Seifert v. Unified Government , 779 F.3d 1141 ( 2015 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS February 27, 2015
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
MAX SEIFERT,
Plaintiff - Appellant,
v.
UNIFIED GOVERNMENT OF No. 13-3153
WYANDOTTE COUNTY/KANSAS
CITY, KANSAS; SHERIFF DONALD
ASH; UNDERSHERIFF LARRY
ROLAND,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 2:11-CV-02327-JTM-JPO)
Cheryl A. Pilate, Morgan Pilate LLC, Kansas City, Missouri, for Plaintiff – Appellant.
Carl A. Gallagher (Teresa A. Mata with him on the brief), of McAnany, Van Cleave &
Phillips, P.A., Kansas City, Kansas, for Defendants – Appellees.
Before KELLY, LUCERO, and HARTZ, Circuit Judges.
HARTZ, Circuit Judge.
Plaintiff Max Seifert brings civil-rights claims under 42 U.S.C. §§ 1983 and 1985
and state-law retaliation claims against Defendants Unified Government of Wyandotte
County and Kansas City, Kansas (the Unified Government), Wyandotte County Sheriff
Donald Ash, and Wyandotte County Undersheriff Larry Roland. Plaintiff, a former
reserve deputy for the Wyandotte County Sheriff’s Department (WCSD), alleges that
Defendants removed him from investigations and revoked his reserve commission
because of his testimony supporting allegations by a former criminal defendant of
mistreatment by federal law-enforcement officers. The district court granted Defendants
summary judgment, holding that Plaintiff’s testimony was not legally protected speech,
that Defendants’ actions were not unconstitutionally motivated, and that Defendants
would have taken the same actions regardless of his testimony. See Seifert v. Unified
Gov’t of Wyandotte Cnty./Kan. City Kan., No. 11-2327-JTM, 2013 WL 2631632, at
*11‒12 (D. Kan. June 12, 2013) (unpublished).
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part, reverse in part,
and remand. We affirm the dismissal of Plaintiff’s state-law claims because federal law
provides an adequate alternative remedy; and we affirm the qualified-immunity dismissal
of the § 1983 claims against Sheriff Ash and Undersheriff Roland because at the time of
the alleged retaliatory actions the law was not clearly established that the First
Amendment protected Plaintiff’s testimony. In all other respects we reverse and remand,
holding that Plaintiff’s testimony was constitutionally protected and a jury could
reasonably find that the explanations Defendants gave for their actions were pretextual.
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I. BACKGROUND
A. The Facts
On July 10, 2003, Barron Bowling was involved in a minor car accident with
Agent Timothy McCue of the federal Drug Enforcement Administration (DEA).
Bowling later sued McCue and other individuals and entities in federal district court for
injuries that arose out of this incident, and our recitation of facts regarding the incident
relies on the court’s findings of fact in the bench trial of that suit (the Bowling findings).
See Bowling v. United States, 740 F. Supp. 2d 1240 (D. Kan. 2010). For the remaining
facts, we recite the evidence in the light most favorable to Plaintiff. See Kramer v.
Wasatch Cnty. Sheriff’s Office, 743 F.3d 726, 731 (10th Cir. 2014) (“On review of
summary judgment, we recite the facts in the light most favorable to . . . the
nonmovant.”).
Bowling was driving his personal automobile near his house when Agent McCue
in an unmarked vehicle attempted to pass him illegally on the right. Bowling accelerated,
both because the street began to go uphill and to prevent McCue from passing him.
McCue sped up as well to try to get around Bowling. A sideswipe collision resulted,
which was McCue’s fault. The vehicles did not stop after the collision. McCue radioed
another agent who joined McCue in following Bowling. Bowling stopped after McCue
activated his siren. McCue and the other agent rushed Bowling’s car and pulled him
from it. Bowling was forced face-down on the hot pavement while shirtless; and he was
pummeled, kicked, insulted, and arrested. Plaintiff, then a detective with the Kansas
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City, Kansas Police Department (KCKPD), investigated the incident and documented the
agents’ misconduct, despite pressure from others in the KCKPD to cover up the facts.
Bowling was prosecuted on a felony and a misdemeanor charge arising out of the
incident. At the trial in 2005, Plaintiff, who was subpoenaed as a defense witness,
testified about Bowling’s injuries. Bowling was acquitted of the felony charge and
convicted of the misdemeanor (possession of a marijuana pipe). According to the
Bowling findings, “[F]or crossing the ‘thin blue line,’” Bowling, 740 F. Supp. 2d at 1262
n.75, Plaintiff “was shunned, subjected to gossip and defamation by his police colleagues,
and treated as a pariah,” id. at 1262. “He was castigated by his superiors, by the
prosecutor, by the DEA, and upon his forced retirement [on December 21, 2005,] . . .
denied a commission that would allow him to obtain work as a security guard, something
police retirees typically rely upon to supplement their limited retirement income.” Id. at
1262 n.75.
Plaintiff moved on, obtaining a reserve commission from the WCSD soon after his
retirement. In exchange for his commission he was required, like other reserve deputies,
to volunteer 16 hours per month with the WCSD. From January 2006 until June 2009,
Plaintiff assisted the WCSD with criminal investigations to meet his reserve hours. He
was also hired by the WCSD in June 2008 as a civilian employee in the jail classification
unit, where he continues to work today. Meanwhile, as already mentioned, Bowling
sued the DEA agents involved in his arrest, as well as the United States, the Unified
4
Government, and various members of the KCKPD. As that case moved toward trial in
2009 and ultimately was tried in 2010, the events giving rise to this appeal occurred.
On April 7, 2009, Defendant Donald Ash was elected Wyandotte County Sheriff.
He appointed Defendant Larry Roland as Undersheriff. Sheriff Ash had previously
served in the KCKPD for 34 years, where he became close friends with the two KCKPD
police chiefs in charge during the Bowling affair, both of whom, according to Plaintiff,
were hostile toward his involvement in that affair. On June 5, 2009, the Unified
Government and KCKPD defendants agreed to settle the claims against them in the
Bowling civil case, but the claim against the United States was tried in April and May
2010, and Plaintiff was a witness. Additional relevant events are recounted differently by
the parties and other witnesses.
