Walker v. Department of Rehabilitation and Correction, Ohio Reformatory for Women
ORDER - Denying 37 Motion to Dismiss Plaintiffs Second Amended Complaint on the basis of qualified immunity. Signed by Magistrate Judge Elizabeth Preston Deavers on September 8, 2017. (jlk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Civil Action 2:15-cv-3058
Magistrate Judge Elizabeth P. Deavers
RONETTE BURKES, et al.,
OPINION AND ORDER
This matter is before the Court for Consideration of Defendants’ Motion to Dismiss (ECF
No. 37), Plaintiff’s Memorandum in Opposition (ECF No. 40) and Defendants’ Reply to the
Response in Opposition (ECF No. 41). For the reasons that follow, the Motion to Dismiss is
On December 7, 2015, Plaintiff brought this civil rights action, pursuant to 42 U.S.C. §§
1983, 1985(3), and 1986. (ECF No. 1; the “Complaint” or “Compl.”) On December 29, 2016,
this Court conditionally dismissed this action, giving Plaintiff fourteen days to move for leave to
amend her complaint. (ECF No. 33.) After reviewing Plaintiff’s Complaint and the law, the
Court determined that Plaintiff needed to provide more factual context before the Court could
conclude from the allegations that it is plausible Plaintiff “was engaging in speech as a private
citizen, rather than in the course of her official duties.” (ECF No. 33 at 9.)
The Court, however, is unable to perform the requisite analysis of the surrounding
circumstances of the speech because Walker has failed to satisfy her pleading
burden. Viewing the Complaint in a light most favorable to Walker, “the Court is
unable to discern, either directly or by reasonable inference, the specific
circumstances of [Walker’s] allegedly protected communication. The complaint
only supplies vague possibilities with respect to the requisite details.” Sanders v.
McDowell, 44 F. Supp. 3d 731, 735 (N.D. Ohio 2014).
On January 20, 2016, Plaintiff filed her Second Amended Complaint. (ECF No. 34;
“Amended Complaint” or “Amend Compl.”.) In her Complaint, Plaintiff, Donna M. Walker
(“Walker” or “Plaintiff”) alleges that Defendants violated her First Amendment rights by
retaliating against her for reporting improper conduct on the part of her supervisor when she was
previously employed at the Department of Rehabilitation and Correction, Ohio Reformatory for
Walker began working at the DRC as a storekeeper in the commissary on August 10,
2015. (Amend Compl. ¶ 7.) She describes her job duties as “supervising inmates in the
commissary, sale of items in commissary, overseeing inventory (including reports), operating of
a point of sale system, preparation of sales reports, profits and loss tracking reports, financial
report; and ensuring the safety of inmates and non-inmates in the commissary.” (Id. ¶ 8.) While
working at the commissary, Walker allegedly witnessed her supervisor, Demetra Sanders
(“Sanders”), commit violations of her job duties, including: giving food or other commissary
items to inmates who worked in the commissary without charging the inmates; allowing at least
four inmates to shop on days other than their assigned shopping days; refusing to allow Walker
to check inmate balances, availability of funds or provide copies of receipts to inmates and staff
requesting them; refusing to log damages, defective or opened food items on the commissary
shelves which Walker reported to Sanders; refusing to allow Walker to use various software
reports or daily paperwork duties; taking commissary items for personal use without paying;
falsifying inventory lists or reports; and failing to follow safety operating procedure or protocol.
(Id. ¶¶ 11a–c, 18a–c.) According to Walker, she “took notes in a notepad about her experiences
working for [Sanders].” (Id. ¶ 20.) After Sanders impermissibly read Walker’s notepad, Walker
alleges, “her personality and behavior towards Plaintiff changed “to become “rude and verbally
aggressive.” (Id. ¶ 21.)
Walker further alleges that she subsequently reported Sanders’ conduct to Defendant,
DRC Warden Roni Burkes (“Burkes”), among others. (Id. ¶ 22.) Walker also reported Sanders’
alleged illegal conduct to an Office of the Inspector General and the Attorney General. (Id. ¶
24.) She states that prior to starting her job for Defendant, she was required to attend two weeks
of training at the Corrections Training Academy, where she was informed “that there were strict
guidelines with respect to anyone in a position of financial responsibility such as a store clerk . . .
