parties of record.

/s/ Anthony M. Pezzani

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