1. Plaintiff’s Removal from Investigations
a. Plaintiff’s Account
According to Plaintiff’s declaration in this case and his testimony at the Bowling
civil trial, on June 11, 2009 (six days after the agreement to settle with the Unified
Government and the KCKPD), he was summoned to meet with Undersheriff Roland in
his office. Roland told him that he would no longer be permitted to serve on
investigations. Roland explained that he and Sheriff Ash had met with Wyandotte
County District Attorney (DA) Jerome Gorman, who told them that his office would not
accept cases involving Plaintiff because of concerns about his credibility. Roland also
told Plaintiff that he would be unable to testify in federal court and that a federal
5
prosecutor, Assistant U.S. Attorney (AUSA) Terra Morehead, did not find him credible.
These credibility concerns were ostensibly based on the judge’s comments in a 1998
order in United States v. Elam, No. 98-20037-01 (D. Kan. Sept. 15, 1998). The order
suppressed evidence obtained under a search warrant for drug evidence because Plaintiff
had seized a large number of allegedly stolen items not covered by the warrant. The
judge stated that she did not believe Plaintiff’s account of his conversation with the
defendant concerning those items. Plaintiff asked Roland why the federal ruling would
also prevent his testimony in state court, given that he had testified in state court many
times since 1998 and Gorman himself had obtained search warrants for him. Roland
responded that Gorman had just become aware that the ruling prevented Plaintiff’s
testimony in state court and that he (Roland) was going to receive a copy of the ruling
from a federal prosecutor. Plaintiff thought Roland’s decision puzzling because, only a
week before, his superiors had accepted a high-level case from him that resulted in
criminal charges.
Roland went on to state that he had been told by unnamed others that Plaintiff
could not serve as a reserve deputy, a law-enforcement position, while working
simultaneously as a classification technician in the jail, a civilian position. Even so,
Roland said that Plaintiff could keep his commission and another reserve assignment
would be found for him.
After the meeting Plaintiff encountered Sheriff Ash. Plaintiff said to Ash that Ash
had never had problems with him before. Ash agreed, stating that he had never had
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problems with Plaintiff before and did not have any now. Plaintiff then met with Captain
James Eickhoff to inquire regarding Roland’s statements that Plaintiff could not work as
both a reserve deputy and a civilian employee. Eickhoff told Plaintiff that there was no
such rule, that several others worked as reserve deputies while holding other jobs, and
that he would come to Plaintiff’s defense if the issue came up again.
Less than a week later, Plaintiff saw DA Gorman at the courthouse. Plaintiff
asked Gorman if he had told Ash and Roland that he would no longer accept cases
involving him. Gorman became uncomfortable and stated that it was not his office that
had problems with Plaintiff but prosecutors from other jurisdictions. Plaintiff took this as
a reference to AUSA Morehead.
b. Undersheriff Roland’s Account
Roland’s account is largely consistent with Plaintiff’s, although with less emphasis
on Gorman’s concerns. Roland recalled that sometime in the first half of 2009 he spoke
with Chief Deputy Rickey Whitby, who told him that AUSA Morehead had some kind of
problem with Plaintiff’s credibility. Roland called Morehead, who confirmed that she
had a problem with Plaintiff because of the Elam order. Morehead then sent Roland the
order. Because Roland misplaced it, Morehead emailed him a second copy several
months later, on June 29, 2009. It was prefaced with the following message:
Here is the order from the federal case. They have the hearing
transcript on order and I’ll forward that to you when we get it. I never
knew about this ruling until I came over in 2002, but since I’ve been here,
and before Max retired from KCKPD, we had several issues with him
bungling investigations that he knew were going to be federal cases.
7
Id., Vol. V at 1188.
Before Plaintiff was removed from investigations, Roland had a conversation with
Gorman, who said that Plaintiff had a problem with Morehead and that he had a concern
that there might be a credibility issue if his office received cases from Plaintiff. (Roland
said that Ash met with Gorman regarding Plaintiff but could not recall if he himself
attended.)
The WCSD’s executive staff, including Roland and Ash, decided that Plaintiff
should be removed from investigations, particularly because Morehead had said that
federal prosecutors would not accept his cases. When Roland met with Plaintiff, he told
him that he had a copy of the Elam decision and that a federal prosecutor, whom he may
have named as Morehead, had concerns about his credibility issues in court and his
having bungled a few cases. Roland informed Plaintiff that Ash had decided he should
be removed from investigations.
c. Chief Deputy Whitby’s Account
The testimony of Chief Deputy Whitby corroborates Roland’s account of their
interaction. According to Whitby, shortly after the election in early 2009 he spoke with
AUSA Morehead. She spontaneously brought up the subject of Plaintiff, asking if he was
still “doing cases” for the WCSD. Id. at 1272. When told that he was, Morehead advised
Whitby that federal prosecutors would decline any case from Plaintiff because he had a
“Giglio problem” that would require disclosure to defendants of evidence of his lack of
veracity. Id. (In Giglio v. United States, 405 U.S. 150, 154 (1972), the Supreme Court
8
held that prosecutors should have disclosed to the defense information that contradicted
the principal witness’s testimony that he had received no promise of immunity from
prosecution if he testified against the defendant.) Whitby reported the Giglio issue to
Sheriff Ash and Undersheriff Roland.
d. Sheriff Ash’s Account
Sheriff Ash’s testimony tracks Roland’s in most respects. He recalled that Roland
had been informed by AUSA Morehead, DA Gorman, or both that there were concerns
about Plaintiff’s continuing to work as an investigator because of questions about his
credibility in court. Morehead had forwarded information about Plaintiff to Roland that
she viewed as Giglio material that would have to be disclosed to the defense if Plaintiff
testified in a prosecution. Ash and Roland met with Gorman to discuss the issue.
Gorman told them that they should not send his office any case files from Plaintiff
because he also viewed Plaintiff as falling under the provisions of Giglio. Ash and
Roland concluded that Plaintiff would no longer be able to work on cases. Thereafter,
Roland or Sergeant David Thaxton met with Plaintiff and told him that he could no
longer do investigative work but could retain his reserve-deputy position by performing
volunteer work in the jail, which Plaintiff refused to do.
e. AUSA Morehead’s Account
AUSA Morehead’s testimony indicated that she had not taken any initiative
regarding Plaintiff. She said that Roland called her to ask if there was a federal court
opinion involving Plaintiff. Morehead replied that there was; and on June 29, 2009 (three
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weeks after Plaintiff was removed from investigations), she emailed the Elam order to
him with the message about Plaintiff’s “bungling” investigations. Aplt. App., Vol. V at
1188. Morehead did not recall speaking with anyone else at the WCSD before speaking
with Roland and did not know why he had called her.
