Dunn v. Morse, No. 5:2016cv04164 - Document 19 (D. Kan. 2017)
Court Description: MEMORANDUM AND ORDER granting 7 Motion for Judgment. Signed by U.S. District Senior Judge Sam A. Crow on 3/31/17. (msb)
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Dunn v. Morse Doc. 19 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS AL DUNN, Plaint iff vs. Case No. 16- 4164- SAC TI M MORSE, in His I ndividual Capacit y and in His Capacit y as Sheriff of Jackson Count y, Defendant . MEMORANDUM AND ORDER This civil right s act ion alleges claim s under t he First Am endm ent ( speech and associat ion) and Fourt eent h Am endm ent ( procedural due process) based on t he plaint iff Al Dunn’s t erm inat ion in July of 2016 from his posit ion as det ect ive wit h t he Jackson Count y Sheriff’s Depart m ent . Wit h 2016 being an elect ion year for t he defendant Sheriff Tim Morse, Dunn alleges t he defendant Morse violat ed Dunn’s const it ut ional right s in t erm inat ing him for reasons relat ed t o t he elect ion. Morse m oves for j udgm ent on t he pleadings pursuant t o Fed. R. Civ. P. 12( c) . ( Dk. 7) . The m ot ion has been fully briefed and is ready for decision. St a n da r ds Gove r n in g M ot ion “ A m ot ion for j udgm ent on t he pleadings under Rule 12( c) is t reat ed as a m ot ion t o dism iss under Rule 12( b) ( 6) ,” At lant ic Richfield Co. v. Farm Credit Bank of Wichit a, 226 F.3d 1138, 1160 ( 10t h Cir. 2000) , and t he Dockets.Justia.com sam e st andards govern m ot ions under eit her rule, Ward v. Ut ah, 321 F.3d 1263, 1266 ( 10t h Cir. 2003) . On eit her m ot ion, t he court considers only t he cont ent s of t he com plaint . Gee v. Pacheco, 627 F.3d 1178, 1186 ( 10t h Cir. 2010) . The court accept s as t rue “ all well- pleaded fact ual allegat ions in a com plaint and view[ s] t hese allegat ions in t he light m ost favorable t o t he plaint iff.” Sm it h v. Unit ed St at es, 561 F.3d 1090, 1098 ( 10t h Cir. 2009) , cert . denied, 558 U.S. 1148 ( 2010) . This dut y t o accept a com plaint 's allegat ions as t rue is t em pered by t he principle t hat “ m ere labels and conclusions, and a form ulaic recit at ion of t he elem ent s of a cause of act ion will not suffice; a plaint iff m ust offer specific fact ual allegat ions t o support each claim .” Kansas Penn Gam ing, LLC v. Collins, 656 F.3d 1210, 1214 ( 10t h Cir. 2011) ( quot ing in part Bell At l. Corp. v. Twom bly, 550 U.S. 544, 555 ( 2007) ( int ernal quot at ion m arks om it t ed) ) . To wit hst and a Rule 12( b) ( 6) m ot ion, “ a com plaint m ust cont ain enough allegat ions of fact , t aken as t rue, t o st at e a claim t o relief t hat is plausible on it s face.” Al–Owhali v. Holder, 687 F.3d 1236, 1239 ( 10t h Cir. 2012) ( quot ing Ashcroft v. I qbal, 556 U.S. 662, 678 ( 2009) ) . Thus, “ a plaint iff m ust offer sufficient fact ual allegat ions t o ‘raise a right t o relief above t he speculat ive level.’” Kansas Penn Gam ing, 656 F.3d at 1214 ( quot ing Twom bly, 550 U.S. at 555) . “ The plausibilit y st andard is not akin t o a ‘probabilit y requirem ent ,’ but it asks for m ore t han a sheer possibilit y t hat a defendant has act ed unlawfully.'” I qbal, 556 U.S. at 678 ( quot ing 2 Twom bly, 550 U.S. at 556) . I t follows t hen t hat if t he “ com plaint pleads fact s t hat are ‘m erely consist ent wit h’ a defendant 's liabilit y it ‘st ops short of t he line bet ween possibilit y and plausibilit y of “ ent it lem ent t o relief.” ’” I d. “ ‘A claim has facial plausibilit y when t he [ pleaded] fact ual cont ent . . . allows t he court t o draw t he reasonable inference t hat t he defendant is liable for t he m isconduct alleged.’” Rosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1178 ( 10t h Cir. 2012) . “ Thus, in ruling on a m ot ion t o dism iss, a court should disregard all conclusory st at em ent s of law and consider whet her t he rem aining specific fact ual allegat ions, if assum ed t o be t rue, plausibly suggest t he defendant is liable.” Kansas Penn Gam ing, 656 F.3d at 1214. The Tent h Circuit regards t he Twom bly–I qbal decisions as craft ing a new “ refined st andard” whereby “ plausibilit y refers t o ‘t he scope of t he allegat ions in a com plaint : if t hey are so general t hat t hey encom pass a wide swat h of conduct , m uch of it innocent , t hen t he plaint iffs “ have not nudged t heir claim s across t he line from conceivable t o plausible.” ’” Khalik v. Unit ed Air Lines, 671 F.3d 1188, 1191 ( 10t h Cir. 2012) ( quot ing Robbins v. Oklahom a, 519 F.3d 1242, 1247 ( 10t h Cir. 2008) ( quot ing in t urn Twom bly, 550 U.S. at 570) . “ [ T] he degree of specificit y necessary t o est ablish plausibilit y and fair not ice, and t herefore t he need t o include sufficient fact ual allegat ions, depends on cont ext . . . .” Robbins v. Oklahom a, 519 F.3d 1242, 1248 ( 10t h Cir. 2008) ( cit ing Phillips v. Count y of Allegheny, 515 F.3d 224, 231- 32 ( 3d Cir. 2008) ) . 