[and the] mishandling of state funds was an offense and any such offense should be reported to
the Office of the Inspector General or other authority.” (Id. ¶ 9.) Walker states that the day after
she reported Sanders’ illegal conduct, Sanders “threw documents and/or other items in the
dumpster,” an action witnessed by a corrections officer who retrieved the documents and
inventoried them. (Id. ¶ 24.) She alleges that she was terminated on September 4, 2015,
immediately after reporting Sanders. According to the Amended Complaint, the official reason
given for the termination was “violating a company rule,” but that Defendant Burkes told Walker
the reason for her termination was “telling her supervisor how to do her job.” (Id. ¶¶ 25, 26.)
Plaintiff alleges that these reasons are pretextual, and she was terminated because she reported
and spoke out on a matter of public concern “regarding Demetra Sander’s unlawful acts …
[including] efforts to silence Plaintiff, employment conditions, public official corruption,
conspiracy, illegal activity and Defendant’s protection of public safety.” (Id. ¶ 27.)
Defendants filed their Motion to Dismiss the Second Amended Complaint on February 2,
2017. (ECF No. 37.) On March 13, 2017, Plaintiff filed her Response in Opposition. (ECF No.
40.) Defendants filed their Reply in support of their Motion to Dismiss on March 27, 2017.
(ECF No. 41.)
II. STANDARD OF REVIEW
Defendants bring their motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, alleging that Plaintiff has failed to state a claim upon which relief can be granted.
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a plaintiff must
satisfy the basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a).
Under Rule 8(a)(2), a complaint must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and
factual demands on the authors of complaints.” 16630 Southfield Ltd., P’ship v. Flagstar Bank,
F.S.B., 727 F.3d 502, 503 (6th Cir. 2013).
Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a
complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on
its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “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. “The plausibility of an inference depends on
a host of considerations, including common sense and the strength of competing explanations for
the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted).
The Court will readdress relevant law that applies to Plaintiff’s First Amendment Claim.
Plaintiff brings her claims against Defendants under 42 U.S.C. § 1983, which provides as
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceedings for redress.
In order to proceed under § 1983, a plaintiff must prove both that (1) the perpetrator acted under
color of state law; and (2) the conduct deprived the complainant of rights, privileges, or
immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S.
527, 535 (1981); Brandon v. Allen, 719 F.2d 151, 153 (6th Cir. 1983), rev’d and remanded sub
nom. Brandon v. Holt, 469 U.S. 464 (1985). To sufficiently plead the first element, a plaintiff
must allege “personal involvement” on the part of the defendant. Grinter v. Knight, 532 F.3d
567, 575 (6th Cir. 2008) (citation omitted). This requirement arises because “§ 1983 liability
cannot be imposed under a theory of respondeat superior.” Id. (citation omitted).
The three elements of a First Amendment retaliation claim are as follows:
(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken
against the plaintiff that would deter a person of ordinary firmness from
continuing to engage in that conduct; and (3) . . . the adverse action was motivated
at least in part by the plaintiff’s protected conduct.
Rapp v. Putman, No. 15-1995, 2016 WL 1211850 at *3 (6th Cir. Mar. 29, 2016) (quoting
Thaddeus–X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc)) (internal quotes omitted).
“[C]onclusory allegations of retaliatory motive unsupported by material facts will not be
sufficient to state a . . . claim.” Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005).
Defendants move to dismiss this case, urging the Court to find Plaintiff’s pleading
deficient as “Walker fails to plead any new factual allegations saving her claim from dismissal.”
(Defendants’ Motion to Dismiss (“Mot. Dismiss”) at 2, ECF No. 37.) Defendants further
reassert four reasons why Plaintiff’s pleading is deficient. First, Defendants argue that Walker’s
Amended Complaint fails to allege she engaged in speech as a citizen rather than as a public
employee. (Mot. Dismiss at 5–9.) Second, Defendants assert that Plaintiff’s Complaint fails to
allege that she engaged in speech that addressed a matter of public concern. (Id. at 10–13.)