Morehead did say, however, that in 2009 she conducted a series of law-
enforcement training sessions with the DA’s office, including Gorman. The subject of
the training was testifying in court. During these sessions she identified Plaintiff by
name and used the Elam order to illustrate how an officer can develop a Giglio problem.
f. District Attorney Gorman’s Account
Gorman’s testimony calls into question the timing of events in the accounts of
Roland and Ash and suggests that he was not the cause of Plaintiff’s removal from
investigations. In May 2009 (a month before Plaintiff was removed), Gorman received a
memorandum from one of his employees advising that Giglio obligations usually do not
apply to police officers because they are not key witnesses at trial. After reviewing the
memo at his deposition, Gorman stated his agreement with its conclusion that Giglio
obligations apply only to key witnesses.
Gorman recalled conducting law-enforcement training sessions with Morehead on
the subject of officer testimony. At the sessions Morehead spoke about how officers
could develop a Giglio problem, and she used Plaintiff and the Elam order as an example.
In early February 2010 (eight months after Plaintiff’s removal from investigations)
Gorman received a letter from Plaintiff’s attorney demanding that he stop the attacks on
10
Plaintiff’s reputation, including the circulation of the Elam order and the references to
him as “Giglioed” at the training sessions. Id., Vol. VI at 1317. At this point Gorman
had no opinion about whether Plaintiff had a genuine Giglio problem, but he requested
the Elam order from Morehead so he could review the issue for himself. On February 10,
AUSA David Plinsky emailed Gorman the Elam order.
Sometime after receiving the order, Gorman was approached by representatives of
the sheriff’s office to discuss Plaintiff and the Elam order. Gorman told them that he had
read the order and had concluded that it would need to be disclosed to defense counsel
under Giglio if Plaintiff was used in a case, a fact that he would need to take into
consideration when deciding whether to accept a case from Plaintiff.
2. Plaintiff’s Commission Revoked
The trial of Bowling’s claims against the United States (all other defendants had
settled) began on March 1, 2010. Plaintiff testified for Bowling on March 4 and March 9.
Meanwhile Plaintiff, having been removed from investigations, was without an
assignment as a reserve deputy. Before the trial, in early 2010, the reserves supervisor,
Sergeant Thaxton, had asked Undersheriff Roland if Plaintiff could conduct training for
the reserve deputies since he had no other reserve position. Roland declined the request,
citing Plaintiff’s Giglio issue. On March 31, Thaxton followed up with an email to
Roland notifying him that Plaintiff “would like to be involved with the program and
would like to know when he can assist.” Id. at 1467. He received no response.
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On April 8 the Bowling trial concluded. Five days later Plaintiff received a
memorandum signed by Roland and Thaxton, with Sheriff Ash copied, stating in its
entirety:
Your Service as a Reserved Deputy is no longer needed at this time. Your
tenure as a Reserve for the Wyandotte County Sheriff’s Office has been
greatly appreciated. This is an Administrative action; please address all
concerns or questions to the Undersheriff Larry Roland.
Please return all agency issued items including your commission card to me
the Reserve Unit Coordinator.
Id., Vol. V at 1003. Thaxton testified that he had been advised by Roland that if Plaintiff
questioned his decommissioning, Thaxton should cite “the Fair Standards Labor [sic] Act
[FLSA] where you can’t be employed by a company and then do free labor for them.”
Id. at 1013. When Thaxton asked Roland, “Where is that in there for my educational
purposes,” Roland referred him to a major, who initially referred him back to Roland,
who then said to just tell Plaintiff it was an “administrative decision.” Id. (internal
quotation marks omitted).
According to Ash and Roland, Plaintiff lost his commission because he refused to
work in the short-staffed jail, as required for all reserve deputies at the time. There is no
dispute that Plaintiff refused to work in the jail. But there is a dispute about when he was
told that he would have to. Plaintiff states that it was in July or August 2010, months
after his commission had been revoked. Defendants’ brief offers no date for the meeting,
though Roland stated his belief that it occurred in 2009 and Ash testified that it occurred
before Plaintiff received the April 2010 memorandum terminating his commission.
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B. Procedural History
Plaintiff sued Defendants on June 9, 2011, in the United States District Court for
the District of Kansas. All his claims—under 42 U.S.C. §§ 1983 and 1985 and under
Kansas law—were predicated on the allegation that the actions against him were taken to
deter him from testifying for Bowling or to punish him for doing so. In particular, his
claim under § 1983 was that Defendants’ actions violated his rights under the First
Amendment, and his § 1985 claim was under that statute’s prohibition against
conspiracies “to deter, by force, intimidation, or threat, any . . . witness in any court of the
United States . . . from testifying . . . or to injure such . . . witness in his person or
property on account of his having so . . . testified.” 42 U.S.C. § 1985(2). On Defendants’
motion to dismiss, the district court held that the two-year statute of limitations applicable
to 42 U.S.C. §§ 1983 and 1985 barred all claims resulting from actions preceding June 9,
2009. See Mem. & Order, Seifert v. Unified Gov’t of Wyandotte Cnty./Kan. City, Kan.,
No. 11-2327-JTM, 2012 WL 2448932, at *5–7 (D. Kan. June 26, 2012). Thereafter, the
district court granted Defendants summary judgment on the remainder of Plaintiff’s
claims. See Seifert, 2013 WL 2631632, at *14.
II. DISCUSSION
We hold that under Lane v. Franks, 134 S. Ct. 2369 (2014), Plaintiff’s testimony
was protected by the First Amendment; that there is a triable issue of fact about whether
Plaintiff was removed from investigations and had his commission revoked because of
his testimony in Bowling; and that the Unified Government is potentially liable because
13
the actions of Sheriff Ash represented municipal policy. On the other hand, we hold that
Sheriff Ash and Undersheriff Roland are entitled to qualified immunity on Plaintiff’s
§ 1983 claim because when they acted the law was not clearly established that Plaintiff’s
testimony was protected by the First Amendment. As for Plaintiff’s § 1985 claim, we
hold that a triable issue of fact exists about whether Defendants conspired both to remove
Plaintiff from investigations and to revoke his commission because of his testimony.
(Ash and Roland have not raised a qualified-immunity defense to this claim.) Finally, we
hold that Plaintiff’s state-law claim fails because an adequate remedy exists under federal
law.
A. Standard of Review
We review the district court’s grant of summary judgment de novo. See Veile v.
Martinson, 258 F.3d 1180, 1184 (10th Cir. 2001). “The court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Under this
standard, we view the evidence and draw reasonable inferences in the light most
favorable to the nonmovant.” Id.
