Andres v. Coffeyville, Kansas, City of

Filing 42

MEMORANDUM AND ORDER regarding the denial of 29 Defendant's Motion for Summary Judgment. Signed by District Judge J. Thomas Marten on 07/27/2017. (aa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DENNIS ANDRES
Plaintiff,
v.

Case No. 16-1079-JTM

CITY OF COFFEYVILLE, KANSAS,
Defendant.
MEMORANDUM AND ORDER
Plaintiff Dennis Andres seeks damages pursuant to 42 U.S.C. § 1983 based on a
claim that defendant City of Coffeyville, Kansas, terminated his employment in
retaliation for exercising his right to free speech.

Defendant moves for summary

judgment (Dkt. 29) and argues that it had a legitimate basis for terminating plaintiff—
Montgomery County Attorney Larry Markle (“CA Markle”) placed plaintiff on the
Giglio list and further refused to prosecute any cases where plaintiff was involved.
Plaintiff responds that defendant’s reason is pretextual and flows directly from his
decision to exercise his First Amendment right of free speech. For the reasons provided
below, the court denies defendant’s motion.1
I.

Uncontroverted Facts

1

The court heard oral argument on July 20, 2017.

1 

While there are several controverted facts2, the court finds the following facts to
be uncontroverted for purposes of summary judgment.
Defendant hired plaintiff as a police officer in 1986. Over the next 29 years,
plaintiff climbed up the chain of command and became a captain, second in command.
About halfway through his career, plaintiff met an eight-year-old kid named Brazell
Scott (“Scott”) who was caught shoplifting. Plaintiff tried to mentor Scott, and even
allowed Scott to reside in his home at different times. When Scott was 13 years old, he
moved to Texas to live with his father; but Scott later returned to Coffeyville sometime
in 2011.
In July 2012, a shooting took place in Coffeyville. Sometime later, Scott came to
plaintiff’s house because he wanted to hire plaintiff’s wife to make a birthday cake for
his daughter’s birthday.

As Scott crossed through plaintiff’s living room into the

kitchen, plaintiff asked Scott how things were going. Scott replied something to the
effect of “you know, they messin’ with me.” Nothing more was said on the matter, but
plaintiff knew that Scott was referring to James Logan and his friends.
On September 28, 2012, Scott shot James Logan and Latrelle Boyd. Scott turned
himself in and was charged with their murders. Scott claimed self-defense.
Six months after Scott’s case was filed, two attorneys from the Kansas Attorney
General’s office, Greg Benefield and Amanda Voth (the “AAGs”), entered their
appearances on behalf of the state. Scott’s defense counsel later subpoenaed plaintiff.

2 To the extent that relevant facts are controverted, the court resolves these in favor of plaintiff—the
nonmoving party.

2 

Plaintiff contacted the AAGs and told them about his subpoena; however, according to
plaintiff, the AAGs seemed disinterested in talking with him. Plaintiff claims that he
told the AAGs of his encounter with Scott.
Plaintiff met with the defense’s investigator on two separate occasions. During
their second meeting, plaintiff informed the investigator that Scott had told him
“they’re messin’ with me.”
In opening statements at Scott’s trial, defense counsel informed the jury that
plaintiff would testify that Scott told him “they’re messin’ with me” before he shot both
men.

Plaintiff testified about his encounter with Scott at his house prior to the

shootings, and the jury ultimately acquitted Scott of both murders.
CA Markle and the AAGs were upset. They believed that plaintiff withheld
substantial information and that his trial testimony differed from the information he
previously told them. As a result, CA Markle notified City of Coffeyville Police Chief
Anthony Celeste (“Chief Celeste”), via a letter dated February 3, 2014, that he
considered plaintiff to have Giglio issues and would not file criminal charges in a
different case because of plaintiff’s involvement.
An administrative complaint was filed against plaintiff, and an internal
investigation into the matter ensued to determine if plaintiff withheld exculpatory
evidence. Plaintiff cooperated with the investigation and passed a polygraph test.
On August 21, 2014, Chief Celeste determined the complaint was “Not
Sustained”—meaning there was insufficient evidence to support the allegations.
Plaintiff thought the matter was resolved. Then, in a letter dated March 30, 2015, CA
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Markle informed Interim City Manager James Grimmett that he would not prosecute
any cases in which plaintiff was involved.

