Anzaldua v. Northeast Ambulance and Fire Protection District et al

Filing 49

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's Motion for Leave to File First Amended Complaint [ECF No. 29 ] is GRANTED in part, and DENIED in part. In accordance with the Court's discussion herein, Plaintiff is granted lea ve to file a First Amended Complaint asserting Counts I (42 U.S.C. Section 1983 Violation of Anzaldua's First Amendment Right to Free Speech) and II (Conspiracy to Violate Anzaldua's Constitutional Rights Cognizable Under 42 U.S.C. § ; 1983) as pleaded in the proposed First Amended Complaint [ECF No. 29-1]. Plaintiff is denied leave to file a First Amended Complaint asserting Counts III (Anzaldua's Cause of Action Under 18 U.S.C. § 2707 Against Defendants Farwell and W elge) and IV (Anzaldua's Cause of Action Under Section 537.525 of the Missouri Revised Statutes Against Defendants Farwell and Welge), as amendment would be futile. IT IS FURTHER ORDERED that Counts III and IV of Plaintiff's First Amend ed Complaint [ECF No. 29-1] are DISMISSED, with prejudice. IT IS FURTHER ORDERED that, in accordance with the Court's discussion and rulings herein, Plaintiffs Motion to Reconsider Memorandum and Order Dated October 21, 2013 (Doc. 15), Alternat ively, Motion for Leave to Amend Complaint [ECF No. 18 ] is GRANTED, in part. IT IS FURTHER ORDERED that Plaintiff shall file his amended complaint, in accordance with the Court's discussion herein, within ten (10) days of the entry of this Order. (Amended/Supplemental Pleadings due by 2/15/2014.). Signed by District Judge E. Richard Webber on February 5, 2014. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

STEVON ANZALDUA,
Plaintiff,
vs.
NORTHEAST AMBULANCE and
FIRE PROTECTION DISTRICT, et al.
Defendants.

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Case No. 4:13CV01257 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiff’s Motion for Leave to File First Amended
Complaint [ECF No. 29], and Plaintiff’s Motion to Reconsider Memorandum and Order Dated
October 21, 2013 (Doc. 15), or Alternatively, Motion for Leave to Amend Complaint [ECF No.
18].
I.

BACKGROUND
On July 2, 2013, Plaintiff Stevon Anzaldua (“Plaintiff”) filed a Complaint against

Northeast Ambulance and Fire Protection District (“Fire District”); Fire District Board of
Directors Derek Mays, ClarenceYoung, and Bridget Quinlisk-Dailey, in their official capacities
(collectively referred to as “Board”); Board Directors Robert Lee and Derek Mays, in their
individual capacities; Fire District Fire Chief Quinten Randolph, individually and in his official
capacity; Fire District Battalion Chief Kenneth Farwell, individually and in his official capacity;
and individual Kate Welge [ECF No. 1]. In his Complaint, Plaintiff alleged his employment with
Fire District was terminated on September 26, 2012, as a result of a conspiracy among the
defendants. In Count I, Plaintiff brought a claim pursuant to 42 U.S.C. § 1983, alleging the
termination violated his First Amendment right to free speech, against Defendants Lee, Mays,

Quinlisk-Dailey, Randolph, and Farwell (“Fire District Defendants”). Under Count II, Plaintiff
sued Fire District, Fire District Defendants, and Defendant Welge for conspiracy to violate his
constitutional rights, cognizable under 42 U.S.C. § 1983. In Counts III and IV, Plaintiff also
alleged Farwell and Welge violated federal and state computer privacy laws.
Fire District Defendants filed a Motion to Dismiss on August 26, 2013. On October 21,
2013, this Court granted, in part, Fire District Defendants’ Motion to Dismiss [ECF No. 15]. In
its Order, the Court dismissed with prejudice Counts II, III, and IV of Plaintiff’s Complaint, for
failure to state a claim. The Order also dismissed with prejudice Plaintiff’s claims brought
against individual defendants in their official capacities, and Plaintiff’s cause of action for
municipal liability against Fire District, contained in Count I of his Complaint. Because no
claims remained against Fire District, the Order dismissed the district from the action.
Additionally, the Order dismissed, as abandoned, any due process claims asserted by Plaintiff in
his Complaint, and dismissed with prejudice all claims against Defendants Clarence Young,
Bridget Quinlisk-Dailey and Quinten Randolph. The Court denied, in part, Fire Defendants’
Motion to Dismiss, finding Count I of Plaintiff’s Complaint sufficiently alleged colorable claims
against Lee, Mays, and Farwell, in their individual capacities, to survive a dismissal motion.
Plaintiff then filed “Plaintiff’s Motion to Reconsider Memorandum and Order Dated
October 21, 2013 (Doc.15), or Alternatively, Motion for Leave to Amend Complaint” on October
28, 2013 [ECF No. 18]. In his Motion asking the Court to reconsider its dismissal with prejudice
of Fire District and Randolph as parties, and of Counts II, III, and IV in their entirety, Plaintiff,
noted he was thus prevented from amending his Complaint to state claims for relief, and
requested leave to file an amended complaint. Plaintiff argued justice required that he be granted
permission to amend his Complaint to address the deficiencies identified in the Court’s Order,

