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Finley v. City of Colby, Kansas

United States District Court, D. Kansas

July 19, 2018




         This case arises out of Plaintiff Lance Finley's termination from the Colby Policy Department in February 2016. Plaintiff brings claims under the First Amendment and Kansas common law against Defendant Tom Nickols, Jr., the Undersheriff of Thomas County, Kansas, at the time Plaintiff's employment with the City of Colby terminated; Defendant Ron Alexander, the Chief of Policy of Colby, Kansas, at all relevant times; and Defendant City of Colby, Kansas. This matter comes before the Court on Defendants' various motions for judgment on the pleadings (Docs. 31, 32, 49 and 54). For the reasons stated below, the Court grants Undersheriff Nickols' Motion for Judgment on the Pleadings (Doc. 54), grants in part and denies in part Chief Alexander and the City of Colby's Motion for Judgment on the Pleadings (Doc. 49), and denies as moot Defendants' remaining motions (Docs. 31 and 32).

         I. Factual and Procedural Background[1]

         Plaintiff worked as an officer with the Colby Police Department from approximately August 2013, until his termination on February 18, 2016.[2] At all times relevant to the allegations in this lawsuit, Defendant Alexander has been the Chief of Police of Colby, Kansas. Colby is a city in Thomas County, Kansas.

         Plaintiff's brother, Marc Finley, worked for the Thomas County Sheriff's Office until his termination on an undisclosed date. In September 2015, while employed as the Undersheriff for the Thomas County Sheriff's Office, Marc Finley submitted a seven-page letter to the Kansas Bureau of Investigation, the Attorney General, the Kansas Commission on Peace Officers' Standard and Training (KS CPOST), and the Board of County Commissioners of Thomas County, Kansas. The letter alleged numerous misdeeds by the Thomas County Sheriff, Rod Taylor, including drinking on the job, theft, sexual harassment, destruction of evidence, and abuse of power. Chief Alexander knew of Marc Finley's grievance.

         In November 2015, Plaintiff pulled over Jim Cousins, an employee of the Thomas County Sheriff's Office, for driving his truck on a public roadway with snow covering a large portion of the windshield. Chief Alexander and Richard Barrett[3] told Plaintiff that he could not issue a ticket to Cousins because of politics. On January 15, 2016, while off duty, Plaintiff observed Cousins driving a vehicle erratically by crossing the center line on the road. Plaintiff reported the erratic driving to dispatch, Chief Alexander, and Thomas County Attorney Kevin Berens.

         At approximately 7:00 a.m. on February 17, 2016, Chief Alexander told Plaintiff that he and others had reviewed the dashcam footage from Cousins' vehicle and determined that Cousins did not cross the center line on January 15, 2016. Chief Alexander told Plaintiff that he could be charged with filing a false police report and that Plaintiff's employment would be terminated if he did not resign. Chief Alexander explained to Plaintiff that the decision to terminate his employment was “political.” Plaintiff agreed to resign his employment. Later that day, Plaintiff texted Chief Alexander and said: “This morning when you confronted me about your concerns, I had not had a chance to sleep, and as a result I have been unable to sleep yet I will meet with you tomorrow after I have been afforded the chance to sleep and process the allegations made against me.” In response, Defendant Alexander said: “Thats [sic] fine. After speakinv [sic] with Tom I dont [sic] believe anyone will be seaking [sic] to file a case.” On February 18, Plaintiff attempted to withdraw his resignation and Chief Alexander told Plaintiff that his employment would be terminated regardless. Chief Alexander also stated that he forced Plaintiff's termination to save Plaintiff from being charged criminally by Undersheriff Nickols, and that Plaintiff could blame his separation on the “idiot Chief Ron Alexander” and “politics.” Plaintiff alleges that Chief Alexander later admitted that he did not know whether Cousins' vehicle ever crossed the center line on January 15, 2016.

