FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 12, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ROBERT ELLISON,
Plaintiff - Appellant,
v. No. 16-2270
(D.C. No. 2:16-CV-00415-GBW-GJF)
ROOSEVELT COUNTY BOARD OF (D. N.M.)
COUNTY COMMISSIONERS, a political
sub-division existing under the laws of the
State of New Mexico; ROOSEVELT
COUNTY SHERIFF’S OFFICE, a political
sub-division of the State of New Mexico;
MALIN PARKER; JAVIER SANCHEZ,
individually,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, BALDOCK, and BRISCOE, Circuit Judges.
_________________________________
Robert Ellison was terminated from his position as a deputy sheriff with the
Roosevelt County Sheriff’s Office. Afterwards, he brought this action under
42 U.S.C. § 1983, alleging he was wrongfully discharged in violation of his First and
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Fourteenth Amendment rights. A magistrate judge acting with the consent of the
parties, see 28 U.S.C. § 636(c), dismissed the claims under Federal Rule of Civil
Procedure 12(b)(6) and denied as futile Mr. Ellison’s motion to file a second
amended complaint. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.1
I
According to the first amended complaint, Mr. Ellison was fired for arresting
his supervisor’s acquaintance, reporting another officer’s misconduct, and generally
refusing to cover up wrongdoing at the Roosevelt County Sheriff’s Office. The arrest
occurred on March 24, 2016, when Mr. Ellison stopped Julian Aranda for alleged
traffic violations. Mr. Aranda allegedly resisted and threatened to kill Mr. Ellison
and his family. As a consequence, Mr. Ellison arrested him for aggravated assault
and battery on an officer.
Later that day, Deputy Sheriff Christopher McCasland spoke to Mr. Ellison in
the parking lot at the Roosevelt County Detention Center. He told Mr. Ellison that he
had intentionally injured a detainee while employed at another law enforcement
agency. He laughed as he told Mr. Ellison about transferring the detainee in his
vehicle and slamming on the vehicle’s brakes, causing the detainee to hit his head.
On March 27, 2016, Mr. Aranda complained to Lt. Javier Sanchez that
Mr. Ellison used excessive force and drew his weapon during the March 24 traffic
stop. Lt. Sanchez, who has social connections to the Aranda family, neither told
1
The magistrate judge declined to exercise supplemental jurisdiction over a
state-law whistleblower claim, but Mr. Ellison does not appeal that ruling.
2
Mr. Ellison about the excessive-force complaint nor interviewed him about
Mr. Aranda’s allegations. Lt. Sanchez concluded the stop was illegal, however, and
when he spoke to Mr. Ellison about it, Mr. Ellison disagreed with his conclusion in
front of another officer.
On April 1 or 2, 2016, Mr. Ellison had another conversation with Deputy
McCasland. This time, Mr. Ellison recorded his discussion with Deputy McCasland,
who again admitted to intentionally injuring the detainee, though he claimed he was a
rookie and did not know better. Deputy McCasland hinted that the story was a
secret; he also said he was “best friends” with Lt. Sanchez. Aplt. App. at 89.
On April 5, Mr. Ellison reported Deputy McCasland’s alleged misconduct to
Sergeant Mark Morrison, who told Mr. Ellison that he would “bring it up with
[Lt.] Sanchez.” Id.
Eight days later, on April 13, Lt. Sanchez informed Mr. Ellison that he was
fired. Along with a separation notice, Lt. Sanchez provided Mr. Ellison with an
employee performance report and a written statement, all of which defendants
attached to their motion to dismiss. Mr. Ellison alleged the written statement falsely
claimed he was fired for poor job performance, making an arrest without probable
cause, preparing a police report that was inconsistent with a video of the arrest, filing
charges against Mr. Aranda that “should have never been filed,” and engaging “in
illegal and unprofessional conduct by intentionally falsif[ying] a police report.” Id.