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because the Court did not find any amendment would be futile, only that there were insufficient
factual allegations to support plausible claims for relief.
On November 27, 2013, the Court issued a Memorandum and Order, holding Plaintiff’s
Motion to Reconsider in abeyance, pending Plaintiff’s submission of a proposed amended
complaint [ECF No. 28]. Subsequently, Plaintiff timely filed the present motion, seeking leave
to file his proposed Amended Complaint [ECF Nos. 29, 29-1]. Defendants Farwell, Lee, Fire
District, and Randolph filed a Memorandum in Opposition to Plaintiff’s Motion; and Plaintiff
filed a Reply [ECF Nos. 38, 44].
Plaintiff’s First Amended Complaint is brought against Fire District; Welge; and
defendants Lee, Mays, Randolph and Farwell, in their individual capacities [ECF No. 29-1]. The
Complaint asserts four claims: Count I – 42 U.S.C. Section 1983 Violation of Anzaldua’s First
Amendment Right to Free Speech (against Fire District, Lee, Mays, Randolph, and Farwell);
Count II – Conspiracy to Violate Anzaldua’s Constitutional Rights Cognizable under 42 U.S.C. §
1983 (against Lee, Mays, Randolph, and Farwell); Count III – Anzaldua’s Cause of Action under
18 U.S.C. § 2707 Against Defendants Farwell and Welge; and Count IV – Anzaldua’s Cause of
Action under Section 537.525 of the Missouri Revised Statutes Against Defendants Farwell and
Welge.
II.

LEGAL STANDARD
Plaintiff moves, pursuant to Fed. R. Civ. P. 15(a)(2) and this Court’s November 27, 2013,

Order, for leave of the Court to file his First Amended Complaint. Rule 15 provides that a party
may amend its pleading once as a matter of course within twenty-one days of serving it; or, if the
pleading is one that requires a response, within twenty-one days after service of a responsive
pleading or twenty-one days after service of certain motions. Fed. R. Civ. P. 15(a)(1).

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Otherwise, a party may amend its pleading only if the opposing party consents in writing, or if
the Court grants leave to amend. Fed. R. Civ. P. 15(a)(2). “The court should freely give leave
when justice so requires.” Fed. R. Civ. P. 15(a)(2).
However, courts may deny motions for leave to amend when the Amended Complaint
cannot withstand a motion to dismiss, when amendment is futile, when the pleading does not
present at least colorable grounds for relief, or when the proposed amended pleading advances a
claim or defense that is legally insufficient on its face. See Williams v. Little Rock Mun. Water
Works, 21 F.3d 218, 225 (8th Cir. 1994); Holloway v. Dobbs, 715 F.2d 390, 392-93 (8th Cir.
1983).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotations and citation omitted). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. Ordinarily, only the facts alleged in
the complaint are considered for purposes of a motion to dismiss; however, materials attached to
the complaint may also be considered in construing its sufficiency. Reynolds v. Dormire, 636
F.3d 976, 979 (8th Cir. 2011).
When ruling on a motion to dismiss, a court “must liberally construe a complaint in favor
of the plaintiff[.]” Huggins v. FedEx Ground Package Sys., Inc., 592 F.3d 853, 862 (8th Cir.
2010). However, if a claim fails to allege one of the elements necessary to recovery on a legal
theory, that claim must be dismissed for failure to state a claim upon which relief can be granted.
Crest Constr. II, Inc. v. Doe, 660 F.3d 346, 355 (8th Cir. 2011). “Threadbare recitals of a cause
of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678; Bell

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Atlantic v. Twombly, 550 U.S. 544, 555 (2007). Although courts must accept all factual
allegations as true, they are not bound to take as true “a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555 (internal quotations and citation omitted).
III.

DISCUSSION
As stated above, the Court determined in its October 21, 2013 Order that the Section

1983 First Amendment violations alleged against Lee, Mays, and Farwell, in their individual
capacities, were sufficient to survive a dismissal motion. Thus, Plaintiff’s original Complaint
still asserts these claims in its remaining count. In its November 27, 2013 Order, the Court
permitted Plaintiff the opportunity to cure the deficiencies identified in its original filing, and
ordered him to submit a proposed amended complaint for the Court’s consideration.
In their Memorandum in Opposition to Plaintiff’s Motion for Leave to Amend
Complaint, Defendants claim Plaintiff’s proposed changes in his First Amended Complaint fail
to remedy the defects of his original Complaint, and they argue his motion should be denied
because, as a matter of law, the proposed amendment is futile. For purposes of Plaintiff’s
motion, the Court accepts as true the well-pleaded allegations contained in the First Amended
Complaint, and construes them in the light most favorable to Plaintiff.
A.

