Gilchrist v. Citty , 71 F. App'x 1 ( 2003 )


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  •                                                             F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    JUN 25 2003
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    JOYCE A. GILCHRIST,
    Plaintiff-Appellee,
    v.                                        Nos. 02-6352 & 02-6353
    (D.C. No. CIV-02-538-R)
    BILL CITTY, individually and in his             (W.D. Okla.)
    official capacity as Assistant Police
    Chief; KEN MCDONALD and
    JOHNNY KUHLMAN, both
    individually and in their official
    capacities as Majors with the
    Oklahoma City Police Department;
    RICHARD DAWES, individually and
    in his official capacity as Chemist
    Supervisor with the Oklahoma City
    Police Department; MATTHEW
    SCOTT, individually and in his
    official capacity as Chemist with the
    Oklahoma City Police Department;
    JAMES D. COUCH, individually,
    Defendants-Appellants,
    and
    CITY OF OKLAHOMA CITY, a
    municipal corporation; M.T. BERRY,
    individually and in his official
    capacity as Chief of Police; ROBERT
    A. JONES, individually and in his
    official capacity as Deputy Chief of
    Police; GAROLD SPENCER,
    individually and in his official
    capacity as Major with the Oklahoma
    City Police Department; BYRON
    BOSHELL, individually and in his
    official capacity as Captain with the
    Oklahoma City Police Department;
    LAURA SCHILE, individually and in
    her official capacity as Forensic
    Chemist with the Oklahoma City
    Police Department,
    Defendants.
    ORDER AND JUDGMENT            *
    Before BRISCOE , PORFILIO , and ANDERSON , Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties’ requests for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are
    therefore ordered submitted without oral argument.
    In these companioned cases, defendants Bill Citty, Ken McDonald, Johnny
    Kuhlman, Richard Dawes, Matthew Scott, and James D. Couch appeal from the
    district court’s order denying their motions to dismiss plaintiff’s 
    42 U.S.C. § 1983
    wrongful discharge suit on the grounds that they are protected by absolute and
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    -2-
    qualified immunity. We have jurisdiction over these interlocutory appeals:
    “[T]he denial of a motion to dismiss based on qualified or absolute immunity is
    immediately appealable under the      Cohen [v. Beneficial Indus. Loan Corp.   ,
    
    337 U.S. 541
     (1949)] collateral order doctrine.”     Tonkovich v. Kan. Bd. of Regents    ,
    
    159 F.3d 504
    , 515 (10th Cir. 1998) (footnote omitted). We determine that, at the
    Rule 12(b)(6) stage of this litigation, defendants have not demonstrated their
    entitlement to the protection of immunity. We affirm.
    STANDARD AND SCOPE OF REVIEW
    We review de novo a district court’s ruling on a motion to dismiss for
    failure to state a claim upon which relief may be granted.      Dill v. City of Edmond ,
    
    155 F.3d 1193
    , 1201 (10th Cir. 1998). Our “‘function on a Rule 12(b)(6) motion
    is not to weigh potential evidence that the parties might present at trial, but to
    assess whether the plaintiff’s complaint alone is legally sufficient to state a claim
    for which relief may be granted.’”     Sutton v. Utah State Sch. for Deaf & Blind    ,
    