at 90-91 (internal quotation marks omitted). Mr. Ellison averred that these
documents were given to the human resources administrator, the county contract
3
attorney, and “other third parties.” Id. at 91. He also alleged that Lt. Sanchez told
him he was not “fitting in,” meaning he was not engaging in illegal or improper
conduct and instead was violating the “blue wall of silence.” Id. (internal quotation
marks omitted). Further, Mr. Ellison alleged that the Roosevelt County Board of
Commissioners and Roosevelt County Sheriff acted under state law, local ordinance,
custom, procedure, and/or policy to deny him his constitutional rights. Although he
cited ten alleged instances of misconduct committed by officers toward other
individuals, he did not specifically raise an independent municipal liability claim.
Instead, based on these allegations, Mr. Ellison averred that defendants
violated his First and Fourteenth Amendment rights. In particular, he claimed that
his First Amendment rights were violated because he was fired for engaging in two
instances of protected speech: (1) opposing Lt. Sanchez’s attempt to deny the
legality of the Aranda arrest and (2) reporting Deputy McCasland’s conduct.2 As for
his Fourteenth Amendment claim, he averred that defendants deprived him of his
liberty interests in his professional reputation and future employment opportunities.
In particular, Mr. Ellison alleged he was dismissed based on false, misleading, and/or
incomplete information that stigmatized his reputation and diminished his standing in
the community. He cited, for example, two job applications that he submitted to
other law enforcement agencies, which he alleged were declined due to “the bogus
‘Employee Performance Report.’” Id. at 99.
2
Mr. Ellison also alleged he was fired for refusing to condone other
wrongdoing, but he has abandoned that theory on appeal.
4
The magistrate judge dismissed the complaint under Fed. R. Civ. P 12(b)(6),
ruling that Mr. Ellison failed to plausibly allege a First Amendment claim because his
allegations established that he spoke pursuant to his official duties, which is not
protected speech. Further, the magistrate judge determined that he failed to plausibly
allege a Fourteenth Amendment claim because he alleged that the termination
documents (the separation notice, the job performance report, and Lt. Sanchez’s
written statement) were disclosed to other government personnel but not the public.
Moreover, in evaluating Lt. Sanchez’s written statement, which defendants attached
to their motion to dismiss, the magistrate judge determined it was not sufficiently
stigmatizing to trigger Fourteenth Amendment concerns.3 The magistrate judge ruled
that, contrary to Mr. Ellison’s characterization, the statement did not accuse him of
falsifying a police report but instead indicated that he had poor job performance and
was negligent in preparing his paperwork. Consequently, the magistrate judge
dismissed the complaint and denied as futile Mr. Ellison’s motion to amend.
II
“We review a dismissal under Rule 12(b)(6) de novo.” Jacobsen v. Deseret
Book Co., 287 F.3d 936, 941 (10th Cir. 2002) (internal quotation marks omitted).
“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
3
In ruling on a 12(b)(6) motion, “[i]n addition to the complaint, the district
court may consider documents referred to in the complaint if the documents are
central to the plaintiff’s claim and the parties do not dispute the documents’
authenticity.” Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002).
5
legally sufficient to state a claim for which relief may be granted.” Id. (internal
quotation marks omitted). We evaluate whether the complaint states a plausible
claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In evaluating a claim
for plausibility, we accept as true all well-pleaded allegations and view them in the
light most favorable to the non-moving party. Colby v. Herrick, 849 F.3d 1273, 1279
(10th Cir. 2017).
A. First Amendment
As a public employee, Mr. Ellison “enjoyed First Amendment rights, but not to
the same extent as a private citizen.” Seifert v. Unified Gov’t of Wyandotte Cty.,
779 F.3d 1141, 1151 (10th Cir. 2015). “[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 v. Franks, 134 S. Ct. 2369, 2374
(2014) (brackets and internal quotation marks omitted). “Because government
employers, like private employers, need a significant degree of control over their
employees’ words and actions, not every restriction on a public employee’s speech
amounts to a deprivation of First Amendment rights.” Seifert, 779 F.3d at 1151
(citation, brackets, and internal quotation marks omitted).
