Hankins v. Lahoma Town of et al

Filing 28

ORDER granting in part and denying in part 14 Motion to Dismiss by Stephanie Spomer, Lila Logan-Jansonius, Steven Cahoon and Kenneth Hansen. Signed by Honorable Timothy D. DeGiusti on 12/27/2016. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
MATTHEW RAY HANKINS,
Plaintiff,
vs.
TOWN OF LAHOMA, et al.,
Defendants.

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Case No. CIV-16-295-D

ORDER
Before the Court is Defendants Stephanie Spomer, Lila Logan-Jansonius, Stephen
Cahoon, and Kenneth Hansen’s Motion to Dismiss [Doc. No. 14], filed pursuant to Fed. R.
Civ. P. 12(b)(6). These four defendants are individual members of the board of trustees of
the Town of Lahoma (the “Town”), and refer to themselves collectively as the Individual
Lahoma Defendants. They seek dismissal of all claims asserted against them personally by
Plaintiff, the Town’s former chief of police. They contend the First Amended Complaint
contains insufficient factual allegations to state a claim of, and to overcome a qualified
immunity defense to: 1) retaliation under 42 U.S.C. § 1983, as asserted in Plaintiff’s Sixth
Cause of Action; 2) violation of Oklahoma’s Open Meeting Act, Okla. Stat. tit. 25, § 305,
as asserted in Plaintiff’s Eighth and Ninth Causes of Action; and 3) conspiracy to violate
constitutional rights, as asserted in Plaintiff’s Eleventh Cause of Action.1

1

Defendants also ask the Court to decline supplemental jurisdiction over Plaintiff’s state law
claims. This assertion is apparently made as an alternative to dismissal of these claims for lack of merit.

The Individual Lahoma Defendants also contend the First Amended Complaint fails
to state a § 1983 claim of violating Plaintiff’s right to procedural due process in the
termination of his employment. This claim is asserted as Plaintiff’s First Cause of Action
solely against the Town and its mayor, Defendant Theresa Sharp. See First Am. Compl.
[Doc. No. 5], p.7 & ¶ 63. Further, Plaintiff responds to the Motion by stating he “withdraws
his Fourteenth Amendment Due-Process claim.” See Pl.’s Resp. Br. [Doc. No. 19], p.3.
Thus, no issue is presented for decision with respect to this claim. In all other respects,
Plaintiff has timely opposed the Motion, which is fully briefed.2
Standard of Decision
“To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)); see Robbins v. Oklahoma, 519 F. 3d 1242, 1247 (10th Cir. 2008).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. In evaluating the complaint, the Court first disregards conclusory
allegations and “next consider[s] the factual allegations in [the] complaint to determine if
they plausibly suggest an entitlement to relief.” Id. at 681. Determining whether a complaint
states a plausible claim is a “context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Id. at 679; see Robbins, 519 F.3d at 1248.
2

Defendants have filed a reply brief [Doc. No. 21] as authorized by LCvR7.1(i).

2

In § 1983 cases, it is particularly important for a complaint “to provide each individual with
fair notice as to the basis of the claims against him or her.” Robbins, 519 F.3d at 1249-50
(emphasis omitted); see Smith v. United States, 561 F.3d 1090, 1104 (10th Cir. 2009).
Where a defendant asserts qualified immunity, the plaintiff must allege sufficient facts
to overcome this defense. “The doctrine of qualified immunity protects government officials
from liability for civil damages ‘unless a plaintiff pleads facts showing (1) that the official
violated a statutory or constitutional right, and (2) that the right was “clearly established” at
the time of the challenged conduct.’” Wood v. Moss, 134 S. Ct. 2056, 2066-67 (2014)
(quoting Ashcroft v. Al-Kidd, 563 U.S. 731, 735 (2011)). “Ordinarily, in order for the law
to be clearly established, there must be 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.” Stewart v. Beach, 701 F.3d 1322, 1331 (10th Cir. 2012)
(internal quotation omitted).
Plaintiff’s Allegations3
Plaintiff seeks to recover damages and to be reinstated to his former position as the
Town’s chief of police. Plaintiff assumed this position on August 10, 2015, after having
served the Town as a reserve police officer since July 13, 2014. The First Amended
Complaint describes events involving the mayor’s husband and his friend, Defendant Brian
Hamen, which began with an incident on October 31, 2015, and caused Plaintiff to testify

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Pursuant to the standard of decision, Plaintiff’s factual allegations are accepted as true and stated
in the light most favorable to him.

