Lincoln v. Maketa

• Decision Date: 17 January 2018
• Docket Number: No. 16-1127,16-1127
• Citation: 880 F.3d 533
• Parties: Mitchell LINCOLN ; Rodney Gehrett; Robert King; Cheryl Peck; Robert Stone, Plaintiffs–Appellees, v. Terry MAKETA, in his individual capacity and in his official capacity as Sheriff of El Paso County; Paula Presley, in her individual capacity and in her official capacity as Undersheriff of El Paso County, Defendants–Appellants, and The Board of County Commissioners of the County of El Paso; El Paso County Sheriff's Office; Bill Elder; Joe Breister, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

880 F.3d 533

Mitchell LINCOLN ; Rodney Gehrett; Robert King; Cheryl Peck; Robert Stone, Plaintiffs–Appellees,

v. Terry MAKETA, in his individual capacity and in his official capacity as Sheriff of El Paso County; Paula Presley, in her individual capacity and in her official capacity as Undersheriff of El Paso County, Defendants–Appellants,andThe Board of County Commissioners of the County of El Paso; El Paso County Sheriff's Office; Bill Elder; Joe Breister, Defendants.

No. 16-1127

United States Court of Appeals, Tenth Circuit.

Filed January 17, 2018

Andrew D. Ringel (Matthew J. Hegarty, with him on the briefs), Hall & Evans, L.L.C., Denver, Colorado, for Defendant–Appellant Terry Maketa.

Eric M. Ziporin, Ashley M. Kelliher, Senter Goldfarb & Rice, LLC, Denver, Colorado, for Defendant–Appellant Paula Presley.

Edward T. Farry, Jr., Farry & Stock, P.C., Colorado Springs, Colorado, for Plaintiffs-Appellees.

Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.

BACHARACH, Circuit Judge.

This appeal grew out of the district court's denial of qualified immunity to the former sheriff (Mr. Terry Maketa) and undersheriff (Ms. Paula Presley) of El Paso County. The claims were brought by three categories of subordinates: (1) Lieutenant Cheryl Peck; (2) Sergeant Robert Stone; and (3) Commanders Mitchell Lincoln, Rodney Gehrett, and Robert King. In this suit, Lt. Peck, Sgt. Stone, and the three Commanders allege retaliation for protected speech.

The district court held that the subordinates' allegations were sufficient to defeat qualified immunity at the motion-to-dismiss stage. We disagree because the law was not clearly established that (1) Lt. Peck's speech fell outside of her duties as a public employee, (2) the investigations of Sgt. Stone and his children constituted adverse employment actions, and (3) the investigation of the Commanders, their placement on paid administrative leave, and their alleged humiliation constituted adverse employment actions. Therefore, Sheriff Maketa and Undersheriff Presley were entitled to qualified immunity and dismissal of the complaint.

I. The Plaintiffs' Allegations

Lt. Peck and Sgt. Stone base their retaliation claims on a scheme by Sheriff Maketa and Undersheriff Presley to influence an upcoming election for sheriff by smearing one of the candidates; the Commanders base their claims on retaliation for their prior complaints about improper workplace practices. Because the ruling involves a motion to dismiss for failure to state a valid claim, we start with the plaintiffs' allegations in the complaint. See Part III, below.

A. Lt. Peck

Lt. Peck's claim arises out of her statements to the media. In 2013, Sheriff Maketa and Undersheriff Presley secretly took an Internal Affairs document, planning to use it against a political opponent. At the time, Lt. Peck was in charge of the Internal Affairs Unit of the Sheriff's Office. Lt. Peck knew that the document was missing but did not know who had taken it. The mystery of the missing document generated public interest.

To address the matter, Sheriff Maketa ordered Lt. Peck to speak to the media and deliver a false narrative, saying that the Internal Affairs document had been stolen by supporters of the political opponent. Lt. Peck spoke to the media as requested, but she did not give the story crafted by Sheriff Maketa; she instead "spoke truthfully." Appellant's App'x at 277. In response, Sheriff Maketa transferred Lt. Peck to the midnight shift.

B. Sgt. Stone

Sgt. Stone's claim arises out of his political support for the candidate opposed by Sheriff Maketa and Undersheriff Presley. Upon learning of Sgt. Stone's support, Sheriff Maketa retaliated by

• subjecting Sgt. Stone to a "criminal investigation" into the missing Internal Affairs document, including interrogations, two lie-detector tests, and accusations that Sgt. Stone had stolen the document and

• ordering a criminal investigation into Sgt. Stone's two children, both of whom were employees of the Sheriff's Office.

