United States District Court, W.D. Missouri, Southern Division
STEPHEN R. BOUGH UNITED STATES DISTRICT JUDGE.
the Court is Defendants' Motion to Dismiss Plaintiff
Keith Mills' First-Amended Complaint and Suggestions in
Support. (Doc. #87). The motion is DENIED.
Background and Legal Standard
September 7, 2019, Plaintiff Keith Mills filed his
First-Amended Complaint for Damages against Christian County,
Missouri; Brad Cole in his individual and official capacities
as Christian County Sheriff; and Ray Weter, Hosea Bilyeu, and
Ralph Phillips in their official capacities as County
Commissioners for Christian County (collectively
“Defendants”). Plaintiff Mills was employed by
the Christian County Sheriff's Department from September
2010 to August 2015. During 2015 both Plaintiff Mills and
Defendant Cole ran for Sheriff of Christian County. On or
about August 4, 2015, Defendant Cole was elected as the
Christian County Sheriff. Defendant Cole assumed office on or
about August 7, 2015, and Defendant Cole fired Plaintiff
Mills the same day.
Mills's First-Amended Complaint includes one count for
“Violation of 42 U.S.C. § 1983 and the First
Amendment to the United States Constitution for Retaliation
for Political Affiliation and Candidate Support[.]”
(Doc. #83, p. 3). Defendants move for dismissal of Plaintiff
Mills's First-Amended Complaint for failure to state a
claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
Defendants argue Plaintiff Mills's claim does not
implicate the First Amendment in that Plaintiff Mills alleges
he experienced retaliation for running for office and
“being a candidate for office is not ‘protected
activity.'” (Doc. #87, p. 4). Defendant Cole also
argues that even if candidacy is activity protected by the
First Amendment, such a right was not clearly established at
the time Defendant Cole terminated Plaintiff Mills, and
Defendant Cole is therefore entitled to qualified immunity.
survive a motion to dismiss [for failure to state a claim], a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal citations and quotation marks omitted)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ash v. Anderson
Merchs., LLC, 799 F.3d 957, 960 (8th Cir. 2015)
(internal citation and quotation marks omitted) (quoting
Iqbal, 556 U.S. at 678). The Court must accept all
facts alleged in the complaint as true when deciding a motion
to dismiss. See Data Mfg., Inc. v. United Parcel Serv.,
Inc., 557 F.3d 849, 851 (8th Cir. 2009) (noting
“[t]he factual allegations of a complaint are assumed
true and construed in favor of the plaintiff, even if it
strikes a savvy judge that actual proof of those facts is
improbable”). Defendants seeking a Rule 12(b)(6)
dismissal on the basis of qualified immunity must show that
they are entitled to qualified immunity on the face of the
complaint.” Kulkay v. Roy, 847 F.3d 637, 642
(8th Cir. 2017) (internal quotation marks and citation
successfully plead a First Amendment retaliation claim, a
plaintiff must plausibly plead that he/she ‘engaged in
protected activity and that defendants, to retaliate for the
protected activity, took adverse action against [them] that
would chill a person of ordinary firmness from engaging in
that activity.'” Zutz v. Nelson, 601 F.3d
842, 848-49 (8th Cir. 2010) (quoting Lewis v. Jacks,
486 F.3d 1025, 1028 (8th Cir. 2007)). Defendants rely
primarily on a recent, unpublished Eighth Circuit decision in
support of their argument that Plaintiff Mills's
First-Amended Complaint does not implicate a protected
activity. Defendants argue, “[T]he Eighth Circuit has
recently ruled there is no federally-protected right to run
for office.” (Doc. #87, p. 3) (citing McKee v.
Reuter, 758 Fed.Appx. 564, 571 (8th Cir. 2019)
McKee the Eighth Circuit stated, “We do not
dispute that there is no clearly established First Amendment
right to run for office. . . . Consequently, to the extent
any of Ms. McKee's claims are predicated solely upon her
candidacy, defendants were entitled to qualified
immunity.” 758 Fed.Appx. at 571. However, the Eighth
Circuit went on to affirm the trial court's denial of
qualified immunity as to Ms. McKee's First-Amendment
claims because as the Eighth Circuit “[understood] Ms.
McKee's claims, they [were] not predicated upon her
candidacy; they [were] predicated upon her affiliation with
the Democratic party, the expression of her political views,
and the activities she undertook as a Democrat during a
partisan campaign, which fall squarely within the
protections of the First Amendment.” Id.
(citation omitted) (emphasis added).
focus too narrowly on Plaintiff Mills's allegation in
paragraph 29 of the First-Amended Complaint, which states,
“Plaintiff engaged in activity protected under the
First Amendment to the United States Constitution by running
for political office - which is activity not only protected
by the First Amendment generally but more specifically as
interpreted by the Supreme Court in its
‘Elrod-Branti' test.” (Doc. #83,
¶ 29). Defendants argue that paragraph 29 requires
dismissal under McKee. (Doc. #87, p. 4). However,
Plaintiff Mills also alleges in his First-Amended Complaint,
“Throughout 2015, Plaintiff publicly campaigned for the
office Sheriff of Christian County, Missouri and this fact
was known to Defendant Cole.” (Doc. #83, ¶ 14).
Plaintiff Mills further alleges, “Cole's
termination of Plaintiff's employment was motivated in
whole and/or in part by Plaintiff's campaign for
Christian County Sheriff.” (Doc. #83, ¶ 31).
is more than candidacy as was recognized in McKee.
758 Fed.Appx. at 571 (stating First-Amendment claims were
predicated on “the activities [plaintiff] undertook as
a Democrat during a partisan campaign”). As a result,
the Court finds Plaintiff Mills's claim is based on more
than candidacy in that Plaintiff Mills alleges retaliation
based on his First-Amendment right to campaign for office.
The Defendants' motion to dismiss on this point is
Cole's qualified immunity argument is premised on
Defendants' misreading of the First-Amended Complaint
that Plaintiff Mills's First-Amendment retaliation claim
is based solely on Plaintiff Mills's candidacy for
office. Defendant Cole argues, “Even if this Court
determines Mills' candidacy was activity protected by the
First Amendment, such right was not ‘clearly
established' at the time Cole terminated Mills.”
(Doc. #87, p. 6). Given the Court's determination that
Plaintiff Mills's First-Amended Complaint is based on the
protected activity of campaigning and not mere candidacy,
Defendant Cole's qualified immunity argument is moot.
Plaintiff Mills's protected activity of campaigning
“fall[s] squarely within the protections of the First
Amendment.” McKee, 758 Fed.Appx. at 571.
Motion to Dismiss Plaintiff Keith Mills' First-Amended
Complaint and ...