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Cid v. Board of County Commissioners of Riley County

United States District Court, D. Kansas

January 9, 2019

DEREK O. CID, Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS OF RILEY COUNTY, KANSAS, et al., Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree, United States District Judge.

         In January 2012, plaintiff Derek O. Cid joined the Riley County Police Department (“RCPD”) as a police officer. Plaintiff alleges that, during his employment with the RCPD, he complained about the RCPD's alleged use of a mandatory quota system. Also, plaintiff alleges, defendants retaliated against him after he lodged his complaints about the quota system. Plaintiff resigned from his position on July 28, 2016, because-he contends-he could not comply with the quota system and because defendants retaliated against him after he had complained.

         Plaintiff brings this lawsuit under 42 U.S.C. § 1983 and Kansas state law. He asserts three claims. First, plaintiff asserts a claim under 42 U.S.C. § 1983 against (1) the Board of County Commissioners of Riley County, Kansas (“BOCC”), (2) the RCPD, (3) the Riley County Law Board (“RCLB”), (4) RCPD Sergeant Brian W. London in his individual capacity, (5) RCPD Lieutenant Steve C. Boyda in his individual capacity, (6) RCPD Captain Josh D. Kyle in his individual capacity, and (7) Bradley D. Schoen (Director of the RCPD) in his official and individual capacities. Plaintiff alleges that defendants violated his First and Fourteenth Amendment rights by retaliating against him and constructively discharging him from his employment after he engaged in protected speech by complaining about the RCPD's mandatory quota system (Count I). Second, plaintiff asserts a retaliatory discharge claim under Kansas law against defendants BOCC, RCPD, RCLB, and Director Schoen in his official capacity. Plaintiff alleges that these four defendants violated Kansas public policy when they retaliated against him and constructively discharged his employment after he refused to violate the law by making arrests without probable cause (Count II). Third, plaintiff asserts a claim under 42 U.S.C. § 1983 against defendants BOCC, RCPD, RCLB, and Director Schoen in his official capacity for maintaining a policy or practice that requires officers to arrest individuals without probable cause (Count III).

         This matter comes before the court on defendants' Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(2), 12(b)(5), and 12(b)(6). Doc. 16. For reasons explained below, the court concludes that plaintiff fails to state a claim for relief under 42 U.S.C. § 1983 (Counts I & III). The court thus dismisses plaintiff's federal claims under Fed.R.Civ.P. 12(b)(6). Also, the court declines to exercise supplemental jurisdiction over plaintiff's state law claim. So, the court dismisses plaintiff's Kansas retaliatory discharge claim (Count II) without prejudice.

         I. Factual Background

         The following facts are taken from plaintiff's Amended Complaint (Doc. 5-1) and viewed in the light most favorable to him. S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) (“We accept as true all well-pleaded factual allegations in the complaint and view them in the light most favorable to the [plaintiff].” (citation and internal quotation marks omitted)).

         In January 2012, the RCPD hired plaintiff as a police officer. The RCPD assigned plaintiff to work Watch 3-a shift that ran from 2:00 p.m. to 10:00 p.m. Sergeant Ryan Flerlage was one of plaintiff's supervisors on Watch 3. While plaintiff worked on Watch 3, Sergeant Flerlage and plaintiff's other supervisors gave plaintiff positive performance reviews. Also, they recommended that the RCPD consider plaintiff for the next open detective position.

         In September 2015, the RCPD moved plaintiff from Watch 3 to Watch 1-the midnight shift. Sergeant Brian London and Sergeant Daniel Bortnick became plaintiff's new supervisors on Watch 1.

         On October 6, 2015, Sergeant Bortnick sent an email to all officers on Watch 1- including plaintiff-that provided each officer's arrest statistics. Sergeant Bortnick's email recognized that self-initiated stops and activity had increased, but he also warned officers that they had missed their DUI “goal” of 105 for two quarters in a row. Doc. 5-1 at 6 (Am. Compl. ¶ 32). Sergeant Bortnick told officers that they needed to “buckle down” to meet the annual DUI arrest goal. Id.

