govinfo:USCOURTS-moed-4_21-cv-00058-0

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MISSOURI 
EASTERN DIVISION 
 
BRIAN BRESNAHAN, ) 
 ) 
 ) 
               Plaintiff, ) 
 ) 
          v. ) Case No. 4:21-CV-00058 JCH 
 ) 
CITY OF SAINT PETERS, et al.,  ) 
 ) 
               Defendants. ) 
 
MEMORANDUM AND ORDER 
 This matter is before the Court on Defendants’ City of St. Peters (“City”), Chief of Police 
Rick Struttmann (“Struttmann”), and City Administrator Russ Batzel (“Batzel”) (collectively 
“Defendants”) motion to dismiss Plaintiff Brian Bresnahan’s (“Bresnahan” or “Plaintiff”), 
complaint for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6).  Doc. [11].  Plaintiff 
responded to the motion, Defendants filed a reply, and the matter is fully briefed and ripe for 
disposition.  For the reasons set forth below, Defendants’ motion will be granted. 
I. Factual and Procedural Background  
 Taken as true for the purpose of this motion, the facts alleged in the amended complaint 
are as follows.  Plaintiff, a police officer formerly employed by the City, alleges that Defendants 
retaliated against him for exercising his First Amendment rights.  The claim arises out of events 
that occurred in the wake of widespread protests following the death of George Floyd at the 
hands of a Minneapolis police officer in May of 2020.  During this time, Plaintiff and his fellow 
police officers established a text messaging group to provide officers with up-to-date information 
regarding the protests that were occurring in and around the City.   
Case: 4:21-cv-00058-SEP     Doc. #:  27     Filed: 07/27/21     Page: 1 of 11 PageID #:
<pageID>
2 
 
 On June 9, 2020, Plaintiff shared with the text group a message that included a video clip 
from the television show “Paradise PD.”  All members of the text group were fellow police 
officers with the City’s Police Department.  After Plaintiff sent the message, one of the other 
officers in the text group “voiced displeasure” about the message and video.  The next morning, 
on June 10, 2020, Plaintiff was called in to meet with Chief Struttmann.  During the meeting, 
Struttmann “berated” Plaintiff for making the comments in the message, and told Plaintiff that if 
he resigned there would be no internal investigation into the matter.  Plaintiff alleges that 
Struttmann told him that if he did not resign, there would be an investigation, and that 
Struttmann would recommend that Plaintiff be terminated by Defendant Batzel.  Plaintiff 
resigned during this meeting with Struttmann.    
Plaintiff initially filed this action in the Circuit Court for St. Charles County, Missouri, on 
December 11, 2020.  On January 14, 2021, Defendants removed the suit to this Court. 
On the basis of the foregoing allegations, Plaintiff asserts that Defendants retaliated 
against him for exercising his rights to free speech under the First Amendment in violation of 42 
U.S.C. § 1983.  Plaintiff also asserts that the allegedly retaliatory actions violated his rights to 
free speech under the Missouri Constitution.  
Defendants filed the instant motion to dismiss Plaintiff’s complaint for failure to state a 
claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).   
II.  Legal Standards  
 Defendants have moved to dismiss for failure to state a claim under Federal Rule of Civil 
Procedure 12(b)(6).  The purpose of a Rule 12(b)(6) motion to dismiss is to test the legal 
sufficiency of a complaint so as to eliminate those actions “which are fatally flawed in their legal 
premises . . . thereby sparing litigants the burden of unnecessary pretrial and trial activity.” 
Case: 4:21-cv-00058-SEP     Doc. #:  27     Filed: 07/27/21     Page: 2 of 11 PageID #:
<pageID>
3 
 
Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001) (citing Neitzke v. Williams, 490 
U.S. 319, 326-27 (1989)).  A pleading is deficient and may be dismissed under Rule 12(b)(6) if a 
plaintiff fails “to state a claim upon which relief can be granted.”  Fed. R. Civ. P. 12(b)(6).  Rule 
12(b)(6) is read in conjunction with Rule 8(a), which requires “a short and plain statement of the 
claim showing that the pleader is entitled to relief.”  Fed. R. Civ. P. 8(a)(2).  To survive a motion 
to dismiss for failure to state a claim, a plaintiff’s allegations 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).  
Rule 8 “does not require ‘detailed factual allegations,’ but it demands more than an unadorned, 
the-defendant-unlawfully-harmed-me accusation.”  Id. (quoting Twombly, 550 U.S. at 555).   
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. (citing Twombly, 550 U.S. at 556).  “The plausibility standard is not akin to a ‘probability 
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”  
Id. (quoting Twombly, 550 U.S. at 556).  The complaint “must contain either direct or inferential 
allegations respecting all the material elements necessary to sustain recovery under some viable 
legal theory,” and “enough fact[s] to raise a reasonable expectation that discovery will reveal 
evidence of [each element].” Twombly, 550 U.S. at 562.  The reviewing court must accept the 
plaintiff’s factual allegations as true and construe them in the plaintiff’s favor, but it is not 
required to accept the legal conclusions that plaintiff draws from the facts alleged.  Iqbal, 556 
U.S. at 678; Retro Television Network, Inc. v. Luken Commc’ns, LLC, 696 F.3d 766, 768-69 (8th 
Cir. 2012).  A court must “draw on its judicial experience and common sense,” and consider the 
plausibility of the plaintiff’s claim as a whole, not the plausibility of each individual allegation.  
Case: 4:21-cv-00058-SEP     Doc. #:  27     Filed: 07/27/21     Page: 3 of 11 PageID #:
<pageID>
4 
 
Zoltek Corp. v. Structural Polymer Grp., 592 F.3d 893, 896 n.4 (8th Cir. 2010) (quoting Iqbal, 
556 U.S. at 679).   
III. Discussion 
 A.  Section 1983 Claim:  Retaliation for the Exercise of First Amendment Rights 
 Plaintiff asserts that Defendants, in retaliation for Plaintiff’s exercise of his rights under 
the First Amendment, violated those rights by constructively terminating him.  Defendants move 
to dismiss, asserting that Plaintiff’s communication in the group text did not address a matter of 
public concern and is not therefore protected speech under the First Amendment.  Defendants 
further assert that, because Plaintiff has failed to allege facts establishing that Defendants’ 
conduct violated any constitutional right, they are entitled to qualified immunity 
To establish a prima facie case of retaliation for the exercise of his First Amendment 
rights, a plaintiff must prove that (1) his speech was protected by the First Amendment; (2) the 
governmental employer discharged him from employment; and (3) that the protected speech was 
a “substantial or motivating” factor in the defendant's decision to discharge the plaintiff. Rynders 
v. Williams, 650 F.3d 1188, 1194 (8th Cir.2011); Davison v. City of Minneapolis, Minn., 490 
F.3d 648, 654–55 (8th Cir.2007). 
The First Amendment guarantees every citizen a right to engage in free speech, without 
governmental restriction.  See Wickersham v. City of Columbia, 481 F.3d 591, 597 (8th Cir. 
2007).  A public employer may not penalize an employee for the exercise of his constitutionally 
protected right to freedom of speech, because “public employees do not surrender all their First 
Amendment rights by reason of their employment.” Garcetti v. Ceballos, 547 U.S. 410, 417, 
(2006); see also McGee v. Pub. Water Supply, Dist. No. 2 of Jefferson Cnty., Mo., 471 F.3d 918, 
919 (8th Cir. 2006) (citation omitted).  Rather, “[a] public employee retains a degree of First 
Case: 4:21-cv-00058-SEP     Doc. #:  27     Filed: 07/27/21     Page: 4 of 11 PageID #:
<pageID>
5 
 
Amendment protection when he speaks as a citizen addressing matters of public concern.” Bonn 
v. City of Omaha, 623 F.3d 587, 592 (8th Cir. 2010). 
The court must therefore determine whether the employee's speech may be characterized 
as speech on a “matter of public concern.” Garcetti, 547 U.S. at 417 (citations omitted).  
“[W]hile the First Amendment invests public employees with certain rights, it does not empower 
them to ‘constitutionalize the employee grievance.’ ” Id., 547 U.S. at 420–21 (quoting Connick v. 
Myers, 461 U.S. 138, 154 (1983)).  It is therefore well established that speech which “deal[s] 
with personnel matters” generally will not be deemed to address matters of public concern.  Belk 
v. City of Eldon, 228 F.3d 872, 879 (8th Cir.2000).  “The inquiry into the protected status of 
speech is one of law, not fact.” Connick, 461 U.S. at 148 n. 7. 
Whether a public employee’s speech “addresses a matter of public concern” is 
determined by “the content, form, and context of a given statement, as revealed by the whole 
record.” Connick, 461 U.S. at 147–48.  Heightened public interest in the issue is not dispositive 
on its own.  See Domina v. Van Pelt, 235 F.3d 1091, 1098 (8th Cir. 2000).  Instead, courts have 
considered such factors as (1) to whom the public employee spoke, see Connick, 461 U.S. at 148, 
(2) whether the statement was made pursuant to the employee’s duties or up the chain of 
command, see Davis v. McKinney, 518 F.3d 304, 313 (5th Cir. 2008), and (3) whether private 
interests have motivated the speaker, see Anzalduaa v. Northeast Ambulance and Fire Protection 
Dist., 793 F.3d 822, 833 (8th Cir. 2015).  When applying this test, courts may find that a public 
employee’s speech relates both to his private interests and matters of public concern.  In such 
circumstances, “the speech is protected if it is primarily motivated by public concern.”  Id. at 
833; McCullough v. Univ. of Ark.for Medical Sciences, 559 F.3d. 855, 860, 866 (8th Cir. 2009). 
Case: 4:21-cv-00058-SEP     Doc. #:  27     Filed: 07/27/21     Page: 5 of 11 PageID #:
<pageID>
6 
 
