United States District Court, D. Kansas
DEREK O. CID, Plaintiff,
BOARD OF COUNTY COMMISSIONERS OF RILEY COUNTY, KANSAS, et al., Defendants.
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge.
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
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).
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.
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)).
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.
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.
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.
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
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).
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.
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
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.
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.
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. ¶
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.
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
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.
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.
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.
Motion to Dismiss for Lack of Personal Jurisdiction Under
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).
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