         A few weeks later, plaintiff met with Sergeant London and Sergeant Bortnick. In this meeting, the Sergeants explained plaintiff's DUI “goal” to him. Also, they told plaintiff that he was subject to a mandatory “Quota/Non-Quota” system. This system required plaintiff to make at least two DUI arrests and to issue 15 parking tickets each month. Id. (Am. Compl. ¶ 33). If plaintiff failed to meet his quotas each month, the Sergeants told him, plaintiff would receive an unsatisfactory performance rating.

         In early November 2015, plaintiff met with Sergeant Bortnick to express “his concern . . . that mandatory compliance with the quota system would likely force officers to make unsupported stops resulting in departmental violations and Fourth Amendment issues.” Id. (Am. Compl. ¶ 35). Sergeant Bortnick ignored plaintiff's concerns and told him to “‘just concentrate on meeting the numbers.'” Id. at 7 (Am. Compl. ¶ 36).

         On November 9, 2015, plaintiff received his quarterly evaluation for August through October 2015. Sergeant London gave plaintiff a “below expectations” rating for Police Vehicle Operations. Plaintiff asserts that Sergeant London's evaluation of him violated RCPD policy.

         After receiving his performance evaluation, Sergeants Bortnick and London continued to “harass” plaintiff about his arrest numbers and meeting his “quotas.” Id. at 8 (Am. Compl. ¶ 43). Plaintiff responded, explaining “that he was engaging in proactive policing but that he could not blindly adhere to mandatory quotas, that he believed it made officers abandon their discretion and required them to engage in unjustified stops, false arrests, and unsupported summonses, and hurt the department's relationship with the community.” Id. (Am. Compl. ¶ 44). In response, plaintiff's supervisors told him to concentrate on his statistics.

         In February 2016, plaintiff received another quarterly evaluation for the months of November 2015 through January 2016. In this evaluation, Sergeant London rated plaintiff “below expectations” in Leadership. Also, Sergeant London told plaintiff that he needed “‘to make good on [his] DUI goal.'” Id. (Am. Compl. ¶ 48). When plaintiff met with Sergeant London to discuss his evaluation, Sergeant London explained that he rated plaintiff “below expectations” in Leadership mainly because plaintiff had not met his DUI quota. Plaintiff protested that his statistics were similar to other officers on his shift. Plaintiff contended that his statistics showed he was making appropriate traffic stops and being proactive even if he wasn't meeting his DUI quota. Despite plaintiff's protests, Sergeant London maintained plaintiff's “below expectations” rating.

         For the next seven months, Sergeants London and Bortnick berated plaintiff constantly. They falsely and publicly suggested that plaintiff was lazy, avoided taking reports, didn't know how to complete reports or complete a proper investigation, and didn't know RCPD policies. Also, they mischaracterized certain events to justify discipline against plaintiff. And they criticized plaintiff for things that they never criticized other officers for doing.

         In May 2016, plaintiff received his annual evaluation for 2015-2016. In this evaluation, Sergeant London rated plaintiff as “below expectations” in Leadership and Police Vehicle Operations. Also, he gave plaintiff an overall annual rating of “below expectations.” Because of this rating, plaintiff did not receive an annual merit raise. Sergeant London told plaintiff that he received a “below expectations” rating on his review because he had not met his DUI quotas and because he violated a policy that Sergeant Flerlage already had addressed the previous August. In his review of his evaluation, plaintiff found many errors. They included that his statistics-as reported in his evaluation-were wrong and artificially low. Also, plaintiff provided Sergeant London with “several examples of complex cases and other time-consuming activities and services he had provided to the department and community that were required to be taken into account when rating an officer's productivity, but that were not mentioned in his evaluation.” Id. at 11 (Am. Compl. ¶ 61).

