Finley v. Colby, Kansas, City of et al
Filing
65
MEMORANDUM AND ORDER denying as moot 31 Motion for Judgment; denying as moot 32 Motion for Judgment; granting in part and denying in part 49 Motion for Judgment; granting in part and denying in part 49 Motion to Dismiss for Failure to State a Claim; granting 54 Motion for Judgment. Signed by District Judge Eric F. Melgren on 7/19/2018. (cm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LANCE FINLEY
Plaintiff,
vs.
Case No. 17-cv-1215-EFM
CITY OF COLBY, KANSAS, RON
ALEXANDER, and TOM NICKOLS, JR.,
Defendants.
MEMORANDUM AND ORDER
This case arises out of Plaintiff Lance Finley’s termination from the Colby Policy
Department in February 2016. Plaintiff brings claims under the First Amendment and Kansas
common law against Defendant Tom Nickols, Jr., the Undersheriff of Thomas County, Kansas, at
the time Plaintiff’s employment with the City of Colby terminated; Defendant Ron Alexander, the
Chief of Policy of Colby, Kansas, at all relevant times; and Defendant City of Colby, Kansas. This
matter comes before the Court on Defendants’ various motions for judgment on the pleadings
(Docs. 31, 32, 49 and 54). For the reasons stated below, the Court grants Undersheriff Nickols’
Motion for Judgment on the Pleadings (Doc. 54), grants in part and denies in part Chief Alexander
and the City of Colby’s Motion for Judgment on the Pleadings (Doc. 49), and denies as moot
Defendants’ remaining motions (Docs. 31 and 32).
I.
Factual and Procedural Background1
Plaintiff worked as an officer with the Colby Police Department from approximately
August 2013, until his termination on February 18, 2016.2 At all times relevant to the allegations
in this lawsuit, Defendant Alexander has been the Chief of Police of Colby, Kansas. Colby is a
city in Thomas County, Kansas.
Plaintiff’s brother, Marc Finley, worked for the Thomas County Sheriff’s Office until his
termination on an undisclosed date. In September 2015, while employed as the Undersheriff for
the Thomas County Sheriff’s Office, Marc Finley submitted a seven-page letter to the Kansas
Bureau of Investigation, the Attorney General, the Kansas Commission on Peace Officers’
Standard and Training (KS CPOST), and the Board of County Commissioners of Thomas County,
Kansas. The letter alleged numerous misdeeds by the Thomas County Sheriff, Rod Taylor,
including drinking on the job, theft, sexual harassment, destruction of evidence, and abuse of
power. Chief Alexander knew of Marc Finley’s grievance.
In November 2015, Plaintiff pulled over Jim Cousins, an employee of the Thomas County
Sheriff’s Office, for driving his truck on a public roadway with snow covering a large portion of
the windshield. Chief Alexander and Richard Barrett3 told Plaintiff that he could not issue a ticket
to Cousins because of politics. On January 15, 2016, while off duty, Plaintiff observed Cousins
1
The Court accepts the factual allegations in Plaintiff’s Second Amended Complaint as true for purposes of
this motion, and views the facts in the light most favorable to Plaintiff.
2
Plaintiff’s Second Amended Complaint alleges that he was told he would be fired if he did not resign and
that Plaintiff originally agreed to resign his employment. Plaintiff refers to his separation as a termination;
accordingly, the Court will do the same here.
3
Plaintiff’s Second Amended Complaint does not identify Barrett’s position or his connection to this case.
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driving a vehicle erratically by crossing the center line on the road. Plaintiff reported the erratic
driving to dispatch, Chief Alexander, and Thomas County Attorney Kevin Berens.
At approximately 7:00 a.m. on February 17, 2016, Chief Alexander told Plaintiff that he
and others had reviewed the dashcam footage from Cousins’ vehicle and determined that Cousins
did not cross the center line on January 15, 2016. Chief Alexander told Plaintiff that he could be
charged with filing a false police report and that Plaintiff’s employment would be terminated if he
did not resign.
Chief Alexander explained to Plaintiff that the decision to terminate his
employment was “political.” Plaintiff agreed to resign his employment. Later that day, Plaintiff
texted Chief Alexander and said: “This morning when you confronted me about your concerns, I
had not had a chance to sleep, and as a result I have been unable to sleep yet I will meet with you
tomorrow after I have been afforded the chance to sleep and process the allegations made against
me.” In response, Defendant Alexander said: “Thats [sic] fine. After speakinv [sic] with Tom I
dont [sic] believe anyone will be seaking [sic] to file a case.”
On February 18, Plaintiff attempted to withdraw his resignation and Chief Alexander told
Plaintiff that his employment would be terminated regardless. Chief Alexander also stated that he
forced Plaintiff’s termination to save Plaintiff from being charged criminally by Undersheriff
Nickols, and that Plaintiff could blame his separation on the “idiot Chief Ron Alexander” and
“politics.” Plaintiff alleges that Chief Alexander later admitted that he did not know whether
Cousins’ vehicle ever crossed the center line on January 15, 2016.
