United States District Court, W.D. Virginia, Abingdon Division
RANDALL E. BRICKEY, Plaintiff,
ROBB HALL, et al., Defendants.
GLEN E. CONRAD, District Judge.
This case is presently before the court on the defendants' motion to dismiss the plaintiff's complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, the defendants' motion to dismiss will be granted in part and denied in part.
Factual and Procedural Background
The following facts, taken from the plaintiff's amended complaint, documents incorporated into the complaint by reference, and public documents of which the court may take judicial notice, are accepted as true for purposes of the motion to dismiss. See Erickson v. Pardus , 551 U.S. 89, 94 (2007); see also Katyle v. Penn Nat'l Gaming, Inc. , 637 F.3d 462, 466 (4th Cir. 2011).
The plaintiff, Mr. Randall Brickey, served as a police officer in Saltville, Virginia from December 1, 2006 until May 21, 2012, when he was terminated. In early 2012, Brickey decided to run for an elected position on the Town Council. Defendant Hall, the Chief of Police, advised Brickey that "there would be no problem" with his running for office. Compl. ¶ 13. In late March, 2012, the local newspapers asked all candidates for Town Council to submit responses to a set of general questions. See Pl.'s Resp. Br. Ex. F ("What do you see as the town's greatest needs?"); id. ("Motivation for seeking office/why should the voters choose you?"); see also Pl.'s Resp. Br. Ex. E ("What do you see as needs in your town that can be addressed by its elected leaders, and what solutions do you propose?"). The responses were published in the Smyth County News & Messenger and the Saltville Progress in April, 2012.
As a result of Brickey's published responses, Hall "became very angry with [the] plaintiff" for making statements "which were critical of, and pertained to  appropriations of certain public funds." Compl. ¶ 16. Hall advised Brickey that "he did not have the right to criticize any aspect of [t]own management when he was an employee." Compl. ¶ 17. "On May 4, 2012, Hall advised [the] plaintiff in writing [that] he was making [three] allegations against [the] plaintiff" due to the published statements, "which were critical of the members of [t]own management." Compl. ¶ 19. The plaintiff was advised on May 14, 2012 that two of the allegations would be formally processed. Defendant Hall suspended Brickey, and on May 21, 2012, Hall terminated the plaintiff, with the support of the other defendants, on the basis that the plaintiff violated the code of conduct requirements applicable to all Saltville Police Department employees.
Invoking the town's grievance procedure, on June 5, 2012, Brickey filed a written grievance regarding his termination. Prior to his grievance hearing to be held before a fact-finding panel, an investigative report was prepared regarding the allegations against the plaintiff. Brickey was denied a copy of this report, but a copy was provided to the fact-finding panel for consideration. This fact-finding panel was composed of one individual selected by the plaintiff, one individual selected by the town, and a third individual jointly selected by the first two panel members. Under a prior version of the grievance procedures, there were no restrictions on who the plaintiff could select as a panel member. However, "[p]rior to [the] plaintiff's termination, but after he had been placed on suspension by Hall, " "defendants Young, Holly, Maiden, and Dye voted to amend the [g]rievance [p]rocedure" such that these individuals would be chosen from a five-member pool pre-selected by the Town Manager, defendant Taylor. Compl. ¶ 27. During the panel hearing, defendant Hall "ordered all recording equipment to be turned off, and for all individuals present to turn off their cell phones to ensure no other recordings of the hearing could be made." Compl. ¶ 29. Following the hearing, the panel determined that the plaintiff had made public statements which reflected negatively on the town's management, and upheld his termination.
The plaintiff ultimately won the Town Council election. Since his election, the defendants have tried to limit the plaintiff's ability to serve as a council member and sought to have him impeached. Council members, including defendants Young, Maiden, and Taylor, "have refused to allow [the] plaintiff to speak on any matters involving either the budget or the [p]olice [d]epartment." Compl. ¶ 32.
In Count I of his complaint, Brickey asserts that the defendants-various employees and elected representatives of Saltville, Virginia-violated his constitutional right to liberty and free speech when they (1) terminated and/or supported the termination of his employment for publically speaking, as a private citizen, and candidate for a public office, about matters of public concern; (2) had the opportunity, under the grievance procedure, to oppose his termination but failed to do so; (3) upheld the termination of his employment; and (4) precluded him from properly performing his official duties to vote on matters before the Town Council related to budgetary matters or the police department.