         Defendant Tom Nickols was the Undersheriff in Thomas County at the time of Plaintiff's complaint regarding Cousins and at the time of Plaintiff's termination. In his Second Amended Complaint, Plaintiff alleges: “Defendant Nickols did this because of [sic] Plaintiff's brother is Marc Finley, who a few months earlier had raised concerns about unethical and illegal practices by Thomas County Sheriff Rod Taylor, and because Plaintiff had reported Jim Cousins' driving to law enforcement.” Plaintiff's Second Amended Complaint does not identify what the word “this” in the above allegation refers to. In his original Complaint, as well as in his response to Defendants' motions to dismiss, Plaintiff alleges that Undersheriff Nickols demanded that Chief Alexander and the City of Colby terminate Plaintiff's employment.

         Plaintiff filed this action on August 22, 2017. He claims that Chief Alexander, the City of Colby, and Undersheriff Nickols violated the First Amendment of the U.S. Constitution, Kansas public policy, and Kansas common law, and that Undersheriff Nickols committed tortious interference. After Plaintiff filed his first Amended Complaint, Defendants sought dismissal of Plaintiff's Amended Complaint (Docs. 31 and 32).[4] Plaintiff subsequently filed a Second Amended Complaint, and Defendants again filed motions for judgment on the pleadings. Plaintiff filed a combined response to Undersheriff Nickols and Chief Alexander and the City of Colby's motions for judgment on the pleadings.

         II. Legal Standard

         Under Federal Rule of Civil Procedure 12(c), a party may move for judgment on the pleadings after the pleadings are closed as long as the motion is made early enough not to delay trial.[5] The standard for dismissal under Rule 12(c) is the same as the standard for dismissal under Rule 12(b)(6).[6] Accordingly, to survive a motion for judgment on the pleadings, a complaint must present factual allegations, assumed to be true, that “raise a right to relief above the speculative level, ” and must contain “enough facts to state a claim to relief that is plausible on its face.”[7] All reasonable inferences from the pleadings are granted in favor of the non-moving party.[8] Judgment on the pleadings is appropriate when “the moving party has clearly established that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law.”[9]

         When a complaint includes exhibits, the Court may “consider not only the complaint itself, but also attached exhibits.”[10] If the complaint refers to a document, but does not include it as an exhibit, the Court may consider a copy of the document provided by the defendant if the plaintiff does not dispute the document's authenticity and the document is central to the plaintiff's claims.[11]The Tenth Circuit recently approved the consideration of a video of events described in a plaintiff's complaint in deciding a motion to dismiss, and noted that it would accept as true the plaintiff's allegations “except when directly contradicted by . . . the video of the incident.”[12]

         III. Analysis

         A. Chief Alexander and the City of Colby's Motion for Judgment on the Pleadings

         1. First Amendment Retaliation

         “Public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern.”[13] The Court evaluates First Amendment retaliation claims in the employment context under the framework derived from the U.S. Supreme Court's decisions in Garcetti and Pickering v. Board of Education.[14] The Garcetti/Pickering test includes five elements:

1. The protected speech was not made pursuant to an employee's official duties.
2. The protected speech addressed a matter of public concern.
3. The government's interests as an employer did not outweigh the employee's free-speech interests.
4. The protected speech was a motivating factor in the adverse employment action.
5. The defendant would not have made the same employment decision in the absence of the protected speech.[15]

         Generally, the first three inquiries are questions of law for the Court, whereas the last two inquiries involve questions of fact for the jury.[16]

         Plaintiff rests his First Amendment retaliation claim on two alleged incidents of protected conduct: (1) the grievance submitted by Marc Finley, Plaintiff's brother, regarding the Thomas County Sheriff and (2) his own report of unlawful conduct by Cousins, an employee of the Thomas County Sheriff's Office. Defendants argue that Marc Finley's allegedly protected speech cannot form the basis of Plaintiff's First Amendment retaliation claim, and, regardless, that Plaintiff has failed to adequately plead facts sufficient to satisfy the fourth and fifth elements of his claim. Defendants also assert that Plaintiff has not stated a claim with regard to his report of Cousins' alleged erratic driving because he has failed to satisfy all but the first element of the Garcetti/Pickering test.[17]

         a. Marc Finley's complaint regarding the Thomas County Sheriff

         Standing serves as a threshold inquiry and jurisdictional prerequisite to suit-if a plaintiff does not have standing to pursue his claims, the Court does not have jurisdiction to hear the claims. Accordingly, before reaching the merits of Defendants' motion, the Court must first determine whether Plaintiff has standing to pursue a claim based on his brother's allegedly protected activity.