Defendant Tom Nickols was the Undersheriff in Thomas County at the time of Plaintiff’s
complaint regarding Cousins and at the time of Plaintiff’s termination. In his Second Amended
Complaint, Plaintiff alleges: “Defendant Nickols did this because of [sic] Plaintiff’s brother is
Marc Finley, who a few months earlier had raised concerns about unethical and illegal practices
-3-
by Thomas County Sheriff Rod Taylor, and because Plaintiff had reported Jim Cousins’ driving to
law enforcement.” Plaintiff’s Second Amended Complaint does not identify what the word “this”
in the above allegation refers to. In his original Complaint, as well as in his response to
Defendants’ motions to dismiss, Plaintiff alleges that Undersheriff Nickols demanded that Chief
Alexander and the City of Colby terminate Plaintiff’s employment.
Plaintiff filed this action on August 22, 2017. He claims that Chief Alexander, the City of
Colby, and Undersheriff Nickols violated the First Amendment of the U.S. Constitution, Kansas
public policy, and Kansas common law, and that Undersheriff Nickols committed tortious
interference. After Plaintiff filed his first Amended Complaint, Defendants sought dismissal of
Plaintiff’s Amended Complaint (Docs. 31 and 32).4
Plaintiff subsequently filed a Second
Amended Complaint, and Defendants again filed motions for judgment on the pleadings. Plaintiff
filed a combined response to Undersheriff Nickols and Chief Alexander and the City of Colby’s
motions for judgment on the pleadings.
II.
Legal Standard
Under Federal Rule of Civil Procedure 12(c), a party may move for judgment on the
pleadings after the pleadings are closed as long as the motion is made early enough not to delay
trial.5 The standard for dismissal under Rule 12(c) is the same as the standard for dismissal under
Rule 12(b)(6).6 Accordingly, to survive a motion for judgment on the pleadings, a complaint must
4
Defendants’ motions for judgment on the pleadings filed before Plaintiff filed his Second Amended
Complaint are moot. Accordingly, the Court substantively addresses only the motions for judgment on the pleadings
filed in response to Plaintiff’s Second Amended Complaint.
5
Fed. R. Civ. P. 12(c).
6
Myers v. Koopman, 738 F.3d 1190, 1193 (10th Cir. 2013); KMMentor, LLC v. Knowledge Mgmt. Prof’l
Soc., Inc., 712 F. Supp. 2d 1222, 1231 (D. Kan. 2010).
-4-
present factual allegations, assumed to be true, that “raise a right to relief above the speculative
level,” and must contain “enough facts to state a claim to relief that is plausible on its face.”7 All
reasonable inferences from the pleadings are granted in favor of the non-moving party.8 Judgment
on the pleadings is appropriate when “the moving party has clearly established that no material
issue of fact remains to be resolved and the party is entitled to judgment as a matter of law.”9
When a complaint includes exhibits, the Court may “consider not only the complaint itself,
but also attached exhibits.”10 If the complaint refers to a document, but does not include it as an
exhibit, the Court may consider a copy of the document provided by the defendant if the plaintiff
does not dispute the document’s authenticity and the document is central to the plaintiff’s claims.11
The Tenth Circuit recently approved the consideration of a video of events described in a plaintiff’s
complaint in deciding a motion to dismiss, and noted that it would accept as true the plaintiff’s
allegations “except when directly contradicted by . . . the video of the incident.”12
III.
A.
Analysis
Chief Alexander and the City of Colby’s Motion for Judgment on the Pleadings
1.
First Amendment Retaliation
“Public employees do not surrender all their First Amendment rights by reason of their
employment.
Rather, the First Amendment protects a public employee’s right, in certain
7
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 (2007).
8
Sanders v. Mountain Am. Fed. Credit Union, 689 F.3d 1138, 1141 (10th Cir. 2012).
9
Id. (quoting Park Univ. Enters., Inc. v. Am. Cas. Co., 442 F.3d 1239, 1244 (10th Cir. 2006)).
10
Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) (citations omitted).
11
Id.; GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384-85 (10th Cir. 1997).
12
Estate of Ronquillo by & through Estate of Sanchez v. City & Cty. of Denver, 720 F. App’x 434, 437 (10th
Cir. 2017).
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circumstances, to speak as a citizen addressing matters of public concern.”13 The Court evaluates
First Amendment retaliation claims in the employment context under the framework derived from
the U.S. Supreme Court’s decisions in Garcetti and Pickering v. Board of Education.14 The
Garcetti/Pickering test includes five elements:
1. The protected speech was not made pursuant to an employee’s official duties.
2. The protected speech addressed a matter of public concern.
3. The government’s interests as an employer did not outweigh the employee’s
free-speech interests.