In Count II, Brickey asserts that the defendants violated his procedural due process rights when they (1) refused to provide him with a copy of the investigative report prepared in advance of his grievance hearing, and (2) prohibited the recording of his grievance hearing, as required by law. In Count III, he asserts that defendants Young, Holly, Maiden, and Dye violated his substantive due process rights when they amended the town's grievance procedure to allow defendant Taylor to pre-select the five possible fact-finding panel members.
The plaintiff sues all defendants in their individual capacities. He seeks compensatory damages in the amount of $300, 000 per defendant for each of Counts I and II, and $300, 000 per defendant Young, Holly, Maiden, and Dye for Count III. He also seeks punitive damages in the amount of $300, 000 per defendant for each of Counts I and II, and $300, 000 per defendant Young, Holly, Maiden, and Dye for Count III. Additionally, the plaintiff seeks attorney's fees and costs.[*]
On October 22, 2013, the defendants moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state any claim upon which relief can be granted. The plaintiff filed a response on November 7, 2013, asking the court to deny the motion, to which the defendants replied on November 15, 2013. The court heard oral argument on the motion on December 3, 2013. The matter is now ripe for disposition.
I. Legal Standard
A Rule 12(b)(6) motion tests the legal sufficiency of a complaint; it does not "resolve contests surrounding the facts, the merits of the claim, or the applicability of defenses." See Butler v. United States , 702 F.3d 749, 752 (quoting Republican Party of North Carolina v. Martin , 980 F.2d 943, 952 (4th Cir. 1992)). When ruling on the defendants' motion to dismiss, the court must accept all facts alleged in the complaint as true, drawing all reasonable inferences in favor of the plaintiff. See Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009); Erickson , 551 U.S. at 94. The court may also consider documents incorporated into the complaint by reference and public documents, including the Town of Saltville Personnel Rules and Regulations and the Smyth County News & Messenger and Saltville Progress newspaper articles. See Katyle , 637 F.3d at 466. However, the court need not accept as true any legal conclusion disguised as a factual allegation. Iqbal , 556 U.S. at 679-81.
The plaintiff's factual allegations need not be detailed, but he must offer more than "labels and conclusions" or a "formulaic recitation of the elements of [the] cause of action." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007). These facts must "be enough to raise a right to relief above the speculative level." Id.
A. First Amendment Retaliatory Discharge
In Count I of his complaint, the plaintiff alleges that defendants Hall, Johnson, Maiden, Young, Holly, and Dye violated his First Amendment right to free speech when "they terminated and/or supported the termination of plaintiff's employment for publically speaking, as a private citizen, and candidate for public office, about matters of public concern." Compl. ¶ 34. He further alleges that defendants Puckett and Taylor also violated his First Amendment right to free speech when they "had the opportunity under the grievance procedure, but refused, to oppose plaintiff's termination" and "upheld [defendant] Hall's termination of plaintiff's employment, " respectively. Compl. ¶¶ 35-36.
The defendants contend that they are entitled to qualified immunity, which "shields government officials who commit constitutional violations but who, in light of clearly established law, could reasonably believe that their actions were lawful.'" Durham v. Jones, ___ F.3d ___, 2013 WL 6439714, at *5 (4th Cir. 2013) (quoting Henry v. Purnell , 652 F.3d 524, 531 (4th Cir. 2011) (en banc)). "The burden of proof and persuasion with respect to a defense of qualified immunity rests on the official asserting that defense." Id . (quoting Meyers v. Baltimore Cnty., Md. , 713 F.3d 723, 731 (4th Cir. 2013)). "To prevail under qualified immunity, [the defendants have] to show either that there was no constitutional violation or that the right violated was not clearly established." Id . (quoting Gregg v. Ham , 678 F.3d 333, 341 n.7 (4th Cir. 2012)).
The defendants first argue that the plaintiff has failed to allege any violation of his First Amendment rights, and second, that even if he did sufficiently allege such a violation, the right was not clearly established. Further, the defendants argue that even if the plaintiff's claim for retaliatory discharge survives assertion of the qualified immunity defense, he has not sufficiently stated that claim against all defendants. Specifically, they argue that the plaintiff's complaint fails to state a claim against defendants Puckett, Johnson, Young, Holley, Maiden, and Dye, who ...