Third, Defendants maintain that Walker does not allege that Defendants personally committed
any of the acts in question. (Id. at 13–14.) Last, Defendants argue that they are entitled to
qualified immunity because Walker has failed to allege that either of the Defendants violated
clearly established law protecting her rights. (Id. at 15–16.)
In response, Walker argues that she engaged in speech as a citizen, rather than as a public
employee. (Plaintiff’s Response in Opposition (“Pl.’s Opp.”) at 8–11, ECF No. 40.) She further
asserts that her speech involved matters of public concern. (Id. at 8–11.) Walker argues that she
also sufficiently alleged personal knowledge on the part of both Defendants of her protected
speech and claims that because Defendant Hill consulted with Defendant Burkes, prior to
terminating her “Defendant Burkes and Hill were aware of Walker’s reports regarding Sanders’
activities .” (Id. at 14.)
Finally, Walker states that Defendants violated her clearly established
constitutional rights. (Id. at 10–11.)
A. Speech as a private citizen on a matter of public concern
A public employee “must accept certain limitations on his or her freedom.” Garcetti v.
Ceballos, 547 U.S. 410, 418 (2006). “Government employers, like private employers, need a
significant degree of control over their employees’ words and actions; without it, there would be
little chance for the efficient provision of public services.” Id. Nevertheless, the law cannot
enjoin a citizen who works for the government from exercising “the liberties employees enjoy in
their capacities as private citizens.” Id. at 419. Specifically, public employees retain the right,
“in certain circumstances” Id. at 417. In determining whether First Amendment protection
applies to a public employee’s speech, a two-part test is applied. “First, we must answer the
threshold inquiry—did the employee speak as a ‘citizen on a matter of public concern.’” Boulton
v. Swanson, 795 F.3d 526, 531 (6th Cir. 2015) (quoting Garcetti, 547 U.S. at 418)). “If so, we
then balance the justifications for a speech restriction against the employee’s free speech
interest.” Id. The threshold inquiry is also comprised of a two-part test: (1) whether the
employee was speaking as a private citizen; and (2) whether the topic of the speech was a matter
of public concern. Id. at 531–32.
In Haynes v. City of Circleville, Ohio, a former local police officer and handler for the
police department’s canine unit in Ohio wrote a memo expressing his concerns that cost-cutting
measures and a reduction in dog-training hours would result in the canine program becoming less
effective at protecting the public. 474 F.3d 357, 359–60 (6th Cir. 2007). Haynes was ultimately
fired based on the memo and other grievances he filed against management. Id. Applying
Garcetti, the Sixth Circuit held that his protests regarding the training cutbacks were unprotected
speech because he “was acting as a public employee carrying out his professional
responsibilities.” Id. at 364. The court characterized the “context of the memo as a whole . . . as
that of a disgruntled employee upset that his professional suggestions were not followed as they
had been in the past.” The court also noted that the “fact that Haynes communicated solely to his
superior also indicates that he was speaking in his capacity as a public employee contributing to
the formation and execution of official policy.” Id (internal quotations omitted).
In Weisbarth v. Geauga Park Dist., a State County park district employee asserted that
she was fired in retaliation for comments she had made to a consultant hired by the park service
to interview employees in the course of a departmental evaluation. 499 F.3d 538, 539 (6th Cir.
2007). Again applying Garcetti, the Sixth Circuit held that Weisbarth’s comments to the
consultant, wherein she discussed morale and performance issues, was not protected by the First
Amendment because the speech was made pursuant to her official duties and not as a private
citizen. Id. at 543. The court found Weisbarth’s argument that her case was distinguishable
from Garcetti unconvincing. In particular, the fact that Weisbarth was speaking with the
consultant as part of an ad-hoc duty, rather than explicitly written job description duties, did not
strip the commentary of falling under her official duties for the purposes of a retaliation claim.
The court noted the similarity of the circumstances in Haynes with respect to this point—Haynes
was also not writing a memo or providing feedback pursuant to a duty written into his official
job description. Id. at 544.