“The familiar Garcetti/Pickering analysis governs First Amendment retaliation
claims.” Nixon v. City & Cty. of Denver, 784 F.3d 1364, 1367 (10th Cir. 2015)
6
(internal quotation marks omitted); see Garcetti v. Ceballos, 547 U.S. 410 (2006);
Pickering v. Bd. of Educ., 391 U.S. 563 (1968). Under this analysis, we consider:
(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 interest, 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.
Helget v. City of Hays, 844 F.3d 1216, 1221 (10th Cir. 2017) (internal quotation
marks omitted). “The first three steps concern questions of law for the courts, and
the last two concern questions of fact.” Id. at 1222.
The magistrate judge resolved this claim at the first step, concluding that
Mr. Ellison’s allegations established that the two instances of speech upon which his
claim was based—(1) his discussion of the legality of the Aranda arrest and (2) his
report of Deputy McCasland’s misconduct—were both made pursuant to his official
duties. Mr. Ellison disputes this conclusion and argues that in both instances, he was
speaking outside of his chain of command and thus outside of his official duties.
It is well-established 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.” Seifert, 779 F.3d at 1151 (internal quotation marks
omitted). We take “a practical view of all the facts and circumstances surrounding
the speech and the employment relationship” and “a broad view of the meaning of
7
speech that is pursuant to an employee’s official duties.” Chavez-Rodriguez v. City
of Santa Fe, 596 F.3d 708, 713 (10th Cir. 2010) (internal quotation marks omitted).
Although “no one factor is dispositive,” our “guiding principle is that speech is made
pursuant to official duties if it involves ‘the type of activities that the employee was
paid to do.’” Id. (brackets omitted) (quoting Green v. Bd. of Cty. Comm’rs, 472 F.3d
794, 801 (10th Cir. 2007)).
1. Mr. Ellison’s Views on the Aranda Arrest
Mr. Ellison alleged that he “spoke briefly” to Lt. Sanchez about the legality of
the Aranda traffic stop in front of another officer. Aplt. App. at 87. He did not
describe where or when this discussion occurred, but he alleged that Lt. Sanchez
“claimed that [Mr. Ellison] had made up the reasons for the stop even though the
incident . . . was on video.” Id. Although Lt. Sanchez concluded “the whole traffic
stop was not legal,” Mr. Ellison “disagreed with [Lt.] Sanchez’s analysis in front of”
the other officer, who agreed with Mr. Ellison that he had reasonable suspicion to
initiate the stop. Id. at 88.
Given these limited factual allegations, the magistrate judge correctly
concluded that Mr. Ellison was speaking pursuant to his official duties. Mr. Ellison
was one of three officers discussing whether there was reasonable suspicion to stop a
vehicle. Taking a practical view, this was among the types of activities Mr. Ellison
was paid to do. He was a deputy sheriff charged with enforcing the traffic laws,
knowing the legal grounds for initiating a stop, and executing lawful arrests. His
lieutenant told him the stop was unlawful, and Mr. Ellison attempted to challenge
8
that analysis. As best we can tell from the allegations, this was speech made “during
the course of performing an official duty [aimed at] facilitat[ing] the employee’s
performance of the official duty.” Brammer-Hoelter v. Twin Peaks Charter Acad.,
492 F.3d 1192, 1203 (10th Cir. 2007). Mr. Ellison disputes this conclusion because
he disagreed with Lt. Sanchez, but his disagreement was inconsequential because a
“government employee’s First Amendment rights do not invest them with a right to
perform their jobs however they see fit,” Green, 472 F.3d at 801 (internal quotation
marks omitted).
Neither does Mr. Ellison’s chain-of-command argument alter this conclusion.