3 Cla im s a n d Alle ga t ion s The plaint iff alleges his t erm inat ion was unlawful being in violat ion of his right s t o freedom of speech and freedom of associat ion under t he First Am endm ent and his right t o procedural due process under t he Fourt eent h Am endm ent . The following are t he relevant fact ual allegat ions gleaned from t he plaint iff’s com plaint . Hired in 2000, prom ot ed t o Det ect ive in 2004, and t hen prom ot ed t o Chief Det ect ive in 2007, Al Dunn worked for Jackson Count y Sheriff’s Depart m ent . He worked under t he defendant Sheriff Morse from June 2011, unt il Morse t erm inat ed Dunn on July 12, 2016, on t he st at ed grounds of insubordinat ion. I n May of 2016, Dunn began invest igat ing a local young m an on m ult iple allegat ions of sexual assault s wit h m ult iple vict im s. Dunn carried out his invest igat ory dut ies, “ by int erviewing wit nesses, speaking wit h officials, and speaking wit h defendant Morse.” ( Dk. 1, ¶ 11) . Dunn alleges t hat because of t his “ speech relat ed t o t he invest igat ions,” fam ily m em bers and friends of t he young m ale suspect began com plaining t o Morse and using t he pending polit ical cam paign t o influence Morse t o st op t he invest igat ion. I d. at ¶ 12. The com plaint alleges Morse yielded t o t his pressure from t he suspect ’s fam ily and friends in t hat he t hen “ pressured plaint iff t o back off of his invest igat ion, st op his speech relat ed t o t he invest igat ion, and t o becom e associat ed wit h his polit ical need t o appease fam ily/ friends of t he suspect .” I d. at ¶ 13. According t o t he 4 com plaint , “ [ a] s a result of plaint iff’s speech relat ed t o t he invest igat ion, and as a result of his failure t o associat e wit h Morse’s polit ical needs, in spit e of official pressure by defendant Morse t hat he do so,” t he plaint iff was suspended on June 24, 2016, pending an invest igat ion int o alleged insubordinat ion, and t hen was t erm inat ed on July 12, 2016, for alleged insubordinat ion. I d. at ¶¶ 14 and 15. The court not es ot her significant allegat ions in t he com plaint . First , as t o t he First Am endm ent claim s, “ Plaint iff believes and expressly alleges t hat his speech relat ed t o t he invest igat ion of . . . [ t he suspect ] was on m at t ers of public concern, and t hus prot ect ed.” ( Dk. 1, ¶ 22) . Second, as t o t he due process claim , “ Plaint iff believes and expressly alleges t hat he was ent it led t o due process before being t erm inat ed from his posit ion; and t hat even t hough he was suspended allegedly pending an invest igat ion, in fact no invest igat ion was done; he was inform ed of no invest igat ion; he was not asked t o part icipat e int o any invest igat ion; and he was t hus t erm inat ed wit hout due process.” ( Dk. 1, ¶ 27) . Finally, t he “ Plaint iff believes and expressly alleges t hat his right t o speech; t he fact t hat his speech was on m at t ers of public concern; his right t o not associat e wit h defendant Morse’s polit ical needs; and his right t o due process before being t erm inat ed; were all clearly est ablished at t he t im e of his suspension and t erm inat ion.” I d. at ¶ 28. 