4. The protected speech was a motivating factor in the adverse employment action.
5. The defendant would not have made the same employment decision in the
absence of the protected speech.15
Generally, the first three inquiries are questions of law for the Court, whereas the last two inquiries
involve questions of fact for the jury.16
Plaintiff rests his First Amendment retaliation claim on two alleged incidents of protected
conduct: (1) the grievance submitted by Marc Finley, Plaintiff’s brother, regarding the Thomas
County Sheriff and (2) his own report of unlawful conduct by Cousins, an employee of the Thomas
County Sheriff’s Office. Defendants argue that Marc Finley’s allegedly protected speech cannot
form the basis of Plaintiff’s First Amendment retaliation claim, and, regardless, that Plaintiff has
13
Garcetti v. Ceballos, 547 U.S. 410, 417 (2006) (citations omitted).
14
391 U.S. 563 (1968).
15
Lincoln v. Maketa, 880 F.3d 533, 538 (10th Cir. 2018) (citation omitted).
16
Deutsch v. Jordan, 618 F.3d 1093, 1098 (10th Cir. 2010) (recognizing that although the first three questions
are legal in nature, resolution of these inquiries may turn on a factual dispute appropriate for the jury, such as deciding
precisely what the plaintiff said; likewise, there may not be a genuine issue of fact for the jury to resolve on the last
two inquiries).
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failed to adequately plead facts sufficient to satisfy the fourth and fifth elements of his claim.
Defendants also assert that Plaintiff has not stated a claim with regard to his report of Cousins’
alleged erratic driving because he has failed to satisfy all but the first element of the
Garcetti/Pickering test.17
a. Marc Finley’s complaint regarding the Thomas County Sheriff
Standing serves as a threshold inquiry and jurisdictional prerequisite to suit—if a plaintiff
does not have standing to pursue his claims, the Court does not have jurisdiction to hear the claims.
Accordingly, before reaching the merits of Defendants’ motion, the Court must first determine
whether Plaintiff has standing to pursue a claim based on his brother’s allegedly protected activity.
The Supreme Court’s standing jurisprudence includes two strands of standing: (1) Article
III standing and (2) prudential standing.18 Prudential standing “encompasses various limitations,
including ‘the general prohibition on a litigant’s raising another person’s legal rights,’ ” and
embodies the general principle that a plaintiff “must assert his own legal rights and interests, and
cannot rest his claim to relief on the legal rights or interests of third parties.”19
When analyzing whether a plaintiff may pursue a First Amendment retaliation claim based
on the protected speech of a third party—as opposed to the plaintiff’s own speech—Courts require
the plaintiff to demonstrate (1) that he suffered an injury, (2) a close relationship exists between
the plaintiff and the third party who possessed the First Amendment rights, and (3) “some
17
Although Defendants do not affirmatively concede the first element, they do not contest whether Plaintiff
has satisfied it.
18
The Wilderness Soc. v. Kane Cty., 632 F.3d 1162, 1168 (10th Cir. 2011). Article III standing requires the
plaintiff to have suffered an “injury in fact” that a favorable judgment will redress. Id.
19
Id. (quoting Allen v. Wright, 468 U.S. 737, 751 (1984); Warth v. Seldin, 422 U.S. 490, 499 (1975)) (internal
quotation marks omitted from second quotation).
-7-
hindrance to the third party’s ability to protect his or her own interests.”20 Assuming that Plaintiff
satisfies the first two elements—that he suffered an injury and that he has a close relationship with
his brother—he nevertheless lacks standing because he cannot satisfy the third requirement.
Nothing appears to have prevented Marc Finley from protecting his own interests. Indeed, Marc
Finely filed a lawsuit against Thomas County, Sheriff Rod Taylor, and Undersheriff Nickols
alleging First Amendment retaliation based on his allegedly protected criticisms of Sheriff
Taylor.21
Further, to the extent Plaintiff seeks to pursue violations of his right to familial association,
his claim fails. “The Tenth Circuit has repeatedly recognized the right to familial association as a
‘liberty interest’ protected by the Due Process Clause of the Fourteenth Amendment, not the First
Amendment.”22 Plaintiff has not pleaded facts sufficient to state a claim for violations of his right
to familial association,23 and does not have standing to bring a First Amendment retaliation claim
20
Payton v. Marlette, 2013 WL 3147661, at *3-4 (D. Kan. 2013) (quoting Campbell v. Louisiana, 532 U.S.
392, 397 (1998)) (analyzing standing where the plaintiff alleged that defendants retaliated against him by denying an
employment opportunity after his daughter wrote a letter to a Kansas senator, and concluding that even if Plaintiff
could establish a First Amendment violation, the defendants were entitled to qualified immunity under the clearlyestablished prong). See also Moody v. Mich. Gaming Control Bd., 847 F.3d 399, 403-04 (6th Cir. 2017) (concluding
that the plaintiff could not pursue a claim based on his father’s speech where his father was not prevented from raising
his own claims); Huth v. Haslun, 598 F.3d 70, 75 (2d Cir. 2010) (applying same elements and concluding that the
plaintiff did not have third-party standing); Hodak v. City of St. Peters, 535 F.3d 899, 904 (8th Cir. 2008) (applying
the same factors and concluding the plaintiff did not have standing to assert First Amendment retaliation claim based
on third-party’s speech); Wasson v. Sonoma Cty. Junior Coll., 203 F.3d 659, 662 (9th Cir. 2000) (noting that a “First
Amendment retaliation claim is not a wrongful termination claim,” and holding that plaintiff did not have a First
Amendment retaliation claim when she was retaliated against for someone else’s speech and that she did not have
third-party standing to maintain her action as defending the First Amendment rights of the author of certain letters).