More recently, however, in Lane v. Franks, the Supreme Court has instructed lower
courts to refrain from reading Garcetti expansively. 134 S. Ct. 2369, 2379 (2014). The Court
enumerated that “Garcetti said nothing about speech that simply relates to public employment or
concerns information learned in the course of public employment.” Id. “The critical question
under Garcetti is whether the speech at issue is itself ordinarily within the scope of an
employee’s duties, not whether it merely concerns those duties.” Id. Interpreting Lane, the Sixth
Circuit subsequently explained in Boulton v. Swanson that First Amendment protection does not
apply to “speech that an employee made in furtherance of the ordinary responsibilities of his
employment.” 795 F.3d 526, 534 (6th Cir. 2015). By way of example, the court proceeded to
find that “speech in connection with union activities is speech ‘as a citizen’ for the purposes of
the First Amendment.” Id. The Sixth Circuit has further clarified the factors courts should
consider in determining whether an employee’s speech is accorded First Amendment protection:
“the ordinary scope of the employee’s duties, the impetus for the speech, the setting, the
audience, and the subject matter of the speech.” Holbrook v. Dumas, 658 F. App’x 280, No. 154334, 2016 WL 4376428, at *7 (Aug. 16, 2016); accord Stinebaugh v. City of Wapakoneta, 630
F. App’x 522, 527 (6th Cir. 2015). In Stinebaugh, the court held that a firefighter who called
three city councilmembers to express disapproval for his supervisors’ plans to purchase a new
heavy rescue engine was speaking as a private citizen, rather than in the official course of his
duties. 630 F. App’x at 523, 527. In contradistinction, Holbrook characterized the plaintiff’s
speech as made pursuant to his official duties where he sent the e-mail in question from his
official government account to his subordinates and signed it with his official title, Fire Chief.
Id. The content of the e-mail concerned an impending cancellation of liability insurance that the
Fire Chief warned could result in the loss of employee jobs. 2016 WL 4376428, at *7.
Previously, this Court held that it was “unable to perform the requisite analysis of the
surrounding circumstances of the speech because Walker ha[d] failed to satisfy her pleading
burden.” (ECF No. 31 at 8.) Specifically, Plaintiff’s previous Complaint did not provide
sufficient information regarding the factual context necessary to examine “the scope of Walker’s
duties, the setting or form of the speech, or any details regarding the subject-matter.” (Id.) In
Plaintiff’s previous complaint she alleged that she “reported Demetra Sanders’ illegal conduct to
Business Administrator Bonaface Ogbonna, Warden Roni Burkes, and the Deputy Warden.”
(Compl. ¶ 23.) Walker also alleged that she “reported Demetra Sanders’ illegal conduct to an
outside agency.” (Id. ¶ 24.)
In her Second Amended Complaint, Plaintiff sets forth additional facts supporting her
allegations and provides more of the requisite context in which the speech at issue was made.
These additional facts and statements regarding the circumstances satisfy Plaintiff’s pleading
obligation to support a plausible inference that she spoke as a citizen and not as an employee.
For instance, as she explains in her Second Amended Complaint, Walker clarifies that the
“outside agency,” to which she referred in her previous Complaint as the entity to whom she
lodged her complaints, included the Office of the Inspector General and the Attorney General’s
office. Plaintiff has not alleged, and the Court cannot perceive based on the pleadings, that
speaking out regarding her observations of perceived illegal activity, is within the scope of her
standard work duties. Although at this stage of the proceeding, Plaintiff is not required to prove
her claim, she has set forth sufficient factual indicia that she acted as a private citizen
considering the facts she alleges with regard to the context for the speech as well as the
“audience” for it, including members of outside agencies and institutional supervisors beyond
her direct line of supervision. See Lane, 134 S. Ct. at 2379 (holding that “critical question” is
whether speech is ordinarily within scope of employee’s duties, not merely concerning them);
Hanes, 474 F. 3d at 364 (noting as relevant the fact employee communicated solely to his
superior as evidence he was speaking as public employee); Boulton, 795 F. 3d at 534
(considering employee’s duties, impetus for speech, setting, audience and subject, speech in
furtherance of ordinary responsibilities not protected). 1
Similarly, Plaintiff has sufficiently pled that she spoke on a matter of public concern.