C. The Commanders

The Commanders' claims arise out of their filing of complaints about Sheriff Maketa and Undersheriff Presley. These complaints were filed with the Equal Employment Opportunity Commission and the El Paso County Board of County Commissioners. In the complaints, the Commanders alleged that Sheriff Maketa and Undersheriff Presley had engaged in improper practices.

The Commanders informed Undersheriff Presley of the complaints. Three hours later, Sheriff Maketa and Undersheriff Presley

• put the Commanders on paid administrative leave,

• confiscated their telephones, tablets, weapons, badges, and vehicles, and

• had the Commanders escorted out of the building.

The Commanders allege humiliation from the second and third actions. And in the aftermath of the complaints, Sheriff Maketa and Undersheriff Presley filed Internal Affairs complaints against two of the Commanders, subjecting them to internal investigations.

II. Procedural History

Lt. Peck, Sgt. Stone, and the Commanders sued under 42 U.S.C. § 1983, alleging that Sheriff Maketa and Undersheriff Presley had retaliated based on the exercise of protected speech. Sheriff Maketa and Undersheriff Presley moved to dismiss based on qualified immunity. The district court denied the motion, and Sheriff Maketa and Undersheriff Presley appeal.

III. Standard of Review

We engage in de novo review of the district court's rulings on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), and we "accept the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff[s]." Mayfield v. Bethards , 826 F.3d 1252, 1255 (10th Cir. 2016).¹

IV. Qualified Immunity

The doctrine of qualified immunity protects officials from civil liability as long as they do not " ‘violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ " Mullenix v. Luna , ––– U.S. ––––, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (quoting Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). To defeat this immunity, we require the plaintiff to show that

• the defendant violated a constitutional or statutory right and

• the violated right was " ‘clearly established at the time of the alleged unlawful activity.’ "

Estate of Reat v. Rodriguez , 824 F.3d 960, 964 (10th Cir. 2016) (quoting Swanson v. Town of Mountain View , 577 F.3d 1196, 1199 (10th Cir. 2009) ). Once a defendant raises qualified immunity, the plaintiff bears the burden to show that the defendant is not entitled to immunity. Douglas v. Dobbs , 419 F.3d 1097, 1100 (10th Cir. 2005).

A right is "clearly established" when every " ‘reasonable official would [understand] that what he is doing violates that right.’ " Ashcroft v. al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (quoting Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ). But the right cannot be defined at a high level of generality; instead, the key is whether the specific conduct has been clearly established as a constitutional violation. Mullenix , 136 S.Ct. at 308. Accordingly, we usually require an applicable Supreme Court or Tenth Circuit opinion or the clear weight of authority from other courts treating the conduct as unconstitutional. Sause v. Bauer , 859 F.3d 1270, 1275 (10th Cir. 2017). But the opinion need not be on point if the conduct is " ‘obviously unlawful’ " in light of existing precedent. Id . at 1275 (quoting Browder v. City of Albuquerque , 787 F.3d 1076, 1082 (10th Cir. 2015) ).

We have discretion to resolve an issue of qualified immunity on either of the two prongs, and we need not decide whether a violation occurred if we conclude that the right was not "clearly established." Pearson v. Callahan , 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ; Estate of Reat v. Rodriguez , 824 F.3d 960, 964 (10th Cir. 2016). Here, we choose to address the second prong, concluding that none of the underlying rights were clearly established at the time of the alleged retaliation.

V. The Retaliation Claims

The plaintiffs assert retaliation under the First Amendment. We evaluate these claims under the framework derived from Garcetti v. Ceballos , 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), and Pickering v. Board of Education , 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). The Garcetti /Pickering test contains five elements that plaintiffs must satisfy:

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.

Dixon v. Kirkpatrick , 553 F.3d 1294, 1302 (10th Cir. 2009). The complaint does not allege facts reflecting the violation of a clearly established right, for Lt. Peck arguably failed to meet the first element and Sgt. Stone and the Commanders arguably failed to meet the fourth element.

A. Lt. Peck's Retaliation Claim

Lt. Peck invokes the First Amendment, alleging punishment by Sheriff Maketa for truthfully speaking to the media. On this allegation, the first element is murky. It required Lt. Peck to show that she was speaking outside of her official duties. See id . And with the gloss of qualified immunity, Lt. Peck also had to demonstrate that it was clearly established that she was speaking outside of her official duties. See Part IV, above. She failed to satisfy that burden.

"[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Garcetti v. Ceballos , 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006)....