Poff v. Oklahoma Department of Human Services et al

Filing 108

ORDER granting 80 Motion for Summary Judgment filed by Ed Lake, as more fully set out. Signed by Honorable David L. Russell on 11/20/17. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
KIMBERLY POFF,
Plaintiff,
v.
STATE OF OKLAHOMA, ex rel.
DEPARTMENT OF HUMAN
SERVICES, ED LAKE, individually
And as Director of the
Oklahoma Department of
Human Services, TONY BRYAN,
Individually and in his official
capacity as Director of the
Department of Human Services,
Defendants.

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Case No. CIV-15-936-R

ORDER
Defendant Ed Lake, Director of the Department of Human Services (“DHS”) seeks
summary judgment on Plaintiff’s claims of civil conspiracy and a 42 U.S.C. § 1983 claim
alleging Lake violated her First Amendment rights. (Doc. No. 80). Plaintiff contends her
termination by DHS was in retaliation for a lawsuit she filed against her previous employer,
the Oklahoma Department of Mental Health and Substance Abuse Services
(“ODMHSAS”).1 Plaintiff filed a response to the motion, addressing both Defendant
Lake’s motion and a separate motion by Defendant Bryan, noting that both motions relied

1
 At page 13 of her Response, Plaintiff’s argument could be interpreted as an attempt to raise an intentional infliction
of emotional distress claim. See Doc. No. 90, p. 13 (“Thus, Poff has the right to pursue claims against Lake and Bryan
for their intentional conduct with regard to the intentional infliction of emotional distress and her conspiracy claims,
as Poff was intentionally terminated by OIG after the publication of the article in the Daily Oklahoman, despite the
pre-existing knowledge of the circumstances which ended her employment with ODMHSAS prior to her reinstatement
with DHS.”). No such claim was included in the Third Amended Complaint, and no such claim exists in this action.  

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on the same statement of undisputed fact, with one exception.2 (Doc. No. 90). Following
Plaintiff’s lead, Defendants Lake and Bryan filed a joint reply in support of their respective
motions.
Summary judgment is appropriate if “there is no genuine dispute as to any material
fact.” Fed. R. Civ. P. 56(a)). “A fact is ‘material’ if, under the governing law, it could have
an effect on the outcome of the lawsuit. A dispute over a material fact is ‘genuine’ if a
rational jury could find in favor of the nonmoving party on the evidence presented.” Tabor
v. Hill, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013) (quoting Equal Emp’t Opportunity
Comm’n v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir.2000)).
Plaintiff’s 42 U.S.C. § 1983 claim alleges that her termination was in retaliation for
exercising her First Amendment rights. Defendant Lake contends he is entitled to summary
judgment on the § 1983 claim, because he did not personally participate in her termination
and therefore cannot be held liable. Rather, he contends his involvement with Ms. Poff
during her tenure at DHS was limited to an inquiry he made to the Chief of Staff, Lee Anne
Bruce Boone, on August 20, 2014, regarding the circumstances of Plaintiff’s hiring by
DHS. His inquiry was premised on a newspaper article indicating Ms. Poff had been
terminated by the ODMHSAS for cause but was currently working for DHS. In support of
his motion, Defendant provided an affidavit that includes the following averments:
On the morning of August 20, 2014, I read an article in The Oklahoman titled
“’Buried’ report: Inspector wanted to close Narconon.” The article was about
an investigation of the NARCONON facility which had been conducted by
Kimberly Poff, the former Inspector General of the Oklahoma Department

