United States District Court, D. Kansas
MEMORANDUM AND ORDER
Crow, U.S. District Senior Judge
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.
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).
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).
ALLEGATIONS IN THE COMPLAINT/PETITION
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.
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.
PLAINTIFF HAS NOT STATED A PLAUSIBLE § 1983 CLAIM.
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.
Plaintiff has not alleged a viable liberty interest
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
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
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