He contends that under the Ninth Circuit’s decision in Dahlia v. Rodriguez, 735 F.3d
1060, 1074 (9th Cir. 2013), if an officer speaks outside his chain of command, it is
“unlikely that he is speaking pursuant to his duties.” Our cases certainly recognize
this principle. See, e.g., Rohrbough v. Univ. of Colo. Hosp. Auth., 596 F.3d 741, 747
(10th Cir. 2010) (recognizing that “speech directed at an individual or entity outside
of an employee’s chain of command is often outside of an employee’s official
duties”). But the allegations here do not suggest Mr. Ellison was speaking outside
his chain of command. He was speaking to Lt. Sanchez, who had a higher rank, who
completed his job performance report, and who Mr. Ellison identifies in his appellate
brief as “his supervisor[],” Aplt. Br. at 21. This speech to his supervisor, who surely
was within his chain of command, tends to show that Mr. Ellison was indeed
speaking pursuant to his official duties. See Rohrbough, 596 F.3d at 747 (“By
contrast, speech directed at an individual or entity within an employee’s chain of
9
command is often found to be pursuant to that employee’s official duties under
Garcetti/Pickering.”).
2. Mr. Ellison’s Misconduct Report on Deputy McCasland
Mr. Ellison also alleged that he reported Deputy McCasland’s story about
injuring a detainee to Sgt. Morrison. Apart from alleging that he was acting “as a
citizen” in reporting on “matters of public concern,” Aplt. App. at 89, which are legal
conclusions we need not accept as true, see Iqbal, 556 U.S. at 678, Mr. Ellison
claimed he reported another officer’s illegal conduct. Specifically, he alleged that
Deputy McCasland told him about the misconduct at the county detention center, and
by reporting it he violated the sheriff’s office policy of maintaining a “blue wall of
silence,” Aplt. App. at 89 (internal quotation marks omitted).
These allegations do not suggest Mr. Ellison was acting as a citizen reporting
on a matter of public concern. While not dispositive, his allegation that he learned
about another sheriff deputy’s misconduct at the county detention center indicates
that the subject matter of his speech was related to his employment. Further, we have
identified “[a]s examples of protected government employee speech”
“communicating with newspapers or legislators or performing some similar activity
afforded citizens.” Rohrbough, 596 F.3d at 746 (ellipsis and internal quotation marks
omitted). Mr. Ellison did no such thing. Rather, he communicated the alleged
misconduct to Sgt. Morrison, who appears to have been a superior officer and who in
turn “stated he would bring it up with [Lt.] Sanchez.” Aplt. App. at 89. These
allegations indicate that Mr. Ellison’s report of employment-related misconduct went
10
straight up the chain of command, which signals that it was unprotected speech made
pursuant to his official duties. See Rohrbough, 596 F.3d at 747.
That Mr. Ellison violated the policy of silence by reporting the misconduct
rather than acquiescing to the policy does not automatically mean his speech was
outside the scope of his official duties. See id. (“[T]he court has not foreclosed
unauthorized speech or speech not explicitly required as part of an employee’s day-
to-day job from being within the scope of that employee’s official duties under
Garcetti/Pickering.” (brackets and internal quotation marks omitted)); Green,
472 F.3d at 800-01 (holding that drug lab employee’s disagreement with her
supervisors concerning the need for a formal testing policy and her unauthorized
procurement of a test to confirm the need for such a policy were pursuant to her
official duties). Accepting as true Mr. Ellison’s allegation that he was not authorized
to report Deputy McCasland’s misconduct, the report was still made within his chain
of command and the scope of his official duties. The magistrate judge correctly
dismissed the First Amendment claim.