21
See Finely v. Thomas Cty., Doc. 1, No. 17-1151 (D. Kan. 2017).
22
Moral v. Hagen, 2013 WL 1660484, at *10 (D. Kan. 2013) (citing Roberts v. U.S. Jaycees, 468 U.S. 609,
617-22 (1984); Lowery v. Cty. of Riley, 522 F.3d 1086, 1092 (10th Cir. 2008); J.B. v. Washington Cty., 127 F.3d 919,
927 (10th Cir. 1997); Griffin v. Strong, 983 F.2d 1544, 1547 (10th Cir. 1993); Trujillo v. Bd. of Cty. Comm’rs, 768
F.2d 1186, 1189-90, 1190 n.7 (10th Cir. 1985)).
23
See, e.g., Trujilo, 768 F.2d at 1190 (concluding “that an allegation of intent to interfere with a particular
relationship protected by the freedom of intimate association is required to state a claim” and holding that plaintiffs
mother and sister failed to allege intent on defendants’ part to deprive them of their protected relationship with their
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based on his brother’s allegedly protected speech. Accordingly, Plaintiff may not rely on his
brother’s speech to pursue a First Amendment retaliation claim.
b. Complaint regarding Cousins
Defendants allege that Plaintiff fails to state a claim for First Amendment retaliation based
on his report of Cousins’ erratic driving because he cannot satisfy the second, third, fourth, or fifth
elements of his claim.
i.
Matter of public concern
The entirety of Defendants’ brief on this issue states, without legal citation: “A report of a
driver allegedly crossing the centerline once is not a matter of public concern. It was an internal
report to the Plaintiff’s employer, not regarding a matter of public concern. Thus, plaintiff has not
engaged in any protected activity.” The Court disagrees.
When analyzing whether speech touches on a matter of public concern, the Court looks “to
the content, form, and context of an employee’s statement to determine if it pertains to a matter of
public concern.”24 The Tenth Circuit has “held that statements revealing official impropriety
usually involve matters of public concern.”25 Further, the fact that a plaintiff selects “a private
son/brother); Griffin, 983 F.2d at 1547 (noting that the familial right of association is a substantive due process right
and concluding that not every “act that results in an interference with the rights of intimate association is actionable,”
and “to rise to the level of a constitutional claim, the defendant must direct his or her statements or conduct at the
intimate relationship with knowledge that the statements or conduct will adversely affect that relationship”) (emphases
in original); Moody, 847 F.3d at 403-04 (noting that plaintiff “never asserted in his complaint that he was retaliated
against for constitutional association with his father or that his relationship with his father was impaired due to the
Defendants’ actions”).
24
Baca v. Sklar, 398 F.3d 1210, 1219 (10th Cir. 2005) (citing Connick v. Myers, 461 U.S. 138, 147-48
(1983)).
25
Id. (citing Lighton v. Univ. of Utah, 209 F.3d 1213, 1224-25 (10th Cir. 2000)); see also Deutsch, 618 F.3d
at 1100 (noting that speech disclosing “any evidence of corruption, impropriety, or other malfeasance on the part of
city officials clearly concerns matters of public import”) (quotation omitted); Dill v. City of Edmond, Okla., 155 F.3d
1193, 1202 (10th Cir. 1998) (“Although speech related to internal personnel disputes ordinarily does not involve
public concern, ‘speech which discloses any evidence of corruption, impropriety, or other malfeasance on the part of
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forum within the police department and the district attorney’s office, rather than a public forum,
does not remove the speech from First Amendment protection.”26
Here, Plaintiff did not simply report “a driver,” but rather, reported erratic driving by an
officer charged with upholding the law. The Tenth Circuit has noted that “any” evidence of
impropriety or malfeasance by government officials “clearly concerns matters of public import,”
and the Court agrees with Plaintiff that reporting erratic and dangerous driving by an officer in his
police vehicle addresses a matter of public concern. Further, that Plaintiff reported the matter
“internally” does not preclude his claim.27
ii.
The parties’ respective interests
Even if a public employee speaks as a citizen on a matter of public concern, his First
Amendment claim may fail if the government has “ ‘an adequate justification for treating the
employee differently from any other member of the public’ based on the government’s needs as
an employer.”28 “The only public employer interest that outweighs the employee’s free speech
interest is avoiding direct disruption, by the speech itself, of the public employer’s internal
operations and employment relationships.”29 The Court does not consider the parties’ respective
interests in a “vacuum,” but rather, considers “the manner, time, and place of the employee’s
city officials . . . clearly concerns matters of public import.’ ”) (quoting Conaway v. Smith, 853 F.2d 789, 796 (10th
Cir. 1988)) (alteration in original).
