Buck Ryan v. David Blackwell

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0350p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

BUCK RYAN,

│

Plaintiff-Appellant, │

│

v. > No. 19-6447

│

│

DAVID A. BLACKWELL, JOSEPH REED, DEREK LANE, │

and MIKE FARRELL, in their individual capacities, │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Eastern District of Kentucky at Lexington.

No. 5:19-cv-00188—Karen K. Caldwell, District Judge.

Argued: October 9, 2020

Decided and Filed: November 3, 2020

Before: SUHRHEINRICH, LARSEN, and READLER, Circuit Judges.

_________________

COUNSEL

ARGUED: Robert L. Abell, ROBERT ABELL LAW, Lexington, Kentucky, for Appellant.

Bryan H. Beauman, STURGILL, TURNER, BARKER & MOLONEY, PLLC, Lexington,

Kentucky, for Appellees. ON BRIEF: Robert L. Abell, ROBERT ABELL LAW, Lexington,

Kentucky, for Appellant. Bryan H. Beauman, Jessica R. Stigall, Donald C. Morgan, STURGILL,

TURNER, BARKER & MOLONEY, PLLC, Lexington, Kentucky, William E. Thro,

UNIVERSITY OF KENTUCKY, Lexington, Kentucky, for Appellees.

No. 19-6447 Ryan v Blackwell, et al. Page 2

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OPINION

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SUHRHEINRICH, Circuit Judge. Buck Ryan is a professor of journalism at the University

of Kentucky. Following an audit, the University accused him of misusing department resources

to make a larger profit off a textbook he had authored. He was asked to resign from his position

as a tenured professor, but he refused to do so. Ryan brought suit against Defendants David

Blackwell, Joseph Reed, Derek Lane, and Mike Farrell, alleging, amongst other things, that they

retaliated against him for asserting his due process and First Amendment rights after he refused to

resign. The district court dismissed Ryan’s claim under Federal Rule of Civil Procedure 12(b)(6).

On appeal, Ryan alleges that the district court misconstrued his complaint, that he plausibly alleged

due process retaliation, and that his speech was on a matter of public concern. He argues that he

did, therefore, meet the Rule 12(b)(6) requirements to plausibly state a claim Blackwell, Reed,

Lane, and Farrell argue that even if they did violate Ryan’s rights, they are entitled to qualified

immunity. For the reasons that follow, we AFFIRM.

I.

In this 42 U.S.C. § 1983 action, Plaintiff Buck Ryan challenges the district court’s

dismissal under Federal Rule Civil Procedure 12(b)(6) of his First Amendment and due process

retaliation claims against Defendants David Blackwell, Joseph Reed, Derek Lane, and Mike Farrell

(collectively “Defendants”).

At the district court, Ryan plead four causes of action, but only the two federal claims are

at issue here, both of which pertain to retaliation for Ryan’s allegedly protected activity. First,

Ryan asserts he was retaliated against when he refused to resign his position as a tenured professor

at the University of Kentucky and asserted his property interest in his continued employment there

as protected by the Due Process Clause. Second, Ryan claims he was retaliated against for

exercising his First Amendment right to speak on matters of public concern.

The district court correctly held that Ryan’s due process rights were not violated. He was

given due process when the faculty committee conducted an investigation into his conduct and

No. 19-6447 Ryan v Blackwell, et al. Page 3

made its recommendation not to terminate Ryan’s employment. Blackwell’s statement to the press

was not a sufficiently chilling action that it would deter a person of ordinary firmness from refusing

to resign, and therefore cannot be considered retaliation.

The district court also correctly determined that Ryan failed to state a claim for First

Amendment retaliation because the facts alleged do not implicate a matter of public concern.

There is very little by way of information about the context and content of Ryan’s protests against

the University in his complaint, but even with the supplemental information provided in his reply

and subsequent briefing, the subject of his speech does not amount to a matter of public concern.

Furthermore, because Ryan failed to allege a violation of a clearly established

constitutional right, he is not able to overcome qualified immunity.

II.