Plaintiff’s § 1983 Violation of Free Speech claims against Fire District

The First Amended Complaint’s first count asserts a Section 1983 violation of Plaintiff’s
First Amendment right to free speech against Fire District, Lee, Mays, Farwell, and Randolph, in
their individual capacities.
A public employee asserting a claim of unlawful First Amendment retaliation must show
he suffered an adverse employment action that was causally connected to his participation in a
protected activity. Dahl v. Rice Cnt’y, Minn., 621 F.3d 740, 744 (8th Cir. 2010). Under 42

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U.S.C. § 1983, municipal entities ordinarily are not vicariously liable for the unconstitutional acts
of their employees; however, a governmental entity may be held liable if the employee proves
that its policy or custom was the “moving force” behind the action. Id.
In the October 21st Order, the Court dismissed Plaintiff’s cause of action for municipal
liability under § 1983, finding the original Complaint identified no official policy that was
unconstitutional on its face or as implemented, or that played a role in his termination, and
concluding Plaintiff’s Complaint failed to allege sufficiently the three requirements of an
unconstitutional custom claim. See Ware v. Jackson Cnty., Mo., 150 F.3d 873, 880 (8th Cir.
1998) (differentiating between claims based on policy and those based on custom).
As in his original pleading, the First Amended Complaint identifies no official policy.
Consequently, the Court must examine the amended pleading to determine whether the First
Amended Complaint otherwise sufficiently alleges the existence of a claim, based either on
policy, or on municipal custom or practice.
As pertinent to this determination, the First Amended Complaint [ECF No. 29-1] alleges
as follows. The Board has final policymaking authority for Fire District, and has the authority to
hire and retain Fire District employees. Plaintiff was hired by Fire District in January of 2008 as
a paramedic, and later worked as a paramedic and firefighter. Plaintiff faithfully performed his
duties until his discharge by Fire District, Lee, Mays, Randolph, and Farwell on September 26,
2012, after the Board found he had circulated an email to Ms. Elizabeth Holland, a reporter with
the St. Louis Post-Dispatch, regarding problems and issues at the Fire District that have a
negative impact on public health and safety. Prior to Plaintiff’s termination, Fire District “had
been issued and accused of” numerous violations by the state Health Department, including, but
not limited to, the expiration of its license to possess and administer controlled substances.

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Plaintiff contends, in April 2012, Fire District, through Lee, Mays, Randolph, and
Farwell, began to harass Plaintiff in retaliation for Plaintiff expressing, as a private citizen,
certain opinions and facts about problems at Fire District, including, but not limited to,
complaining that the ambulances did not have the supplies needed to respond adequately to calls,
and that Farwell, the District’s Chief Medical Officer, was incompetent. On August 31, 2012,
the newspaper ran a story written by Ms. Holland entitled “Northeast Fire District is Grilled Over
Mishandling State Drug Paperwork,” which, among other things, reported the expiration of Fire
District’s license to possess and administer controlled substances.
On September 13, 2012, Plaintiff claims he received a notice of hearing from Randolph to
appear before the Board regarding the August 23, 2012 email Plaintiff sent to Ms. Holland and
the newspaper. Plaintiff alleges Randolph suspended him until the September 24, 2012 hearing.
Randolph provided Plaintiff with written notice of his termination, effective immediately, on
September 24, 2012. Plaintiff argues the August 23, 2012 email was the only reason for his
termination from his employment. The retaliation against Plaintiff included, but was not limited
to, placing Plaintiff on extended probationary status, suspending him, and ultimately terminating
his employment.
Unconstitutional custom claims require plaintiffs to show: 1) the existence of a
continuing, widespread, persistent pattern of unconstitutional misconduct by the municipality’s
employees; 2) deliberate indifference to, or tacit authorization, after notice of the unconstitutional
misconduct, by the municipality’s policymaking officials; and 3) the custom was the moving
force behind the alleged misconduct. Ware, 150 F.3d at 880.
Fire District Defendants argue Plaintiff’s proposed First Amended Complaint still fails to
allege an unconstitutional custom or practice [ECF No. 38]. The Court agrees. As in his original

