Tonjes v. Park Cnty. Sheriff's Office, Civil Action No. 1:17–cv–00487–KHR

• Decision Date: 04 January 2018
• Docket Number: Civil Action No. 1:17–cv–00487–KHR
• Citation: 300 F.Supp.3d 1308
• Parties: Welles TONJES, Plaintiff, v. The PARK COUNTY SHERIFF'S OFFICE; Fred Wegener, in his individual capacity; and Mark Hancock, in his individual capacity, Defendants.
• Court: U.S. District Court — District of Colorado

300 F.Supp.3d 1308

Welles TONJES, Plaintiff,

v.The PARK COUNTY SHERIFF'S OFFICE; Fred Wegener, in his individual capacity; and Mark Hancock, in his individual capacity, Defendants.

Civil Action No. 1:17–cv–00487–KHR

United States District Court, D. Colorado.

Signed January 4, 2018

Adam William Ray, John A. Culver, Benezra & Culver, P.C., Denver, CO, for Plaintiff.

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS' MOTION TO DISMISS

Magistrate Judge Kelly H. Rankin

This matter comes before the court on the Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) (doc. # 13) filed by Defendants Park County Sheriff's Office, Fred Wegener, and Mark Hancock on May 3, 2017. Plaintiff Welles Tonjes filed his Response in Opposition to Defendants' Motion to Dismiss (doc. # 27) on June 20, 2017, which was followed by Defendants' Reply in Support of Defendants' Motion to Dismiss (doc. # 30) on July 7, 2017. On July 12, 2017, Plaintiff Tonjes filed a Notice of Supplemental Authority in Support of his Response in Opposition to Defendants' Motion to Dismiss (doc. # 31).

The parties consented (doc. # 17) to magistrate judge jurisdiction to "conduct all further proceedings in this civil action, including trial, and to order the entry of a final judgment," pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, and D.C.COLO.LCivR 72.2. Accordingly, the case was referred on May 11, 2017. Magistrate Judge Craig B. Shaffer heard oral argument on the pending motion at a hearing on July 13, 2017. Judge Shaffer subsequently became unavailable, and during his unavailability the case is referred to the undersigned. I have carefully reviewed the parties' briefs and attached exhibits, the entire case file, the case law cited by the parties, and the arguments advanced by counsel during the July 13 hearing. The court also has conducted its own legal research. For the following reasons, Defendants' motion is GRANTED IN PART and DENIED IN PART.

PROCEDURAL BACKGROUND

On February 24, 2016, a member of the Park County Sheriff's Office was killed and two of his colleagues were wounded

while attempting to enforce a civil eviction notice entered against Park County resident Martin Wirth. During this incident, Mr. Wirth also was shot and killed. The lawsuit presently before the court arises from that unfortunate incident.

Plaintiff Tonjes commenced this action on February 24, 2017 by filing a Complaint pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1367. The Complaint asserted claims against the Board of County Commissioners for Park County, the Park County Sheriff's Office (hereinafter the "Sheriff's Office"), Sheriff Fred Wegener, and former Captain Mark Hancock.¹ Plaintiff's First Claim asserts Defendants deprived him of a constitutionally protected property interest on February 29, 2016 by demoting him three levels without cause as required by the Sheriff's Office Policy and Procedures Manual (hereinafter the "Manual"). The Second Claim alleges Defendants violated Plaintiff Tonjes' First Amendment right to freedom of association by taking adverse action against Mr. Tonjes based upon his association "with former Undersheriff [Monte] Gore regarding their joint belief that Defendants Wegener and Hancock had acted recklessly and inappropriately regarding the Wirth situation, which led to the death of two individuals and serious injuries against two others." See Complaint at ¶ 54. The Third Claim alleges under the Fourteenth Amendment that Defendants Sheriff's Office and Wegener deprived Plaintiff Tonjes of his constitutionally protected liberty interest in his good name. The Fourth and Fifth Claims assert, respectively, breach of contract and promissory estoppel on the part of Defendant Sheriff's Office.

To place the pending motion in a factual context, a brief summary of the allegations in the Complaint may be helpful. In November 2009, Plaintiff Tonjes joined the Park County Sheriff's Office after serving as a law enforcement officer for over 35 years.² Mr. Tonjes alleges that when he started with the Sheriff's Office he receiveda copy of the Manual, and thereafter received occasional written updates.³ Over the course of seven years with the Sheriff's Office, Mr. Tonjes served as a Detention Deputy, Patrol Deputy, Patrol Corporal, Patrol/Investigation Sargent, and most recently as a Patrol Senior Sargent. During that same period, Plaintiff received positive performance reviews, as well as several Letters of Appreciation, Letters of Gratitude, and a Special Citation for Bravery.