5 Because t he defendant assert s qualified im m unit y, t he burden is wit h t he plaint iff t o show he has alleged bot h t hat t he defendant violat ed a const it ut ional right and t hat t his const it ut ional right was clearly est ablished in t he law at t he t im e of t he violat ion. Bowling v. Rect or, 584 F.3d 956, 964 ( 10t h Cir. 2009) . The qualified im m unit y inquiry is m ade “ in light of t he specific cont ext of t he case, not as a broad general proposit ion.” I d. ( int ernal quot at ion m arks and cit at ions om it t ed) . “ [ A] right is clearly est ablished only if t here is a Suprem e Court or Tent h Circuit decision on point , or t he clearly est ablished weight of aut horit y from ot her court s has found t he law t o be as t he plaint iff m aint ains.” I d. The following findings and conclusions dem onst rat e t he plaint iff has failed t o carry his burden in bot h regards. Fir st Am e n dm e n t —Fr e e dom of Spe e ch Morse seeks j udgm ent because Dunn’s alleged speech is not const it ut ionally prot ect ed for t he following argued reasons. Dunn was not speaking as a cit izen on a m at t er of public concern, but as a det ect ive and public em ployee in t he perform ance of his official dut ies. The com plaint alleges speech only relat ed t o t he invest igat ion, as in int erviewing wit nesses, speaking wit h officials, and speaking wit h Sheriff Morse. Dunn’s speech was a part of his dut ies and responsibilit ies as a det ect ive in t he sheriff’s depart m ent . Consequent ly, Dunn’s speech act ivit ies were sim ply a funct ion of his official j ob responsibilit ies. 6 I n his brief, Dunn repeat s his allegat ion t hat he was t erm inat ed, “ because he would not shirk his dut y t o invest igat e an alleged serial sex offender, because t he fam ily of t he alleged serial sex offender was m aking polit ical noise in t he elect ion year.” ( Dk. 13, p. 6) . Dunn st ands on his allegat ions t hat he engaged in prot ect ed act ivit y by speaking wit h officials and Morse on m at t ers relat ed t o t he invest igat ion and t hese m at t ers were of public concern. Dunn argues his allegat ion of “ speech relat ed t o t he invest igat ion” is not t he sam e as “ speech of t he invest igat ion it self,” and he m aint ains t he form er is const it ut ionally prot ect ed. Dunn asks for discovery t o “ be conduct ed on t he det ails of t he event s, from which t he Court can t hen det erm ine as a m at t er of law whet her t he speech is prot ect ed.” ( Dk. 13, p. 13) . Dunn t hen presum es for t he court ’s considerat ion: So, for inst ance, if discovery shows t hat when it was t im e t o int erview a vict im at one point , and at t he last m inut e defendant direct ed a less experienced det ect ive t o do t he int erview, t elling plaint iff t o st ay behind for a rout ine t ask wit h an applicant , when plaint iff t old t he defendant t he rout ine t ask was com plet ed so he could st ill at t end t he vict im int erview: t he defendant becam e angry. Of if discovery shows t hat on anot her occasion when defendant learned plaint iff was going t o conduct a search of t he suspect ’s m ot her’s propert y, he responded wit h angry words t o plaint iff about t he im pact of t he search on t he suspect ’s m ot her. Or when plaint iff spoke wit h t he depart m ent ’s Vict im Services Coordinat or about how vict im s were being t reat ed, defendant crit icized t he Vict im Services Coordinat or for her and plaint iff speaking about vict im t reat m ent , t hus t hwart ing furt her speech bet ween her and plaint iff. And so fort h. Wit h an evident iary record on such fact s, t he Court can det erm ine if plaint iff’s speech was official dut y or beyond his official dut y and on issues of public concern, and t hus prot ect ed speech. 7 ( Dk. 13, pp. 13- 14) . None of t hese presum ed scenarios are alleged in t he com plaint . Relying on Lane v. Franks, - - - U.S.- - - , 134 S.Ct . 2369 ( 2014) , Dunn argues his speech relat ed t o t he invest igat ion m ay be st ill prot ect ed if it was not wit hin t he scope of his ordinary dut ies or not com m issioned by his em ployer. Dunn asks t he court t o consider his speech prot ect ed, because: He was not paid t o m ake t he elect ed Sheriff refrain from int erfering wit h or t hwart ing invest igat ions. He was not paid t o t ake ext raordinary st eps and engage in addit ional speech t o t ry t o prot ect vict im s and public from a polit ically- m ot ivat ed int erference wit h an invest igat ion. The speech for which plaint iff claim s prot ect ion here; t he speech which angered defendant and caused him t o t erm inat e plaint iff; t he speech t hat was of crit ical int erest t o t he public and it s int erest s; was t he speech