    173 F.3d 1226
    , 1236 (10th Cir. 1999) (quoting       Miller v. Glanz , 
    948 F.2d 1562
    ,
    1565 (10th Cir. 1991)). We “accept[] as true all well-pleaded allegations in the
    complaint and constru[e] them in a manner favorable to the non-moving party.”
    Moore v. Gunnison Valley Hosp.       , 
    310 F.3d 1315
    , 1316 (10th Cir. 2002).
    We generally “look only at the four corners of the complaint” because we
    are “reviewing the sufficiency of the complaint alone.”      Moffett v. Halliburton
    -3-
    Energy Servs., Inc. , 
    291 F.3d 1227
    , 1231 (10th Cir. 2002). There are exceptions to
    this practice, however. As relevant to the instant Rule 12(b)(6) analysis, we may
    take judicial notice of the existence of the opinions of other courts but not the
    truth of the facts recited therein.   Lee v. City of Los Angeles   , 
    250 F.3d 668
    , 690
    (9th Cir. 2001); S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group
    Ltd. , 
    181 F.3d 410
    , 426 (3d Cir. 1999).
    The brief summary provided below, therefore, is compiled primarily from
    plaintiff’s complaint. It also includes information from published state and federal
    court cases–not for the truth of the factual findings relating to Ms. Gilchrist, but
    for the fact that defendants were aware of their existence. The summary does not
    rely on factual allegations made only by defendants or on documents submitted
    with the motions to dismiss. Specifically, it does not incorporate defendants’
    characterization of the review board report recommending Gilchrist’s firing.       1
    1
    Although defendants did not attach the Review Board report to their
    motions to dismiss, they attached numerous other documents which Gilchrist had
    attached to an earlier complaint. See Aplt. App., 91-103. These documents have
    no place in our Rule 12(b)(6) review.
    Defendants state that they “offered to produce [the report] but were afraid
    to attach it for fear it would turn [their] Motion to Dismiss into a Motion for
    Summary Judgment (Fed.R.Civ.P., Rule 12b) defeating their right not to be
    subjected to the burdens of discovery,    etc. ” Aplt. Br. at 9, n.8; see also id. at 23
    (“[T]heir [sic] exists an argument that by filing a Motion for Summary Judgment,
    Appellants would give up their right not to face the burdens of discovery.”).
    They also express a concern that the district court would not have given the
    (continued...)
    -4-
    FACTUAL SUMMARY
    Joyce Gilchrist was an Oklahoma City Police Department forensic chemist
    from 1980 through September 2001. Her job required her to conduct chemical
    tests on physical evidence and provide expert testimony on the results of the tests.
    For a number of years, her police-department supervisors and prosecutors believed
    her to be an excellent employee. Apparently, they considered her expert testimony
    to be especially effective. Problems with Gilchrist’s efforts on behalf of the
    prosecution were simmering, however. In several cases, the Oklahoma Court of
    Criminal Appeals determined that Gilchrist violated discovery orders by
    inexcusably delaying a forensic examination and providing reports to the defense
    in an untimely manner.   Miller v. State , 
    809 P.2d 1317
    , 1319-20 (Okla. Crim. App.
    1
    (...continued)
    authorization to file a second motion for summary judgment required under the
    Local Rules for the United States District Court of Oklahoma. 
    Id. at 23
    .
    The Review Board report, however, could have fallen into a recognized
    exception to the general rule limiting this court’s review to the complaint. “[I]f a
    plaintiff does not incorporate by reference or attach a document to its complaint,
    [and] the document is referred to in the complaint and is central to the plaintiff’s
    claim, a defendant may submit an indisputably authentic copy to the court to be
    considered on a motion to dismiss.”    GFF Corp. v. Associated Wholesale Grocers,
    Inc. , 
    130 F.3d 1381
    , 1384 (10th Cir. 1997). “If the rule were otherwise, a
    plaintiff with a deficient claim could survive a motion to dismiss simply by not
    attaching a dispositive document upon which the plaintiff relied.”   
    Id. at 1385
    .
    The Review Board report is certainly central to Gilchrist’s claim. It is not part of
    the record, however, and defendants’ statements concerning the report cannot be
    considered.
    -5-
    1991); Pierce v. State , 
    786 P.2d 1255
    , 1261 (Okla. Crim. App. 1990);       McCarty v.
    State , 
    765 P.2d 1215
    , 1217 (Okla. Crim. App. 1988).
    In 1998, Gilchrist reported to the police chief that she heard that one of the
    defendants, Major Garold Spencer, had sexually harassed a female vendor. She
    alleges that Spencer and his allies on the police force were outraged, even though
    he was not disciplined in connection with the charge.
    Gilchrist’s expert testimony was even more seriously called into question in
    September 1999 in the federal district court’s decision in     Mitchell v. Ward ,
    