Here, Defendants argue, and the Court agrees, that Plaintiff’s complaint does not contain 
factual allegations sufficient to allow the Court to conduct the required inquiry into whether the 
speech at issue was a matter of public concern, and therefore, the Court is not in a position to 
determine whether the speech was protected speech within the meaning of the First Amendment.  
Plaintiff alleges that the message he sent “was relevant to and critical of ongoing protests that 
stemmed from the Black Lives Matter movement.”  Doc. [7], ¶ 7.  However, entirely absent from 
the complaint are any allegations regarding what the video showed, or what, if anything, Plaintiff 
said about the contents of the video or about the protests.  In his response in opposition to 
Defendants’ motion to dismiss, Plaintiff seems to assume, and expects the Court to likewise 
assume, that his message addressed a matter of public concern simply because it had something 
to do with “public unrest [that] was created by a widespread and divisive issue.”  See Doc. 13 at 
8.  However, as noted supra, heightened public interest in an issue, on its own, is not dispositive 
of the question of whether the speech addressed a matter of public concern.  See Domina, 235 
F.3d at 1098.  
Due to the threadbare nature of Plaintiff’s description of the allegedly protected speech, 
the Court does not know the “content, form, and context of [the relevant] statement,” and is 
therefore unable to determine whether the speech was a matter of public concern.  Connick, 461 
U.S. at 147-48.  Accordingly, Plaintiff has not established that the speech was protected by the 
First Amendment such that his termination violated his constitutional rights, and he has failed to 
state a claim under § 1983.   
    B.   Personal Capacity Claims Against Defendant Batzel 
 Defendants move to dismiss Plaintiff’s claims as brought against Defendant Batzel 
because Plaintiff does not include in his complaint any allegations that Batzel had any 
Case: 4:21-cv-00058-SEP     Doc. #:  27     Filed: 07/27/21     Page: 6 of 11 PageID #:
<pageID>
7 
 
knowledge of Plaintiff’s text message, nor any allegations that Batzel knew of or participated in 
Plaintiff’s meeting with Struttman that ended with Plaintiff’s resignation.  Batzel argues that 
Plaintiff’s § 1983 claims against him are based on respondeat superior liability and do not state a 
claim because they do not allege that Batzel was aware of his subordinate’s alleged unlawful 
conduct or that he tacitly approved the conduct.   
 Government officials may not be held liable for unconstitutional conduct under a theory 
of respondeat superior.  Rogers v. King, 885 F.3d 1118, 1122 (8th Cir. 2018).  Liability in a § 
1983 case is personal.  Frederick v. Motsinger, 873 F.3d 641, 646 (8th Cir. 2017).  In other 
words, “[g]overnment officials are personally liable only for their own misconduct.”  S.M. v. 
Krigbaum, 808 F.3d 335, 340 (8th Cir. 2015).  As such, § 1983 liability “requires a causal link 
to, and direct responsibility for, the deprivation of rights.”  Mayorga v. Missouri, 442 F.3d 1128, 
1132 (8th Cir. 2006) (quoting Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990)); see 
also Kohl v. Casson, 5 F.3d 1141, 1149 (8th Cir. 1993) (dismissing plaintiff’s excessive bail 
claims because none of the defendants set plaintiff’s bail, and therefore, “there can be no causal 
connection between any action on the part of the defendants and any alleged deprivation” of 
plaintiff’s rights).  To that end, a plaintiff must allege facts connecting the defendant to the 
challenged action.  See Bitzan v. Bartruff, 916 F.3d 716, 717 (8th Cir. 2019).  
 Here, Plaintiff’s complaint mentions Defendant Batzel only two times.  In Paragraph 4, 
Plaintiff merely states Batzel’s position as City Administrator of St. Peters.  Doc. [7], ¶ 4.  Later, 
in Paragraph 13, Plaintiff alleges that Defendant Struttmann told Plaintiff that he “would 
ultimately recommend Plaintiff be terminated and that Defendant Russ Batzel would terminate 
Plaintiff’s employment.”  Id., ¶ 7.  Notably absent is any allegation that Batzel was aware of 
Plaintiff’s text message, or that Batzel participated in, or even knew about, Plaintiff’s meeting 
Case: 4:21-cv-00058-SEP     Doc. #:  27     Filed: 07/27/21     Page: 7 of 11 PageID #:
<pageID>
8 
 