B. First Amendment Claim under 42 U.S.C. § 1983
Under 42 U.S.C. § 1983, a plaintiff is entitled to recover damages from a person
acting under color of state law who violates his constitutional rights. Plaintiff has sued
Defendants for infringing his First Amendment rights. As a reserve deputy he enjoyed
First Amendment rights, but not to the same extent as a private citizen. Because
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“[g]overnment employers, like private employers, need a significant degree of control
over their employees’ words and actions,” Garcetti v. Ceballos, 547 U.S. 410, 418
(2006), not every restriction on a public employee’s speech amounts to a deprivation of
First Amendment rights. “[T]he First Amendment protection of a public employee’s
speech depends on a careful balance between the interests of the employee, as a citizen,
in commenting upon matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services it performs through its
employees.” Lane, 134 S. Ct. at 2374 (brackets and internal quotation marks omitted).
We apply what we have termed the Garcetti/Pickering test, see Garcetti, 547 U.S.
410; Pickering v. Bd. of Educ., 391 U.S. 563 (1968), to First Amendment retaliation
claims by government employees. The test has five elements:
(1) whether the speech was made pursuant to an employee’s official duties;
(2) whether the speech was on a matter of public concern; (3) whether the
government’s interests, as employer, in promoting the efficiency of the
public service are sufficient to outweigh the plaintiff’s free speech interests;
(4) whether the protected speech was a motivating factor in the adverse
employment action; and (5) whether the defendant would have reached the
same employment decision in the absence of the protected conduct.
Trant v. Oklahoma, 754 F.3d 1158, 1165 (10th Cir. 2014) (internal quotation marks
omitted). The first three elements are typically questions of law (though they can turn on
disputed issues of fact), while the last two are typically questions of fact. See id.
Defendants dispute the first, fourth, and fifth elements.
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1. Element One: Employee Official Duties
We must first determine whether Plaintiff’s testimony was protected speech.
Garcetti holds that “when 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.” 547 U.S.
at 421. The official-duties question is a practical one that turns on “whether the speech
was commissioned by the employer,” Thomas v. City of Blanchard, 548 F.3d 1317, 1323
(10th Cir. 2008) (internal quotation marks omitted), and “reasonably contributes to or
facilitates the employee’s performance of the official duty,” id. at 1324 (internal
quotation marks omitted); see Green v. Bd. of Cnty. Comm’rs, 472 F.3d 794, 801 (10th
Cir. 2007) (speech activities not protected because they “stemmed from and were the type
of activities that [the employee] was paid to do”).
The special case of employee testimony was recently addressed by the Supreme
Court in Lane. Lane, the director of a youth program sponsored by a community college,
had discovered that one of the program’s employees had been drawing a salary despite
not reporting to work. See Lane, 134 S. Ct. at 2375. He fired the employee, then testified
against her before a federal grand jury and at her federal public-corruption trials. See id.
Thereafter, he was fired, allegedly because of his testimony against the employee. See id.
at 2376. The Supreme Court reinstated Lane’s § 1983 suit against his employer, holding
that “the First Amendment . . . protects a public employee who provided truthful sworn
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testimony, compelled by subpoena, outside the course of his ordinary job
responsibilities.” Id. at 2374–75.
In general, said the Court, testimony is a duty performed as a citizen:
Sworn testimony in judicial proceedings is a quintessential example of
speech as a citizen for a simple reason: Anyone who testifies in court bears
an obligation, to the court and society at large, to tell the truth. When the
person testifying is a public employee, he may bear separate obligations to
his employer—for example, an obligation not to show up to court dressed
in an unprofessional manner. But any such obligations as an employee are
distinct and independent from the obligation, as a citizen, to speak the truth.
That independent obligation renders sworn testimony speech as a citizen
and sets it apart from speech made purely in the capacity of an employee.
Id. at 2379 (citations omitted). Moreover, the Supreme Court’s “precedents dating back
to Pickering have recognized that speech by public employees on subject matter related
to their employment holds special value precisely because those employees gain
knowledge of matters of public concern through their employment.” Id. And that
rationale is “especially evident” in a case like Lane. Id. at 2380. It involved “the very
kind of speech necessary to prosecute corruption by public officials—speech by public
employees regarding information learned through their employment.” Id. To refuse First
Amendment protection under such circumstances “would place public employees who
witness corruption in an impossible position, torn between the obligation to testify
truthfully and the desire to avoid retaliation and keep their jobs.” Id.
Nevertheless, the Court did not hold that all testimony is protected. It did not
address “whether truthful sworn testimony would constitute citizen speech under Garcetti
when given as part of a public employee’s ordinary job duties.” Id. at 2378 n.4; see also
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id. at 2384 (Thomas, J., concurring) (“For some public employees—such as police
officers, crime scene technicians, and laboratory analysts—testifying is a routine and
critical part of their employment duties.”). Rather, the Court concluded:
[T]he mere fact that a citizen’s speech concerns information acquired by
virtue of his public employment does not transform that speech into
employee—rather than citizen—speech. The critical question under
Garcetti is whether the speech at issue is itself ordinarily within the scope
of an employee’s duties, not whether it merely concerns those duties.
Id. at 2379.
Here, Plaintiff’s testimony was protected speech. It concerned his work but was
not part of it. Although Defendants assert that testifying was a routine part of Plaintiff’s
job as a reserve deputy, they cite no supporting evidence. And the testimony he gave at
the Bowling trial was nothing like the routine testimony of law-enforcement agents in
support of criminal prosecutions. Plaintiff testified for a private party, not his public
employer; in a civil lawsuit, not a criminal prosecution; against law-enforcement entities,
not for them; and in compliance with a subpoena, not an employer mandate. His
testimony was not among “the type of activities that [he] was paid to do.” Green, 472
F.3d at 801; see Morales v. Jones, 494 F.3d 590, 598 (7th Cir. 2007) (“Being deposed in
a civil suit pursuant to a subpoena was unquestionably not one of [police officer]
Morales’ job duties because it was not part of what he was employed to do.”); see also id.
at 603 (Rovner, J., concurring in part and dissenting in part) (“There is nothing in the
record below to suggest that the deposition testimony was work that Lt. Morales was
expected to perform as part of his formal or informal job duties, that it was conducted
18
pursuant to his job duties or at his employer’s behest, that it was work product of the
police department, that it was official speech, or that it was one of the tasks he was paid
to perform.”). Plaintiff has satisfied the first element of the Garcetti/Pickering test.