    150 F. Supp. 2d 1194
    , 1220-29 (W.D. Okla. 1999),        aff’d in part and rev’d in part
    by Mitchell v. Gibson , 
    262 F.3d 1036
     (10th Cir. 2001). This court granted habeas
    relief to Mitchell based in part upon the district court’s finding that Gilchrist’s
    testimony was false or misleading.     Mitchell v. Gibson , 
    262 F.3d at 1063-66
    . The
    police department responded to the district court’s publication of the     Mitchell case
    by prohibiting Gilchrist from DNA testing, giving her menial assignments, and
    ordering her to move out of her office. They also arranged for an FBI agent to
    conduct a re-analysis of the forensic evidence and a review of Gilchrist’s trial
    testimony in eight cases.
    Gilchrist was advised of misconduct charges: problems with her expert
    testimony and also managerial shortcomings. She filed a grievance objecting to
    the charges. Defendant M.T. Berry, the chief of police, named defendants Bill
    -6-
    Citty (assistant police chief), Richard Dawes (a police-department chemist
    supervisor), Johnny Kuhlman (a police-department major), Ken McDonald
    (a police-department major), and Matthew Scott (a police-department chemist) to
    the Oklahoma City Police Department Review Board responsible for conducting
    proceedings in Gilchrist’s grievance.
    The Review Board held a multi-day hearing in August 2001. With the
    assistance of counsel, Gilchrist testified, presented a witness, and cross-examined
    police-department witnesses. The Board then issued a report recommending the
    termination of Gilchrist’s employment, primarily for her expert testimony in court
    proceedings in seven cases, decided from 1984 to 1992. On September 25, 2001,
    Berry followed the Board’s recommendation and discharged Gilchrist. Her
    termination was approved by defendant Couch, the city manager.
    She filed this § 1983 lawsuit, naming as defendants Oklahoma City, the city
    manager, the chief of police, the deputy chief of police, her former supervisor,
    Major Spencer, the police-department chemist who attempted to duplicate
    Gilchrist’s analyses, and members of the Review Board. Gilchrist’s claims
    included: First-Amendment retaliation for filing charges against Spencer,
    -7-
    First-Amendment retaliation for providing truthful expert testimony, conspiracy to
    retaliate, defamation, and deprivation of substantive and procedural due process.   2
    Alleging that defendants retaliated against her and terminated her employment due
    to her exercise of her First-Amendment right to testify in court and also due to her
    reporting of Major Spencer’s alleged sexual harassment. She explicitly alleges
    that her testimony was consistently truthful and accurate and that defendants
    orchestrated false accusations of mishandling, withholding, and misrepresenting
    evidence.
    The members of the Review Board and Defendant Couch moved to dismiss,
    arguing that they were entitled to judicial or quasi-judicial absolute immunity and
    qualified immunity. The district court denied defendants’ motion. In two separate
    orders, one addressing the Review Board defendants’ motion and one addressing
    defendant Couch’s motion, the court concluded that, at the Rule 12(b)(6) stage of
    the proceedings, they had not demonstrated entitlement to either absolute or
    qualified immunity. This appeal followed.
    2
    The district court dismissed Gilchrist’s procedural due process claim
    against the Review Board defendants. That dismissal is not an issue in this
    interlocutory appeal.
    -8-
    DISCUSSION
    Absolute immunity
    Defendants argue that they are entitled to absolute immunity from damages
    for their termination decision, under the rationale of     Butz v. Economou , 
    438 U.S. 478
     (1978).   3
    In Butz , the Supreme Court held that agency officials who perform
    quasi-judicial functions are entitled to absolute immunity from suit.            
    Id. at 514
    .
    Later, in Cleavinger v. Saxner , 
    474 U.S. 193
     (1985), the Court extended absolute
    immunity to federal hearing examiners and administrative law judges. It refused,
    however, to accord absolute immunity to employees of the Bureau of Prisons
    temporarily diverted from their usual duties to serve on a prison discipline
    committee, 
    id. at 203-04
    , because they “are under obvious pressure to resolve
    a disciplinary dispute in favor of the institution and their fellow employee,”           
    id. at 204
    . Absolute immunity is recognized only sparingly, and officials seeking the
    immunity bear the burden of showing that their actions are entitled to such
    absolute protection.     Burns v. Reed , 
    500 U.S. 478
    , 486-87 (1991). There is a
    presumption that qualified immunity is generally sufficient to protect government
    officials. 
    Id.
    3
    Defendant Citty, the chairman of the Review Board, also asserts that he is
    entitled to absolute immunity for his denial of one of Gilchrist’s pre-termination
    requests for documents. The analysis of this issue is identical to that of the major
    issue relating to all defendants.
    -9-
    A court must engage in a functional analysis of an official’s conduct to
    determine whether it is quasi-judicial in nature, and whether absolute immunity
    attaches. 
    Id. at 512
    . Following and applying    Cleavinger , the Tenth Circuit has
    identified six factors, among others
    as characteristic of the judicial process and to be considered in
    determining absolute as contrasted from qualified immunity: (a) the
    need to assure that the individual can perform his functions without
    harassment or intimidation; (b) the presence of safeguards that reduce
    the need for private damages actions as a means of controlling
    unconstitutional conduct; (c) insulation from political influence;
    (d) the importance of precedent; (e) the adversary nature of the
    process; and (f) the correctability of error on appeal.
    Moore , 
    310 F.3d at 1317
    .
    In this case, the limited record on appeal does not permit a reasoned
    balancing of the Moore factors. For instance, it contains insufficient information
    concerning the importance of precedent, the insulation of Review Board members
    from political influence, the correctability of error on agency review, or the role of
    Defendant Couch. The district court’s determination that defendants failed to
    show entitlement to absolute immunity is therefore sustainable.
    Qualified immunity
    As an alternative basis for dismissal, defendants argue that the doctrine of
    qualified immunity protects them from liability to Gilchrist.
    Under the doctrine of qualified immunity, government officials
    performing discretionary functions generally are shielded from
    liability for civil damages insofar as their conduct does not violate
    -10-
    clearly established statutory or constitutional rights of which a
    reasonable person would have known. The key to the qualified
    immunity inquiry is the objective reasonableness of the official’s
    conduct in light of the legal rules that were clearly established at the
    time the action was taken.
    Tonkovich , 
    159 F.3d at 516
     (quotations, citations, and parentheticals omitted).
    “Once a defendant raises the defense of qualified immunity in the context of
    a motion to dismiss, a court must first determine whether the plaintiff has asserted
    a violation of federal law.”    Currier v. Doran , 
    242 F.3d 905
    , 917 (10th Cir. 2001).
    “If the answer is yes, then we determine whether the right was clearly established
    such that a reasonable person in the defendant’s position would have known that
    his or her conduct violated that right.”   Tonkovich , 
    159 F.3d at 516
     (quotations,
    citations, and parentheticals omitted).
    The issue here is whether Gilchrist’s claim that she was discharged for
    giving truthful opinion testimony satisfies both prongs of the qualified-immunity
    test. It is well-established that “truthful testimony is protected by the First
    Amendment and that a government employee may not be fired or subjected to
    other adverse action as the result of such testimony.”     Worrell v. Henry , 
    219 F.3d 1197
    , 1204-05 (10th Cir. 2000). “[Q]ualified immunity is not available to a
    defendant who knowingly punishes an employee for uttering truthful testimony on
    matters of public concern.”     Wright v. Ill. Dep’t of Children & Family Servs.   ,
    