with Struttmann.  Indeed, the complaint does not include any allegations that Batzel said or did 
anything between the time when Plaintiff sent his text and when he submitted his resignation.  
 Plaintiff does not allege any facts that could allow the Court to draw a reasonable 
inference that Batzel personally engaged in retaliatory conduct in violation of his First 
Amendment rights.  Because Plaintiff has established no causal connection between Defendant 
Batzel and the alleged constitutional violation, the Court will dismiss Plaintiff’s claims against 
Batzel for this reason. 
 C.  Monell Claim Against the City 
  Defendants move to dismiss Plaintiff’s §1983 claim against the City, arguing that he fails 
adequately to allege municipal liability under Monell v. Department of Social Services of City of 
New York, 436 U.S. 658 (1978).  “A political subdivision may not generally be held vicariously 
liable under section 1983 for the unconstitutional acts of its employees.”  Rumer v. Outboard 
Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999).  For § 1983 liability to attach to the City, Plaintiff 
must show that a constitutional violation resulted from an official municipal policy, an unofficial 
custom, or a deliberately indifferent failure to train or supervise.  Mick v. Raines, 883 F.3d 1075, 
1079 (8th Cir. 2018).  In the motion to dismiss, the City argues that Plaintiff’s factual allegations 
are insufficient to establish any of these bases for liability.   
  In the context of § 1983 municipal liability, the term “policy”  refers to “official policy, a 
deliberate choice of a guiding principle or procedure made by the municipal official who has final 
authority regarding such matters.” Corwin v. City of Independence, Mo., 829 F.3d 695, 700 (8th 
Cir. 2016) (internal quotation marks and citation omitted). “[A]n act performed pursuant to a 
‘custom’ that has not been formally approved by an appropriate decisionmaker may fairly subject 
a municipality to liability on the theory  that the relevant practice is so widespread as to have the 
Case: 4:21-cv-00058-SEP     Doc. #:  27     Filed: 07/27/21     Page: 8 of 11 PageID #:
<pageID>
9 
 
force of law.” Board of Cty. Comm'rs of Bryan Cty., Okla. v. Brown, 520 U.S. 397, 404 (1997). 
To establish liability based on “custom,” Bresnahan must demonstrate: 1) the existence of a 
continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental 
entity's employees; 2) deliberate indifference to or tacit authorization of such conduct by the 
governmental entity's policymaking officials after notice to the officials o f that misconduct; and 
3) that he was injured by acts pursuant to the governmental entity's custom, i.e. , that the custom 
was a moving force behind the constitutional violation.  Johnson v. Douglas Cty. Med. Dep't, 725 
F.3d 825, 828 (8th Cir. 2013). 
  Bresnahan need not identify a specific unconstitutional policy to survive the City's motion 
to dismiss, see Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 591 (8th Cir. 2004), 
but he must, at the least, allege facts from which one “could begin to draw an inference” that the 
conduct complained of resulted from the existence of an unconstitutional policy or custom. Id.   
Here, Plaintiff has not included in his complaint any language or facts from which an inference 
could be drawn that St. Peters had a policy or custom that was the moving force behind the alleged 
constitutional violation, and his § 1983 claim against the City must fail. 
 D.  Official Capacity Claims Against Defendants Struttmann and Batzel 
 Plaintiff also brings claims against Struttmann and Batzel in their official capacities.  An 
official capacity claim against an individual is actually a claim “against the governmental entity 
itself.”  White v. Jackson, 865 F.3d 1064, 1075 (8th Cir. 2017).  In order to prevail on such an 
official capacity claim, a plaintiff must establish the governmental entity’s liability for the 
alleged conduct.  Kelly v. City of Omaha, Neb., 813 F.3d 1070, 1075 (8th Cir. 2016).  Here, as 
discussed supra, Plaintiff has not established the City’s liability for the allegedly unconstitutional 
Case: 4:21-cv-00058-SEP     Doc. #:  27     Filed: 07/27/21     Page: 9 of 11 PageID #:
<pageID>
10 
 