         At the end of their meeting, Sergeant London told plaintiff that he was placing him on a Performance Improvement Plan (“PIP”). Plaintiff asked for an opportunity to meet with Lieutenant Steve Boyda to discuss his annual review. A few days later, plaintiff met with Lieutenant Boyda and Sergeant Pat Tiede. Plaintiff told Lieutenant Boyda and Sergeant Tiede that he felt like the RCPD was retaliating against him for raising concerns about the mandatory quota system. In response, Lieutenant Boyda and Sergeant Tiede told plaintiff he should lower his threshold for probable cause which would permit him to stop more drivers and increase his probabilities for making DUI arrests. Plaintiff responded that he couldn't arrest a driver who was not going to test for a DUI violation. Also, plaintiff told Lieutenant Boyda and Sergeant Tiede that he was going to appeal his annual evaluation rating and PIP.

         In June 2016, plaintiff learned that Sergeant London had denied his request to interview for an open detective position because plaintiff had received a “below expectations” evaluation and was on a PIP. On June 30, 2016, plaintiff met with Captain Josh Kyle to discuss his annual evaluation, his PIP, and his concerns about the mandatory quota system. During this meeting, plaintiff told Captain Kyle that he “felt he was being targeted for expressing these concerns” about the quota system. Id. at 13 (Am. Compl. ¶ 83). Plaintiff asked Captain Kyle to investigate his complaints and assign him to a different supervisor during the investigation to avoid retaliation. Captain Kyle told plaintiff that he would consider investigating his complaints but refused to assign him to a different supervisor.

         After meeting with Captain Kyle, plaintiff submitted an appeal of his annual evaluation and PIP. On July 7, 2016, Captain Kyle referred plaintiff's appeal to Director Bradley Schoen. Captain Kyle included a memo with plaintiff's appeal. The memo concluded that plaintiff's evaluation was proper and explained that plaintiff had been treated fairly. The memo never mentioned plaintiff's complaints about the quota system or his request for an investigation.

         On July 18, 2016, Sergeant London met with plaintiff to discuss his first monthly evaluation. In this evaluation, Sergeant London rated plaintiff “below expectations” in Leadership. He based his evaluation solely on plaintiff's arrest statistics. Also, Sergeant London rated plaintiff “below expectations” in Use of Force based on a June 19, 2016, brawl. Plaintiff and Sergeant Bortnick had responded to the call about the brawl. And, plaintiff asserts, Sergeant Bortnick falsely accused plaintiff of backing away from the fight twice and failing to turn on his body camera. Plaintiff later learned that he was the subject of an internal investigation for failing to take appropriate action during the June 19 brawl.

         Plaintiff concluded that his supervisors' actions showed they were taking “the initial steps toward termination.” Id. at 15 (Am. Compl. ¶ 93). Because plaintiff knew that termination could damage his reputation and law enforcement career, he decided to resign instead of facing termination. On July 28, 2016, plaintiff submitted a letter of resignation. It recited “his inability to comply with the quota system and subsequent treatment as a factor” in his resignation decision. Id. (Am. Compl. ¶ 94). The RCPD accepted plaintiff's resignation. But Lieutenant Boyda denied that any actions that the RCPD took against plaintiff were retaliation for plaintiff's complaints about the quota system.

         II. Legal Standards

         A. Motion to Dismiss for Lack of Personal Jurisdiction Under Rule 12(b)(2)

         A plaintiff bears the burden to establish personal jurisdiction over each defendant named in the action. Rockwood Select Asset Fund XI (6)-1, LLC v. Devine, Millimet & Branch, 750 F.3d 1178, 1179-80 (10th Cir. 2014). But, in preliminary stages of litigation, a plaintiff's burden to prove personal jurisdiction is a light one. AST Sports Sci., Inc. v. CLF Distrib. Ltd., 514 F.3d 1054, 1056 (10th Cir. 2008).

         Where, as here, the court is asked to decide a pretrial motion to dismiss for lack of personal jurisdiction without conducting an evidentiary hearing, plaintiff only must make a prima facie showing of jurisdiction to defeat the motion. Id. at 1056-57. “The plaintiff may make this prima facie showing by demonstrating, via affidavit or other written materials, facts that if true would support ...


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