t hat defendant charact erized as refusing t o “ back off” on t he invest igat ion. That is t he prot ect ed public int erest speech plaint iff has alleged was t he m ot ivat ion for his t erm inat ion. Discovery should be perm it t ed t o flesh out t he det ails of t hat speech; . . . . The efficient running of t he agency was im periled by defendant ’s act ions, not plaint iff’s speech. Plaint iff’s speech was designed t o support t he efficient running of t he agency. ( Dk. 13, pp. 15- 16) . I n refusing or opposing t he Sheriff’s orders for him , Dunn says his speech is out side his j ob dut ies, because t he Sheriff’s orders were polit ically m ot ivat ed. The Tent h Circuit recent ly sum m arized t he law governing a claim like t he plaint iff’s: A public em ployer m ay not “ discharge an em ployee on a basis t hat infringes t hat em ployee's const it ut ionally prot ect ed int erest in freedom of speech.” Rankin [ v. McPherson] , 483 U.S. [ 378] at 383, 107 S.Ct . 2891 [ ( 1987) ] ; see also Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct . 1684, 75 L.Ed.2d 708 ( 1983) . “ Speech by cit izens on m at t ers of public concern lies at t he heart of t he First Am endm ent ,” and “ public em ployees do not renounce t heir cit izenship when t hey accept em ploym ent .” Lane v. Franks, ––– U.S. ––––, 134 S.Ct . 2369, 2377, 189 L.Ed.2d 312 ( 2014) . Therefore, t he Suprem e Court “ has 8 caut ioned t im e and again t hat public em ployers m ay not condit ion em ploym ent on t he relinquishm ent of const it ut ional right s.” I d. Nevert heless, a public em ployer m ust be able t o cont rol t he operat ions of it s workplace. Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct . 1731, 20 L.Ed.2d 811 ( 1968) ; Lyt le [ v. Cit y of Haysville] , 138 F.3d [ 857] at 863 [ ( 10t h Cir. 1998) ] . “ Governm ent em ployers, like privat e em ployers, need a significant degree of cont rol over t heir em ployees' words and act ions; wit hout it , t here would be lit t le chance for t he efficient provision of public services.” Garcet t i v. Ceballos, 547 U.S. 410, 418, 126 S.Ct . 1951, 164 L.Ed.2d 689 ( 2006) . Thus, “ t he First Am endm ent prot ect ion of a public em ployee's speech depends on a careful balance ‘bet ween t he int erest s of t he [ em ployee] , as a cit izen, in com m ent ing upon m at t ers of public concern and t he int erest of t he St at e, as an em ployer, in prom ot ing t he efficiency of t he public services it perform s t hrough it s em ployees.’” Lane, 134 S.Ct . at 2374 ( quot ing Pickering, 391 U.S. at 568, 88 S.Ct . 1731) . The fam iliar Garcet t i/ Pickering t est governs our review of Helget 's First Am endm ent ret aliat ion claim s. The t est consist s of five st eps: ( 1) whet her t he speech was m ade pursuant t o an em ployee's official dut ies; ( 2) whet her t he speech was on a m at t er of public concern; ( 3) whet her t he governm ent 's int erest s, as em ployer, in prom ot ing t he efficiency of t he public service are sufficient t o out weigh t he plaint iff's free speech int erest s; ( 4) whet her t he prot ect ed speech was a m ot ivat ing fact or in t he adverse em ploym ent act ion; and ( 5) whet her t he defendant would have reached t he sam e em ploym ent decision in t he absence of t he prot ect ed conduct . Trant v. Oklahom a, 754 F.3d 1158, 1165 ( 10t h Cir. 2014) ( quot ing Dixon v. Kirkpat rick, 553 F.3d 1294, 1302 ( 10t h Cir. 2009) ) . The first t hree st eps concern quest ions of law for t he court s, and t he last t wo concern quest ions of fact . I d. Helget v. Cit y of Hays, Kansas, 844 F.3d 1216, 1221- 22 ( 10t h Cir. 2017) . The issue here is w het her t he plaint iff Dunn’s com plaint cont ains enough allegat ions of fact , t aken as t rue, as t o st at e a claim , plausible on it s face, on t he first elem ent of t he Garcet t i/ Pickering t est t hat is a quest ion of law. 9 On t he first elem ent , t he Tent h Circuit t akes a pract ical case- by case approach “ looking bot h t o t he cont ent of t he speech, as well as t he em ployee’s chosen audience, t o det erm ine whet her t he speech is m ade pursuant t o an em ployee’s official dut ies.” Rohrbough v. Universit y of Colorado Hosp. Aut h., 596 F.3d 741, 746 ( 10t h Cir. 2010) . As t o t he cont ent of t he speech, t he Tent h Circuit has focused t he inquiry in t his way: Garcet t i holds t hat “ when public em ployees m ake st at em ent s pursuant t o t heir official dut ies, t he em ployees are not speaking as cit izens for First Am endm ent purposes, and t he Const it ut ion does not insulat e t heir com m unicat ions from em ployer discipline.” 