CA Markle also demanded access to

defendant’s personnel files and Enterpol database for its police officers.
On April 7, 2015, CA Markle notified Chief Celeste that he was declining to
prosecute a case in which the video showed that plaintiff had spoken to the suspect, but
there was no audio. CA Markle noted that plaintiff was not a credible witness due to
Giglio issues and further that Chief Celeste had not provided other video/audio from
other officers present at the scene as requested. Defendant terminated plaintiff that
same day.
II.

Summary Judgment Standards
Summary judgment is appropriate if the moving party demonstrates that there is

no genuine dispute as to any material fact, and the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). A fact is “material” when it is essential to the claim,
and the issues of fact are “genuine” if the proffered evidence permits a reasonable jury
to decide the issue in either party’s favor. Haynes v. Level 3 Communs., 456 F.3d 1215,
1219 (10th Cir. 2006). The movant bears the initial burden of proof and must show the
lack of evidence on an essential element of the claim. Thom v. Bristol–Myers Squibb Co.,
353 F.3d 848, 851 (10th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23
(1986)). The nonmovant must then bring forth specific facts showing a genuine issue
for trial. Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). The court views all
evidence and reasonable inferences in the light most favorable to the nonmoving party.
LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).
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III.

Discussion
Plaintiff sues defendant for infringing on his First Amendment rights. “Under 42

U.S.C. § 1983, a plaintiff is entitled to recover damages from a person acting under color
of state law who violates his constitutional rights.” Seifert v. Unified Gov’t of Wyandotte
Cty./Kansas City, 779 F.3d 1141, 1150–51 (10th Cir. 2015).

However, plaintiff is a

government employee; thus, he does not enjoy First Amendment rights to the same
extent as a private citizen. See id. at 1151. (“Because ‘[g]overnment employers, like
private employers, need a significant degree of control over their employees’ words and
actions,’ not every restriction on a public employee’s speech amounts to a deprivation
of First Amendment rights.”) (internal citation omitted).
Retaliation cases based on First Amendment violations brought by government
employees against their employer are guided by the Garcetti/Pickering test, which has
five elements: (1) whether the speech was made pursuant to an employee’s official
duties; (2) whether the speech was on a matter of public concern; (3) whether the
government’s interests, as an employer, in promoting the efficiency of the public service
are sufficient to outweigh the plaintiff’s free speech interests; (4) whether the protected
speech was a motivating factor in the adverse employment action; and (5) whether the
defendant would reach the same employment decision in the absence of the protected
conduct. See Garcetti v. Ceballos, 547 U.S. 410 (2006), Trant v. Oklahoma, 754 F.3d 1158,
1165 (10th Cir. 2014). “The first three elements are typically questions of law (though
they can turn on disputed issues of fact), while the last two are typically questions of

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fact[]” for the jury. Seifert, 779 F.3d at 1151; Trant, 754 F.3d at 1165. Defendant argues
that plaintiff has failed to meet his burden as to the first, fourth, and fifth elements.3
A. Plaintiff’s speech was protected.
Defendant argues that plaintiff’s speech was unprotected because it was made
pursuant to his official duties. If the speech in controversy is made pursuant to an
employee’s official duties, then it is unprotected speech and may be the reason for
terminating an employee. Lane v. Franks, 134 S. Ct. 2369, 2378 (2014). Conversely, if the
speech in controversy concerns matters outside an employee’s official duties, then it is
protected speech. Id.
Plaintiff responds that his speech was outside the scope of his official duties.
Plaintiff had a brief encounter with Scott in his home while he was off duty. Plaintiff
argues that there was nothing to report; Scott simply told him “they’re messin’ with
me.” Plaintiff did not investigate the shootings and initiated each encounter he had
with the prosecution. The defense, as opposed to the state, subpoenaed plaintiff as a
witness to testify on Scott’s behalf.
Plaintiff parallels his situation to Seifert, and the court agrees that it governs the
outcome here. In Seifert, the Tenth Circuit held that Seifert’s speech was protected
because it was in compliance with a subpoena, and although it concerned the nature of
his work, it was not part of it. 779 F.3d at 1152. Nor was it like the routine testimony of
law-enforcement agents in support of criminal prosecutions. Id.

