Dirks v. Bd. of Cnty. Comm'rs of Ford Cnty., Case No. 15-CV-7997-JAR
| Decision Date | 23 May 2016 |
| Docket Number | Case No. 15-CV-7997-JAR |
| Parties | ARTHUR R. DIRKS, Plaintiff, v. BOARD OF COUNTY COMMISSIONERS OF FORD COUNTY, KANSAS, EDWARD W. ELAM, AND MARTIN BOLMER, Defendant. |
| Court | U.S. District Court — District of Kansas |
Plaintiff Arthur R. Dirks filed this action under 42 U.S.C. § 1983 against Defendants Board of County Commissioners of Ford County, Kansas ("Ford County"), Edward W. Elam, and Martin Bolmer alleging violations of his First Amendment rights. Plaintiff alleges that Defendants used threats and intimidation to prevent him from giving testimony at a deposition regarding misconduct of Ford County officials. This matter comes before the Court on Defendants' Motion to Dismiss Plaintiff's First Amended Complaint (Doc. 20). The motion is fully briefed and the Court is prepared to rule. For the reasons stated in detail below, the Court grants in part and denies in part Defendants' motion to dismiss.
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), 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."1 "[T]he complaint must give the court reason to believe that this plaintiff has a reasonable likelihood ofmustering factual support for these claims."2 The plausibility standard does not require a showing of probability that a defendant has acted unlawfully, but requires more than "a sheer possibility."3 "[M]ere 'labels and conclusions,' and 'a formulaic recitation of the elements of a cause of action' will not suffice; a plaintiff must offer specific factual allegations to support each claim."4 Finally, the Court must accept the nonmoving party's factual allegations as true and may not dismiss on the ground that it appears unlikely the allegations can be proven.5
The Supreme Court has explained the analysis as a two-step process. For the purposes of a motion to dismiss, the court "must take all the factual allegations in the complaint as true, [but] we 'are not bound to accept as true a legal conclusion couched as a factual allegation.'"6 Thus, the court must first determine if the allegations are factual and entitled to an assumption of truth, or merely legal conclusions that are not entitled to an assumption of truth.7 Second, the court must determine whether the factual allegations, when assumed true, "plausibly give rise to an entitlement to relief."8 "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."9
Drawing all reasonable inferences in favor of Plaintiff, the following facts are taken from Plaintiff's First Amended Complaint ("Complaint").10
From April 19, 2004, until his termination on May 10, 2013, Plaintiff Arthur Dirks was employed as a heavy equipment operator for the Ford County, Kansas, Road and Bridge Division.11 As part of his employment duties, Plaintiff was assigned to help clean up dump sites on private property within Ford County. At all times relevant to this matter, Defendant Martin Bolmer was Supervisor of the Ford County Road and Bridge Division and Plaintiff's immediate supervisor, and Defendant Edward Elam was the County Administrator of Ford County, Kansas.12 Bolmer frequently encouraged Plaintiff and other Road and Bridge employees to keep any items they wanted from these clean-up sites and asked employees whether they had found any items for themselves after employees returned from clean-up sites. Examples of items taken from county clean-up sites, with Bolmer's knowledge and permission, included a water well system, vehicles, a riding lawn mower, and a gooseneck trailer. Road and Bridge employees understood that county management endorsed this practice of taking personal property from county clean-up sites.13
Plaintiff alleges that it was the practice of Ford County officials to sell scrap metal recovered at county clean-up sites to Leikam Metal and Recycling at a below-market price without a competitive bidding process, in contravention of Kansas law.14 Additionally, Ford County was reimbursed by the State of Kansas per ton of scrap metal recovered from countyclean-up sites up to a maximum of $10,000 per site. In an effort to manipulate the State of Kansas into paying more than was owed, Ford County officials altered state records to "move" some scrap metal on the records submitted to the State from a clean-up site that exceeded the cap to another clean-up site that did not exceed the cap.15
While Plaintiff was working at a clean-up site on property owned by Michael and Monica Alexander, Bolmer called Plaintiff and requested that he bring Bolmer a set of four iron wheels that Bolmer wanted from the Alexander property. It is unclear whether Plaintiff complied with this request. In February 2012, Michael and Monica Alexander sued Ford County, Kansas, alleging that Ford County employees wrongfully entered upon the Alexanders' private property without a proper court order, without consent of the landowners, and without notice of the landowners.16 The Alexanders further alleged that the County and individual County employees removed and kept their property and took valuable personal property without consent. The County removed several automobiles from the Alexander property, but according to Ford County landfill employees, none of the Alexander automobiles arrived at the landfill. One of the vehicles was eventually recovered at the home of a retired Ford County employee, and a trailer belonging to the Alexanders was found at the Road and Bridge shop.