B. Fourteenth Amendment
We next consider Mr. Ellison’s Fourteenth Amendment claim. Under the
Fourteenth Amendment, “[a] public employee has a liberty interest in his good name
and reputation as they relate to his continued employment.” McDonald v. Wise,
769 F.3d 1202, 1212 (10th Cir. 2014). “The government infringes upon that interest
when: (1) it makes a statement that impugns the good name, reputation, honor, or
integrity of the employee; (2) the statement is false; (3) the statement is made during
11
the course of termination and forecloses other employment opportunities; and (4) the
statement is published, in other words disclosed publically.” Id. (brackets, footnote,
and internal quotation marks omitted). “These elements are not disjunctive, all must
be satisfied to demonstrate deprivation of the liberty interest.” Workman v. Jordan,
32 F.3d 475, 481 (10th Cir. 1994).
The magistrate judge concluded that Mr. Ellison failed to plead a sufficiently
stigmatizing statement that impugned his good name or that such a statement was
published. These conclusions concern the first and fourth elements described above.
We therefore confine our analysis to those elements.
1. Stigma
Mr. Ellison contends his job performance report and Lt. Sanchez’s written
statement infringed his liberty interests by accusing him of falsifying a police report
and engaging in illegal and unprofessional conduct. He insists the complaint alleges
sufficiently stigmatizing statements and the magistrate judge made impermissible
factual findings based on his independent reading of the performance report and
Lt. Sanchez’s written statement.
Although the sufficiency of a complaint must rest on its contents alone,
there are exceptions to this restriction on what the court can consider,
but they are quite limited: (1) documents that the complaint incorporates
by reference; (2) documents referred to in the complaint if the
documents are central to the plaintiff’s claim and the parties do not
dispute the documents’ authenticity; and (3) matters of which a court
may take judicial notice.
Wasatch Equality v. Alta Ski Lifts Co., 820 F.3d 381, 386 (10th Cir. 2016) (brackets
and internal quotation marks omitted).
12
There is no merit to Mr. Ellison’s assertion that the magistrate judge made
impermissible factual findings based on his independent review of the performance
report and Lt. Sanchez’s written statement, which defendants attached to their motion
to dismiss. These documents were referenced in the complaint and they are central to
Mr. Ellison’s claim. He does not dispute the documents’ authenticity, nor did he
contest the magistrate judge’s consideration of these materials in his response to the
motion to dismiss, see Aplt. App. at 191-92.4 And we, like the magistrate judge,
have previously examined a similar report containing allegedly stigmatizing
statements. See Se. Kan. Cmty. Action Program Inc. v. Sec’y of Agric., 967 F.2d
1452, 1458 (10th Cir. 1992). There was no error in evaluating these documents.
The magistrate judge also correctly determined that the performance report and
Lt. Sanchez’s written statement do not contain sufficiently stigmatizing information
implicating Mr. Ellison’s liberty interests. Accusing an officer of filing a false police
report is sufficiently stigmatizing to impugn his or her good name, reputation, honor,
or integrity. See Palmer v. City of Monticello, 31 F.3d 1499, 1503 (10th Cir. 1994)
(“We are satisfied that an accusation that a police officer falsified a speeding ticket
qualifies as a stigmatizing charge which amply supports that element of a liberty
interest.”). But “charges involving negligence and neglect of duties . . . are
insufficient to establish a liberty interest deprivation.” Se. Kan. Cmty. Action
4
We cite the hard copy of Mr. Ellison’s appendix due to formatting distortions
in the electronically filed version. Although the hard copy contains one page that
was not bates-stamped (between pages 131 and 132), our citations conform to the
hard copy’s pagination.
13
Program Inc., 967 F.2d at 1458. Likewise, a claim that an officer failed to conduct
an investigation to the satisfaction of his supervisor is not sufficiently stigmatizing.
See Bailey v. Kirk, 777 F.2d 567, 572-73 (10th Cir. 1985). Nor are derogatory
statements that a public employee was “a slow worker with poor work habits and low
productivity” sufficient to implicate his or her liberty interests. Stritzl v. U.S. Postal
Serv., 602 F.2d 249, 252 (10th Cir. 1979) (internal quotation marks omitted).