26
Dill, 155 F.3d at 1202.
27
See id.
28
Helget v. City of Hays, 844 F.3d 1216, 1222 (10th Cir. 2017) (quoting Lane v. Franks, 134 S. Ct. 2369,
2380 (2014)).
29
Id. (quotation marks and quotation omitted) (emphasis in original).
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expression.”30 Pertinent factors to consider when weighing the parties’ interests include whether
Plaintiff’s statement: (1) “impairs discipline by superiors or harmony among coworkers,”
(2) detrimentally impacts “close working relationships for which personal loyalty and confidence
are necessary,” or (3) “impedes the performance of the speaker’s duties or interferes with the
regular operation of the enterprise.”31
Defendants argue that a county sheriff’s office and a city police department in the county
seat often have to rely upon each other for backup and support in dangerous situations when the
lives of officers may be at stake. Accordingly, they argue, a good working relationship is essential
and allegations of illegal activity that are reasonably seen to be false raise grave questions about
Plaintiff’s ability to maintain a close working relationship.
Defendants’ argument starts from the premise that Chief Alexander reasonably concluded
Plaintiff’s report was false. But the Court cannot accept this premise as true at this stage in the
litigation.32 Defendants incorrectly state that “Plaintiff’s Complaint on its face alleges that Chief
Alexander reviewed the dashcam video and concluded that it did not show what the Plaintiff had
reported.”
Plaintiff’s Second Amended Complaint alleges that “Defendant Alexander told
Plaintiff he and others had reviewed dashcam footage . . . and determined that Mr. Cousins did not
cross the center line on January 15, 2016.” It continues to allege that “Defendant Alexander has
30
Id. (quotations omitted).
31
Id. (quotation omitted). The Tenth Circuit recognizes that “loyalty and confidence among employees is
especially important in a law enforcement setting.” Id. at 1223.
32
Defendants submit an audio recording of the alleged phone call between Plaintiff and dispatch as well as
the alleged dashcam footage of Cousin’s vehicle. Even accepting Defendants’ proffer of what the audio/video
recordings show, this does not establish what Chief Alexander had or had not reviewed or concluded when he asked
for Plaintiff’s resignation. Further, the Court declines Defendants’ invitation for it to engage in fact-finding by
counting “the seconds between miles” to determine Cousins’ actual rate of speed.
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since admitted he did not know whether Jim Cousins ever crossed the center line on January 15,
2016.” The reasonable inference from these allegations is that Chief Alexander told Plaintiff one
thing in the course of his termination and subsequently admitted that he did not actually know
whether what he previously said was true. Thus, when viewing the allegations in the light most
favorable to Plaintiff, the Court cannot conclude that Chief Alexander actually concluded that
Cousins had not crossed the center line or driven erratically prior to Plaintiff’s termination.
Accepting as true the allegations stated in Plaintiff’s Second Amended Complaint and
considering the circumstances presently before the Court as a whole, Defendants’ interests in
maintaining a good working relationship with the Thomas County Sheriff’s Office do not outweigh
Plaintiff’s interests in making an internal report of illegal and dangerous conduct by a member of
the Sheriff’s Office. The time, manner, and place of Plaintiff’s report appear to have occurred in
a manner so as to cause minimal disruption. His report does not appear to impair discipline by
superiors or directly affect harmony in the Colby Police Department, impact working relationships
within the Colby Policy Department, or impede Plaintiff’s performance of his duties or interfere
with the regular operation of the Colby Police Department. And while the report may detrimentally
impact relationships with the Thomas County Sheriff’s Office, given the manner, time, and place
of the report, the Court does not agree that Defendants’ interests outweigh Plaintiff’s interests.
iii.
Causation
Finally, Defendants contend that Plaintiff has failed to plead facts sufficient to establish
the fourth and fifth elements of his claim. Generally, the fourth and fifth factors are questions of
fact for the jury to decide. If, however, Plaintiff fails to plead facts sufficient to support a finding
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that Plaintiff’s protected speech played a motivating factor in his termination, dismissal may
nevertheless be appropriate.
Here, Plaintiff has alleged that Defendants terminated his “employment because he made
good faith reports about violations of the law.” When viewing the factual allegations in the light
most favorable to Plaintiff, as the Court must, Plaintiff has adequately pleaded that his report of
Cousins “was a motivating factor” in his termination. Defendants’ contention that Plaintiff failed
to plead facts to establish the fifth element of his claim also fails. “At the fifth step, if the employee
establishes that his or her protected speech was a motivating factor in the adverse employment
decision, ‘the burden then shifts to the defendant, who must show by a preponderance of the
evidence it would have reached the same employment decision in the absence of the protected
activity.’ ”33 Delving into the fifth step requires the Court to consider facts not contained in the
Plaintiff’s Second Amended Complaint and is an improper inquiry at this stage. Plaintiff has not
failed to plead facts sufficient to support causation, and Chief Alexander and the City of Colby’s
request for judgment on the pleadings on this basis is denied.34
2.