    40 F.3d 1492
    , 1505 (7th Cir. 1994).
    -11-
    Defendants point out, however, that if an employee’s “supervisors
    reasonably believed, after an adequate investigation, that her testimony was false,
    even if it actually was true, they could punish her on the basis of their
    investigation.”   
    Id.
     at 1506 (citing Waters v. Churchill , 
    511 U.S. 661
    , 678 (1994)
    (plurality opinion)). Defendants claim that, at the very least, the published cases
    criticizing Gilchrist’s performance provided a reasonable basis for their belief that
    Gilchrist’s testimony was false.
    The complaint, however, alleges that defendants knew that certain portions
    of Gilchrist’s testimony were corroborated by a later analysis, that DNA
    technology did not exist at the time of her analysis, that her trial testimony was
    misrepresented, and that the FBI agent acknowledged that certain of her analyses
    were highly subjective. We agree with the district court that Gilchrist’s
    allegations adequately raise an inference that defendants did not reasonably
    believe her testimony to be false. Confining our analysis, as we must, to
    Gilchrist’s allegations and judicially noticed facts, we determine that she has
    adequately stated a violation of her First Amendment right to engage in protected
    speech. Further, this right was clearly established at the time of her discharge.
    As a consequence, the district court correctly denied defendants’ Rule 12(b)(6)
    motion.
    -12-
    CONCLUSION
    Although we make no comment on the ultimate merit of Gilchrist’s case,
    defendants have not shown entitlement to absolute or qualified immunity at this
    point in the litigation. The district court’s denial of defendants’ motions to
    dismiss is AFFIRMED. The defendants’ motion to file a supplemental appendix
    is DENIED.
    Entered for the Court
    John C. Porfilio
    Circuit Judge
    -13-