Mr. Ellison’s situation is analogous to those cases involving negligence and
poor job performance. His performance report indicates that his separation was due
to “Poor Job Performance.” Aplt. App. at 150. It reflects that he received verbal
training within the previous twelve months, and it references Lt. Sanchez’s written
statement to explain the specific event or behavior that led to his termination. In
Lt. Sanchez’s written statement, Lt. Sanchez describes Mr. Aranda’s complaint of
excessive force and Mr. Ellison’s claimed reason for the traffic stop—Mr. Aranda’s
failure to properly use a turn signal. Lt. Sanchez states that he compared the police
report prepared by Mr. Ellison with a video of the stop, and he found the following
inconsistencies between the two:
First, as noted by Lt. Sanchez, Mr. Ellison indicated in his police report that
Mr. Aranda failed to signal his intentions within 100 feet of an intersection on two
separate occasions. Although Lt. Sanchez had previously instructed Mr. Ellison that
failure to use a turn signal must affect the normal flow of traffic to be a traffic
violation, the video showed that Mr. Aranda did not affect the normal flow of traffic
to justify the stop.
14
Second, Mr. Ellison’s police report indicated that Mr. Aranda traveled four
city blocks and then turned west for approximately 1/8 of a mile, but the video
showed that after Mr. Ellison activated his emergency equipment, Mr. Aranda
traveled only two blocks and then turned west without traveling 1/8 of a mile.
Third, Lt. Sanchez stated the video was inconsistent with Mr. Aranda striking
Mr. Ellison on the left arm, as indicated in his police report; instead, it appeared
Mr. Aranda pulled away and resisted while Mr. Ellison attempted to gain compliance.
Last, Lt. Sanchez found inconsistent charges included on Mr. Ellison’s
booking form and the criminal complaint he filed against Mr. Aranda. Given these
inconsistencies, Lt. Sanchez admonished Mr. Ellison that they had “spoken about
attention to detail [in] your paperwork on numerous occasions (court paperwork not
correct and having to amend numerous complaints).” Id. at 151-52. He also stated
that Mr. Ellison charged Mr. Aranda with “violations that should have never been
filed.” Id. at 152.
These charges fault Mr. Ellison for poor performance and failing to execute his
professional responsibilities to the satisfaction of his supervisor, which under these
circumstances, are not sufficiently stigmatizing to raise Fourteenth Amendment
concerns.
2. Publication
Because Mr. Ellison cannot satisfy the first element of his claim, we need not
consider whether he satisfies the publication element. Nevertheless, Mr. Ellison
insists that negative information was published because his performance report was
15
available to other law enforcement agencies, presumably through his personnel file.
We have noted “that the presence of false and defamatory information in an
employee’s personnel file may constitute ‘publication’ if not restricted for internal
use.” Bailey, 777 F.2d at 580 n.18. But the operative complaint here does not allege
the information was unrestricted. Rather, it alleges only that the separation notice
and performance report “were provided to the Human Resources Administrator, the
County contract attorney along with other third parties.” Aplt. App. at 91. As the
magistrate judge correctly recognized, these allegations fail to plausibly allege
publication because “intra-government dissemination, by itself, falls short of the
Supreme Court’s notion of publication: ‘to be made public.’” Asbill v. Hous. Auth.
of Choctaw Nation of Okla., 726 F.2d 1499, 1503 (10th Cir. 1984) (citing Bishop v.
Wood, 426 U.S. 341, 348 (1976)). Although Mr. Ellison references his two declined
job applications, this fails to show publication because he does not allege that
defendants provided that information to the other law enforcement agencies. Rather,
the complaint merely asserts these agencies “turned [him] down in part because of
the allegations contained in the bogus Employee Performance Report.” Aplt. App. at
99 (internal quotation marks omitted). To the extent Mr. Ellison contends he satisfies
the publication element because he alleged information was disclosed to unidentified
other third parties, including, apparently, “detention center personnel,” Aplt. App. at
87, we disagree. It was his obligation to “plead[] factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
16
alleged,” Iqbal, 556 U.S. at 678. Mr. Ellison failed to plead a plausible Fourteenth
Amendment claim, and the district court correctly dismissed it.