conduct, and therefore his official capacity claims against Defendants Struttmann and Batzel will 
be dismissed. 
  E.  State Constitutional Claim 
 Plaintiff also asserts that Defendants’ alleged retaliation against him violated his right to 
free speech under Article I, Section 8, of Missouri’s Constitution.  Defendants argue that 
Plaintiff’s claims arising under the Missouri Constitution are not cognizable and must be 
dismissed because there is no private cause of action available to Plaintiff under this Section of 
the Missouri Constitution.  Plaintiff did not respond to Defendants’ argument regarding the 
cognizability of this claim.    
The right to free speech under Article I, Section 8 of the Missouri Constitution tracks the 
corresponding rights under the First Amendment of the United States Constitution.  See Am. 
Fed'n of Teachers v. Ledbetter, 387 S.W.3d 360, 364 (Mo. 2012).  As such, under the Missouri 
Constitution “[p]ublic employee speech is protected from retaliation, in certain circumstances, if 
the speech addresses a matter of public concern.” Bailey v. Dep't of Elementary & Secondary 
Educ., 451 F.3d 514, 518 (8th Cir. 2006).  See also Mogard v. City of Milbank, 932 F.3d 1184, 
1189 (8th Cir. 2019) (“A public employee's speech is protected under the First Amendment if he 
spoke as a citizen on a matter of public concern....”) (internal quotation marks omitted). 
The Missouri General Assembly has not enacted any law similar to 42 U.S.C. § 1983 that 
gives citizens a private cause of action to sue state actors for monetary damages related to 
violations of the Missouri Constitution.  Smith v. Sachse, No. 4:17-CV-2593 SPM, 2018 WL 
3159081, at *7 (E.D. Mo. June 28, 2018). See also Moody v. Hicks, 956 S.W.2d 398, 402 (Mo. 
Ct. App. 1997) (“[N]o Missouri precedent exists permitting suits for monetary damages by 
private individuals resulting from violations of the Missouri Constitution.”); Collins-Camden 
Case: 4:21-cv-00058-SEP     Doc. #:  27     Filed: 07/27/21     Page: 10 of 11 PageID #:
<pageID>
11 
 
P'ship, L.P. v. Cty. of Jefferson, 425 S.W.3d 210, 214 (Mo. Ct. App. 2014) (“No Missouri 
precedent exists permitting suits for monetary damages by private individuals resulting from 
violations of the Missouri Constitution.”).   
Plaintiff seeks injunctive relief against the City in the form of reinstatement of his 
employment.  However, Plaintiff has not disclaimed monetary damages in relation to his claim 
against Defendants under the Missouri Constitution, and, as explained above, any such claim 
must fail.  As a result, the Court will dismiss with prejudice Plaintiff’s Missouri constitutional 
claims to the extent he may seek monetary damages in connection with such claims.  To the 
extent that Plaintiff seeks non-monetary damages, his claim for retaliation in violation of his 
rights to freedom of speech under the Missouri Constitution fails for the same reason that his 
identical claim under the First Amendment of the United States Constitution failed.  Because the 
Court is unable to determine whether his speech addressed a matter of public concern, Plaintiff 
does not state a claim for violation of his rights to freedom of speech under the Missouri 
Constitution.   
IV. Conclusion 
 Accordingly, 
 IT IS HEREBY ORDERED that, pursuant to Fed. R. Civ. P. 12(b)(6) , Defendants’ 
Motion to Dismiss Plaintiff’s Complaint (Doc. [11]) is GRANTED.   
IT IS FURTHER ORDERED that Plaintiff, should he choose to do so,  is granted leave 
to file an Amended Complaint addressing the deficiencies identified herein by August 11, 2021.  
Failure to file a timely Amended Complaint with the Court may result in the dismissal of this case.  
Dated this 27th day of July, 2021. 
  /s/Jean C. Hamilton  
  JEAN C. HAMILTON 
  UNITED STATES DISTRICT JUDGE 
Case: 4:21-cv-00058-SEP     Doc. #:  27     Filed: 07/27/21     Page: 11 of 11 PageID #:
<pageID>

Passage view · GavelSight