2. Element Four: Motivating Factor
Defendants do not contest that Plaintiff has met elements two and three of the
Garcetti/Pickering test, so we move on to the fourth element: “whether the protected
speech was a motivating factor in the adverse employment action.” Trant, 754 F.3d at
1165 (internal quotation marks omitted). Plaintiff argues that he has provided sufficient
evidence that both his removal from investigations and the revocation of his commission
were motivated by his testimony in Bowling. We discuss each in turn.
a. Removal from Investigations
Plaintiff has presented sufficient circumstantial evidence that his speech was a
motivating factor in his removal from investigations. According to him, he was called
into Roland’s office on June 11, 2009, and told he could no longer work on
investigations. Roland said that he and Sheriff Ash had met with DA Gorman, and
Gorman had informed them that because of Plaintiff’s credibility issues, he could not
testify in federal court and Gorman’s office would not accept any cases in which
Plaintiff’s name appeared. Plaintiff asked why the federal court’s Elam order prevented
his testimony in state court, when he had testified in state and municipal court numerous
times since Elam’s issuance in 1998. Roland responded that Gorman had just learned, 11
years after the fact, that Elam prevented Plaintiff’s state-court testimony. Roland also
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stated that he had spoken with AUSA Morehead as well, that she did not consider
Plaintiff credible, and that she was going to send Roland a copy of the Elam order.
A reasonable factfinder could be dubious of the Giglio explanation. In Giglio the
defendant forged money orders and his coconspirator, a bank teller, supplied a signature
card and processed the money orders. See 405 U.S. at 151. The teller, obviously the key
witness in the case, was promised by a prosecutor that he would not be prosecuted if he
testified against Giglio, but the defense was never informed about this arrangement. See
id. at 152–53. At trial the teller denied that he had been told he would not be prosecuted.
See id. at 151–52. The Supreme Court reversed and remanded for a new trial because the
prosecution had not disclosed the promise of immunity. See id. at 153–55. It observed
that “[w]hen the reliability of a given witness may well be determinative of guilt or
innocence, nondisclosure of evidence affecting credibility” will require a new trial. Id. at
154 (internal quotation marks omitted). It held that this was certainly the case in Giglio’s
trial:
Here the Government’s case depended almost entirely on [the teller’s]
testimony; without it there could have been no indictment and no evidence
to carry the case to the jury. [The teller’s] credibility as a witness was
therefore an important issue in the case, and evidence of any understanding
or agreement as to a future prosecution would be relevant to his credibility
and the jury was entitled to know of it.
Id. at 154–55.
The immunity agreement in Giglio was relevant, admissible evidence because it
provided a motive for the witness to lie or embellish. It would be powerful evidence to
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impeach the government’s chief witness. In contrast, if the prosecution saw fit to
disclose to defense counsel the judge’s order in Elam or was ordered to do so by the trial
judge (we need not consider the propriety of such an order), the defense could do little
with it. At most, the order discloses that Plaintiff had lied in court more than 10 years
before he was removed from investigations. A prior lie would suggest that his character
trait of veracity was questionable. (Judges, including members of this court, take a very
dim view of perjury.) But there are strict limits on using a prior lie to impeach the
veracity of a witness.
The order itself (or testimony about what the judge said) would not be admissible
in federal court. See Fed. R. Evid. 608(b) (“[E]xtrinsic evidence is not admissible to
prove specific instances of a witness’s conduct in order to attack or support the witness’s
character for truthfulness.”). An attorney cross-examining Plaintiff could only ask about
the alleged dishonest act and would be “stuck with” his answer, even a denial. United
States v. Frost, 914 F.2d 756, 767 (6th Cir. 1990) (internal quotation marks omitted); see
Fed. R. Evid. 608(b) (“[T]he court may, on cross-examination, allow them [(acts
suggesting a bad character for truthfulness)] to be inquired into . . . .”). (We note that at
the Bowling civil trial, Plaintiff denied that he had lied in the Elam case.) And the
alleged lie was an old event; even convictions are not routinely admitted for
impeachment after 10 years. See Fed. R. Evid. 609(b). We question whether a federal
court would have permitted cross-examination on such an old statement, particularly in
light of the more recent ringing endorsement of Plaintiff’s character for truthfulness by
21
the federal judge in Bowling. See United States v. Woodard, 699 F.3d 1188, 1195 (10th
Cir. 2012) (whether witness can be cross-examined regarding past judicial credibility
determination depends in part on “how much time ha[s] elapsed since the lie was told and
whether there ha[s] been any intervening credibility determination regarding the witness”
(internal quotation marks omitted)).
Moreover, it is doubtful that Plaintiff would be testifying in a federal prosecution.
Ash and Roland both testified that they could not recall any instance in which an
investigation involving a reserve deputy went to federal court. In short, the alleged
Giglio problem with Plaintiff’s testifying in federal court was both minimal and
irrelevant.
As for state court, the Kansas rules of evidence not only prohibit the introduction
of extrinsic evidence of a prior lie (as in federal court), but even prohibit cross-
examination on the subject. See Kan. Stat. Ann. § 60-422 (West 2008) (“As affecting the
credibility of a witness . . . evidence of specific instances of his or her conduct relevant
only as tending to prove a trait of his or her character, shall be inadmissible.”); State v.
Patton, 120 P.3d 760, 788 (Kan. 2005), disapproved of on other grounds, State v. Gunby,
144 P.3d 647, 658–59 (Kan. 2006). Further, Roland testified that it was Morehead’s
Giglio concern, not anything Gorman said, that caused the removal of Plaintiff from
investigations:
Q. And after reviewing that order [in Elam], you made a determination that
Max had a problem with regard to Giglio?
22
A. I didn’t . . . say he had a problem with Giglio. We had . . . an issue with
what the prosecutor saying, you know, they—they didn’t want to take cases
from him.
Q. And by “they” you mean Terra Morehead and Jerome Gorman?
A. Specifically Terra.
Aplt. App., Vol. VI at 1310.
Gorman testified that he never said he would refuse to use Plaintiff as a witness
but would only consider the Giglio issue. This is consistent with his endorsement of a
memorandum sent to him a month before Plaintiff’s removal from investigations, which
said that Giglio would not typically apply to officer testimony. And Gorman’s
chronology of events places his Giglio concern with Plaintiff as arising months after
Plaintiff had been removed from investigations.