C. Futility of Amendment
Lastly, Mr. Ellison contends the magistrate judge erred in denying his motion
to file a second amended complaint. “[L]eave to amend should be freely given when
justice so requires, but a district court may dismiss without granting leave to amend
when it would be futile to allow the plaintiff an opportunity to amend [his]
complaint.” Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1151 (10th Cir. 2013)
(ellipsis, brackets, and internal quotation marks omitted). “Although we generally
review for abuse of discretion a district court’s denial of leave to amend a complaint,
when this denial is based on a determination that amendment would be futile, our
review for abuse of discretion includes de novo review of the legal basis for the
finding of futility.” Cohen v. Longshore, 621 F.3d 1311, 1314 (10th Cir. 2010)
(internal quotation marks omitted).
Mr. Ellison sought to file a second amended complaint to add two allegations,
both of which we agree would have been futile. His first proposed allegation was
that when he told Sgt. Morrison that he recorded a conversation with Deputy
McCasland, Sgt. Morrison replied that audio and video recordings of the encounter
were “against policy,” but he would bring it up with Lt. Sanchez. Aplt. App. at 222
(internal quotation marks omitted). This allegation aimed to support Mr. Ellison’s
municipal liability theory, but it did nothing to cure the pleading defects in the
underlying constitutional claims. See Ellis ex rel. Estate of Ellis v. Ogden City,
17
589 F.3d 1099, 1104 (10th Cir. 2009) (“[L]iability will not attach where there was no
underlying constitutional violation by any of the municipality’s officers.” (brackets
and internal quotation marks omitted)). Consequently, allowing this proposed
allegation would indeed have been futile.
Mr. Ellison’s second proposed amendment alleged that he alerted another law
enforcement agency of Deputy McCasland’s misconduct, which was not part of his
normal duties. This allegation aimed to cure the pleading defect in his First
Amendment claim by establishing that he was speaking outside of his official duties
in reporting Deputy McCasland’s misconduct to another police department. But this
proposed amendment is unavailing because the contours of protected speech are
defined not simply by the agency to which a report of impropriety is made, but (at
least in part) by the scope of the employee’s official duties. See Casey v. W. Las
Vegas Indep. Sch. Dist., 473 F.3d 1323, 1332 (10th Cir. 2007).
In Casey, a school superintendent reported violations of the federal Head Start
program to her supervising school board and the governing federal agency; she also
reported violations of the state open meetings law, both to the school board and the
state attorney general’s office. Id. at 1326. We determined her reports to the school
board and the federal Head Start agency were pursuant to her official duties to
oversee the Head Start program and provide candid advice and counsel to the school
board. Id. at 1329, 1331-32. But the superintendent’s report of the board’s violation
of the open meetings law to the state attorney general’s office was not pursuant to her
18
official duties, and thus survived the Supreme Court’s decision in Garcetti. Id. at
1332-33.
Here, taking a practical view of the circumstances of Mr. Ellison’s report, and
a broad view of speech that was pursuant to his official duties, we conclude his report
of misconduct to another law enforcement agency still fell within the scope of his job
responsibilities. Mr. Ellison was a deputy sheriff with evidence of improper conduct
committed by another officer while employed at a different law enforcement agency.
He allegedly obtained this information through his employment as a deputy sheriff
and in that capacity, first reported it internally up his chain of command. The next
day he reported it to another law enforcement agency, but this alone was insufficient
to remove the speech from the purview of his official duties. See id. at 1331-32.
Because this proposed amendment would not have cured the pleading defect in
Mr. Ellison’s First Amendment claim, the magistrate judge correctly denied the
motion to amend as futile.
III
The judgement of the district court is affirmed.
Entered for the Court
Bobby R. Baldock
Circuit Judge
19