547 U.S. at 421. The official- dut ies quest ion is a pract ical one t hat t urns on “ whet her t he speech was com m issioned by t he em ployer,” Thom as v. Cit y of Blanchard, 548 F.3d 1317, 1323 ( 10t h Cir. 2008) ( int ernal quot at ion m arks om it t ed) , and “ reasonably cont ribut es t o or facilit at es t he em ployee's perform ance of t he official dut y,” id. at 1324 ( int ernal quot at ion m arks om it t ed) ; see Green v. Bd. of Cnt y. Com m 'rs, 472 F.3d 794, 801 ( 10t h Cir. 2007) ( speech act ivit ies not prot ect ed because t hey “ st em m ed from and were t he t ype of act ivit ies t hat [ t he em ployee] was paid t o do” ) . Seifert v. Unified Govt . of Wyandot t e Count y/ Kansas Cit y, 779 F.3d 1141, 1151 ( 10t h Cir. 2015) . I f t he em ployee speaks pursuant t o his official dut ies, t hen t here is no const it ut ional prot ect ion because t he rest rict ion on speech “ ’sim ply reflect s t he exercise of em ployer cont rol over w hat t he em ployer it self has com m issioned or creat ed.’” Bram m er- Hoelt er v. Twin Peaks Chart er Academ y, 492 F.3d 1192, 1202–03 ( 10t h Cir. 2007) ( quot ing Garcet t i, 547 U.S. at 422) . “ [ S] peech pursuant t o t he em ployee’s dut y t o report a part icular act ivit y is usually wit hin t hat em ployee’s official dut ies under Garcet t i/ Pickering.” Rohrbough, 596 F.3d at 747 ( cit at ion om it t ed) . As 10 t o t he chosen audience, t he court s look at where t he speech occurred and whet her it was addressed wit hin a chain of com m and. I d. Thus, “ speech direct ed at an individual or ent it y wit hin an em ployee’s chain of com m and is oft en found t o be pursuant t o t hat em ployee’s official dut ies.” I d. To be prot ect ed, Dunn’s alleged speech m ust not be part of what he was em ployed t o do, m ust not be done pursuant t o his official dut ies, and m ust not be t he t ype of expect ed act ivit y which he was being paid t o do. Dunn’s com plaint alleges only t hese det ails about his official dut ies. He is t he Chief Det ect ive t o t he Sheriff’s depart m ent which was m anaged by t he defendant Morse. His dut ies included invest igat ing allegat ions by vict im s, “ int erviewing wit nesses, speaking wit h officials, and speaking wit h defendant Morse.” ( Dk. 1, ¶ 11) . The com plaint expressly alleges t hat Dunn’s “ speech was on m at t ers of public concern,” but it is silent on whet her his speech was not m ade pursuant t o or part of his official dut ies. The com plaint , however, offers no m ore t han a conclusory allegat ion on t he cont ent being a m at t er of public concern. I ndeed, t he specifics of what t he plaint iff alleges as speech are om it t ed from t he com plaint . The governing st andards direct t hat t he court should disregard t hese conclusory st at em ent s of law and consider whet her t he rem aining specific fact ual allegat ions, if assum ed t o be t rue, plausibly suggest t he defendant is liable. As suggest ed in his opposing response ( Dk. 13) , t he gist of t he plaint iff’s allegedly prot ect ed speech is all t hat he said and did wit h Morse t o oppose 11 his direct ions, orders, and conversat ions m ade in an effort t o t hwart t he invest igat ion. The specific cont ent of t his speech is nowhere alleged in t he com plaint and, t herefore, does not plausibly suggest liabilit y. What is alleged as t o t he general cont ent of Dunn’s alleged speech and as t o t he part icular audience of it exclusively point s t o t he speech being part of Dunn’s official dut ies as t he Chief I nvest igat or. There are no specific fact s alleged t o support a different conclusion. Thus, t he plaint iff’s general allegat ion t hat his speech is prot ect ed is not t he t ype of well- pleaded allegat ion t hat m ust be accept ed as t rue when ruling on a m ot ion for j udgm ent on t he pleadings. By it self, t he plaint iff's failure t o allege t he scope of his j ob dut ies and how his speech was out side his official dut ies are serious