Additionally, a jury could question the Giglio rationale because Defendants
disregarded Roland’s similar “Giglio” issue. See Trujillo v. PacifiCorp, 524 F.3d 1149,
1158–59 (10th Cir. 2008) (inference of discrimination could be drawn from employer’s
harsher treatment of plaintiffs than other similarly situated employees).1 In 1996 the
same judge who authored Elam two years later wrote United States v. Aguilar,
No. 96-20032-01, 1996 WL 772584, at *2 n.6 (D. Kan. Dec. 20, 1996), in which she
1
Defendants assert that at the same time they learned of concerns about Plaintiff, they
also discovered that another deputy had committed misconduct years earlier and removed
her from investigations as well because of Giglio concerns. But the June 28, 2009 letter
from Roland to Gorman informing him of the WCSD’s intention to remove the deputy
from investigations never mentions Giglio.
23
questioned Roland’s credibility; yet he was never “Giglioed.” Both Ash and Roland
acknowledged the similarities between Aguilar and Elam. Yet Ash would not question
Roland’s credibility and Roland testified that no prosecutor, including Gorman and
Morehead, had ever advised him that he would have problems as a witness and that he
had testified in federal court after Aguilar was issued.
Defendants suggest that the different treatment of Roland was justified because
prosecutors never raised concerns about Roland’s potential Giglio issue; but that is beside
the point. Roland himself was surely aware of the issue, and one can question his
motives in taking action against Plaintiff on a ground that he thought inconsequential in
his own case.
In sum, a jury could reasonably infer that the Giglio issue was not the true reason
that Plaintiff was removed from investigations less than a week after the Unified
Government settled Bowling’s claims against it. The issue could reasonably be perceived
by a jury as a quickly concocted excuse that could not withstand scrutiny if Defendants
had any interest in fairly deciding whether the Elam order would pose a problem for
testimony by Plaintiff.
Defendants nonetheless contend that they could not have been motivated by
retaliation when removing Plaintiff from investigations in June 2009 because no one in
authority knew that he was going to testify in Bowling’s March 2010 trial. But the
evidence they cite in support is hardly compelling. Ash stated that he did not pay much
attention to the Bowling incident and that the extent of his knowledge of Plaintiff’s
24
involvement was that Plaintiff believed that Bowling’s allegations of excessive force
should be pursued. But Ash also said that while he was at the police department before
becoming sheriff, officers would talk about the Bowling case (criminal and civil) during
and after roll call because it was “a big case . . . [a] controversial case.” Aplt. App., Vol.
VII at 1643. He described the talk as a “rumor mill running rampant.” Id. at 1644. One
could infer that the talk would continue throughout the Bowling proceedings and that,
given the nature of the case and Plaintiff’s prior testimony at the criminal trial, any
officer would naturally assume that he would be a witness. Indeed, Ash never testified
that in June 2009 he had not heard that Plaintiff was going to be a witness helpful to
Bowling. As for Roland, his alleged recollection of the chronology could be questioned.
He testified that he had heard nothing about the case until he read a news report about the
verdict, but Plaintiff’s attorney had sent him a letter in December 2009 (months before
the verdict) noting Plaintiff’s expected role in the upcoming trial.
Further, the Unified Government agreed to settle the claims against it on June 5,
2009. A jury could reasonably infer that the settlement would create news reports and
discussion in the law-enforcement community about the case. And it could further infer
that it was no coincidence that Plaintiff’s removal from investigations was only six days
later, especially when the ostensible reason was a court order (in Elam) that had never
been mentioned in the 11 years before. The evidence is sufficient to satisfy the fourth
element of Garcetti/Pickering.
25
b. Revocation of the Commission
We turn next to the revocation of Plaintiff’s commission. In district court
Defendants questioned whether Plaintiff had a commission to be revoked. They argued
that Plaintiff’s commission had already been revoked by operation of law when Ash was
elected sheriff, because “all appointments [of special deputies] made by a sheriff . . . shall
automatically be revoked at the time that such appointing sheriff’s service as sheriff
concludes,” Kan. Stat. Ann. § 19-805a (West 2008), and Ash never formally reappointed
Plaintiff. Defendants have abandoned this issue on appeal, however, stating only that
“[w]hether plaintiff actually held a commission is an open question.” Aplee. Br. at 9 n.1;
see also id. at 33, 35 (briefly mentioning the issue in general terms). “[I]ssues adverted
to in a perfunctory manner, unaccompanied by some effort at developed argumentation,
are deemed waived.” Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994)
(internal quotation marks omitted).
But even if we were to consider this issue, we would affirm the district court. It
rejected Defendants’ argument, observing that the Kansas statute sets out no formal
mechanism for reappointing reserve deputies and holding that a fact issue remained on
whether Ash reappointed Plaintiff. See Seifert, 2013 WL 2631632, at *5. The WCSD
continued to list Plaintiff as a reserve deputy four months after Ash took office, and Ash
himself testified that when he took office he “assumed that the reserve officers who were
appointed by my predecessor . . . continued in service as reserve officers.” Aplt. App.,
26
Vol. VII at 1691. There is at least a fact question whether Plaintiff retained his
commission after Ash’s election.
Assuming that Plaintiff had a commission, we address his claim that it was
revoked on April 13, 2010, in retaliation for his testimony at the Bowling trial the month
before. Defendants respond that their motive was pure: he was relieved of his
commission because he refused to work in the county jail, a requirement imposed on all
reserve deputies at that time because of a shortage of workers at the facility. Sheriff Ash
testified: “I told the undersheriff, ‘If [Plaintiff] wants to retain his reserve commission,
he can retain his reserve commission. I don’t have a problem with that, but he’ll have to
fall in with all the other reserves [by working in the jail].’” Aplt. App., Vol. VII at 1649.
According to Ash, “Max said, no, I have a concern about working in the jail,” id., and
that was what prompted the issuance of the April 13 memorandum terminating his
commission. Undersheriff Roland ended up giving the same explanation. At first he
testified that Plaintiff’s commission was revoked because “he had failed to attend
meetings or training but—I’m—and I may be mistaken on that but it was—it was a—lack
of him not the [sic] performing hours.” Id., Vol. II at 522. Roland then said, however,
“[W]e had a conversation, Max and I, and about him being a reserve and . . . we told him
that he was informed that he could remain a reserve but he’d have to work in the jail like
the rest of the guys were doing.” Id.