3 Defendant does not claim that plaintiff fails to meet his burden with respect to the second and third
elements. Regardless, the court finds that Scott’s criminal trial was a matter of public concern and further
that plaintiff had a duty to testify truthfully during Scott’s trial. The defense subpoenaed plaintiff as a
defense witness. Defendant was not involved.

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The parties dispute whether plaintiff told the AAGs about Scott’s statement in
plaintiff’s home during the pretrial investigation.

Defendant argues that it was

plaintiff’s pretrial statements—or lack thereof—that was inconsistent because he failed
to provide substantive information. Defendant argues that plaintiff’s silence was not
protected speech.
At this juncture, the court construes all controverted facts in favor of plaintiff, the
nonmoving party.

Plaintiff claims that he told the AAGs about Scott’s statement.

Regardless, the First Amendment protects the right to speak as well as the general right
not to speak. Koch v. City of Del City, 660 F.3d 1228, 1243 (10th Cir. 2011). Plaintiff’s
speech stemmed from a comment Scott told plaintiff in his living room. It did not arise
from an event when plaintiff was on duty. Plaintiff argues that this interaction did not
require him to prepare a report. Scott had knowledge of his own statement and this
awareness diminished any responsibility of the prosecution to disclose it. See generally
United States v. Quintanilla, 193 F.3d 1139, 1149 (10th Cir. 1999) (noting “a defendant’s
independent awareness of the exculpatory evidence is critical in determining whether a
Brady violation has occurred[]”). Therefore, the court finds that plaintiff has satisfied
his burden to show that his speech was protected under the First Amendment.
B. Plaintiff’s termination was related to his protected speech.
Defendant argues that there is no evidence of a retaliatory motive in this case. It
claims that the motivating factors behind plaintiff’s termination is the fact that CA
Markle “Giglioed” plaintiff and further said he would not prosecute any criminal cases
in which plaintiff was involved.

Defendant refers to CA Markle’s independent
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discretion to place anyone on the Giglio list, and once CA Markle placed plaintiff on this
list and refused to prosecute two cases, defendant’s hands were tied. Defendant argues
that CA Markle’s conduct was an intervening cause, unrelated to plaintiff’s protected
speech.
Although defendant tries to base its decision on CA Markle’s actions alone,
defendant made the decision to terminate plaintiff.

Plaintiff argues that the court

should be dubious of defendant’s Giglio argument and that defendant’s reasons for his
termination are inconsistent, thereby suggesting pretext. The court finds that plaintiff
has presented sufficient evidence that a reasonable jury could find pretext. Regardless,
the fact of the matter is that defendant’s termination derived from plaintiff’s testimony.
Defendant claims it is not the bad guy here; yet it cannot escape the fact that it made the
decision to terminate plaintiff.
Because defendant’s decision stemmed from plaintiff’s pretrial communications
with the AAGs and trial testimony, a reasonable jury could find that plaintiff’s
protected speech was the motivating factor in his termination. Similarly, there is no real
indication that defendant would have terminated plaintiff absent the protected speech.4
Plaintiff has made a sufficient showing that a jury should resolve the fourth and fifth
elements of the Garcetti/Pickering test.
IV.

Conclusion

Defendant briefly mentions that plaintiff failed to draft a report about his conversation with Scott. But
plaintiff argues that the failure to prepare a report was not a reason defendant cited when it terminated
plaintiff, and therefore, is pretext.
4

8 

The court finds that the case needs further development, and summary judgment
is not appropriate. Plaintiff has established that his speech was protected under the
First Amendment, and a reasonable jury could find that plaintiff’s termination was
because of his protected speech before and during in Scott’s trial.
IT IS THEREFORE ORDERED this 27th day of July, 2017, that defendant’s motion
for summary judgment (Dkt. 29) is DENIED.

s/ J. Thomas Marten
J. Thomas Marten, Judge

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