pleading deficiencies. Even wit hout knowing all of t he plaint iff's j ob dut ies, it is apparent t hat t he allegedly prot ect ed speech t o Morse, “ charact erized as refusing t o ‘back off’ on t he invest igat ion,” all occurred wit hin t he chain of com m and and was m ade in opposit ion t o inst ruct ions and orders from his sheriff who was supervising and m onit oring t he plaint iff’s perform ance of his official dut ies. ( Dk. 13, p. 15) . The plaint iff's opposit ion, even if on a m at t er of public concern, direct ly relat ed t o t he perform ance of his official dut ies, bot h in cont ent and audience, and it does not const it ut e prot ect ed speech under Garcet t i. Rohrbough, 596 F.3d at 747; see Cory v. Cit y of Basehor, 631 Fed. Appx. 526 ( 10t h Cir. 2015) ( Police officer’s com plaint s about t he depart m ent ’s safet y policies and 12 pract ices and report s of violat ions of t he sam e “ did not m erely ‘concern’ his dut ies, but were m ade ‘wit hin t he scope’ of his dut ies as a police officer” ) ; Myers v. Count y of Som erset , 293 Fed. Appx. 915, 917–18 ( 3d Cir. 2008) ( unpublished) ( Det ect ive sergeant ’s com m ent s prot est ing t he validit y of an invest igat ion and assert ing t he police chiefs’ hypocrisy in support ing a prosecut ors’ effort s for renom inat ion were not prot ect ed as all were m ade wit hin t he chain- of- com m and or t o t he co- lead invest igat or and, t herefore, were spoken pursuant t o t he det ect ive’s em ploym ent dut ies) . By all indicat ions, Dunn int ended his speech t o reasonably cont ribut e t o or facilit at e his perform ance of official dut ies. Bram m er- Hoelt er, 492 F.3d at 1203. Put anot her way, Dunn’s speech was relat ed t o alleged “ wrongdoing direct ly im pact ing . . . [ his] abilit y t o carry out . . . [ his] official dut ies.” Joyce v. Nort h Met ro Task Force, 2011 WL 2669162 at * ( D. Colo. Jul. 7, 2011) ( Det ect ives’ speech was m ade for t he purpose of furt hering t he agency’s work) ; see Cheek v. Cit y of Edwardsville, Kan., 514 F. Supp. 2d 1220, 1231 ( D. Kan. 2007) ( Police Maj ors’ speech t o At t orney General office about Police Chief’s m isconduct “ reasonably cont ribut ed t o and facilit at ed t heir perform ance of t heir dut ies t o invest igat e crim inal conduct and conduct I A invest igat ions.” ) , aff’d, 324 Fed. Appx. 699 ( 10t h Cir. 2008) , cert . denied, 558 U.S. 816 ( 2009) . “ Rest rict ing speech t hat owes it s exist ence t o a public em ployee's professional responsibilit ies does not infringe any libert ies t he em ployee m ight have enj oyed as a privat e cit izen. I t sim ply reflect s t he 13 exercise of em ployer cont rol over what t he em ployer it self has com m issioned or creat ed.” Garcet t i, 547 U.S. at 421–22. The court finds t hat t he defendant is ent it led t o j udgm ent on t his freedom of speech claim as t he plaint iff was speaking as part of his official dut ies and not as a cit izen speaking on m at t ers of public concern. Fir st Am e n dm e n t —Fr e e dom of Associa t ion The defendant argues t he plaint iff in t his claim sim ply repackages t he unsuccessful freedom of speech claim . The plaint iff’s only subst ant ive allegat ions on t his associat ion claim are: 13. As a result of t he pressure from fam ily/ friends, defendant Morse pressured plaint iff t o back off of his invest igat ion, st op his speech relat ed t o t he invest igat ion, and t o becom e associat ed wit h his polit ical need t o appease fam ily/ friends of t he suspect . . . . . . . . 19. Plaint iff believes and expressly alleges t hat his failure t o affiliat e wit h defendant Morse’s polit ical needs was t he subst ant ial or m ot ivat ing fact or behind his suspension and t erm inat ion. . . . . 21. Plaint iff believes and expressly alleges, given t he nat ure of his dut ies and t he m anagem ent st yle of defendant Morse t hat his lack of support of defendant Morse’s polit ical cam paign was not a valid grounds for his suspension or t erm inat ion, and t hat his posit ion did not dem and polit ical loyalt y. Plaint iff’s polit ical affiliat ion wit h defendant Morse, and specifically his polit ical cam paign st rat egy of accom m odat ing t he com plaint s and pressures of fam ily/ friends of . . . [ t he suspect ] , was not necessary for t he effect ive perform ance of plaint iff’s dut ies. ( Dk. 1, pp. 3- 4) . The defendant argues t he com plaint fails t o allege prot ect ed conduct , but only seeks t o t ransform an everyday em ploym ent disput e int o an unt enable const it ut ional claim . 