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Complaint, Plaintiff has alleged no previous incidents or complaints where Fire District punished
employees for protected speech made as private citizens. Furthermore, the First Amended
Complaint’s allegations do not show deliberate indifference to the unconstitutional misconduct,
or tacit authorization by Fire District’s policymaking officials after notice of the misconduct.
Consequently, the Court finds Plaintiff’s First Amended Complaint fails to allege sufficiently the
three requirements for an unconstitutional custom claim asserted against a municipality under 42
U.S.C. § 1983.
However, Plaintiff claims his First Amended Complaint sufficiently alleges a municipal
liability claim in accordance with Monell v. Dept’ of Soc. Serv., 436 U.S. 658 (1978), because the
amended pleading asserts that the Board, which had final policymaking authority for Fire
District, terminated him because he exercised his right to free speech, and that Randolph and
Farwell participated in this constitutional deprivation [ECF No. 44 at 4-5]. Plaintiff contends a
policy can be inferred from this single decision taken by the Board, as it is the highest authority
responsible for setting Fire District policy in employment decisions, and he argues that the
Board’s termination of him for engaging in free speech is enough to impose municipal liability
against Fire District. See Dahl, 621 F.3d at 743 (governmental entity may be held liable if
plaintiff proves its policy or custom was moving force behind constitutional violation; policy can
be inferred from single decision taken by highest officials responsible for setting policy in that
area of entity’s business). The Court concludes the proposed amendment of Count I is not futile.
Liberally construing the First Amended Complaint in favor of Plaintiff, the Court finds Count I
contains sufficient factual matter, accepted as true, to state a facially plausible claim for relief
against Fire District.

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B.

Plaintiff’s § 1983 claims against Randolph

In the Court’s October 21, 2013 Order, the Court dismissed defendant Randolph from the
action, because the Complaint made no specific allegation against him, and it failed to allege
Randolph played any role in the investigation, or the termination decision [ECF No. 15 at 11].
The Court determined Randolph’s status as Fire District Chief, and his writing of the termination
letter, were not enough to allow a reasonable jury to find that Randolph was himself involved in
any unlawful activity. The Court found the most that could be inferred from the Complaint’s
allegations and the termination letter was Randolph followed Fire District’s Board of Director’s
instructions and informed Plaintiff of the Board’s decision.
In the factual allegations common to all counts, Plaintiff’s First Amended Complaint
alleges the following as to Randolph. In approximately April of 2012, the Fire District, through
Lee, Mays, Farwell, and Randolph, began to harass Plaintiff in retaliation for Plaintiff expressing
certain opinions and facts about problems at the Fire District as a private citizen. This retaliation
included, but was not limited to, placing Plaintiff on extended probationary status, suspending
him, and ultimately terminating his employment. On September 13, 2012, Plaintiff received a
notice of hearing from Randolph to appear before the Board regarding an August 23, 2012 email
he sent to reporter Elizabeth Holland of the St. Louis Post-Dispatch. Randolph suspended
Plaintiff until the September 24, 2012 hearing. On September 26, 2012, Randolph provided
Plaintiff with written notification of his immediate termination.
Plaintiff filed copies of the September 23, 2012 “Notice of Hearing,” and the September
26, 2012 “Letter of Termination” sent to Plaintiff by Randolph with his submitted First Amended
Complaint [ECF No. 29-1 at 26-30]. The Notice advised Plaintiff not to report for duty on
September 23, but instead to appear before the Board for a disciplinary hearing on September 24,

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2012. It informed Plaintiff that the Board was providing him an opportunity to be heard before
deciding whether further disciplinary action was warranted, and that Plaintiff would be allowed
union representation, if he so desired. The Notice told him the hearing concerned a belief
Plaintiff circulated a personal email containing false and misleading statements that publicly
defamed and denigrated Fire District. The Notice further stated the email’s statements appeared
to be intentionally divisive, inflammatory, without just cause, purposefully perverse, and
improperly motivated. The Notice warned such behavior was a direct violation of Fire District’s
code of conduct.
After reciting previous disciplinary actions taken against Plaintiff for violations of Fire
District’s code of conduct, the Letter of Termination set forth the following findings of fact for
the September 24th hearing:
The Board accepted your admission and there from concluded that you circulated
an email publicly defaming and denigrating the District without just cause. It was
also determined that your statements were seditiously false and misleading as well
as ill-intended, divisive, and retaliatory for prior discipline issued by the Board in
good faith. Even though you admitted conveying such statements to, at least, one
public entity; the number of other people and entities that you actually conveyed
them to is unknown. The Board found your explanation for publicly expressing
and circulating false and misleading information to others as not credible.
[ECF No. 29-1 at 28]. The letter stated “the Board deemed this conduct to be totally
unacceptable[,]” and informed Plaintiff the Board had decided to terminate his employment for
“again violating the District’s Code of Conduct.” As stated above, the First Amended Complaint
alleges that Board has final policymaking authority for Fire District, and has the authority to hire
and retain Fire District employees. Randolph’s status as Fire District Chief, and his writing of
the notice termination letter, are not enough to allow a reasonable jury to find that Randolph was
himself involved in any unlawful activity.