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against Mr. Hamen in a civil proceeding on March 9, 2016. As a result of this testimony,
Mr. Hamen submitted to Mayor Sharp a resident complaint form regarding Plaintiff and his
performance as police chief. The complaint allegedly contained false allegations that Mayor
Sharp knew were false and that Mr. Hamen made maliciously due to Plaintiff’s testimony.
The Town unexpectedly terminated Plaintiff’s employment at a monthly meeting held
on March 14, 2016, even though an item for discussion at the meeting was a pay raise.
Plaintiff’s raise had been discussed at the February meeting but tabled due to budgetary
constraints; the only criticism of his performance at that time was “he was issuing a lot of
speeding tickets to locals.” See First Am. Compl. [Doc. No. 5], ¶ 27. A reasonable inference
to be drawn from the allegations of Plaintiff’s pleading is that “the monthly town meetings”
(id. ¶¶ 22, 39), and a special meeting on April 4, 2016, were meetings of the Town’s
governing body, its board of trustees.4 The Individual Lahoma Defendants and the mayor,
Defendant Theresa Sharp, constitute the Town’s board of trustees.
Plaintiff filed suit against the Town, Mayor Sharp, and Mr. Hamen on March 28,
2016. Plaintiff initially claimed that the Town and Mayor Sharp violated his constitutional
right to procedural due process in the termination of his employment, that these defendants
fired him in retaliation for his response to the event involving Mayor Sharp’s husband and

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Although not alleged in Plaintiff’s pleading, the parties agree the Town has a “statutory town board
of trustees form of government” under Okla. Stat. tit. 11, § 12-101 to § 12-114. See Defs.’ Mot. Dismiss
[Doc. No. 14], pp.3-4. Under this form, all powers of the Town are vested in the board of trustees, including
appointment and removal of the chief of police. See Okla. Stat. tit. 11, § 12-106 and § 12-111. The Court
may properly take judicial notice of this fact, and consider it under Rule 12(b)(6). See Gee v. Pacheco, 627
F.3d 1178, 1186 (10th Cir. 2010); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007); Tal v. Hogan, 453 F.3d 1244, 1265 n.24 (10th Cir. 2006).

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his testimony against Mr. Hamen, and that he was wrongfully terminated in violation of the
Town’s employment policies. Plaintiff also asserted a defamation claim against Mr. Hamen,
and a conspiracy against him and Mayor Sharp.
Plaintiff filed his First Amended Complaint pursuant to Fed. R. Civ. P. 15(a)(1) on
April 7, 2016. In addition to suing the Individual Lahoma Defendants, Plaintiff added
allegations that on March 31, 2016, the Town posted notice of a special meeting to be held
April 4, 2016. At the April 4 meeting, “the Town of Lahoma voted in executive session to
ratify the decision made on March 14, 2016, to terminate Police Chief Hankins” but “did not
publicly announce the way that each board member voted.” See First Am. Compl. [Doc.
No. 5], ¶¶ 51-52. Plaintiff also added an allegation that the March 14 decision to terminate
his employment was made when “the Town of Lahoma voted in executive session.” Id. ¶ 42.
Discussion
A.

Civil Rights Claim Under Section 1983
Plaintiff asserts as his Sixth Cause of Action a claim against all Defendants that the