Buck Ryan is a tenured associate professor of journalism at the University of Kentucky

(“UK”). On or around April 30, 2018, an audit report conducted by Joseph Reed was presented to

Ryan by then-Dean Dan O’Hair and interim director of the journalism school, Mike Farrell. The

audit report focused primarily on Ryan’s use of his book, Writing Baby, Editing Dog and You:

A Friendly Place to Begin Improving Your Writing, in his courses. The audit claimed that Ryan

had generated more than a $6,000 profit by using UK’s contract rates and tax exempt status to

obtain lower printing rates for his book, requiring his book for his courses, and selling it to students

at a markup at local bookstores. All of this, according to the audit, violated UK policy. Id. Ryan

responded to O’Hair and Farrell by outlining the ways in which he believed the audit contained

inaccurate, false, and defamatory information. He requested that the audit be voided. Id.

At a later meeting, O’Hair demanded that Ryan resign his position. Ryan refused to resign,

at which point Blackwell, UK’s provost, began formal administrative proceedings to terminate

Ryan’s employment as a tenured faculty member. Id. Blackwell also issued the following

statement—which Ryan alleges is defamatory—to a local newspaper in response to a request for

comment on the termination proceedings:

As a matter of policy, we do not discuss personnel matters in any detail. The audit

in question is a matter of public record. It speaks for itself. What is most egregious

No. 19-6447 Ryan v Blackwell, et al. Page 4

about the audit’s findings is the fact that Professor Ryan stole from students. And

he used university resources to do it. Both are violations of university policy; more

importantly, both violate the trust that students and others place in us. That

violation of trust is why we’ve had to take this step to seek the termination of a

faculty member, a move we don’t make lightly but one that we must regrettably

take. We will now follow a process led by faculty that is, as it should be, thorough,

comprehensive and designed to be fair to all involved.

In August 2018, the UK Senate Advisory Committee on Privilege and Tenure recommended

against further termination proceedings. Ryan later challenged Blackwell and University President

Eli Capilouto “at a public forum . . . as to why they attempted to fire him with no grounds do so

and defamed him in this process.” Ryan alleges that in retaliation for speaking out against his

termination, Lane (Interim Dean of UK’s College of Communication and Information) and Farrell

made defamatory claims, removed him from his teaching responsibilities, and constructively

discharged him from the UK faculty.

Ryan filed suit in district court on April 29, 2019, alleging four counts of violations of state

and federal law. First, Blackwell’s statement to the press was retaliation for Ryan’s assertion of

his constitutionally protected due process rights when he refused to resign his position. Second,

that statement constitutes defamation per se under Kentucky law. Third, the audit report itself is

defamatory and casts Ryan in a false light. And fourth, the further efforts to coerce him into

resigning constitute retaliation for Ryan’s assertion of his due process and First Amendment rights.

The district court dismissed the two federal claims under Rule 12(b)(6) for failure to state

a claim. It declined to exercise supplemental jurisdiction over the remaining state law claims. On

appeal, we are asked to review only the dismissal of the due process and First Amendment

retaliation claims.

III.

We review a district court’s decision to grant a motion to dismiss de novo. Bates v. Green

Farms Condo. Ass’n, 958 F.3d 470, 479–80 (6th Cir. 2020). To survive a motion to dismiss the

complaint must include a “short and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2). When determining whether Ryan’s complaint meets

this standard “we accept as true its factual allegations and draw all reasonable inferences in his

No. 19-6447 Ryan v Blackwell, et al. Page 5

favor, but we disregard any legal conclusions.” Rudd v. City of Norton Shores, — F.3d —, No.

19-1226, 2020 WL 5905062, at *4 (6th Cir. 2020); see also Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). While the complaint “does not need detailed factual allegations, a plaintiff’s obligation to

provide the grounds of his entitlement to relief requires more than labels and conclusions, and a

formulaic recitation of a cause of action’s elements will not do.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007) (cleaned up).