14 I n responding, t he plaint iff argues t he above allegat ions are enough in t hat he refused t o associat e or affiliat e him self wit h Morse’s polit ical needs and was t erm inat ed for doing so. The plaint iff int erpret s Morse’s supervision of him regarding t he invest igat ion t o be t he sam e as “ becom [ ing] associat ed wit h t he polit ical need t o appease fam ily/ friends of t he suspect .” ( Dk. 1, ¶ 13) . I n his response, t he plaint iff m ore clearly reveals his posit ion, “ Dem anding t hat plaint iff support his cam paign by a different m eans—not rigorously conduct ing an invest igat ion; or not pressing defendant t o st op t hwart ing t he invest igat ion and quest ioning his react ion t o polit ical pressure—also violat ed plaint iff’s right s.” ( Dk. 13, p. 9) . I n short , t he plaint iff is alleging his “ polit ical allegiance” was im plicat ed in t he way he handled or support ed an invest igat ion being conduct ed in t he exercise of his official dut ies as an invest igat or and in t he way he responded t o his supervisor’s orders regarding t he sam e invest igat ion. “ Alt hough t he Garcet t i/ Pickering analysis applies t o an associat ion based ret aliat ion claim , a plaint iff need only sat isfy t he first , fourt h, and fift h prongs of t he t est .” Dent on v. Yancey, 661 Fed. Appx. 933, 938 ( 10t h Cir. Oct . 3, 2016) ( cit ing See Shrum v. Cit y of Cowet a, 449 F.3d 1132, 1138- 39 ( 10t h Cir. 2006) ( “ holding t hat a court should not require a showing of ‘public concern’ or engage in j udicial balancing of t he em ployer’s int erest against t he em ployee’s int erest when t he public em ployee alleges ret aliat ion for part icipat ion in a union wit h which his em ployer has signed a 15 collect ive bargaining agreem ent ” ) . As Morse argues, t he finding of no prot ect ed speech on t he first prong applies wit h equal force here, as t he plaint iff has not alleged any prot ect ed act ivit y in what he charact erizes as a refusal t o associat e or affiliat e. I n all respect s, Dunn has only alleged t hat he refused t o conduct his official invest igat or dut ies in t he m anner request ed by his supervising Sheriff. The court agrees wit h t he defendant ’s posit ion and grant s his m ot ion for j udgm ent on t he pleadings here. The plaint iff’s allegat ions show only t hat his refusal t o support or associat e wit h t he defendant were exclusively act ions t aken as part of his official dut ies and were not t he act ions of a cit izen act ing on m at t ers of public concern. The plaint iff has not alleged a plausible claim for relief. 1 4 t h Am e n dm e n t —Pr oce du r a l D u e Pr oce ss Morse seeks j udgm ent on t he pleadings as t he plaint iff’s com plaint fails t o allege a prot ect ed propert y int erest t o w hich due process would apply. There is not hing offered t hat recognizes or t hat creat es a cognizable int erest . Morse point s t o a sheriff’s st at ut ory aut horit y t o hire and dism iss all who serve at t he sheriff’s pleasure which m akes Dunn an “ at - will em ployee” and precludes his due process claim . “ Kansas court s have been quit e clear t hat at - will em ployees lack a propert y int erest in t heir posit ion.” Robert v. Bd. of Count y Com ’rs, Brown Ct y., Kans., 691 F.3d 1211, 1220 ( 10t h Cir. 2012) . Moreover, in Kansas, “ public em ploym ent is presum pt ively at - will,” and “ [ t ] o override t his presum pt ion, a writ t en cont ract m ust 16 expressly fix t he durat ion of em ploym ent or ot herwise lim it t he em ployer’s abilit y t o discharge.” I d. ( cit at ions om it t ed) . Dunn alleges a prot ect ed due process right arising from his suspension pending an “ invest igat ion.” He cont ends t his gave him a right t o an invest igat ion which was violat ed when he was lat er t erm inat ed wit hout one. Dunn asks for discovery on t his issue. He furt her assert s t hat he has handled personnel m at t ers while working at t he sheriff’s depart m ent and t hat invest igat ions, as a pract ice, have