April 4 decision “to ratify the previous termination of the Plaintiff was in direct retaliation
for the filing of this lawsuit.” Id. ¶ 97. Although the legal basis of this claim is not identified
in Plaintiff’s pleading, he argues in his brief that the allegations of the First Amended
Complaint “are sufficient to state a plausible claim for relief against [the Individual Lahoma
Defendants] under 42 U.S.C. § 1983, for their individual voting to terminate Plaintiff’s
employment in retaliation for Plaintiff having exercised rights that are protected under the
First Amendment.” See Pl.’s Resp. Br. [Doc. No. 19], p.5; see also id. p.7. Plaintiff
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admittedly does not know how the Individual Lahoma Defendants voted, but he asserts “each
of [them] was individually involved in the decision to terminate Plaintiff’s employment” and
the decision to ratify the termination. Id. pp.8-9. He contends the initial termination decision
was motivated by retaliation for his testimony against Mr. Hamen in the civil proceeding.
See id. pp.3-4, 7, 11, 14-15.
To establish a § 1983 claim against an individual asserting the defense of qualified
immunity, a plaintiff must show facts that “make out a violation of a constitutional right” and
demonstrate that “the right at issue was ‘clearly established’ at the time of defendant’s
alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 231 (2009); see Saucier v. Katz,
533 U.S. 194, 201 (2001). It is well established that “the First Amendment protects a public
employee’s right, in certain circumstances, to speak as a citizen addressing matters of public
concern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006); see Connick v. Myers, 461 U.S.
138, 147 (1983); Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). A First Amendment
retaliation claim is governed by the “familiar Garcetti/Pickering analysis.” Trant v. Okla.,
754 F.3d 1158, 1165 (10th Cir. 2014); see Seifert v. Unified Gov’t of Wyandotte Cty./Kansas
City, 779 F.3d 1141, 1151 (10th Cir. 2015); Morris v. City of Colo. Springs, 666 F.3d 654,
661 (10th Cir. 2012).
This test comprises 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 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
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employment action; and (5) whether the defendant would have reached the
same employment decision in the absence of the protected conduct.
The first three elements are issues of law for the court to decide, while the last
two are factual issues typically decided by the jury.
Trant, 754 F.3d at 1165 (internal quotation omitted); see Seifert, 779 F.3d at 1151; Morris,
666 F.3d at 661; Rohrbough v. Univ. of Colo. Hosp. Auth., 596 F.3d 741, 745 (10th Cir.
2010). This same analysis applies when a public employee claims his employer took adverse
action as punishment for filing a civil rights lawsuit. See Fields v. City of Tulsa, 753 F.3d
1000, 1013-14 (10th Cir. 2014). In this case, the Individual Lahoma Defendants focus on
the fourth element, and challenge whether the First Amended Complaint contains sufficient
factual allegations to suggest their actions were motivated by Plaintiff’s speech. See Defs.’
Mot. Dism. [Doc. No. 14], p.10; Defs.’ Reply Br. [Doc. No. 21], pp.4-5, 7.5
Accepting the factual allegations of the First Amended Complaint as true, and viewing
them in the light most favorable to Plaintiff, the Court finds that Plaintiff has sufficiently
alleged the essential elements of a First Amendment retaliation claim. Plaintiff’s alleged
speech – his truthful testimony at a court hearing in another person’s civil proceeding, and

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A different test applies if a retaliation claim is asserted against a person who was not the plaintiff’s
employer. “[C]laims against non-employers must satisfy three elements: ‘(1) that the plaintiff was 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; and (3) that the
defendant’s adverse action was substantially motivated as a response to the plaintiff’s exercise of
constitutionally protected conduct.’” Trant, 754 F.3d at 1169-70 (quoting Worrell v. Henry, 219 F.3d 1197,
1212 (10th Cir. 2000)). The Individual Lahoma Defendants make a cursory, undeveloped argument that
Plaintiff’s claim also does not satisfy this test. See Defs.’ Reply Br. [Doc. No. 21], p.6. But they challenge
only whether Plaintiff’s factual allegations are sufficient to establish an element common to both tests, that
is, an intent to retaliate. Thus, the Court need not decide at this point whether the Garcetti/Pickering test
or the Worrell test governs Plaintiff’s claim against the Individual Lahoma Defendants.

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his filing of this civil rights lawsuit – did not fall within his official duties as the Town’s
police chief and arguably addressed matters of public concern.6 The alleged retaliatory acts
of the Individual Lahoma Defendants are their participation in the adverse employment
actions taken at the March 14 and April 4 meetings; a reasonable inference to be drawn from
Plaintiff’s factual allegations is that the Individual Lahoma Defendants participated in the
executive sessions and votes by which the Town terminated Plaintiff’s employment. The
Individual Lahoma Defendants do not assert that any interests of the Town outweighed
Plaintiff’s free speech interests, nor that they would have reached the same decision
regarding his employment in the absence of protected conduct. Thus, the question presented
is whether Plaintiff has sufficiently alleged that the Individual Lahoma Defendants were
motivated by his protected speech in deciding to end his employment as the police chief.