Ryan alleges two retaliation claims under 42. U.S.C. § 1983, which allows for plaintiffs to

recover damages for violations of the Constitution or a federal statute. Boler v. Earley, 865 F.3d

391, 401 (6th Cir. 2017). Though some governmental actions standing on their own may not be

violations of the Constitution, “[i]t is well established that [they] . . . may nonetheless be

constitutional torts if motivated in substantial part by a desire to punish an individual for exercise

of a constitutional right.” Thaddeus-X v. Blatter, 175 F.3d 378, 386 (6th Cir. 1999) (en banc).

Ryan alleges that Blackwell’s statement to the press, the termination efforts, and the changes to

his teaching responsibilities are all unconstitutional retaliatory actions for his refusal to resign and

his public statements regarding the matter.

A.

There are three elements to a retaliation claim: (1) “the plaintiff engaged in conduct that is

protected by the Constitution or by statute,” (2) “the defendant took an adverse action against the

plaintiff,” and (3) “this adverse action was taken (at least in part) because of the protected conduct.”

Thaddeus-X, 175 F.3d at 386–87.

This matter comes before us on appeal from a motion to dismiss for failure to state a claim

underRule 12(b)(6). The pleading standard is generally construed quite liberally. See Sam Han v.

Univ. of Dayton, 541 F. App’x 622, 625 (6th Cir. 2013). A complaint must contain enough “factual

matter” to raise a “plausible” inference of wrongdoing. Southfield Ltd. P’ship v. Flagstar Bank,

F.S.B., 727 F.3d 503, 504 (6th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). “The plausibility of an

inference depends on a host of considerations, including common sense . . . ” Id. Common sense

would dictate that Ryan’s refusal to resign was done with the knowledge that his case would likely

be put before the appropriate faculty body for further investigation. There is no reason to think

No. 19-6447 Ryan v Blackwell, et al. Page 6

that there are some magic words Ryan would have needed to use to assert his due process rights.

Given the context of his refusal to resign, it seems at least plausible that he had asserted his due

process rights. As we are required at the Rule 12(b)(6) stage to construe the complaint generously

towards the plaintiff, we proceed as if he had asserted his rights.

Ryan first alleges that Blackwell brought termination proceedings against him when he

asserted his due process rights by refusing to resign his position. Tenured university professors

may not be fired without a hearing and an opportunity to challenge the grounds for their

termination. See Johnston-Taylor v. Gannon, 907 F.2d 1577, 1581 (6th Cir. 1990). Here,

however, Ryan was not denied those rights. When he refused to resign, the matter was handed

over to the proper faculty committee, which ultimately recommended against terminating him.

Ryan cannot fairly assert that initiation of these formal termination proceedings were themselves

retaliation when such proceedings were precisely what he was entitled to receive when he refused

to resign. He received due process, which is all he is entitled to under the Due Process Clause.

Ryan next alleges that Blackwell’s press statement was also retaliation for his refusal to

resign. The district court emphasized that Ryan’s refusal to resign did not inherently constitute an

assertion of his due process rights and that the complaint fails to otherwise adequately address this

issue. On a motion to dismiss, however, the district court is required to “construe the complaint

in the light most favorable to the plaintiff.” Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 512 (6th

Cir. 2001). Here, doing so requires us to construe Ryan’s refusal to resign as an assertion of his

due process rights. It does not, however, require us to accept Ryan’s legal conclusion that the

statement to the press is a form of retaliation.

In the context of public employment, an adverse action is one that would “likely chill a

person of ordinary firmness from continuing to engage in that activity.” Thaddeus-X, 175 F.3d at

398. Though that action “may include harassment or publicizing facts damaging to a person’s

reputation,” Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 724 (6th Cir. 2010), the action here

hardly seems enough to chill an ordinary person from refusing to resign a tenured professorship.

See also Thaddeus-X, 175 F.3d at 397. In Samad v. Jenkins this court found that a letter threatening

to reveal accurate collected information about a tenured professor was not an adverse employment

action. 845 F.2d 660, 663 (6th Cir. 1988). Particularly given the reference to the audit report in

No. 19-6447 Ryan v Blackwell, et al. Page 7

Blackwell’s statement, this single statement to the press does not rise to the standard of an adverse

action. Furthermore, though the determination of whether an action is adverse is an objective

standard, it is worth noting that Ryan does not allege even that he was chilled from asserting his

due process rights.