Qualified Immunity35
“Individual defendants named in a § 1983 action may raise a defense of qualified immunity,
which shields public officials from damages actions unless their conduct was unreasonable in light
33
Trant v. Oklahoma, 754 F.3d 1158, 1167 (10th Cir. 2014) (quoting Cragg v. City of Osawatomie, 154 F.3d
1343, 1346 (10th Cir. 1998)).
34
This is true regardless of whether the Court considers the audio and video evidence submitted by
Defendants. The audio and video recordings do not definitively show Defendants’ reasoning for requesting Plaintiff’s
resignation. Rather, they simply provide an account of events that occurred on a specific day.
35
Qualified immunity from suit under § 1983 extends only to government officials in their individual
capacities—it does not bar Plaintiff’s claims against the City of Colby. See Bd. of Cty. Comm’rs, Wabaunsee Cty. v.
Umbehr, 518 U.S. 668 (1996); Cox v Glanz, 800 F.3d 1231, 1240 (10th Cir. 2013).
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of clearly established law.”36 The doctrine precludes this Court from awarding “damages against
a government official in his personal capacity unless the official violated a statutory or
constitutional right, and the right was clearly established at the time of the challenged conduct.”37
It protects “all but the plainly incompetent or those who knowingly violate the law,” and affords
“government officials breathing room to make reasonable but mistaken judgments.”38
“Once a defendant raises qualified immunity, the plaintiff bears the burden to show that
the defendant is not entitled to immunity.”39 Since Chief Alexander has asserted qualified
immunity, Plaintiff “carries a two-part burden to show: (1) that the defendant’s actions violated a
federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the
time of the defendant’s unlawful conduct.”40 “This is a heavy burden,” and if Plaintiff “fails to
satisfy either part of the inquiry, the court must grant qualified immunity.”41 When analyzing
whether qualified immunity applies, the Court may address the required prongs in either order.42
Since the Court addressed the merits of Plaintiff’s Second Amended Complaint above, it will focus
on the “clearly established” prong here.
36
Knopf v. Williams, 884 F.3d 939, 943-44 (10th Cir. 2018) (quotation omitted).
37
Lane, 134 S. Ct. at 2381 (quotations omitted).
38
Gutierrez v. Cobos, 841 F.3d 895, 899-900 (10th Cir. 2016) (quotations omitted).
39
Lincoln, 880 F.3d at 537 (citation omitted).
40
Gutierrez, 841 F.3d at 900 (10th Cir. 2016) (quotation omitted).
41
Knopf, 884 F.3d at 944.
42
Id.
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“To be clearly established, ‘existing precedent must have placed the statutory or
constitutional question beyond debate.’ ”43
“A right is ‘clearly established’ when every
‘reasonable official would [understand] that what he is doing violates that right.’ ”44 That “right,”
however, “cannot be defined at a high level of generality; instead, the key is whether the specific
conduct has been clearly established as a constitutional violation.”45 “In this circuit, to show that
a right is clearly established, the plaintiff must point to a Supreme Court or Tenth Circuit decision
on point, or the clearly established weight of authority from other courts must have found the law
to be as the plaintiff maintains.”46 A decision, however, need not be specifically on point if the
challenged “conduct is obviously unlawful in light of existing precedent.”47
Because Plaintiff does not have standing to bring a third-party retaliation claim and has not
adequately pleaded a claim for violation of his right to familial association, the Court need not
address Plaintiff’s claims regarding his brother’s allegedly protected speech.48 Accordingly, the
Court limits its analysis to whether it was clearly established at the time of Chief Alexander’s
43
Id. (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)).
44
Lincoln, 880 F.3d at 537 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)) (alteration in original).
45
Id. (citation omitted).
46
Gutierrez, 841 F.3d at 900 (quotation omitted).
47
Lincoln, 880 F.3d at 537 (quotation omitted).
48
The Court notes, however, that even if it did not dismiss Plaintiff’s claim relying on his brother’s speech,
Chief Alexander would be entitled to qualified immunity on this claim. Plaintiff fails to cite any Tenth Circuit or U.S.
Supreme Court case on point, fails to demonstrate that the clearly established weight of authority from other courts
favors his assertions, and fails to otherwise meet his burden on the clearly-established element. See Gutierrez, 841
F.3d at 902 (concluding that plaintiffs failed to meet their burden on the clearly-established-law element of qualified
immunity where they failed to cite legal authority supporting their claim); Smith v. McCord, 707 F.3d 1161, 1162
(10th Cir. 2013) (noting that the plaintiff was bound by his counsel’s “poor lawyering” in failing to meet burden on
qualified immunity analysis); Rojas v. Anderson, 727 F.3d 1000, 1003-04 (10th Cir. 2013) (affirming grant of
summary judgment where the plaintiff “made little, if any, attempt to meet his heavy two-part burden”) (quotation
omitted); Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010) (noting that neither case relied on by the plaintiff
clearly established “the law with regard to the specific context of the case presented” there).