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“Whether an employee’s speech addresses a matter of public concern must be determined by the
content, form, and context of a given statement, as revealed by the whole record.” See Connick, 461 U.S.
at 147-148. “Speech is a matter of public concern if it is of interest to the community, and we focus on the
motive of the speaker and whether the speech is calculated to disclose misconduct or merely deals with
personal disputes and grievances unrelated to the public’s interest.” Trant, 754 F.3d at 1165 (internal
quotations and citations omitted); see Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1205
(10th Cir. 2007). “[P]ublic concern is something that is a subject of legitimate news interest; that is, a subject
of general interest and of value and concern to the public at the time of publication.” See City of San Diego
v. Roe, 543 U.S. 77, 83-84 (2004); Deutsch v. Jordan, 618 F.3d 1093, 1099-1100 (10th Cir. 2010).
Regarding Plaintiff’s hearing testimony, the First Amended Complaint is not entirely clear about its
nature and substance. However, there are minimally sufficient allegations, viewed most favorably to
Plaintiff, to permit a conclusion that Plaintiff testified on behalf of another individual regarding a matter of
public concern within the community, not merely a personal grievance or private dispute. Plaintiff alleges
he testified on behalf of a woman who was seeking a victim’s protection order against Mr. Hamen due to past
violence, and that Plaintiff’s testimony concerned broader issues of importance to the community, such as
Ku Klux Klan activities in which Mr. Hamen was involved. Regarding this lawsuit, it is unclear whether it
originally involved a matter of public concern. See Fields, 753 F.3d at 1014-15 (observing that “public
concern” lawsuit usually involves whistle blowing). Absent any argument to the contrary by the Individual
Lahoma Defendants, however, the Court assumes that Plaintiff was engaged in speech protected by the First
Amendment when he testified at the hearing and filed this civil rights case.

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To establish this element, “the employee must show that his speech was a substantial
factor or a motivating factor in a detrimental employment decision.” Trant, 754 F.3d at 1166
(internal quotation omitted); see Holub v. Gdowski, 802 F.3d 1149, 1154 (10th Cir. 2015).
In the context of summary judgment, the court of appeals has explained the analysis as
follows:
[S]ome facts must demonstrate the defendants acted on the basis of a culpable
subjective state of mind to satisfy the [fourth] step. If the defendant’s intent
in urging adverse action against the employee is not retaliatory (e.g., if the
defendant identifies legitimate problems with employee’s qualifications or
performance) or if the defendant’s conduct did not cause the adverse action,
then the defendant may successfully defend the retaliation claim. And
temporal proximity between the protected speech and the alleged retaliatory
conduct, without more, does not allow for an inference of a retaliatory motive.
Trant, 754 F.3d at 1170 (internal quotations and citations omitted).7 Here, however, the
Individual Lahoma Defendants challenge the sufficiency of a pleading, and the question is
whether the First Amended Complaint contains sufficient facts to provide fair notice of the
basis of Plaintiff’s claim against them.
Construing the First Amended Complaint most favorably to Plaintiff, he alleges both
temporal proximity and additional facts connecting his protected speech and the adverse
employment decisions in which the Individual Lahoma Defendants participated. Plaintiff
alleges facts to show there was no legitimate, non-retaliatory reason for the termination
decision. Plaintiff describes a conversation with Mayor Sharp (a voting member of the board
of trustees) at the time of the termination decision that directly tied his hearing testimony to
7

In this passage, the Tenth Circuit was discussing the Worrell test and, thus, the “third step” of the

analysis.

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the decision. See First Am. Compl. [Doc. No. 5], ¶¶ 44-46. He alleges the special meeting
of the board of trustees regarding his employment was called within three days after this
lawsuit was filed. Plaintiff also alleges the filing of this lawsuit generated media publicity
that was personally embarrassing to Mayor Sharp and the Individual Lahoma Defendants.
Id. ¶ 110. The timing of events – particularly a short time between protected conduct and
adverse action – “supports an inference of retaliatory motive.” Seifert, 779 F.3d at 1158.
Without intimating any view of the merits of Plaintiff’s retaliation claim, the Court finds a
reasonable inference could be drawn from the alleged facts that the Individual Lahoma
Defendants acted with a retaliatory intent.
Therefore, reviewing Plaintiff’s pleading under Rule 12(b)(6), the Court finds that the
First Amended Complaint sufficiently states a First Amendment retaliation claim.
2.