         The Supreme Court's standing jurisprudence includes two strands of standing: (1) Article III standing and (2) prudential standing.[18] Prudential standing “encompasses various limitations, including ‘the general prohibition on a litigant's raising another person's legal rights,' ” and embodies the general principle that a plaintiff “must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.”[19]

         When analyzing whether a plaintiff may pursue a First Amendment retaliation claim based on the protected speech of a third party-as opposed to the plaintiff's own speech-Courts require the plaintiff to demonstrate (1) that he suffered an injury, (2) a close relationship exists between the plaintiff and the third party who possessed the First Amendment rights, and (3) “some hindrance to the third party's ability to protect his or her own interests.”[20] Assuming that Plaintiff satisfies the first two elements-that he suffered an injury and that he has a close relationship with his brother-he nevertheless lacks standing because he cannot satisfy the third requirement. Nothing appears to have prevented Marc Finley from protecting his own interests. Indeed, Marc Finely filed a lawsuit against Thomas County, Sheriff Rod Taylor, and Undersheriff Nickols alleging First Amendment retaliation based on his allegedly protected criticisms of Sheriff Taylor.[21]

         Further, to the extent Plaintiff seeks to pursue violations of his right to familial association, his claim fails. “The Tenth Circuit has repeatedly recognized the right to familial association as a ‘liberty interest' protected by the Due Process Clause of the Fourteenth Amendment, not the First Amendment.”[22] Plaintiff has not pleaded facts sufficient to state a claim for violations of his right to familial association, [23] and does not have standing to bring a First Amendment retaliation claim based on his brother's allegedly protected speech. Accordingly, Plaintiff may not rely on his brother's speech to pursue a First Amendment retaliation claim.

         b. Complaint regarding Cousins

         Defendants allege that Plaintiff fails to state a claim for First Amendment retaliation based on his report of Cousins' erratic driving because he cannot satisfy the second, third, fourth, or fifth elements of his claim.

         i. Matter of public concern

         The entirety of Defendants' brief on this issue states, without legal citation: “A report of a driver allegedly crossing the centerline once is not a matter of public concern. It was an internal report to the Plaintiff's employer, not regarding a matter of public concern. Thus, plaintiff has not engaged in any protected activity.” The Court disagrees.

         When analyzing whether speech touches on a matter of public concern, the Court looks “to the content, form, and context of an employee's statement to determine if it pertains to a matter of public concern.”[24] The Tenth Circuit has “held that statements revealing official impropriety usually involve matters of public concern.”[25] Further, the fact that a plaintiff selects “a private forum within the police department and the district attorney's office, rather than a public forum, does not remove the speech from First Amendment protection.”[26]

         Here, Plaintiff did not simply report “a driver, ” but rather, reported erratic driving by an officer charged with upholding the law. The Tenth Circuit has noted that “any” evidence of impropriety or malfeasance by government officials “clearly concerns matters of public import, ” and the Court agrees with Plaintiff that reporting erratic and dangerous driving by an officer in his police vehicle addresses a matter of public concern. Further, that Plaintiff reported the matter “internally” does not preclude his claim.[27]

         ii. The parties' respective interests

         Even if a public employee speaks as a citizen on a matter of public concern, his First Amendment claim may fail if the government has “ ‘an adequate justification for treating the employee differently from any other member of the public' based on the government's needs as an employer.”[28] “The only public employer interest that outweighs the employee's free speech interest is avoiding direct disruption, by the speech itself, of the public employer's internal operations and employment relationships.”[29] The Court does not consider the parties' respective interests in a “vacuum, ” but rather, considers “the manner, time, and place of the employee's expression.”[30] Pertinent factors to consider when weighing the parties' interests include whether Plaintiff's statement: (1) “impairs discipline by superiors or harmony among coworkers, ” (2) detrimentally impacts “close working relationships for which personal loyalty and confidence are necessary, ” or (3) “impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise.”[31]

         Defendants argue that a county sheriff's office and a city police department in the county seat often have to rely upon each other for backup and support in dangerous situations when the lives of officers may be at stake. Accordingly, they argue, a good working relationship is essential and allegations of illegal activity that are reasonably seen to be ...

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