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Count I of Plaintiff’s First Amended Complaint additionally alleges the following as to
Randolph. Plaintiff was terminated by Defendants based upon the exercise of his First
Amendment rights as a private citizen speaking about issues or matters of public concern
regarding Fire District. Plaintiff’s termination was an adverse employment action authorized,
approved, or ratified by Fire District, Lee and Mays, in which Randolph and Farwell participated,
acting under color of state law as part of a broader conspiracy to protect Farwell and Fire District,
by retaliating against Plaintiff for his protected speech. Plaintiff alleges Randolph directly
participated in the violation of Plaintiff’s rights by retaliating against him for engaging in
protected speech, including, but not limited to, suspending Plaintiff, and then recommending to
the Board, at Plaintiff’s September 24, 2012 termination hearing, that Plaintiff be terminated for
engaging in such speech. Plaintiff claims his termination under color of state law by Fire
District, Lee, and Mays, with the participation of Randolph and Farwell, violates his rights
secured by the First and Fourteenth Amendments. He believes Randolph’s conduct was wanton,
willful, and showed a reckless indifference to Plaintiff’s constitutional rights, justifying an award
of punitive damages against him in his individual capacity.
Defendants contend Plaintiff’s proposed First Amended Complaint fails to state a claim
against Randolph. They argue Plaintiff’s allegations are mere conclusory statements about
Randolph, and specifically assert he provides no supporting factual allegations for Paragraph 33
of his Complaint, which states: “Defendant Randolph directly participated in violation of
Anzaldua’s First Amendment rights by retaliating against him for engaging in protected speech,
to include but not be limited to suspending Anzaldua and then recommending to the Board that
Anzaldua be terminated for engaging in such speech at his termination hearing on September 24,
2012.”

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Plaintiff alleges in his First Amended Complaint that Randolph participated, and played a
role in his termination. He asserts that Randolph suspended him, and recommended his
termination to the Board, in order to retaliate against him for exercising his First Amendment
rights. Plaintiff contends Fire District could be liable for Randolph’s retaliatory termination
recommendation, if Plaintiff’s termination was the intended consequence of Randolph’s actions,
and argues that, if Randolph’s unconstitutional acts could make Fire District liable for Plaintiff’s
constitutional deprivation, “there can be no doubt that [Randolph] can be held personally liable
for his direct participation in the violation of Plaintiff’s First Amendment rights” [ECF No. 44 at
3-4].
Plaintiff’s assertion that Randolph participated and played a role in his termination by
suspending him and recommending his termination to the Board to retaliate against him for
protected speech constitutes the only factual allegation set forth in the First Amended Complaint
that arguably states a potential § 1983 claim against Randolph. Liberally construing the First
Amended Complaint in favor of Plaintiff, the Court finds Count I contains sufficient factual
matter, accepted as true, to state a facially plausible claim for relief against Randolph in his
individual capacity.
Count II of Plaintiff’s proposed First Amended Complaint asserts a conspiracy claim,
against Randolph and other defendants, in their individual capacities. To prevail on a Section
1983 conspiracy claim, Plaintiff must show that two or more individuals conspired for the
purpose of depriving him of a constitutional right, and that an action was performed by at least
one of the alleged co-conspirators in furtherance of the conspiracy, causing an injury or
deprivation. Askew v. Millerd, 191 F.3d 953, 957 (8th Cir. 1999). Conspiracy allegations “must

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be pled with sufficient specificity and factual support to suggest a ‘meeting of the minds.’” Manis
v. Sterling, 862 F.2d 679, 681 (8th Cir. 1988) (citation omitted).
Count II contains the following additional allegations concerning Randolph. Lee, Mays,
Randolph, and Farwell, acting under color of law, met on multiple occasions (including, but not
limited to, closed session meetings) to discuss the actions they would take against Plaintiff to
retaliate against him for his exercise of free speech rights, so as to protect Fire District from
scrutiny or criticism resulting from legitimate concerns Plaintiff was raising about the District’s
operations and their impact on public health and safety. At these meetings, the men agreed that,
when Plaintiff raised legitimate concerns about Fire District operations and their impact, they
would retaliate against him to discourage him from engaging in the protected activity, and they
did so afterward, by extending his probation, suspending him, and terminating him.
Plaintiff’s allegations here are Lee, Mays, Randolph, and Farwell conspired together and
amongst themselves, and reached a mutual understanding to protect Farwell and shield the Fire
District from public scrutiny by firing Plaintiff because of his constitutionally protected speech;
and to undertake a course of conduct to protect each other from the consequences of the wrongful
acts and constitutional deprivations as officials of Fire District. He maintains their actions
violated his constitutional right to free speech. Plaintiff contends Fire District Defendants’ overt
acts included retaliating against Plaintiff as described above when he engaged in protected
speech; suspending him because of his draft email to Dr. Tan, to deter him from engaging in such
speech; and firing Plaintiff for pretextual reasons after he exercised his right of free speech.
“Upon information and belief,” Fire District Defendants engaged in a “sham investigation”
designed to cover-up allegations Plaintiff made against Farwell and the District to Ms. Holland,
and thereafter exonerated Farwell to justify Plaintiff’s wrongful and retaliatory discharge and to

