Ryan v. Blackwell

• Decision Date: 03 November 2020
• Docket Number: No. 19-6447,19-6447
• Citation: 979 F.3d 519
• Parties: Buck RYAN, Plaintiff-Appellant, v. David A. BLACKWELL, Joseph Reed, Derek Lane, and Mike Farrell, in their individual capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

979 F.3d 519

Buck RYAN, Plaintiff-Appellant,

v.David A. BLACKWELL, Joseph Reed, Derek Lane, and Mike Farrell, in their individual capacities, Defendants-Appellees.

No. 19-6447

United States Court of Appeals, Sixth Circuit.

Argued: October 9, 2020

Decided and Filed: November 3, 2020

ARGUED: Robert L. Abell, ROBERT ABELL LAW, Lexington, Kentucky, for Appellant. Bryan H. Beauman, STURGILL, TURNER, BARKER & MOLONEY, PLLC, Lexington, Kentucky, for Appellees. ON BRIEF: Robert L. Abell, ROBERT ABELL LAW, Lexington, Kentucky, for Appellant. Bryan H. Beauman, Jessica R. Stigall, Donald C. Morgan, STURGILL, TURNER, BARKER & MOLONEY, PLLC, Lexington, Kentucky, William E. Thro, UNIVERSITY OF KENTUCKY, Lexington, Kentucky, for Appellees.

Before: SUHRHEINRICH, LARSEN, and READLER, Circuit Judges.

SUHRHEINRICH, Circuit Judge.

Buck Ryan is a professor of journalism at the University of Kentucky. Following an audit, the University accused him of misusing department resources to make a larger profit off a textbook he had authored. He was asked to resign from his position as a tenured professor, but he refused to do so. Ryan brought suit against Defendants David Blackwell, Joseph Reed, Derek Lane, and Mike Farrell, alleging, amongst other things, that they retaliated against him for asserting his due process and First Amendment rights after he refused to resign. The district court dismissed Ryan's claim under Federal Rule of Civil Procedure 12(b)(6). On appeal, Ryan alleges that the district court misconstrued his complaint, that he plausibly alleged due process retaliation, and that his speech was on a matter of public concern. He argues that he did, therefore, meet the Rule 12(b)(6) requirements to plausibly state a claim Blackwell, Reed, Lane, and Farrell argue that even if they did violate Ryan's rights, they are entitled to qualified immunity. For the reasons that follow, we AFFIRM.

I.

In this 42 U.S.C. § 1983 action, Plaintiff Buck Ryan challenges the district court's dismissal under Federal Rule Civil Procedure 12(b)(6) of his First Amendment and due process retaliation claims against Defendants David Blackwell, Joseph Reed, Derek Lane, and Mike Farrell (collectively "Defendants").

At the district court, Ryan plead four causes of action, but only the two federal claims are at issue here, both of which pertain to retaliation for Ryan's allegedly protected activity. First, Ryan asserts he was retaliated against when he refused to resign his position as a tenured professor at the University of Kentucky and asserted his property interest in his continued employment there as protected by the Due Process Clause. Second, Ryan claims he was retaliated against for exercising his First Amendment right to speak on matters of public concern.

The district court correctly held that Ryan's due process rights were not violated. He was given due process when the faculty committee conducted an investigation into his conduct and made its recommendation not to terminate Ryan's employment. Blackwell's statement to the press was not a sufficiently chilling action that it would deter a person of ordinary firmness from refusing to resign, and therefore cannot be considered retaliation.

The district court also correctly determined that Ryan failed to state a claim for First Amendment retaliation because the facts alleged do not implicate a matter of public concern. There is very little by way of information about the context and content of Ryan's protests against the University in his complaint, but even with the supplemental information provided in his reply and subsequent briefing, the subject of his speech does not amount to a matter of public concern.

Furthermore, because Ryan failed to allege a violation of a clearly established constitutional right, he is not able to overcome qualified immunity.

II.

Buck Ryan is a tenured associate professor of journalism at the University of Kentucky ("UK"). On or around April 30, 2018, an audit report conducted by Joseph Reed was presented to Ryan by then-Dean Dan O'Hair and interim director of the journalism school, Mike Farrell. The audit report focused primarily on Ryan's use of his book, Writing Baby, Editing Dog and You: A Friendly Place to Begin Improving Your Writing , in his courses. The audit claimed that Ryan had generated more than a $6,000 profit by using UK's contract rates and tax exempt status to obtain lower printing rates for his book, requiring his book for his courses, and selling it to students at a markup at local bookstores. All of this, according to the audit, violated UK policy. Id. Ryan responded to O'Hair and Farrell by outlining the ways in which he believed the audit contained inaccurate, false, and defamatory information. He requested that the audit be voided. Id.

