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Lincoln v. Maketa

United States Court of Appeals, Tenth Circuit

January 17, 2018

MITCHELL LINCOLN; RODNEY GEHRETT; ROBERT KING; CHERYL PECK; ROBERT STONE, Plaintiffs - Appellees,
v.
TERRY MAKETA, in his individual capacity and in his official capacity as Sheriff of El Paso County; PAULA PRESLEY, in her individual capacity and in her official capacity as Undersheriff of El Paso County, Defendants - Appellants, and THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EL PASO; EL PASO COUNTY SHERIFF'S OFFICE; BILL ELDER; JOE BREISTER, Defendants.

         Appeal from the United States District Court for the District of Colorado (D.C. No. 1:15-CV-00423-CMA-KMT)

          Andrew D. Ringel (Matthew J. Hegarty, with him on the briefs), Hall & Evans, L.L.C., Denver, Colorado, for Defendant-Appellant Terry Maketa.

          Eric M. Ziporin, Ashley M. Kelliher, Senter Goldfarb & Rice, LLC, Denver, Colorado, for Defendant-Appellant Paula Presley.

          Edward T. Farry, Jr., Farry & Stock, P.C., Colorado Springs, Colorado, for Plaintiffs-Appellees.

          Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.

          BACHARACH, CIRCUIT JUDGE.

         This appeal grew out of the district court's denial of qualified immunity to the former sheriff (Mr. Terry Maketa) and undersheriff (Ms. Paula Presley) of El Paso County. The claims were brought by three categories of subordinates: (1) Lieutenant Cheryl Peck; (2) Sergeant Robert Stone; and (3) Commanders Mitchell Lincoln, Rodney Gehrett, and Robert King. In this suit, Lt. Peck, Sgt. Stone, and the three Commanders allege retaliation for protected speech.

         The district court held that the subordinates' allegations were sufficient to defeat qualified immunity at the motion-to-dismiss stage. We disagree because the law was not clearly established that (1) Lt. Peck's speech fell outside of her duties as a public employee, (2) the investigations of Sgt. Stone and his children constituted adverse employment actions, and (3) the investigation of the Commanders, their placement on paid administrative leave, and their alleged humiliation constituted adverse employment actions. Therefore, Sheriff Maketa and Undersheriff Presley were entitled to qualified immunity and dismissal of the complaint.

         I. The Plaintiffs' Allegations

         Lt. Peck and Sgt. Stone base their retaliation claims on a scheme by Sheriff Maketa and Undersheriff Presley to influence an upcoming election for sheriff by smearing one of the candidates; the Commanders base their claims on retaliation for their prior complaints about improper workplace practices. Because the ruling involves a motion to dismiss for failure to state a valid claim, we start with the plaintiffs' allegations in the complaint. See Part III, below.

         A. Lt. Peck

         Lt. Peck's claim arises out of her statements to the media. In 2013, Sheriff Maketa and Undersheriff Presley secretly took an Internal Affairs document, planning to use it against a political opponent. At the time, Lt. Peck was in charge of the Internal Affairs Unit of the Sheriff's Office. Lt. Peck knew that the document was missing but did not know who had taken it. The mystery of the missing document generated public interest.

         To address the matter, Sheriff Maketa ordered Lt. Peck to speak to the media and deliver a false narrative, saying that the Internal Affairs document had been stolen by supporters of the political opponent. Lt. Peck spoke to the media as requested, but she did not give the story crafted by Sheriff Maketa; she instead "spoke truthfully." Appellant's App'x at 277. In response, Sheriff Maketa transferred Lt. Peck to the midnight shift.

         B. Sgt. Stone

         Sgt. Stone's claim arises out of his political support for the candidate opposed by Sheriff Maketa and Undersheriff Presley. Upon learning of Sgt. Stone's support, Sheriff Maketa retaliated by

• subjecting Sgt. Stone to a "criminal investigation" into the missing Internal Affairs document, including interrogations, two lie-detector tests, and accusations that Sgt. Stone had stolen the document and
• ordering a criminal investigation into Sgt. Stone's two children, both of whom were employees of the Sheriff's Office.

         C. The Commanders

         The Commanders' claims arise out of their filing of complaints about Sheriff Maketa and Undersheriff Presley. These complaints were filed with the Equal Employment Opportunity Commission and the El Paso County Board of County Commissioners. In the complaints, the Commanders alleged that Sheriff Maketa and Undersheriff Presley had engaged in improper practices.

         The Commanders informed Undersheriff Presley of the complaints. Three hours later, Sheriff Maketa and Undersheriff Presley

• put the Commanders on paid administrative leave,
• confiscated their telephones, tablets, weapons, badges, and vehicles, and
• had the Commanders escorted out of the building.

         The Commanders allege humiliation from the second and third actions. And in the aftermath of the complaints, Sheriff Maketa and Undersheriff Presley filed Internal Affairs complaints against two of the Commanders, subjecting them to internal investigations.

         II. Procedural History

         Lt. Peck, Sgt. Stone, and the Commanders sued under 42 U.S.C. § 1983, alleging that Sheriff Maketa and Undersheriff Presley had retaliated based on the exercise of protected speech. Sheriff Maketa and Undersheriff Presley moved to dismiss based on qualified immunity. The district court denied the motion, and Sheriff Maketa and Undersheriff Presley appeal.

         III. Standard of Review

         We engage in de novo review of the district court's rulings on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), and we "accept the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff[s]." Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016).[1]

         IV. Qualified Immunity

         The doctrine of qualified immunity protects officials from civil liability as long as they do not "'violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Mullenix v. Luna, ___ U.S. ___, 136 S.Ct. 305, 308 (2015) (quoting Pearson v. Callahan,555 U.S. 223, ...


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