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protect Fire District. Plaintiff alleges Lee, Mays, Randolph and Farwell furthered the conspiracy
by participating in it from its inception, or by participating in the cover-up, or by ignoring the
course of conduct so as to insulate themselves and others from liability for the outrageous and
unlawful acts of Fire District Defendants, showing a tacit understanding to carry out the
prohibited conduct.
In their opposition memorandum, Fire District Defendants assert that Plaintiff specifically
alleges Randolph and his co-conspirators were acting under color of state law, and accordingly,
the intracorporate conspiracy doctrine thus applies, and entitles them to summary judgment on
Count II. The Court agrees that the doctrine may apply in the context of summary judgment. See
Runs After v. United States, 766 F.2d 347, 354 (8th Cir. 1985) (conspiracy claim under 42 U.S.C.
§ 1985 failed to state a claim against members of a tribal council; entity or governmental body
cannot conspire with itself, and individual members acting in their official capacities cannot
conspire when they act together with other members in taking official action on behalf of entity
or governmental body); Cook v. Tadros, 312 F.3d 386, 388 (8th Cir. 2002) (district court granted
motion for judgment as matter of law on § 1983 conspiracy claim, on the basis of inadequate
evidence and the intracorporate conspiracy doctrine; basis for court’s ruling was inconsequential,
however, because, in light of jury’s verdict that there was no underlying constitutional injury,
conspiracy claim was moot); Doe v. Board of Educ. of Hononegah Cmty. High Sch. Dist. #207,
833 F.Supp. 1366, 1382 (N.D. Ill. Sept. 30, 1993) (intracorporate conspiracy doctrine applies to
bar any conspiracy claims under § 1983). However, the Court concludes application of the intracorporate conspiracy doctrine is not appropriate under the standard of review for a dismissal
motion, or when determining whether to grant leave to file an amended pleading.

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Defendants also contend the First Amended Complaint does not provide factual
allegations to support a “meeting of the minds.” They claim the First Amended Complaint’s
conspiracy allegations are completely speculative, as Plaintiff was not in the meetings and has no
idea as to what was discussed, and they characterize the additional allegations proposed in the
amended pleading as nothing more than legal conclusions. Given the present procedural posture
of the matter, Defendants are correct as to Plaintiff’s lack of actual or personal knowledge of the
alleged meetings and their discussions. Nevertheless, the Court cannot conclude amendment of
the complaint would be futile. Liberally construing the First Amended Complaint in favor of
Plaintiff, the Court finds Count II contains sufficient factual matter, accepted as true, to state a
facially plausible claim for relief against Randolph in his individual capacity.
C.

Plaintiff’s conspiracy claim against Lee, Mays, Randolph & Farwell

Count II of Plaintiff’s original Complaint asserted a conspiracy claim against all
defendants. In that claim, Plaintiff alleged Fire District Defendants, acting under color of state
law, conspired together, reaching a mutual understanding to protect Farwell, shield Fire District
from public scrutiny, and fire Plaintiff because of his constitutionally protected speech. Plaintiff
generally alleged Fire District Defendants engaged in a “sham investigation,” and further alleged
Farwell and Welge illegally accessed Plaintiff’s private emails, and disseminated them to the
Board without authorization. Plaintiff additionally claimed Fire District Defendants furthered the
conspiracy by participating in it from its inception, by participating in its coverup, or by ignoring
the course of conduct so as to insulate themselves and others from liability.
In the Order dismissing the conspiracy claim asserted in Plaintiff’s original Complaint,
the Court found the Complaint, and its incorporated exhibits, contained no support for an
inference that Farwell and Welge had a “meeting of the minds” to deprive Plaintiff of his

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constitutional rights by accessing his private email, and lacked an allegation of an agreement
between Welge and one of the state officers to cause a deprivation of Plaintiff’s constitutional
rights. The Court also determined the Complaint lacked allegations to support an inference Fire
District Defendants had reached any agreement to conduct a sham investigation, or that the Board
colluded or conspired before casting votes in the termination decision.
As discussed in the Court’s analysis of the claims brought against Randolph in his
individual capacity, the First Amended Complaint’s second count asserts a conspiracy claim
against Lee, Mays, Randolph, and Farwell, alleging violation of Plaintiff’s constitutional rights
cognizable under Section 1983. Again, liberally construing the First Amended Complaint in
favor of Plaintiff, the Court finds Count II contains sufficient factual matter, accepted as true, to
state a facially plausible claim for relief against these defendants in their individual capacities.
D.