Qualified Immunity

The Court must also consider whether Plaintiff’s allegations are sufficient to
overcome the defense of qualified immunity. The Individual Lahoma Defendants argue that
Plaintiff has failed to identify “relevant cases that show [they] violated clearly established
constitutional law” under the alleged circumstances of this case. See Defs.’ Reply Br. [Doc.
No. 21], p.7. The Court disagrees. Plaintiff cites Seifert, decided in February 2015, which
established “that testimony by a law-enforcement officer about matters observed while on
duty could be protected by the First Amendment.” Seifert, 779 F.3d at 1159 (following Lane
v. Franks, 134 S. Ct. 2369 (2014)). See Pl.’s Resp. Br. [Doc. No. 19], pp.13-14. Similarly,
filing a civil rights lawsuit could be protected by the First Amendment at the time of
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Plaintiff’s termination if the elements of the Garcetti/Pickering test were satisfied. See
Fields, 753 F.3d at 1013-14.
Accepting the factual allegations of the First Amended Complaint as true and viewing
them in the light most favorable to Plaintiff, as discussed supra, the Court finds that Plaintiff
has alleged conduct that would violate First Amendment rights that were clearly established
in March 2016. At this early stage of the case, the Individual Lahoma Defendants are not
entitled to qualified immunity from individual liability for the § 1983 retaliation claim stated
in the First Amended Complaint.
For these reasons, the Court finds that Plaintiff has stated a plausible § 1983
retaliation claim against the Individual Lahoma Defendants.
B.

Civil Rights Conspiracy
To state a conspiracy claim, a plaintiff must “allege specific facts showing agreement

and concerted action among [the co-conspirators]. ‘Conclusory allegations of conspiracy are
insufficient to state a valid § 1983 claim.’” Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir.
1994) (quoting Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir. 1989)); see Brooks v.
Gaenzle, 614 3d 1213,1228 (10th Cir. 2010); Tonkovich v. Kans. Bd. of Regents, 159 F.3d
504, 533 (10th Cir. 1998). One requirement of a civil rights conspiracy is that the “actors
share a common, unconstitutional goal.” See Sigmon v. CommunityCare HMO, Inc., 234
F.3d 1121, 1126 (10th Cir. 2000).
The allegations of the First Amended Complaint provide no facts from which to infer
the existence of an agreement among the Individual Lahoma Defendants, the Town, and
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Mayor Sharp to retaliate against Plaintiff for protected speech, as asserted in the Eleventh
Cause of Action. There are also insufficient facts to show they acted together as part of a
common plan to achieve an unconstitutional goal. Read most favorably to him, Plaintiff’s
pleading suggests the Individual Lahoma Defendants acted on information supplied by
Mayor Sharp and media reports in voting to terminate his employment, but he makes only
conclusory allegations that they “all conspired” and “conspired together.” See First Am.
Compl. [Doc. No. 5], ¶¶ 111, 113. Such allegations are insufficient.
Therefore, the First Amended Complaint fails to state a § 1983 conspiracy claim
against the Individual Lahoma Defendants, and this claim must be dismissed.
C.

State Law Claims for Violating the Open Meeting Act
The Individual Lahoma Defendants challenge the state law claims against them for