included int erviewing t he accused em ployee. Dunn specifically alleges his due process claim arises from not being int erviewed before his t erm inat ion. The Due Process Clause of t he Fourt eent h Am endm ent requires “ som e kind of a hearing prior t o t he discharge of an em ployee who has a const it ut ionally prot ect ed propert y int erest in his em ploym ent .” Cleveland Bd. of Educ. v. Louderm ill, 470 U.S. 532, 542 ( 1985) ( int ernal quot at ion m arks and cit at ions om it t ed) . The plaint iff’s const it ut ional claim depends on him “ having a propert y right in cont inued em ploym ent .” I d. at 538. The plaint iff Dunn has not carried his burden of alleging anyt hing in st at e law t hat gives rise t o an arguable propert y int erest in his cont inued em ploym ent . He has not rebut t ed t he Kansas presum pt ion of at - will em ploym ent wit h any viable or plausible allegat ions. He has not alleged an “ ent it lem ent t o a subst ant ive right or benefit ” support ed by “ rules or m ut ually explicit underst andings” and “ not sim ply a unilat eral expect at ion.” Robbins v. U.S. 17 Bureau of Land Managem ent , 438 F.3d 1074, 1085 ( 10t h Cir. 2006) ( int ernal quot at ion m arks and cit at ions om it t ed) . Finally, t he plaint iff’s argum ent s go no furt her t han t o claim som e expect at ion in a procedure or process rat her t han in a prot ect able propert y int erest . The law is clear in t hat regards: This court has explained “ it is well est ablished t hat an ent it lem ent t o not hing but procedure cannot be t he basis for a propert y int erest .” Robbins, 438 F.3d at 1085 ( quot at ion om it t ed) . This is because “ [ p] rocess is not an end in it self,” but inst ead serves only “ t o prot ect a subst ant ive int erest t o which t he individual has a legit im at e claim of ent it lem ent .” Olim v. Wakinekona, 461 U.S. 238, 250, 103 S.Ct . 1741, 75 L.Ed.2d 813 ( 1983) . Alt hough det ailed and ext ensive procedural requirem ent s m ay be relevant as t o whet her a separat e subst ant ive propert y int erest exist s, see Hennigh [ v. Cit y of Shawnee] , 155 F.3d [ 1249] at 1254 [ ( 10t h Cir. 1998) ] , t he procedures cannot t hem selves const it ut e t he propert y int erest . Here, Plaint iffs' claim ed ent it lem ent t o be considered for prom ot ion in accordance wit h t he st at e syst em of m erit is no m ore t han a claim of ent it lem ent t o a fair process. Even assum ing st at e law grant s every st at e em ployee t he right t o be fairly considered for prom ot ion, t his right is not it self a subst ant ive right , but rat her a vehicle for arriving at t he ult im at e prom ot ion decision. Where st at e law is not sufficient ly rest rict ive t o creat e a propert y int erest in t he underlying decision, t here can be no propert y int erest in t he procedure used t o m ake t hat decision. Teigen v. Renfrow, 511 F.3d 1072, 1081 ( 10t h Cir. 2007) ( foot not e om it t ed) . The plaint iff Dunn has not alleged any st at e law involved in his expect at ion of int erest . Moreover, what he has alleged is no m ore t han a unilat eral expect at ion in a process or procedure used during an invest igat ion following his suspension. The plaint iff has not alleged anyt hing in st at e law or in recognized policies t hat so rest rict t hese “ invest igat ion” processes as t o 18 arguably give rise t o a propert y int erest in t he underlying decision t o t erm inat e. The defendant is ent it led t o j udgm ent on t he pleadings. Officia l Ca pa cit y Act ion The plaint iff’s com plaint nam es Morse as a defendant in bot h his individual and official capacit y. Finding no viable const it ut ional claim s t o have been alleged, t he court grant s t he defendant ’s m ot ion seeking j udgm ent for bot h capacit ies. Addit ionally, Morse argues for Elevent h Am endm ent im m unit y on t he official capacit y claim s, and t he plaint iff does not respond t o his argum ent . The court grant s t he sam e as uncont est ed. I T I S THEREFORE ORDERED t hat t he defendant Morse’s m ot ion for j udgm ent on t he pleadings pursuant t o Fed. R. Civ. P. 12( c) ( Dk. 7) is grant ed. Dat ed t his 31 st day of March, 2017, Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 19
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