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Weber v. Osage County Board of Commissioners of Osage County

United States District Court, D. Kansas

March 6, 2017

SHARON WEBER, Plaintiff,


          Sam A. Crow, U.S. District Senior Judge

         This is an action with claims under 42 U.S.C. § 1983 which has been removed from state district court to this court. This order shall grant defendant's motion to dismiss for failure to state a claim pursuant to FED.R.CIV.P. 12(b)(6). See Doc. No. 7.

         I. STANDARDS

         Defendant's motion requires the court to determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court accepts plaintiff's well-pled factual allegations as true and views them in the light most favorable to plaintiff. United States v. Smith, 561 F.3d 1090, 1098 (10th Cir. 2009), cert. denied, 558 U.S. 1148 (2010). The court, however, is not required to accept legal conclusions alleged in the complaint as true. Iqbal, 556 U.S. at 678. “Thus, mere ‘labels and conclusions' and ‘a formulaic recitation of the elements of a cause of action' will not suffice” to state a claim. Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Twombly, 550 U.S. at 555).

         “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. “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.”'” Id. (quoting Twombly, 550 U.S. at 557).


         Plaintiff alleges that she replaced the elected County Treasurer for Osage County, Kansas who retired before the expiration of her term of office. Plaintiff began serving as Osage County Treasurer on August 1, 2015. Plaintiff alleges that the Chairman of the Osage County Commission stated in an open session meeting on November 16, 2015 that plaintiff was incompetent and questioned her abilities to perform the duties of the job. He asked plaintiff to resign. Thereafter, he solicited a vote of “no confidence” in plaintiff, which passed with two voting in favor and one abstaining. The Chairman of the Commission later moved in open session to reduce plaintiff's salary to the lowest salary paid to a starting clerk in the courthouse. This motion passed reducing plaintiff's salary below individuals she was supervising. Plaintiff alleges that no justification was given for the reduction in salary and no comparison was made of the responsibilities, obligations and job duties of plaintiff versus the responsibilities of clerks working at the lower salary level.

         Plaintiff's legal claims assert that defendant Osage County Board of Commissioners has deprived plaintiff of a liberty interest without the due process of law to which plaintiff is entitled under the Constitution. Plaintiff also claims that her substantive due process rights have been denied by defendant.


         A plaintiff bringing a § 1983 claim must “allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” Bruner v. Baker, 506 F.3d 1021, 1025-26 (10th Cir. 2007)(internal quotation marks omitted). Here, plaintiff's claims are not plausibly supported by the facts in the complaint.

         A. Plaintiff has not alleged a viable liberty interest claim.

         Plaintiff claims that the defendant Board violated plaintiff's liberty interest in her good name, reputation, honor and integrity by openly proclaiming that plaintiff was incompetent and by reducing her salary in an arbitrary and capricious manner. Plaintiff, however, has not alleged facts which would plausibly demonstrate a violation of the Constitution.

         The Tenth Circuit has held that the government infringes upon a constitutionally protected liberty interest when: 1) it makes a statement impugning the good name, reputation, honor, or integrity of an employee; 2) the statement is false; 3) the statement is made during the course of termination and forecloses other employment opportunities; and 4) the statement is disclosed publicly. McDonald v. Wise, 769 F.3d 1202, 1212 (10th Cir. 2014)(interior quotations omitted). Here, plaintiff has not alleged facts plausibly showing the first element or the third element.

         The Tenth Circuit has held that “a showing of stigmatization is essential to stating [a] liberty interest claim.” Southeast Kansas Community Action Program Inc. v. Secretary of Agriculture, 967 F.2d 1452, 1458 (10th Cir. 1992)(referred to hereinafter as “SEK-CAP”). Reasons for a job action which merely make an employee less attractive to a future employer do not injure a liberty interest. Weathers v. West Yuma County School District, 530 F.2d 1335, 1339 (10th Cir. 1976). Whether alleged stigmatizing statements caused a constitutional injury is considered a question of law. SEK-CAP, supra. In several cases, the Tenth Circuit has determined that claims of incompetence or neglect did not allege a constitutional injury. See Fox-Rivera v. Colo. Dept. of Public Health & Environment, 610 Fed.Appx. 745, 746-47 (10th Cir. 2015)(statements alleging negligence and failures to follow protocol); SEK-CAP, supra (report alleging misspending of federal funds ...

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