But there is sufficient evidence for a reasonable factfinder to believe that this
explanation is pretextual. To begin with, the reason that Defendants now give was not
27
the reason given at the time. The memorandum given to Plaintiff by Sergeant Thaxton on
April 13 says in full:
Your Service as a Reserved Deputy is no longer needed at this time. Your
tenure as a Reserve for the Wyandotte County Sheriff’s Office has been
greatly appreciated. This is an Administrative action; please address all
concerns or questions to the Undersheriff Larry Roland.
Please return all agency issued items including your commission card to me
the Reserve Unit Coordinator.
Id., Vol. V at 1003. At his deposition Thaxton delivered a telling account of how the
memorandum was generated:
[W]hen I was told to terminate [Plaintiff] from the reserve program, I
couldn’t understand it. I just thought I could use him a lot for training and
we can just keep him in training.
And so when I asked the Undersheriff, I said, “What am I going to
terminate him for,” because I know that he would comply with whatever
we told him to, . . . and he says, something about the Fair Standards Labor
[sic] Act where you can’t be employed by a company and then do free labor
for them. So . . . I said, “Where is that in there for my educational
purposes?” He says, “Go ask Major Eickhoff,” so I went and I asked Major
Eickhoff and Major Eickhoff says, “Ask the Undersheriff.”
....
. . . I said, “I already did. He told me to ask you,” and then he says, “Just
tell Max this is an . . . administrative decision and if he has any questions
he can speak to the Undersheriff directly.”
So that’s what I did. I wrote it up similar to that conversation. . . .
[W]hen I handed it to [Max], I could see that Max was a little
disturbed about it and . . . I just said, “I feel like it’s bullshit too.”
Id. at 1013. Defendants do not attempt to justify the FLSA explanation. Instead, they
argue, curiously, that “there is no evidence that the FLSA had any influence on [Sheriff]
28
Ash’s decision that plaintiff could not work investigations or had to work in the jail to
have a reserve commission,” Aplee. Br. at 15, as if that point helped their cause. But if
the FLSA was not the reason for the revocation of Plaintiff’s commission, then its
invocation suggests pretext.
Plaintiff acknowledges having a conversation about working in the jail, but he
says that the conversation was months after his commission was revoked. According to
Plaintiff, in late July or early August 2010 he was called into Roland’s office, where
Roland told him that, at the urging of an attorney for the Unified Government, Roland
was offering him his commission back if he would work in the jail. Plaintiff refused.
Roland would not entertain Plaintiff’s request for an alternative arrangement, nor would
he listen to (or contradict) Plaintiff’s complaints about being mistreated because of his
testimony in the Bowling case.
In our view, a jury could infer an improper motive for the revocation of Plaintiff’s
commission because the explanations given by Defendants at the time of the revocation
(the FLSA) and in their depositions (refusal to work in the jail) are dubious. See EEOC
v. C.R. England, Inc., 644 F.3d 1028, 1038–39 (10th Cir. 2011) (“A plaintiff can
establish pretext by showing the defendant’s proffered non-discriminatory explanations
for its actions are so incoherent, weak, inconsistent, or contradictory that a rational
factfinder could conclude they are unworthy of belief.” (brackets and internal quotation
marks omitted)); see NLRB v. Henry Colder Co., 907 F.2d 765, 769 (7th Cir. 1990)
29
(“Shifting explanations for [adverse employment action] may, in and of themselves,
provide evidence of unlawful motivation.”).
Further, a jury could have inferred retaliation from the timing of events. Plaintiff
testified in the Bowling civil case on March 4 and March 9, and the trial concluded on
April 8. His commission was revoked five days later. The short time between Plaintiff’s
testimony and the adverse action supports an inference of retaliatory motive. See
Meiners v. Univ. of Kansas, 359 F.3d 1222, 1231 (10th Cir. 2004) (“A six-week period
between protected activity and adverse action may be sufficient, standing alone, to show
causation . . . .”).
Plaintiff has presented sufficient evidence to support a finding in his favor on this
element of his claim.
3. Element Five: But-For Causation
We can now turn to the fifth step of the Garcetti/Pickering analysis:
[I]f the employee establishes that his or her protected speech was a
motivating factor in the adverse employment decision, the burden then
shifts to the defendant, who must show by a preponderance of the evidence
it would have reached the same employment decision in the absence of the
protected activity.
Trant, 754 F.3d at 1167 (internal quotation marks omitted). Again we first consider
Plaintiff’s removal from investigations and then the revocation of his commission.
Defendants contend that whatever their motives they would have had to remove
Plaintiff from investigations in any event because prosecutors would not take cases in
which he had been involved. But there is evidence that the view of the federal
30
prosecutors was not consequential because neither Ash nor Roland could recall a reserve
deputy ever having testified in a federal proceeding. And as for state prosecutions, there
is evidence that the district attorney did not raise a Giglio issue until months after
Plaintiff was removed from investigations and even then said only that the Elam order
would be something to consider on a case-by-case basis. A jury could rationally decide
that Plaintiff would not necessarily have been removed from investigations.
Defendants have a better argument regarding the revocation of Plaintiff’s
commission, because the uncontradicted testimony is that at some point all reserve
deputies were required to work in the jail and Plaintiff refused to do so. But both
Plaintiff and Sergeant Thaxton testified that it was only after the revocation that
Defendants offered to reinstate Plaintiff if he would work in the jail. Such an offer could
serve to mitigate Defendants’ damages, but it would not negate Plaintiff’s cause of
action. See Giandonato v. Sybron Corp., 804 F.2d 120, 125 (10th Cir. 1986). Summary
judgment based on the fifth element was inappropriate.
Thus, Plaintiff has presented sufficient evidence for a jury to find that he has
suffered damages because of a violation of his First Amendment rights by Ash and
Roland. It does not necessarily follow, however, that the Defendants are liable to him
under § 1983. We now turn to (1) whether the Unified Government is liable and (2)
whether Ash and Roland are personally liable.
31
4. The Unified Government’s Liability
A local government is not liable for every constitutional violation by one of its
officers or employees. “Under Section 1983, municipalities cannot be held liable for the
actions of others under the common law principle of respondeat superior; they are
responsible only for their own actions.” Simmons v. Uintah Health Care Special Dist.,
506 F.3d 1281, 1284 (10th Cir. 2007). Under this standard, “a municipality is
responsible for both [1] actions taken by subordinate employees in conformance with
preexisting official policies or customs and [2] actions taken by final policymakers,
whose conduct can be no less described as the ‘official policy’ of a municipality.” Id. at
1285 (emphasis omitted); see Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986)
(municipal liability can arise from those “whose acts or edicts may fairly be said to
represent official policy” (internal quotation marks omitted)).
