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Dunn v. Morse

United States District Court, D. Kansas

March 31, 2017

AL DUNN, Plaintiff
TIM MORSE, in His Individual Capacity and in His Capacity as Sheriff of Jackson County, Defendant.


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

         This civil rights action alleges claims under the First Amendment (speech and association) and Fourteenth Amendment (procedural due process) based on the plaintiff Al Dunn's termination in July of 2016 from his position as detective with the Jackson County Sheriff's Department. With 2016 being an election year for the defendant Sheriff Tim Morse, Dunn alleges the defendant Morse violated Dunn's constitutional rights in terminating him for reasons related to the election. Morse moves for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dk. 7). The motion has been fully briefed and is ready for decision.

         Standards Governing Motion

         “A motion for judgment on the pleadings under Rule 12(c) is treated as a motion to dismiss under Rule 12(b)(6), ” Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000), and the same standards govern motions under either rule, Ward v. Utah, 321 F.3d 1263, 1266 (10th Cir. 2003). On either motion, the court considers only the contents of the complaint. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). The court accepts as true “all well-pleaded factual allegations in a complaint and view[s] these allegations in the light most favorable to the plaintiff.” Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009), cert. denied, 558 U.S. 1148 (2010). This duty to accept a complaint's allegations as true is tempered by the principle that “mere labels and conclusions, and a formulaic recitation of the elements of a cause of action will not suffice; a plaintiff must offer specific factual allegations to support each claim.” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting in part Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted)).

         To withstand a Rule 12(b)(6) motion, “a complaint must contain enough allegations of fact, taken as true, to state a claim to relief that is plausible on its face.” Al-Owhali v. Holder, 687 F.3d 1236, 1239 (10th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Thus, “a plaintiff must offer sufficient factual allegations to ‘raise a right to relief above the speculative level.'” Kansas Penn Gaming, 656 F.3d at 1214 (quoting Twombly, 550 U.S. at 555). “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.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). It follows then that if the “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. “‘A claim has facial plausibility when the [pleaded] factual content . . . allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Rosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1178 (10th Cir. 2012).

         “Thus, in ruling on a motion to dismiss, a court should disregard all conclusory statements of law and consider whether the remaining specific factual allegations, if assumed to be true, plausibly suggest the defendant is liable.” Kansas Penn Gaming, 656 F.3d at 1214. The Tenth Circuit regards the Twombly-Iqbal decisions as crafting a new “refined standard” whereby “plausibility refers to ‘the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.”'” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting in turn Twombly, 550 U.S. at 570). “[T]he degree of specificity necessary to establish plausibility and fair notice, and therefore the need to include sufficient factual allegations, depends on context . . . .” Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (citing Phillips v. County of Allegheny, 515 F.3d 224, 231-32 (3d Cir. 2008)).

         Claims and Allegations

         The plaintiff alleges his termination was unlawful being in violation of his rights to freedom of speech and freedom of association under the First Amendment and his right to procedural due process under the Fourteenth Amendment. The following are the relevant factual allegations gleaned from the plaintiff's complaint.

         Hired in 2000, promoted to Detective in 2004, and then promoted to Chief Detective in 2007, Al Dunn worked for Jackson County Sheriff's Department. He worked under the defendant Sheriff Morse from June 2011, until Morse terminated Dunn on July 12, 2016, on the stated grounds of insubordination. In May of 2016, Dunn began investigating a local young man on multiple allegations of sexual assaults with multiple victims. Dunn carried out his investigatory duties, “by interviewing witnesses, speaking with officials, and speaking with defendant Morse.” (Dk. 1, ¶ 11). Dunn alleges that because of this “speech related to the investigations, ” family members and friends of the young male suspect began complaining to Morse and using the pending political campaign to influence Morse to stop the investigation. Id. at ¶ 12. The complaint alleges Morse yielded to this pressure from the suspect's family and friends in that he then “pressured plaintiff to back off of his investigation, stop his speech related to the investigation, and to become associated with his political need to appease family/friends of the suspect.” Id. at ¶ 13. According to the complaint, “[a]s a result of plaintiff's speech related to the investigation, and as a result of his failure to associate with Morse's political needs, in spite of official pressure by defendant Morse that he do so, ” the plaintiff was suspended on June 24, 2016, pending an investigation into alleged insubordination, and then was terminated on July 12, 2016, for alleged insubordination. Id. at ¶¶ 14 and 15.

         The court notes other significant allegations in the complaint. First, as to the First Amendment claims, “Plaintiff believes and expressly alleges that his speech related to the investigation of . . . [the suspect] was on matters of public concern, and thus protected.” (Dk. 1, ¶ 22). Second, as to the due process claim, “Plaintiff believes and expressly alleges that he was entitled to due process before being terminated from his position; and that even though he was suspended allegedly pending an investigation, in fact no investigation was done; he was informed of no investigation; he was not asked to participate into any investigation; and he was thus terminated without due process.” (Dk. 1, ¶ 27). Finally, the “Plaintiff believes and expressly alleges that his right to speech; the fact that his speech was on matters of public concern; his right to not associate with defendant Morse's political needs; and his right to due process before being terminated; were all clearly established at the time of his suspension and termination.” Id. at ¶ 28.

         Because the defendant asserts qualified immunity, the burden is with the plaintiff to show he has alleged both that the defendant violated a constitutional right and that this constitutional right was clearly established in the law at the time of the violation. Bowling v. Rector, 584 F.3d 956, 964 (10th Cir. 2009). The qualified immunity inquiry is made “in light of the specific context of the case, not as a broad general proposition.” Id. (internal quotation marks and citations omitted). “[A] right is clearly established only if there is a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts has found the law to be as the plaintiff maintains.” Id. The following findings and conclusions demonstrate the plaintiff has failed to carry his burden in both regards.

         First Amendment-Freedom of Speech

         Morse seeks judgment because Dunn's alleged speech is not constitutionally protected for the following argued reasons. Dunn was not speaking as a citizen on a matter of public concern, but as a detective and public employee in the performance of his official duties. The complaint alleges speech only related to the investigation, as in interviewing witnesses, speaking with officials, and speaking with Sheriff Morse. Dunn's speech was a part of his duties and responsibilities as a detective in the sheriff's department. Consequently, Dunn's speech activities were simply a function of his official job responsibilities.

         In his brief, Dunn repeats his allegation that he was terminated, “because he would not shirk his duty to investigate an alleged serial sex offender, because the family of the alleged serial sex offender was making political noise in the election year.” (Dk. 13, p. 6). Dunn stands on his allegations that he engaged in protected activity by speaking with officials and Morse on matters related to the investigation and these matters were of public concern. Dunn argues his allegation of “speech related to the investigation” is not the same as “speech of the investigation itself, ” and he maintains the former is constitutionally protected. Dunn asks for discovery to “be conducted on ...

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