Although she did complain about many day-to-day operations and other aspects of her job she
found disconcerting, Plaintiff has pleaded that she chiefly spoke out about purported illegal
activity within the institution. In her Second Amended Complaint, Walker details the conduct
she reported including additional facts which, if believed by a jury, could support a finding of
malfeasance or misappropriation of state funds by a public employee, including but not limited
to allegations that Sanders took commissary items for herself, gave inmates free items, and
falsified inventories. As pled, the Court finds that Walker has alleged conduct which could
constitute matters of public concern. Kiessel v. Olterdorf, 459 F. App’x 510, 514 (6th Cir. 2012)
(“when public employees allege that government officials break the law, their speech addresses a
matter of public concern.”) (citing See v. City of Elyria, 502 F.3d 484, 493 (6th Cir. 2007)). As a
result, Walker has satisfied her burden at the pleadings stage by stating allegations with
sufficient particularity that the Court may infer her speech was made as a private citizen about a
matter of public concern.
B. Plaintiff has pled Defendants had sufficient personal knowledge
“Once it is determined that an employee’s speech was made as a citizen on a matter of
public concern, Pickerington v. Board of Education, 391 U.S. 563,  (1968), requires a court to
balance the interests of the public employee as ‘a citizen, in commenting upon matters of public
Notably, the courts rendered all of these decisions at the summary judgment stage. Nothing in
this Opinion and Order should be construed as foreclosing Defendants from testing the
sufficiency of the evidence on these various matters. The Court at this stage simply measures the
contents of the Plaintiff’s allegation in her pleadings to determine whether she has stated a
concern, and the interest of the State, as an employer, in promoting the efficiency of the public
services it performs through its employees.” Handy-Clay, 695 F.3d at 544–45. Defendants
argue that Walker has not sufficiently pled that her alleged speech motivated Defendants Burkes
or Hill to take any alleged adverse employment action against her. The Court, however, finds
that accepting Plaintiff’s allegations as true, Walker reported Sanders’ conduct to Defendants
Hill and Burkes, and was then terminated shortly thereafter. (Amend. Compl. ¶ 22.)
Plaintiff alleges that she was terminated “[i]mmediately after Plaintiff reported Demetra
Sanders and on or about September 4, 2015.” (Amend. Compl. ¶ 25.) Although temporal
proximity without more is insufficient to withstand a summary judgment motion, in connection
with a motion to dismiss, “temporal proximity between the protected conduct and the adverse
action creates an inference of retaliatory motive” sufficient “to survive a Rule 12(b)(6) motion to
dismiss for failure to state the plaintiff’s First Amendment retaliation claim.” Handy-Clay, 695
F.3d at 546; Paige v. Coyner, 614 F.3d 273, 283 (6th Cir. 2010) (overturning the grant of a
motion to dismiss holding, “[t]emporal proximity between the protected conduct and the adverse
action by the state actor ‘alone may be significant enough to constitute indirect evidence . . . to
create an inference of retaliatory motive.”) (citation omitted)). Accordingly, at this stage of the
litigation, Plaintiff has sufficiently pled a connection between Defendants and the adverse action
taken against her.
C. Qualified Immunity
The doctrine of qualified immunity “balances two important interests – the need to hold
public officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties reasonably.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009). “Under the doctrine of qualified immunity,
‘government officials performing discretionary functions generally are shielded from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Phillips v. Roane
County, 534 F.3d 531, 538 (6th Cir. 2008) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). If a constitutional violation is found, the Court must determine whether the right is
“sufficiently clear that a reasonable official would understand that what he is doing violates that
right.” Darrah v. Krishner, 865 F.3d 361, 365 (6th Cir. 2017).
As discussed above, the Court finds that Plaintiff has plausibly pled a constitutional
violation of her First Amendment rights. Accordingly, at this juncture, the Court cannot
conclusively determine whether Defendants are entitled to qualified immunity. Defendants may,
therefore, renew this defense at a later stage in this proceeding.
Accordingly, Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint on
the basis of qualified immunity is DENIED.
For the foregoing reasons, Defendant’s Motion to Dismiss (ECF No. 37) is DENIED.
IT IS SO ORDERED.
Date: September 8, 2017
/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE
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