After the Alexanders filed the lawsuit, Bolmer instructed Plaintiff and other County employees to lie regarding whether they took items from clean-up sites for personal use. Specifically, Bolmer told Plaintiff that he was going to have to "learn how to lie," and that Plaintiff was "going to have to put [his] lying shoes on."17 Bolmer instructed Plaintiff to tellattorneys that "you don't remember, you cannot recall, you don't know."18 On May 3, 2013, Plaintiff was given a promotion and pay increase.
Plaintiff was noticed to appear for a May 10, 2013 deposition in connection with the Alexander lawsuit. On May 8, 2013, Plaintiff met with Bolmer and counsel for Ford County to prepare for his deposition. Counsel for Ford County asked Plaintiff whether he had seen any vehicles parked at the Alexander property. Plaintiff answered that when he arrived on the property there were no cars, but he saw places where cars had been sitting and were recently removed.19 Bolmer responded to Plaintiff that "you're going to lose your farm over this."20
On May 9, 2013, Plaintiff again met with Bolmer and counsel for the County. Counsel showed Plaintiff a list of cars and asked if he had seen any of them on the Alexander property. Plaintiff again answered that he did not see those cars at the Alexander property, but that he did see places where cars had been sitting and were recently removed.21 Plaintiff also told counsel that he had seen some of the listed cars and a gooseneck trailer from the Alexander property at the Ford County Road and Bridge shop. Bolmer again told Plaintiff that he would lose his farm over this.22 Counsel and Bolmer then showed Plaintiff an aerial photo of Plaintiff's property and asked him "how would you like it if someone came out and hauled off your stuff?"23 Counsel asked Plaintiff whether he had personally taken any items from the Alexander property during the clean-up process. Plaintiff answered that he had, with Bolmer's encouragement, taken some T-posts from the Alexander property. Bolmer said to Plaintiff that "you're making life difficultfor me."24 Bolmer also told Plaintiff that he should plead the Fifth at his deposition or else he was going to lose his farm and everything over this.
On May 10, 2013, Defendant Elam, who had learned of Bolmer's discussions with Plaintiff, came to the Road and Bridge shop and fired Plaintiff.25 Later that day, Plaintiff was deposed in connection with the Alexander lawsuit. Plaintiff refused to answer questions, citing his Fifth Amendment privilege.26 Bolmer similarly invoked his Fifth Amendment privilege and refused to answer questions during his deposition in connection with the lawsuit. Ford County ultimately settled the case and paid the Alexanders $500,000.
Plaintiff alleges that if he had not been intimidated into silence, he would have testified in his deposition that Road and Bridge employees were encouraged by county management to take items from county clean-up sites for personal use and that management engaged in the same conduct.27 Further, his testimony would have allowed the parties to learn that the scrap metal taken from the Alexander property and other clean-up sites was sold directly to Leikam Metal Recycling for well below market rate, in contravention of state law and county policy requiring property to be disposed via a competitive bidding process with public participation.28 Plaintiff also would have testified to the practices by Ford County officials in altering records to manipulate the State of Kansas into paying additional scrap metal reimbursement funds to the County. Plaintiff alleges that since the termination of his employment and his deposition, the County has continued to harass him for his refusal to lie and mislead in his deposition responses.
Pursuant to 42 U.S.C. § 1983, any person who "under color of . . . [law] . . . subjects, or causes to be subjected, . . . any [person] . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured." Section 1983 does not create any substantive rights.29 Rather, § 1983 provides only a right of action to remedy a violation of a right...
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