Here, it appears that the actions of Sheriff Ash, in his position as the final
policymaker for the Wyandotte County Sheriff’s Department, represent the official policy
of the Unified Government and subject it to potential liability. See Kan. Stat. Ann.
§§ 19-805 (West 2008) (sheriff is responsible for conduct of undersheriff and deputies);
Bd. of Cnty. Comm’rs v. Nielander, 62 P.3d 247, 251 (Kan. 2003) (“[T]he sheriff is a
state officer whose duties, powers, and obligations derive directly from the legislature
and are coextensive with the county board.”). Plaintiff argues as much, and the Unified
Government offers no argument in response. We therefore need not consider whether the
actions of Ash and Roland were in conformity with preexisting official policies or
32
customs. The summary judgment for the Unified Government on the § 1983 claim must
be set aside.
5. Qualified Immunity
We affirm, however, the summary judgment for Ash and Roland on the § 1983
claim. Both are entitled to qualified immunity. “The doctrine of qualified immunity
protects government officials from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(internal quotation marks omitted). Only individuals, not governmental entities, can
assert qualified immunity. See Beedle v. Wilson, 422 F.3d 1059, 1069 (10th Cir. 2005).
“When a defendant pleads qualified immunity, the plaintiff has the heavy burden of
establishing: (1) that the defendant’s actions violated a federal constitutional or statutory
right; and (2) that the right violated was clearly established at the time of the defendant’s
actions.” Scott v. Hern, 216 F.3d 897, 910 (10th Cir. 2000) (internal quotation marks
omitted). “Ordinarily, in order for the law to be clearly established, there must be a
Supreme Court or Tenth Circuit decision on point, or the clearly established weight of
authority from other courts must have found the law to be as the plaintiff maintains.”
Stewart v. Beach, 701 F.3d 1322, 1331 (10th Cir. 2012) (internal quotation marks
omitted).
We focus on the first element of the Garcetti/Pickering test. Was the law clearly
established in 2009 and 2010, when Ash and Roland committed the alleged misconduct,
33
that testimony by a law-enforcement officer about matters observed while on duty could
be protected by the First Amendment? We think not. The Supreme Court did not
address the specific issue before Lane was handed down in June 2014, neither did we,
and in 2010 other circuits were divided. Compare Reilly v. City of Atlantic City, 532 F.3d
216, 231 (3d Cir. 2008) (a police officer’s testimony is categorically protected), with
Huppert v. City of Pittsburg, 574 F.3d 696, 707–08 (9th Cir. 2009) (testimony is part of
officer’s duties), overruled by Dahlia v. Rodriguez, 735 F.3d 1060, 1063 (9th Cir. 2013)
(en banc), and Green v. Barrett, 226 F. App’x 883, 886 (11th Cir. 2007) (per curiam)
(testimony by jailer not protected). Indeed, the reason given by the Supreme Court to
grant certiorari in Lane was “to resolve discord among the Courts of Appeals as to
whether public employees may be fired—or suffer other adverse employment
consequences—for providing truthful subpoenaed testimony outside the course of their
ordinary job responsibilities.” 134 S. Ct. at 2377 (emphasis added). And Lane held that
the individual defendant in that case was entitled to qualified immunity because “no
decision of this Court was sufficiently clear to cast doubt” on controlling lower-court
precedent. Id. at 2381. We hold that Ash and Roland did not have “reasonable warning
that [their] conduct . . . violated constitutional rights” and are therefore entitled to
qualified immunity. Stewart, 701 F.3d at 1331 (internal quotation marks omitted).
C. Conspiracy Claim under 42 U.S.C. § 1985
Plaintiff brings his second claim under 42 U.S.C. § 1985, which protects witnesses
from retaliation. It provides in relevant part:
34
If two or more persons in any State or Territory conspire to deter, by force,
intimidation, or threat, any party or witness in any court of the United
States from attending such court, or from testifying to any matter pending
therein, freely, fully, and truthfully, or to injure such party or witness in his
person or property on account of his having so attended or testified . . . the
party so injured or deprived may have an action for the recovery of
damages occasioned by such injury or deprivation, against any one or more
of the conspirators.
Id. § 1985(2)–(3) (emphasis added). The district court held that Plaintiff had failed to
present evidence of a conspiracy to either deter him from testifying or injure him after the
fact. See Seifert, 2013 WL 2631632, at *11–12. Plaintiff disagrees, arguing that Ash and
Roland conspired (1) to deter his testimony by removing him from investigations and (2)
to injure him for testifying by revoking his commission.
We have already ruled that there was sufficient evidence that Ash and Roland took
action (removal from investigations and revocation of his commission) to deter Plaintiff
from testifying and to punish him for doing so. That there is sufficient evidence they
acted in concert is a simple, even necessary, logical progression from that ruling.
Because Defendants have not raised any defenses under § 1985 relating to municipal
liability or qualified immunity, we need not address these matters.
D. State-Law Claim
Finally, Plaintiff appeals the district court’s dismissal of his state common-law
claim for retaliatory employment action in violation of Kansas public policy. The district
court correctly recognized that under Kansas law a “state claim for retaliatory discharge
is suspended if there is ‘a state or federal statute which provides an adequate alternative
35
remedy.’” Seifert, 2013 WL 2631632, at *13 (quoting Flenker v. Willamette Indus., 967
P.2d 295, 299 (Kan. 1998) (brackets omitted)); see Tollen v. City of El Dorado,
No. 11-1182-JWL, 2012 WL 10353 (D. Kan. Jan. 3, 2012). Plaintiff argues that § 1983
may provide an adequate alternative remedy, but § 1985 does not. The argument puzzles
us. State law does not require two adequate remedies. If § 1983 is adequate, what does it
matter whether § 1985 is, too? We affirm the district court’s dismissal of the state-law
claim.
III. CONCLUSION
We AFFIRM the dismissal of Plaintiff’s state-law claims because federal law
provides an adequate alternative remedy. We AFFIRM the qualified-immunity dismissal
of the § 1983 claims against Sheriff Ash and Undersheriff Roland. In all other respects
we REVERSE and REMAND for further proceedings. Plaintiff’s Amended Motion for
Leave to File Portion of Appendix Under Seal is GRANTED. The Clerk of the Court is
directed to seal Volume VIII of the Appellant’s Appendix, except for the document on
pages 1755‒57, which is referenced in this opinion. Plaintiff’s motion to abate is moot.
36