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actions that Chief Alexander could not terminate Plaintiff for reporting an alleged violation of the
law by a fellow law enforcement officer.49
In Walter v. Morton,50 the Tenth Circuit recognized the clearly established right for a law
enforcement officer not to be discharged for reporting criminal activities of his Chief of Police.
There, a police officer believed that the Chief of Police had engaged in illegal activities and
reported the findings of his investigation into such activities to the District Attorney’s office and
to the Oklahoma State Bureau of Investigation. In holding that a fact issue precluded summary
judgment on the issue of whether the police chief and mayor were entitled to qualified immunity,
the Tenth Circuit noted that the plaintiff “allege[d] he was discharged because he reported criminal
activities of the Chief of Police,” and that if the plaintiff “was discharged in retaliation [for] his
report, this would constitute a violation of a clearly established constitutional right.”51
The Court concludes that Walter establishes the necessary precedent to satisfy the “clearly
established” prong. As in Walter, this case involves a police officer reporting a high-ranking law
enforcement official’s suspected illegal activity, and a subsequent discharge allegedly resulting
from that report. To the extent differences exist between this case and Walter, such differences
are immaterial and do not change the result. Indeed, a case need not be directly on point if the
49
The Court rejects Defendants’ framing of this question—whether it was clearly established that an
employer could not take action against an employee for making what the employer reasonably believed to be a false
accusation of wrongdoing against an officer in a neighboring agency. This framing of the question requires the Court
to accept as true the premise that Chief Alexander believed Plaintiff made a false accusation at the time of his
termination. Plaintiff’s Second Amended Complaint does not allege or concede that Chief Alexander believed
Plaintiff’s allegations regarding Cousins were false. In adjudicating a Rule 12(c) motion, it is improper for the Court
to accept Chief Alexander’s proffer of what he believed at the time of his decision as it requires the Court to accept
facts not contained in Plaintiff’s Second Amended Complaint.
50
33 F.3d 1240 (10th Cir. 1994).
51
Id. at 1243.
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“conduct is obviously unlawful in light of existing precedent.”52 Based on the facts as alleged by
Plaintiff, as well as Tenth Circuit precedent, the Court concludes that it would be premature to
grant Chief Alexander’s request for qualified immunity at this stage.53
3.
State Law Claims
Defendants ask this Court to decline to exercise supplemental jurisdiction over Plaintiff’s
state law claim—they do not seek dismissal of Plaintiff’s state law claim on any other basis.
Because Defendants’ request presupposes the dismissal of Plaintiff’s federal claims, and since one
federal claim remains, the Court denies Defendants’ request.
B.
Undersheriff Nickols’ Motion for Judgment on the Pleadings
Plaintiff pursues First Amendment retaliation and tortious interference claims against
Undersheriff Nickols. Because Undersheriff Nickols is not Plaintiff’s employer, a different test
applies to Plaintiff’s First Amendment retaliation claim. Thus, for Plaintiff’s First Amendment
retaliation claim against Undersheriff Nickols to survive a motion for judgment on the pleadings,
Plaintiff must allege facts that, if true, would satisfy the following elements: (1) that he engaged
in constitutionally protected activity, (2) “that the defendant’s actions caused the plaintiff to suffer
an injury that would chill a person of ordinary firmness from continuing to engage in that activity,”
52
Lincoln, 880 F.3d at 537 (quotation omitted). The Tenth Circuit has also made similar holdings in other
government-employment cases. See, e.g., Thomas v. City of Blanchard, 548 F.3d 1317, 1328 (10th Cir. 2008)
(concluding that the defendants were not entitled to qualified immunity from terminated employee’s First Amendment
retaliation claim where the employee alleged that he was terminated for reporting suspected criminal activity by
members of the city, including the mayor).
53
The Court notes, however, that “this does not foreclose Defendant[] from reasserting [his] entitlement to
qualified immunity on a motion for summary judgement.” See Seamons v. Snow, 84 F.3d 1226, 1238 (10th Cir. 1996)
(citation omitted).
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and (3) “that the defendant’s adverse action was substantially motivated as a response to the
plaintiff’s exercise of constitutionally protected conduct.”54
To survive Undersheriff Nickols’ motion for judgment on the pleadings as to his tortious
interference claim, Plaintiff must allege facts to meet the following elements:
(1) The existence of a business relationship or expectancy with the probability
of future economic benefit to the plaintiff; (2) knowledge of the relationship or
expectancy by the defendant; (3) that, except for the conduct of the defendant,
plaintiff was reasonably certain to have continued the relationship or realized
the expectancy; (4) intentional misconduct by defendant; and (5) damages
suffered by plaintiff as a direct or proximate cause of defendant’s misconduct.55
Both causes of action against Undersheriff Nickols require a causal connection between
Plaintiff’s injury and Undersheriff Nickols’ actions, and Plaintiff has failed to plead facts sufficient
to satisfy the causation elements of either of his claims. Specifically, Plaintiff has not pleaded
facts to support a finding that Undersheriff Nickol’s actions caused him to suffer an injury or that
except for Undersheriff Nickol’s conduct, Plaintiff would have continued his employment with the
City of Colby.