Plaintiff’s Cause of Action under 18 U.S.C. § 2707

The Federal Stored Wire & Electronic Communications & Transactional Records Access
Act (“SCA”) prohibits unauthorized access to certain electronic communications. 18 U. S.C.
2701. 18 U.S.C. § 2711 provides protection against unlawful interception during the
transmission phase. Upon arrival in storage, the communication is protected by 18 U.S.C. §
2701. The stored communications provisions of Section 2701 prohibit the unauthorized
accessing of wire or electronic communications once stored; thus, it is at the time of storage of a
transmitted communication that a communication becomes subject to the SCA. Id. (emphasis
added). Section 2701 of the SCA, in pertinent part, provides a cause of action against a party
who “intentionally accesses without authorization a facility through which an electronic
communication service is provided, . . . and thereby obtains, alters, or prevents authorized access

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to a wire or electronic communication while it is in electronic storage in such system[.]” 18
U.S.C. §§ 2701, 2707(a) (providing a civil cause for any violation of the SCA).
The Court’s October 21 Order dismissed Plaintiff’s original SCA claim, brought pursuant
to 18 U.S.C. § 2707, noting the Complaint’s allegations indicated Welge gained access to
Plaintiff’s private email and passwords when she was involved in a relationship with Plaintiff,
and contained no indication that Plaintiff revoked his consent or authorization before Welge
allegedly accessed the emails. The Court further determined the Complaint failed to state a SCA
claim, because it did not allege Welge or Farwell accessed a “facility” through which an
electronic communication service was provided, or allege the email communications were in
“electronic storage” as contemplated by the SCA.
In Count III of his First Amended Complaint, Plaintiff reasserts his SCA claim against
Farwell and Welge. Plaintiff alleges that, while he and Welge were in a romantic relationship,
Plaintiff gave Welge his Gmail password so that she could email his resume to prospective
employers on his behalf. He further alleges that he did not give Welge general permission to
access his account, and did not realize she had continued to access his personal Gmail account
until he investigated how his personal emails were being provided to Fire District. Plaintiff
alleges his romantic relationship with Welge ended in July of 2011, and he “did not know, nor
did he authorize Defendant Welge to access his personal Gmail account at any time before or
after that relationship ended, except to send the resumes on his behalf as set forth above” [ECF
No. 29-1 at 14].
Plaintiff further alleges Welge worked for Farwell at Da Elite Bar & Grill, and asserts
Plaintiff traced the access of his personal Gmail account to a location in the vicinity of Da Elite
Bar & Grill. Paragraphs 52 and 53 of Count III contain allegations made “upon information and

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belief” [ECF No. 29-1 at 14]. In paragraph 52, Plaintiff asserts Welge and Farwell, without his
authorization, intentionally accessed his private Gmail account through Gmail’s servers in July of
2012, while they were at Da Elite Bar & Grill, “and obtained the draft email Anzaldua had
prepared but had not sent to Dr. Tan, and sent that email to Dr. Tan” [ECF No. 29-1 at 14].
Plaintiff further alleges in paragraph 52: “At the time this unauthorized access was made the draft
email was stored on Gmail’s server as a draft message, and therefore, in temporary, intermediate
electronic storage with a communications facility incidental to its electronic transmission within
the meaning of the Federal Stored Electronic Wire and Communications and Transactional
Records Access Act.”
In paragraph 53, Plaintiff alleges Welge and Farwell intentionally accessed his Gmail
account again in August of 2012, “and obtained the email Plaintiff had sent to Ms. Holland of the
St. Louis Post-Dispatch and then forwarded the email to Defendant Farwell, who disseminated it
to Randolph and/or the Board of the Fire District.”
“Federal courts interpreting [the SCA] have noted that its ‘general purpose . . . was to
create a cause of action against computer hackers (e.g., electronic trespassers).” Lasco Foods,
Inc. v. Hall and Shaw Sales, Mktg., & Consulting, LLC, 600 F.Supp. 2d 1045, 1049 (E.D. Mo.
Jan. 22, 2009). “The statutes are generally aimed towards outside, third parties or other ‘hightech’ criminals . . ..” Id. In Lasco, the district court dismissed the plaintiff’s SCA cause for
failure to state a claim, because the complaint failed to allege the defendants’ access was
“unauthorized” within the meaning of the SCA. Id. at 1050. In its analysis, the court noted the
defendants had virtually unrestricted access to the plaintiff’s information during their
employment with the plaintiff, but fraudulently or intentionally exceeded their authorization to
access the company’s protected computers. Id. The court recognized the thrust of the plaintiff’s

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claim was the generalization that the defendants obtained information for improper purposes, and
the court determined the defendants’ improper use of the plaintiff’s information was not a SCA
violation, because the plaintiff had afforded defendants access to its computer network. Id.
Similarly, Count III of Plaintiff’s First Amended Complaint alleges Plaintiff gave Welge
the password to his Gmail account so that she could perform certain actions on his behalf, and
Welge later used the password to obtain information for improper purposes. Thus, the alleged
improper use of Plaintiff’s information was not a SCA violation, because Plaintiff gave Welge
access to his Gmail account. The Court finds Count III of Plaintiff’s First Amended Complaint
fails to state a claim, and warrants dismissal. Accordingly, the Court concludes amendment
would be futile, and will deny leave to amend as to Count III.
E.

