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Andres v. City of Coffeyville

United States District Court, D. Kansas

July 27, 2017

DENNIS ANDRES Plaintiff,
v.
CITY OF COFFEYVILLE, KANSAS, Defendant.

          MEMORANDUM AND ORDER

          J. THOMAS MARTEN, JUDGE

         Plaintiff Dennis Andres seeks damages pursuant to 42 U.S.C. § 1983 based on a claim that defendant City of Coffeyville, Kansas, terminated his employment in retaliation for exercising his right to free speech. Defendant moves for summary judgment (Dkt. 29) and argues that it had a legitimate basis for terminating plaintiff- Montgomery County Attorney Larry Markle (“CA Markle”) placed plaintiff on the Giglio list and further refused to prosecute any cases where plaintiff was involved. Plaintiff responds that defendant's reason is pretextual and flows directly from his decision to exercise his First Amendment right of free speech. For the reasons provided below, the court denies defendant's motion.[1]

         I. Uncontroverted Facts

         While there are several controverted facts[2], the court finds the following facts to be uncontroverted for purposes of summary judgment.

         Defendant hired plaintiff as a police officer in 1986. Over the next 29 years, plaintiff climbed up the chain of command and became a captain, second in command. About halfway through his career, plaintiff met an eight-year-old kid named Brazell Scott (“Scott”) who was caught shoplifting. Plaintiff tried to mentor Scott, and even allowed Scott to reside in his home at different times. When Scott was 13 years old, he moved to Texas to live with his father; but Scott later returned to Coffeyville sometime in 2011.

         In July 2012, a shooting took place in Coffeyville. Sometime later, Scott came to plaintiff's house because he wanted to hire plaintiff's wife to make a birthday cake for his daughter's birthday. As Scott crossed through plaintiff's living room into the kitchen, plaintiff asked Scott how things were going. Scott replied something to the effect of “you know, they messin' with me.” Nothing more was said on the matter, but plaintiff knew that Scott was referring to James Logan and his friends.

         On September 28, 2012, Scott shot James Logan and Latrelle Boyd. Scott turned himself in and was charged with their murders. Scott claimed self-defense.

         Six months after Scott's case was filed, two attorneys from the Kansas Attorney General's office, Greg Benefield and Amanda Voth (the “AAGs”), entered their appearances on behalf of the state. Scott's defense counsel later subpoenaed plaintiff. Plaintiff contacted the AAGs and told them about his subpoena; however, according to plaintiff, the AAGs seemed disinterested in talking with him. Plaintiff claims that he told the AAGs of his encounter with Scott.

         Plaintiff met with the defense's investigator on two separate occasions. During their second meeting, plaintiff informed the investigator that Scott had told him “they're messin' with me.”

         In opening statements at Scott's trial, defense counsel informed the jury that plaintiff would testify that Scott told him “they're messin' with me” before he shot both men. Plaintiff testified about his encounter with Scott at his house prior to the shootings, and the jury ultimately acquitted Scott of both murders.

         CA Markle and the AAGs were upset. They believed that plaintiff withheld substantial information and that his trial testimony differed from the information he previously told them. As a result, CA Markle notified City of Coffeyville Police Chief Anthony Celeste (“Chief Celeste”), via a letter dated February 3, 2014, that he considered plaintiff to have Giglio issues and would not file criminal charges in a different case because of plaintiff's involvement.

         An administrative complaint was filed against plaintiff, and an internal investigation into the matter ensued to determine if plaintiff withheld exculpatory evidence. Plaintiff cooperated with the investigation and passed a polygraph test.

         On August 21, 2014, Chief Celeste determined the complaint was “Not Sustained”-meaning there was insufficient evidence to support the allegations. Plaintiff thought the matter was resolved. Then, in a letter dated March 30, 2015, CA Markle informed Interim City Manager James Grimmett that he would not prosecute any cases in which plaintiff was involved. CA Markle also demanded access to defendant's personnel files and Enterpol database for its police officers.

         On April 7, 2015, CA Markle notified Chief Celeste that he was declining to prosecute a case in which the video showed that plaintiff had spoken to the suspect, but there was no audio. CA Markle noted that plaintiff was not a credible witness due to Giglio issues and further that Chief Celeste had not provided other video/audio from ...


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