violating the requirement of the Open Meeting Act that the votes of members of public
bodies “must be publicly cast and recorded.” See Okla. Stat. tit. 25, § 305. The Individual
Lahoma Defendants contend Plaintiff lacks an available remedy under the Act, and focusing
on Plaintiff’s prayer for damages, they assert “the remedies for an alleged violation of the
Open Meeting Act . . . do not provide for the recovery of civil damages.” See Defs. Mot.
Dismiss [Doc. No. 14], pp. 11-12.
In response, Plaintiff points to the provisions of § 314(B)(1) and (2) that authorize a
civil suit for declaratory or injunctive relief and the recovery of attorney fees, and to the
mandate of § 313 that “[a]ny action taken in willful violation of this act shall be invalid.”
Plaintiff contends these provisions would permit a declaratory judgment that his termination
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was invalid, and an injunction directing the Individual Lahoma Defendants “to reinstate his
employment with the Town and to compensate him for the wages and benefits that he lost
as a result of their violation of the Act.” See Pl.’s Resp. Br. [Doc. No. 19], p.16.8
In addressing issues of state law, the Court is guided by Oklahoma court decisions.
Although the supreme court has not directly addressed the issue, the Oklahoma Court of Civil
Appeals has squarely held that a private right of action exists to enforce the Open Meeting
Act and to remedy violations. See Rabin v. Bartlesville Redevelopment Trust Auth., 308 P.3d
191, 194-95 (Okla. Civ. App. 2013). In Rabin, private citizens sued a public trust and its
trustees in their official capacities for improperly entering into an executive session during
a public meeting. The remedies approved in Rabin for cases where decisions were made in
executive session and no public votes were recorded are those provided by statute: “making
public the minutes of an improperly-held executive session and invalidating actions taken at
same.” Id. at 195 (discussing Okla. Stat. tit. 25, § 307(F) and § 313). The Court finds the
court of appeals’ decision to be persuasive authority.
An additional issue not present in Rabin is raised here, namely, whether individual
board members are proper defendants on such a claim. A federal district court applying
Oklahoma law has determined that the proper defendant is the public body or members of
its governing board in their official capacities; individual officials who “have no authority
to provide or effectuate the only two available remedies – namely, invalidation of the
8

Plaintiff also argues other state law theories of tort recovery that are not alleged in the First
Amended Complaint and, therefore, are disregarded for purposes of this Order. Notably, any tort claims
would be subject to the Governmental Tort Claims Act, Okla. Stat. tit. 51, §§ 151-172.

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allegedly wrongful action or making the executive session minute public” – are not proper
parties to a claim for injunctive relief for an alleged violation of the Open Meeting Act. See
Kiefner v. Sullivan, No. 13-CV-714-TCK-FHM, 2014 WL 2197812 (N.D. Okla. May 27,
2014). Further, it is settled that “[r]einstatement of employment is a form of prospective
equitable relief that is within the doctrine of Ex parte Young” authorizing official-capacity
suits against state officials. See Meiners v. Univ. of Kans., 359 F.3d 1222, 1232-33 (10th Cir.
2004).
In this case, the Individual Lahoma Defendants are members of the Town’s board of
trustees, but any relief from the alleged statutory violation of failing to publish their votes
regarding Plaintiff’s termination would be effectuated by the Town or by members of the
board of trustees acting collectively in their official capacities. Only the Town and its
officials can make public the minutes or records of the board of trustees’ executive sessions
at past meetings, or re-employ Plaintiff as the Town’s chief of police. Thus, the Court finds
that Plaintiff’s claims under the Open Meeting Act cannot be brought against the Individual
Lahoma Defendants in their individual capacities.
Therefore, the Court finds that the First Amended Complaint fails to state a claim
under the Open Meeting Act that can be asserted against the Individual Lahoma Defendants.
Conclusion
For these reasons, the Court finds that the First Amended Complaint sufficiently states
a § 1983 retaliation claim against the Individual Lahoma Defendants but they are entitled to

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dismissal of all other claims. The Court further finds that Plaintiff need not be granted leave
to amend his pleading at this time.9
IT IS THEREFORE ORDERED that Defendants Stephanie Spomer, Lila LoganJansonius, Stephen Cahoon, and Kenneth Hansen’s Motion to Dismiss [Doc. No. 14] is
GRANTED in part and DENIED in part, as set forth herein.
IT IS SO ORDERED this 27th day of December, 2016.

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“Where a plaintiff does not move for permission to amend the complaint, the district court commits
no error by not granting such leave.” Burnett v. Mortgage Electronic Registration Sys., Inc., 706 F.3d 1231,
1238 n.4 (10th Cir. 2013) (citing Calderon v. Kansas Dep'’ of Soc. & Rehab. Svcs., 181 F.3d 1180, 1185-87
(10th Cir. 1999); Glenn v. First Nat’l Bank, 868 F.2d 368, 371 (10th Cir. 1989). Further, a plaintiff making
“such a request ‘must give adequate notice to the district court and to the opposing party of the basis of the
proposed amendment.’” Hall v. Witteman, 584 F.3d 859, 868 (10th Cir. 2009) (quoting Calderon, 181 F.3d
at 1186-87). The scheduling order to be entered pursuant to Fed. R. Civ. P. 16(b)(1) will establish a deadline
for motions to add parties and amend pleadings.

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