In February of 2016, the Sheriff's Office was asked to assist in serving a civil eviction notice on Martin Wirth. The Complaint alleges that the Sheriff's Office knew that Mr. Wirth was "anti-government and anti-police," as well as "armed, dangerous, and violent." Complaint at ¶ 22. For these reasons, Undersheriff Gore instructed Captain Hancock that "Park County Officers should under no circumstance attempt to enter the Wirth residence." Id. at ¶ 23. Prior to February 24, 2016, Plaintiff Tonjes expressed the same view in conversations with Sheriff Wegener, Captain Hancock and others. Id. at ¶ 24. Leading up to the incident on February 24, 2016, Plaintiff Tonjes had the understanding that the deputy officers participating in the eviction process would withdraw "if Mr. Wirth refused to come to the door or refused to leave his home." Id. at ¶ 25.

Undersheriff Gore and Sargent Tonjes learned on February 24 that Sheriff Wegener and Capt. Hancock had adopted a different strategy, choosing instead to involve several members of the SWAT team in the eviction enforcement effort. Id. at ¶ 26. When Mr. Wirth refused to leave his property, "Sheriff Wegener and Capt. Hancock ordered the deputies to storm the home and forcibly enter the premises." In the ensuing exchange of gun fire, "Corporal Nate Carrigan and Mr. Wirth were shot and killed," and "[t]wo other deputies suffered [nonfatal] gunshot wounds

." Id. ¶ 27.

Following the fatal altercation at the Wirth residence, Plaintiff Tonjes and Undersheriff Gore expressed their belief that the incident, and the associated deaths and injuries, "were caused by the inappropriate and reckless orders of Sheriff Wegener and Capt. Hancock." Id. at ¶ 28. The Complaint further alleges that "Defendants Hancock and Wegener knew or suspected that Sgt. Tonjes and Undersheriff Gore had expressed concern about their handling of the Wirth situation." Complaint at ¶ 29. Undersheriff Gore told Plaintiff Tonjes on February 26, 2016, that Sheriff Wegener "angrily excluded [him] from" a meeting convened at the Sheriff's Office to discuss the Wirth incident. Id. at ¶ 30. Later that same day, while they were off-duty, Undersheriff Gore and Sergeant Tonjes went to Captain Hancock's residence to discuss the Wirth incident. The Complaint alleges that "[n]either were meeting with Mr. Hancock in their official capacities," but instead "were visiting him as private citizens." Id. at ¶ 31. During the ensuing conversation at the Hancock residence,

Undersheriff Gore told Hancock that he held Sheriff Wegener fully responsible and to blame for the unnecessary violence, death, and injuries at the Wirth eviction. In response, Capt. Hancock became angry, appeared to choke, and came up out of his chair aggressively.

Id. at ¶ 32.

The Complaint alleges that "[s]oon thereafter, Capt. Hancock informed Sheriff Wegener of his meeting with Sgt. Tonjes and Undersheriff Gore," and that "Wegener and Hancock decided to discipline or even fire Plaintiff Tonjes and Undersheriff Gore because of their opinions regarding how the Wirth situation was handled."Id. at ¶ 34. When Plaintiff Tonjes arrived for work on February 29th, Sheriff Wegener informed him that he was being demoted three levels from a Senior Sargent, and that he should "report to work the next day as a Patrol Officer." That demotion would result in a significant reduction in pay. Id. at ¶ 35.

In explaining his decision to demote Plaintiff Tonjes, Sheriff Wegener said that he was responding to complaints that Plaintiff had supposedly "yelled" at two subordinates. However, the Complaint states that Sheriff Wegener had not previously informed Plaintiff of these allegations. Plaintiff Tonjes told Defendant Wegener that the allegations were unfounded. Complaint at ¶¶ 36 and 37. Prior to telling Plaintiff that he was being demoted, Defendant Wegener "did not inform Sgt. Tonjes that he was considering any discipline against him, did not inform Sgt. Tonjes of any of the accusations that had been made against him, [ ] did not give him an opportunity to respond," and "did not follow the procedures regarding the investigation of complaints contained in Office Policies 318–320." Id. at ¶ 42. Believing that the Sheriff's action had made his working conditions intolerable, Plaintiff Tonjes "involuntarily resigned his employment" on February 29, 2016. Id. at ¶ 43.

The Complaint also alleges that:

In deciding to demote Sgt. Tonjes, Defendants Wegener and Hancock were not acting in the best interests of the Office or County. Their decision was solely motivated by their desire to retaliate against Sgt. Tonjes because of his opinions and associations regarding the Wirth mishap. By demoting Sgt. Tonjes, Defendants Wegener and Hancock hoped to create the false impression that Sgt. Tonjes was responsible for the tragedy at the Wirth property.

Id. at ¶ 39.

On March 2, 2016, Sheriff Wegener allegedly spoke with a reporter from a Denver television station, and during that conversation stated that his decision to demote Sergeant Tonjes "related to the handling of how the deputies responded [at the Wirth scene.]." In the wake of that conversation, a television story reported that "a Park County Sheriff Sargent was in the process of being demoted and then resigned ... over the tactics that lead [sic] to the Feb. 24 death of Cpl. Nate Carrigan." Id. at ¶ 44.

Defendants "deny the vast majority of the allegations, statements and conclusions set forth in...