 Defendants DHS and Bryan each filed separate motions for summary judgment, which will be addressed by
separate orders.
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of Mental Health and Substance Abuse Services (ODMHSAS). The article
said that Ms. Poff had been fired by ODMHSAS and that she filed a lawsuit
alleging that her termination was retaliatory for her speaking-out about
NARCONON. The article also reported that Ms. Poff had been hired by
DHS. The article included a statement attributed to Ms. Poff’s attorney which
implied that DHS had determined that Poff’s termination by ODMHSAS was
without merit. I took note of this statement because it seemed to me to
possibly suggest acknowledgement by the attorney that Ms. Poff had been
fired for cause. I was concerned because it appears DHS had hired someone
who had been recently fired by another state agency, having served in a high
level capacity.
***
The same morning of August 20th, when I arrived at the office, I went by the
office of Lee Ann Bruce Boone, the Chief of Staff at DHS. . . . I shared the
newspaper article with Ms. Bruce Boone and asked her to look into how DHS
had come to hire Ms. Poff, the person mentioned in the newspaper article.
Before I saw her name in the newspaper, I did not know nor had I heard of
Ms. Poff. My only concern regarding DHS’s employment of Ms. Poff was
based on her previous discharge from another agency. Also that day, or very
soon thereafter, I called Terri White, Commissioner of ODMHSAS. I called
Commissioner White to ask her if, in fact, ODMHSAS had discharged Ms.
Poff for cause. She told that it had.
***
At the time that Ms. Poff was terminated, the only information that I knew
about Poff was from the article in The Oklahoman on August 20, 2014, and
from my brief conversation with Commissioner White.
***
Prior to Ms. Poff’s termination from DHS, no one, either inside or outside
the agency, ever contacted or spoke with me about terminating Ms. Poff from
DHS. I was never asked, encouraged or directed by anyone to cause Ms.
Poff’s termination. Beside sharing the news article with Lee Anne Bruce
Boone, I never spoke to anyone else at DHS about Ms. Poff. I never told or
directed anyone working for DHS to terminate Ms. Poff, nor did I make any
suggestion that she should be terminated. I specifically never talked to Tony
Bryan, DHS’s Inspector General, about Ms. Poff until well after her
discharge from DHS. I was not involved in the decision to terminate Ms.
Poff. I was unaware of the termination decision until after the termination
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had occurred. Sometime after the fact, I learned from Ms. Bruce Boone that
Mr. Bryan determined that he had cause to discharge Ms. Poff, and had done
so effective August 22, 2014.
Doc. No. 83, Ex. 13 (paragraph numbering omitted).
It is well established that a defendant's personal participation in the alleged violation
of a plaintiff's constitutional right is essential to a § 1983 action. Gallagher v. Shelton, 587
F.3d 1063, 1069 (10th Cir. 2009) (citing Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir.
1997). Plaintiff’s response brief does not specifically address Defendant’s personal
participation argument, likely a result of the decision to file a single response to two
separate motions. Although Defendants Lake and Bryan were both employees of DHS,
they did not operate as a single person. That the Defendants rely on the same undisputed
facts in support of their respective motions does not eliminate the need to address each
Defendant separately.
Because § 1983 and Bivens are vehicles for imposing personal liability on
government officials, we have stressed the need for careful attention to
particulars, especially in lawsuits involving multiple defendants. “[I]t is
particularly important” that plaintiffs “make clear exactly who is alleged to
have done what to whom, ... as distinguished from collective allegations.”
Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir.2011)
(alteration in original) (quoting Robbins v. Okla. ex rel. Dep't of Human
Servs., 519 F.3d 1242, 1250 (10th Cir. 2008)) (internal quotation marks
omitted).
Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013). Plaintiff attempts to tie Defendant
Lake to the decision to terminate her by citing to the fact that he exchanged text messages
with Lee Anne Bruce Boone on August 19, 2014 and August 20, 2014, the substance of
which is unknown. This evidence is insufficient to establish that Defendant Lake personally
participated in Ms. Poff’s termination. The sole evidence tying Defendant Lake to the
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events surrounding Plaintiff’s termination is his initial inquiry into the circumstances of
her hiring. This inquiry, however, provides an insufficient basis for concluding that he was
involved in her termination or that his actions were in retaliation for the exercise of her
First Amendment rights. Accordingly, Defendant Lake is entitled to summary judgment in
his favor on Plaintiff’s § 1983 claim.
Plaintiff relies on the same text messages as the basis for her contention that
Defendant Lake was part of a civil conspiracy, that he conspired with Defendant Bryan or
some other person to effectuate Plaintiff’s termination. There is no evidence that Defendant
Lake sought, recommended or demanded Plaintiff’s termination or that he was aware that
Defendant Bryan had terminated Ms. Poff until after the fact. Although there is evidence
that Defendant Lake and Ms. Bruce Boone exchanged text messages during the relevant
time period, there is no evidence as to the content of these messages. The Court cannot
assume or infer from the presence of messages at or near the relevant time period that the
content thereof related to Plaintiff. Finally, Plaintiff states in her brief that Defendant Lake
knew the issues regarding her departure from ODMHSAS; however, she does not support
this contention with evidence or citation to evidence regarding Defendant Lake.3 Similarly,

  The Court notes that Plaintiff submitted numerous exhibits in opposition to the motion for summary judgment to
which no citation is made. The Court is not tasked with weeding through the evidence presented by Plaintiff; it is her
obligation to direct the Court to the specific relevant evidence upon which she relies. As noted by the court in Haden
v. Green, 2012 WL 6953295 (D.Colo. August. 30, 2012), “it is Plaintiff’s obligation as a litigant to cull the evidence
and identify with particularity and by page, that which is probative of a particular factual assertion.” Id. at *3; see also
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998). Defendants also correctly note that Plaintiff’s
response briefs did not comply with the format dictated by the Court’s Local Civil Rules. Rule 56.1(c), mandates that,
“[t]he brief in opposition to a motion for summary judgment (or partial summary judgment) shall begin with a section
responding, by correspondingly numbered paragraph, to the facts that the movant contends are not in dispute and shall
state any fact that is disputed.” The rule contemplates that for every numbered paragraph in a motion for summary
judgment, the response brief will contain a corresponding numbered paragraph and that the denial of any fact contained
in a numbered paragraph will be supported by “citation, with particularity, to any evidentiary material that the party
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the evidence to which Plaintiff cites regarding Defendant Lake does not establish that he
agreed with one or more persons to accomplish an unlawful purpose or to accomplish a
lawful purpose by unlawful means as required to establish Plaintiff’s claim for civil
conspiracy. See Brock v. Thompson, 948 P.2d 279, 294 (Okla. 1997), as corrected (Apr. 3,
1998)(citation omitted)(“A civil conspiracy consists of a combination of two or more
persons to do an unlawful act, or to do a lawful act by unlawful means. . . To be liable the
conspirators must pursue an independently unlawful purposes or use independently
unlawful means.”).
Defendant’s motion for summary judgment is well taken in that Plaintiff fails to
present evidence that Director Lake was involved in a civil conspiracy with regard to her
employment and the termination thereof or that he personally participated in the alleged
infringement of her free speech rights. Defendant Lake’s motion is therefore GRANTED.
IT IS SO ORDERED this 20th day of November 2017.

presents in support of its position pursuant to Fed. R. Civ. P. 56(c).” It is not sufficient to simply list the paragraphs
to which a party objects, those to which it does not object, and then to begin setting forth disputed facts.

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