Plaintiff’s Second Amended Complaint alleges that Chief Alexander told Plaintiff that he
forced Plaintiff’s termination to save him from being charged criminally by Undersheriff Nickols,
that Undersheriff Nickols provided Chief Alexander with dashcam footage, and that Undersheriff
Nickols took some action because of Plaintiff’s brother and because Plaintiff had reported Cousins’
driving to law enforcement. While his Second Amended Complaint does not identify what action
Undersheriff Nickols allegedly took against Plaintiff, Plaintiff’s response brief alleges that
54
Klen v. City of Loveland, 661 F.3d 498, 508 (10th Cir. 2011) (quoting Worrell v. Henry, 219 F.3d 1197,
1212 (10th Cir. 2000)).
55
Burcham v. Unison Bancorp, Inc., 276 Kan. 393, 77 P.3d 130, 151 (2003) (quotation omitted).
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Undersheriff Nickols demanded that the City of Colby terminate Plaintiff’s employment or face
criminal prosecution. The Court need not decide whether Plaintiff can rely on a fact alleged in his
response brief but not contained in his Second Amended Complaint because even if the Court
considered the allegation, Plaintiff’s claims still fail. At no point in Plaintiff’s Second Amended
Complaint does Plaintiff allege that Undersheriff Nickols caused his termination or any other
injury. Rather, Plaintiff alleges that Chief Alexander and the City of Colby “terminated Plaintiff’s
employment because he made good faith reports about violations of the law, because of his familial
relationship with Marc Finley, and because Marc Finley exposed unethical and illegal conduct by
Thomas County Sheriff Rod Taylor.”
The only allegation that could potentially be interpreted as suggesting Undersheriff Nickols
caused Plaintiff’s termination is that Chief Alexander told Plaintiff that he forced his resignation
to save Plaintiff from being charged criminally. Plaintiff, however, does not allege that Chief
Alexander terminated him because of Undersheriff Nickols’ actions. Rather, Plaintiff pleaded that
after Chief Alexander told Plaintiff that he did not believe anyone would be filing charges, Chief
Alexander told Plaintiff that his “employment was terminated no matter what Plaintiff decided.”
Simply stated, even assuming Undersheriff Nickols asked for Plaintiff’s termination, Plaintiff has
failed to plead facts sufficient to support a finding that this request impacted Chief Alexander’s
decision to terminate Plaintiff, and has failed to plausibly plead a First Amendment retaliation
claim against Undersheriff Nickols.56
56
For the reasons explained above, to the extent Plaintiff seeks to pursue a claim against Undersheriff Nickols
for retaliation based on Marc Finley’s allegedly protected speech, Plaintiff does not have standing to pursue a First
Amendment retaliation claim based on his brother’s activity and he has not adequately pleaded a familial rights claim.
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Plaintiff’s tortious interference claim against Undersheriff Nickols fails for similar reasons.
Plaintiff admits that in order to pursue a tortious interference claim, he must show that “except for
the conduct of the defendant, plaintiff was reasonably certain to have continued the relationship or
realized the expectancy.” Plaintiff fails to allege facts sufficient to support a finding that his
termination resulted from Undersheriff Nickols’ action, and that he would not have been
terminated in the absence of Undersheriff Nickols’ actions.
In short, Plaintiff fails to plead facts sufficient to support the necessary causal link between
Undersheriff Nickols’ allegedly improper actions and the injury suffered by Plaintiff. Without
such facts, Plaintiff’s Second Amended Complaint fails to state a claim upon which relief can be
granted against Undersheriff Nickols.
IV.
Conclusion
Defendant does not have standing to pursue a First Amendment retaliation claim based on
his brother’s speech. However, Plaintiff has adequately pleaded a cause of action against the City
of Colby and Chief Alexander based on his report regarding Cousins, and Chief Alexander is not
entitled to qualified immunity with regard to this claim. Accordingly, Chief Alexander and the
City of Colby’s motion for judgment on the pleadings is granted in part and denied in part. Because
Plaintiff failed to adequately plead facts sufficient to support a finding of causation as to
Undersheriff Nickols, the Court grants Undersheriff Nickols’ motion for judgment on the
pleadings. Finally, Defendants’ motions for judgment on the pleadings filed before Plaintiff filed
his Second Amended Complaint are denied as moot.
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IT IS THEREFORE ORDERED that The City of Colby’s and Ron Alexander’s Motion
for Judgment on the Pleadings Dismissing Plaintiff’s Second Amended Complaint (Doc. 49) is
GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that Defendant Nickols’ Motion for Judgment on the
Pleadings (Doc. 54) is GRANTED.
IT IS FURTHER ORDERED that Defendants Ron Alexander and the City of Colby’s
Motion for Judgment on the Pleadings (Doc. 31) is DENIED as moot.
IT IS FURTHER ORDERED that Defendant Nickols’ Motion for Judgment on the
Pleadings (Doc. 32) is DENIED as moot.
IT IS SO ORDERED.
Dated this 19th day of July, 2018.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
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