At a later meeting, O'Hair demanded that Ryan resign his position. Ryan refused to resign, at which point Blackwell, UK's provost, began formal administrative proceedings to terminate Ryan's employment as a tenured faculty member. Id. Blackwell also issued the following statement—which Ryan alleges is defamatory—to a local newspaper in response to a request for comment on the termination proceedings:

As a matter of policy, we do not discuss personnel matters in any detail. The audit in question is a matter of public record. It speaks for itself. What is most egregious about the audit's findings is the fact that Professor Ryan stole from students. And he used university resources to do it. Both are violations of university policy; more importantly, both violate the trust that students and others place in us. That violation of trust is why we've had to take this step to seek the termination of a faculty member, a move we don't make lightly but one that we must regrettably take. We will now follow a process led by faculty that is, as it should be, thorough, comprehensive and designed to be fair to all involved.

In August 2018, the UK Senate Advisory Committee on Privilege and Tenure recommended against further termination proceedings. Ryan later challenged Blackwell and University President Eli Capilouto "at a public forum ... as to why they attempted to fire him with no grounds do so and defamed him in this process." Ryan alleges that in retaliation for speaking out against his termination, Lane (Interim Dean of UK's College of Communication and Information) and Farrell made defamatory claims, removed him from his teaching responsibilities, and constructively discharged him from the UK faculty.

Ryan filed suit in district court on April 29, 2019, alleging four counts of violations of state and federal law. First, Blackwell's statement to the press was retaliation for Ryan's assertion of his constitutionally protected due process rights when he refused to resign his position. Second, that statement constitutes defamation per se under Kentucky law. Third, the audit report itself is defamatory and casts Ryan in a false light. And fourth, the further efforts to coerce him into resigning constitute retaliation for Ryan's assertion of his due process and First Amendment rights.

The district court dismissed the two federal claims under Rule 12(b)(6) for failure to state a claim. It declined to exercise supplemental jurisdiction over the remaining state law claims. On appeal, we are asked to review only the dismissal of the due process and First Amendment retaliation claims.

III.

We review a district court's decision to grant a motion to dismiss de novo. Bates v. Green Farms Condo. Ass'n , 958 F.3d 470, 479–80 (6th Cir. 2020). To survive a motion to dismiss the complaint must include a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). When determining whether Ryan's complaint meets this standard "we accept as true its factual allegations and draw all reasonable inferences in his favor, but we disregard any legal conclusions." Rudd v. City of Norton Shores , 977 F.3d 503, 511, No. 19-1226 (6th Cir. 2020) ; see also Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). While the complaint "does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (cleaned up).

Ryan alleges two retaliation claims under 42. U.S.C. § 1983, which allows for plaintiffs to recover damages for violations of the Constitution or a federal statute. Boler v. Earley , 865 F.3d 391, 401 (6th Cir. 2017). Though some governmental actions standing on their own may not be violations of the Constitution, "[i]t is well established that [they] ... may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for exercise of a constitutional right." Thaddeus-X v. Blatter , 175 F.3d 378, 386 (6th Cir. 1999) (en banc). Ryan alleges that Blackwell's statement to the press, the termination efforts, and the changes to his teaching responsibilities are all unconstitutional retaliatory actions for his refusal to resign and his public statements regarding the matter.

A.

There are three elements to a retaliation claim: (1) "the plaintiff engaged in conduct that is protected by the Constitution or by statute," (2) "the defendant took an adverse action against the plaintiff," and (3) "this adverse action was taken (at least in part) because of the protected conduct." Thaddeus-X , 175 F.3d at 386–87.

This matter comes before us on appeal from a motion to dismiss for failure to state a claim under Rule 12(b)(6). The pleading standard is generally construed quite liberally. See Sam Han v. Univ. of Dayton , 541 F. App'x 622, 625 (6th Cir. 2013). A complaint must contain enough "factual matter" to raise a "plausible" inference of wrongdoing. 16630 Southfield Ltd. P'ship v. Flagstar Bank, F.S.B. , ...