Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Poff v. State ex rel. Department of Human Services

United States District Court, W.D. Oklahoma

November 20, 2017

KIMBERLY POFF, Plaintiff,
v.
STATE OF OKLAHOMA, ex rel. DEPARTMENT OF HUMAN SERVICES, ED LAKE, individually And as Director of the Oklahoma Department of Human Services, TONY BRYAN, Individually and in his official capacity as Director of the Department of Human Services, Defendants.

          ORDER

          DAVID L. RUSSELL, UNITED STATES DISTRICT JUDGE.

         Defendant 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”).[1] 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.[2] (Doc. No. 90). Following Plaintiff's lead, Defendants Lake and Bryan filed a joint reply in support of their respective motions.

         Summary 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)).

         Plaintiff's 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 averments:

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, 2014.

Doc. No. 83, Ex. 13 (paragraph numbering omitted).

         It is 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.