United States District Court, W.D. Oklahoma
L. RUSSELL, UNITED STATES DISTRICT JUDGE.
Ed Lake, Director of the Department of Human Services
(“DHS”) seeks summary judgment on Plaintiff's
claims of civil conspiracy and a 42 U.S.C. § 1983 claim
alleging Lake violated her First Amendment rights. (Doc. No.
80). Plaintiff contends her termination by DHS was in
retaliation for a lawsuit she filed against her previous
employer, the Oklahoma Department of Mental Health and
Substance Abuse Services
(“ODMHSAS”). Plaintiff filed a response to the
motion, addressing both Defendant Lake's motion and a
separate motion by Defendant Bryan, noting that both motions
relied on the same statement of undisputed fact, with one
exception. (Doc. No. 90). Following Plaintiff's
lead, Defendants Lake and Bryan filed a joint reply in
support of their respective motions.
judgment is appropriate if “there is no genuine dispute
as to any material fact.” Fed.R.Civ.P. 56(a)). “A
fact is ‘material' if, under the governing law, it
could have an effect on the outcome of the lawsuit. A dispute
over a material fact is ‘genuine' if a rational
jury could find in favor of the nonmoving party on the
evidence presented.” Tabor v. Hill, Inc., 703
F.3d 1206, 1215 (10th Cir. 2013) (quoting Equal Emp't
Opportunity Comm'n v. Horizon/CMS Healthcare Corp.,
220 F.3d 1184, 1190 (10th Cir.2000)).
42 U.S.C. § 1983 claim alleges that her termination was
in retaliation for exercising her First Amendment rights.
Defendant Lake contends he is entitled to summary judgment on
the § 1983 claim, because he did not personally
participate in her termination and therefore cannot be held
liable. Rather, he contends his involvement with Ms. Poff
during her tenure at DHS was limited to an inquiry he made to
the Chief of Staff, Lee Anne Bruce Boone, on August 20, 2014,
regarding the circumstances of Plaintiff's hiring by DHS.
His inquiry was premised on a newspaper article indicating
Ms. Poff had been terminated by the ODMHSAS for cause but was
currently working for DHS. In support of his motion,
Defendant provided an affidavit that includes the following
On the morning of August 20, 2014, I read an article in
The Oklahoman titled “'Buried' report:
Inspector wanted to close Narconon.” The article was
about an investigation of the NARCONON facility which had
been conducted by Kimberly Poff, the former Inspector General
of the Oklahoma Department of Mental Health and Substance
Abuse Services (ODMHSAS). The article said that Ms. Poff had
been fired by ODMHSAS and that she filed a lawsuit alleging
that her termination was retaliatory for her speaking-out
about NARCONON. The article also reported that Ms. Poff had
been hired by DHS. The article included a statement
attributed to Ms. Poff's attorney which implied that DHS
had determined that Poff's termination by ODMHSAS was
without merit. I took note of this statement because it
seemed to me to possibly suggest acknowledgement by the
attorney that Ms. Poff had been fired for cause. I was
concerned because it appears DHS had hired someone who had
been recently fired by another state agency, having served in
a high level capacity.
The same morning of August 20th, when I arrived at
the office, I went by the office of Lee Ann Bruce Boone, the
Chief of Staff at DHS. . . . I shared the newspaper article
with Ms. Bruce Boone and asked her to look into how DHS had
come to hire Ms. Poff, the person mentioned in the newspaper
article. Before I saw her name in the newspaper, I did not
know nor had I heard of Ms. Poff. My only concern regarding
DHS's employment of Ms. Poff was based on her previous
discharge from another agency. Also that day, or very soon
thereafter, I called Terri White, Commissioner of ODMHSAS. I
called Commissioner White to ask her if, in fact, ODMHSAS had
discharged Ms. Poff for cause. She told that it had.
At the time that Ms. Poff was terminated, the only
information that I knew about Poff was from the article in
The Oklahoman on August 20, 2014, and from my brief
conversation with Commissioner White.
Prior to Ms. Poff's termination from DHS, no one, either
inside or outside the agency, ever contacted or spoke with me
about terminating Ms. Poff from DHS. I was never asked,
encouraged or directed by anyone to cause Ms. Poff's
termination. Beside sharing the news article with Lee Anne
Bruce Boone, I never spoke to anyone else at DHS about Ms.
Poff. I never told or directed anyone working for DHS to
terminate Ms. Poff, nor did I make any suggestion that she
should be terminated. I specifically never talked to Tony
Bryan, DHS's Inspector General, about Ms. Poff until well
after her discharge from DHS. I was not involved in the
decision to terminate Ms. Poff. I was unaware of the
termination decision until after the termination had
occurred. Sometime after the fact, I learned from Ms. Bruce
Boone that Mr. Bryan determined that he had cause to
discharge Ms. Poff, and had done so effective August 22,
Doc. No. 83, Ex. 13 (paragraph numbering omitted).
well established that a defendant's personal
participation in the alleged violation of a plaintiff's
constitutional right is essential to a § 1983 action.
Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.
2009) (citing Foote v. Spiegel, 118 F.3d 1416, 1423
(10th Cir. 1997). Plaintiff's response brief does not
specifically address Defendant's personal participation
argument, likely a result of the decision to file a single
response to two separate motions. Although Defendants Lake
and Bryan were both employees of DHS, they did not operate as
a single person. That the Defendants rely on the same
undisputed facts in support of their respective motions does
not eliminate the need to address each Defendant separately.
Because § 1983 and Bivens are vehicles for
imposing personal liability on government officials, we have
stressed the need for careful attention to particulars,
especially in lawsuits involving multiple defendants.
“[I]t is particularly important” that plaintiffs
“make clear exactly who is alleged to have done what to
whom, ... as distinguished from collective
allegations.” Kan. Penn Gaming, LLC v.
Collins, 656 F.3d 1210, 1215 (10th Cir.2011) (alteration
in original) (quoting ...