Ryan also contends that the continuation of the audit report after the faculty committee

recommended against termination and the failure to retract the press statement are also retaliatory

actions. There is no case law to support these claims. It seems illogical to suggest that the

continuation of a university investigation into Ryan’s alleged financial misconduct that was

already under way could possibly be retaliatory. Similarly, Ryan points to no law suggesting that

Blackwell had any obligation to retract his statement. This may perhaps be an issue for his state

law defamation claim, but that matter is not on appeal before this court.

B.

We next consider whether Ryan suffered retaliation for asserting his First Amendment

rights when (1) the University continued its audit, (2) Blackwell did not retract his press statement,

and (3) Ryan was removed from teaching a course in the spring semester. We find that he did not

because his speech was not protected by the First Amendment.

In order to establish a First Amendment retaliation claim under § 1983, the plaintiff must

demonstrate: (1) he engaged in constitutionally protected speech, (2) defendant’s adverse action

caused an injury that would chill a person of ordinary firmness from continuing the activity, and

(3) that action was motivated at least in part by the plaintiff’s exercise of his constitutional rights.

Dye v. Office of the Racing Comm’n, 702 F.3d 286, 294 (6th Cir. 2012). If the plaintiff is a public

employee, we apply a two-step analysis in determining whether the action taken against him

violates the First Amendment. First, we must determine whether the employee was speaking as a

government employee (rather than in his capacity as a private citizen) and whether the statement

constitutes speech on a matter of public concern. Connick v. Myers, 461 U.S. 138, 140 (1983);

Bennett v. Metro Gov’t of Nashville & Davidson Cnty., — F.3d —, No. 19-5818, 2020 WL

5905067, at *4 (6th Cir. 2020). If so, we then apply a balancing test to determine whether the

interest in protecting speech on issues of public concern outweighs the interest of the government

No. 19-6447 Ryan v Blackwell, et al. Page 8

as an employer “in promoting the efficiency of the public services it performs through its

employees.” Bennett, — F.3d —, 2020 WL 5905067, at *4 (internal quotation marks omitted).

“These two steps are sub-elements of the first element of the First Amendment retaliation

framework.” Id.

Whether the employee’s speech addressed a matter of public concern is a matter of law.

Van Compernolle v. City of Zeeland, 241 F. App’x 244, 249 (6th Cir. 2007). In making this

determination the court must consider the “content, form, and context of a given statement, as

revealed by the whole record.” Connick, 461 U.S. at 147–48.

The district court correctly dismissed this claim because even taking the facts of the

complaint as true, Ryan does not allege facts from which the court could plausibly infer that his

speech involved a matter of public concern, and therefore Ryan has failed to state a claim for First

Amendment retaliation. “Speech is of ‘public concern’ if it involves issues about which

information is needed or appropriate to enable members of society to make informed decisions

about the operation of their government.” Farhat v. Jopke, 370 F.3d 580, 590 (6th Cir. 2004)

(citation omitted). We consider not only the speaker’s interest in speaking, but also the public’s

interest in receiving information. Banks v. Wolfe Cnty. Bd. of Educ., 330 F.3d 888, 896 (6th Cir.

2003) (citation omitted). In Connick, the Court cautioned us that we should not presume that any

matters occurring in a government office are of a public concern merely because they involve the

government, 461 U.S. at 149, and this court has explicitly rejected the notion that “internal

personnel disputes or complaint about an employer’s performance” constitute a matter of public

concern, Brandenburg v. Hous. Auth. of Irvine, 253 F.3d 891, 898 (6th Cir. 2001).