Plaintiff’s Cause of Action under Missouri Revised Statutes § 537.525

The Court also dismissed Plaintiff’s Missouri Computer Tampering Act (“MCTA”)
claim, brought pursuant to Missouri Revised Statutes § 537.525, in the October 21 Order. The
MCTA provides a civil cause of action for the owner or lessee of a computer system, computer
network, computer service or data, against individuals who commit the crime of computer
tampering. Mo. Rev. Stat. § 537.525. Missouri Revised Statutes § 569.095 provides, in
pertinent part:
1. A person commits the crime of tampering with computer data if he knowingly
and without authorization or without reasonable grounds to believe that he has
such authorization:
* * *
(3) Discloses or takes data, programs, or supporting documentation,
residing or existing internal or external to a computer, computer system, or
computer network; or
* * *
(6) Receives, retains, uses, or discloses any data he knows or believes was
obtained in violation of this subsection.
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In its determination that the Complaint failed to state a claim against Welge or Farwell for
violation of the MCTA, the Court again found the reasonable inference from the Complaint’s
allegations, accepted as true, was that Plaintiff was aware of Welge’s access, and gave actual
consent, whether expressly or constructively, to her access. The Court also noted Plaintiff’s key
allegations were made “upon information and belief,” and failed to provide the factual or
documentary support needed to make them plausible. The Court found Plaintiff had not
sufficiently alleged a colorable claim that Welge “knowingly and without authorization” had
taken from Plaintiff a password intended to control access to any computer system or network; or
that Plaintiff was the owner or lessee of a computer system or network.
Count IV of Plaintiff’s First Amended Complaint incorporates by reference its preceding
paragraphs that allege the facts surrounding Welge’s access to Plaintiff’s Gmail password and
indicate Plaintiff’s awareness of Welge’s access, and his consent to such access. Count IV of
Plaintiff’s First Amended Complaint further alleges, in paragraph 59:
Defendants Farwell and/or Welge knowingly and without authorization, or
without grounds to believe that they had authorization, took and disclosed
data/supporting documentation (the emails drafted, and therefore, owned by
Anzaldua as set forth in paragraphs 12 and 18 above) residing or existing internal
to a computer, computer system, or computer network in violation of §
569.095.(3) R.S.M.O.
[ECF No. 29-1 at 16-17]. Paragraph 60 additionally alleges that Farwell or Welge received,
retained, used, or disclosed the information they obtained in violation of the MCTA.
For the reasons discussed in its analysis of the SCA claim asserted in Plaintiff’s First
Amended Complaint, the Court finds Plaintiff’s MCTA claim fails sufficiently to allege Welge
or Farwell without authorization took and disclosed data or supporting documentation residing or
existing internal to a computer, computer system, or computer network in violation of Mo. Rev.
Stat. § 569.095(3). The Court further finds Plaintiff’s MCTA claim fails sufficiently to allege
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these defendants without authorization received, retained, used, or disclosed data they knew or
believed was obtained in violation of Section 569.095. Accordingly, the Court concludes
amendment would be futile, and will deny leave to amend as to Count IV also. The Court finds
Count IV of Plaintiff’s First Amended Complaint fails to state a claim and must be dismissed.
IV.

CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to File First Amended

Complaint [ECF No. 29] is GRANTED in part, and DENIED in part. In accordance with the
Court’s discussion herein, Plaintiff is granted leave to file a First Amended Complaint asserting
Counts I (42 U.S.C. Section 1983 Violation of Anzaldua’s First Amendment Right to Free
Speech) and II (Conspiracy to Violate Anzaldua’s Constitutional Rights Cognizable Under 42
U.S.C. § 1983) as pleaded in the proposed First Amended Complaint [ECF No. 29-1]. Plaintiff
is denied leave to file a First Amended Complaint asserting Counts III (Anzaldua’s Cause of
Action Under 18 U.S.C. § 2707 Against Defendants Farwell and Welge) and IV (Anzaldua’s
Cause of Action Under Section 537.525 of the Missouri Revised Statutes Against Defendants
Farwell and Welge), as amendment would be futile.
IT IS FURTHER ORDERED that Counts III and IV of Plaintiff’s First Amended
Complaint [ECF No. 29-1] are DISMISSED, with prejudice.
IT IS FURTHER ORDERED that , in accordance with the Court’s discussion and
rulings herein, “Plaintiff’s Motion to Reconsider Memorandum and Order Dated October 21,
2013 (Doc. 15), Alternatively, Motion for Leave to Amend Complaint” [ECF No. 18] is
GRANTED, in part.

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IT IS FURTHER ORDERED that Plaintiff shall file his amended complaint, in
accordance with the Court’s discussion herein, within ten (10) days of the entry of this Order.

Dated this

5th

day of February, 2014.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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