Ryan relies on this court’s decision in Bonnell v. Lorenzo, which held that speech related

to a university’s sexual harassment policy was a matter of public concern. 241 F.3d 800, 821 (6th

Cir. 2001). But this case is more comparable to Golembiewski v. Logie, where this court found

that speech regarding an employee attendance policy was not a matter of public concern but rather

an internal issue that “only the employees themselves would be concerned about.” 516 F. App’x

476, 477 (6th Cir. 2013). Here, Ryan’s complaint alleges that he “challenged Blackwell and

university president Eli Capilouto as to why the attempted to fire him.” Though he does not

provide the specific content of his speech, he alleges it was about “the initiation of proceedings to

No. 19-6447 Ryan v Blackwell, et al. Page 9

terminate his tenure and employment.” Ryan himself explicitly refers to the matter as “one of the

most explosive internal issues at the University of Kentucky in years.” Without more detail that

would suggest broader public concerns, Ryan’s complaint seems to allege only the type of speech

that squarely falls in the realm of an internal employee dispute.

Though he alleges the issue became widely discussed amongst UK faculty, this is not

sufficient to elevate it to a matter of public concern. See Van Compernolle, 241 F.App’x at 250

(finding that a “group effort” amongst employees is no less an internal personnel matter than

advocacy of just one employee); Gragg v. Ky. Cabinet for Workforce Dev., 289 F.3d 958, 966 (6th

Cir. 2002) (holding that a letter critiquing a government employee selection process was not a

matter of public concern despite touching on implications beyond its author).

Because Ryan’s speech was not on a matter of public concern and therefore not protected,

we need not move on to the second two elements of a retaliation claim. See Brandenburg, 253 F.3d

at 898. Thus, though Ryan states multiple times in his complaint that his speech was on a matter

of public concern, that is a conclusory allegation we need not accept. See Ctr. for Bio-Ethical

Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir. 2011) (“[C]onclusory recitals of the

elements of a claim, including legal conclusions couched as factual allegation, ‘do not suffice.’”

(quoting Iqbal, 556 U.S. at 683)). The facts alleged in the pleadings are insufficient to plausibly

state a claim. As this is the threshold issue for a First Amendment retaliation claim, we need not

decide whether Ryan suffered an adverse employment action in retaliation for his speech.1

C.

Though the district court did not discuss qualified immunity, this court may affirm the

district court’s decision on any grounds supported by the record. Wallace v. Oakwood Healthcare,

Inc., 954 F.3d 879, 886 (6th Cir. 2020). The qualified immunity doctrine prevents government

actors from being held liable for “conduct [that] does not violate clearly established statutory or

1

An adverse action may occur when there is a significant diminishment in material job duties. Kocsis v.

Multi-Care Mgmt., 97 F3d 876, 885–86 (6th Cir. 1996). The parties dispute whether Ryan’s removal from teaching

responsibilities constitutes an adverse action. Though Defendants indicated that Ryan was removed due to his poor

performance ratings, this is a question of fact for a jury. However, because Ryan failed to allege that his speech was

on a matter of public concern, we need not address whether his removal from teaching was a retaliatory action.

No. 19-6447 Ryan v Blackwell, et al. Page 10

constitutional rights of which a reasonable person would have known.” Bible Believers v. Wayne

Cnty., 805 F.3d 228, 257 (6th Cir. 2015) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

“For a right to be clearly established the constitutionality of the officer’s conduct must have been

beyond debate in the particular circumstances before him.” Novak v. City of Parma, 932 F.3d 421,

426 (6th Cir. 2019) (cleaned up). Only when “every reasonable official” would have known his

conduct violates that right should the courts deny protection to that official. Ashcroft v. al-Kidd,

563 U.S. 731, 741 (2011) (citation omitted). This does not require that “the very action in question

has previously been held unlawful,” but it does require “that in the light of pre-existing law the

unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).

While it is clearly established that a public official cannot retaliate against an individual

for an exercise of his constitutional rights, it is not clearly established in either Sixth Circuit or

Supreme Court case law that the actions allegedly taken against Ryan meet the rigorous standard

needed to overcome qualified immunity. Ryan has not shown that the actions taken against him

would chill a person of ordinary firmness, nor has he sufficiently demonstrated that his speech

constituted a matter of public concern.

IV.

We AFFIRM the district court’s dismissal of Ryan’s complaint.