Mial v. Iowa Department of Human Services et al

MOTION to Dismiss for Failure to State a Claim

N.D. IowaMarch 20, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA WESTERN DIVISION MICHAEL ERIC MIAL, : CASE NO. 5:17-cv-04007-LTS : Plaintiff, : : vs. : : CHARLES PALMER, in his Official : Capacity as Director of the Iowa : Department of Human Services; : RICHARD SHULTS, in his Official : Capacity as Administrator of the : Division of Mental Health and : Disability Services; CORY TURNER, : Indiv. and in his Official Capacity as : Superintendent of the Civil : MOTION TO DISMISS Commitment Unit for Sexual Offenders: (CCUSO); BRAD WITTROCK, Indiv. : and in his Official Capacity as Deputy : Superintendent of CCUSO; and DAN : PINGEL, Indiv. and in his Official : Capacity as Treatment Program : Supervisor at CCUSO, : : Defendants. : The Defendants Move to Dismiss the Complaint for Failure to State a Claim upon which relief can be granted, stating: 1. Plaintiff Michael Mial was a probationary employee at CCUSO. 2. All employees were reminded that “Email signatures need to contain business related information only and employees shall not include personal messages.” Case 5:17-cv-04007-LTS Document 8 Filed 03/20/17 Page 1 of 4 2 3. Mr. Mial used the email sign-off, “In Christ.” Other employees used email sign-offs such as “Go Hawks” and “Semper Fi.” 4. The other employees acceded to the directive and ceased using the sign- offs on official work emails. Mr. Mial refused. He stated it was central to his religious beliefs to proclaim Christ in all things. 5. Although the State of Iowa respects individual religious conviction, it is neutral and does not promote any particular religion. Further, employees are required to follow rules and directives. 6. Mr. Mial’s employment was terminated within the probationary period. 7. Mr. Mial’s lawsuit fails as a matter of law because the government Defendants, acting as employer, have the responsibility to ensure the government does not promote any particular religion as required by the Establishment Clause, and the Defendants, acting as employer, have the authority to direct employees as to the employees work conduct. a. Mr. Mial’s personal religious beliefs are not a matter of public concern such that the Pickering balancing test is applicable. b. Even if the court applies Pickering, the government’s interest in avoiding an Establishment Clause problem outweighs Mr. Mial’s desired valediction. c. Mr. Mial was discharged for failure to meet expectations. His desired accommodation of including religious speech in official work communications is an undue hardship in that it conflicts with Case 5:17-cv-04007-LTS Document 8 Filed 03/20/17 Page 2 of 4 3 the government’s responsibility to avoid the establishment of any particular religion. d. Mr. Mial’s conduct was not protected activity, so there is no retaliation. e. Mr. Mial has not filed a tort claim, so the state negligence claim cannot proceed. f. The defendants are entitled to qualified immunity on the 42 U.S.C. § 1983 claims. g. Director Palmer and Administrator Shults are sued only in their supervisory capacities, which does not state a claim under § 1983. h. The defendants as sued in their official capacities are immune from judgments for money damages. i. Certain injunctive relief is not within the authority of the Defendants to grant. WHEREFORE, the Defendants pray this lawsuit is DISMISSED, with costs taxed to Plaintiff, and any other relief appropriate under the circumstances. Respectfully submitted, THOMAS J. MILLER Attorney General of Iowa /s/ Gretchen Witte Kraemer GRETCHEN WITTE KRAEMER Special Assistant Attorney General Hoover State Office Building 1305 E. Walnut St., 2nd Floor Des Moines, Iowa 50319 Phone: (515) 281-6707 Case 5:17-cv-04007-LTS Document 8 Filed 03/20/17 Page 3 of 4 4 Fax: (515) 281-7219 Email: gkraeme@dhs.state.ia.us ATTORNEYS FOR DEFENDANTS Original E-filed. Copies electronically served on parties of record. PROOF OF SERVICE The undersigned certifies that the foregoing document was served upon each of the persons identified as receiving a copy in the following manner on this 20th day of March, 2017: U.S. Mail FAX Hand Delivery Overnight Courier Federal Express Other ECF System Participant (Electronic Service) Signature: /s/___gwk_____ Case 5:17-cv-04007-LTS Document 8 Filed 03/20/17 Page 4 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA WESTERN DIVISION MICHAEL ERIC MIAL, : CASE NO. 5:17-cv-04007-LTS : Plaintiff, : : vs. : : CHARLES PALMER, in his Official : Capacity as Director of the Iowa : Department of Human Services; : RICHARD SHULTS, in his Official : Capacity as Administrator of the : Division of Mental Health and : Disability Services; CORY TURNER, : Indiv. and in his Official Capacity as : Superintendent of the Civil : MOTION TO DISMISS: Commitment Unit for Sexual Offenders: BRIEF (CCUSO); BRAD WITTROCK, Indiv. : and in his Official Capacity as Deputy : Superintendent of CCUSO; and DAN : PINGEL, Indiv. and in his Official : Capacity as Treatment Program : Supervisor at CCUSO, : : Defendants. : The Defendants offer this Brief in Support of their Motion to Dismiss, stating: Table of Contents Factual Background Page 2 Argument Page 3 Pleading Standard Page 3 Public Records Page 4 Case 5:17-cv-04007-LTS Document 8-1 Filed 03/20/17 Page 1 of 17 2 Free Speech and Government Employees Page 4 Establishment of Religion Page 6 Religious Discrimination Page 7 Retaliation Page 9 Negligence Page 10 Qualified Immunity Page 11 Personal Responsibility Page 14 Absolute Immunity Page 15 Unavailability of Certain Requested Relief Page 15 Conclusion Page 16 Factual Background Mr. Mial was a probationary employee at the Civil Commitment Unit for Sexual Offenders (CCUSO), as a Psychiatric Security Specialist (PSS), the front- line staff position. Brad Wittrock, Deputy Superintendent, distributed a memorandum reminding employees that “Email signatures need to contain business related information only and employees shall not include personal messages.” Mr. Mial used the valediction “In Christ” on his work emails. Mr. Mial was counseled about his valedictions and he declined to abide by CCUSO’s policy. Other employees used valedictions such as “Go Hawks” and “Semper Fi.” Those employees ceased using these valedictions when asked. Mr. Mial’s employment was terminated within the probationary period for failure to meet Case 5:17-cv-04007-LTS Document 8-1 Filed 03/20/17 Page 2 of 17 3 standards for a Psychiatric Security Specialist. He brings this lawsuit for injunctive and monetary relief. Argument I. Pleading Standard The defendants move to dismiss on the basis of failure to state a claim for which relief can be granted. Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, 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. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is “plausible on its face” when the allegations allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, which is more than “a sheer possibility” that the defendant acted unlawfully. Id. A plaintiff merely alleging facts that are “consistent with” liability is insufficient. Id. In considering whether a complaint meets the plausibility standard, the court must accept all factual allegations as true; however, the court “is not bound to accept as true a legal conclusion couched as a factual allegation.” Carton v. General Motor Acceptance Corp., 611 F.3d 451, 454 (8th Cir. 2010) (citing McAdams v. McCord, 584 F.3d 1111, 1113 (8th Cir. 2009)). Speculative, conclusory, or nonspecific allegations are insufficient. Cooper v. Schriro, 189 F.3d 781, 784-85 (8th Cir. 1999). Case 5:17-cv-04007-LTS Document 8-1 Filed 03/20/17 Page 3 of 17 4 II. Public Records Government documents are public, unless a confidentiality provision applies. The Iowa Open Records Act (Iowa Code chapter 22) generally requires state and local entities to make their records available to the public. See Iowa Code §§ 22.1(3), .2(1). “The purpose of the statute is ‘to open the doors of government to public scrutiny [and] to prevent government from secreting its decision-making activities from the public, on whose behalf it is its duty to act.’ ” City of Riverdale v. Diercks, 806 N.W.2d 643, 652 (Iowa 2011) (quoting Rathmann v. Bd. of Dirs., 580 N.W.2d 773, 777 (Iowa 1998)). We have said the Act establishes “a presumption of openness and disclosure.” *218 Gabrilson v. Flynn, 554 N.W.2d 267, 271 (Iowa 1996); see also Hall v. Broadlawns Med. Ctr., 811 N.W.2d 478, 485 (Iowa 2012). Iowa Film Prod. Servs. v. Iowa Dep't of Econ. Dev., 818 N.W.2d 207, 217–18 (Iowa 2012). Confidentiality provisions at Iowa Code § 22.7 may render certain CCUSO emails not public, or subject to redaction, but the baseline assumption is that those emails are public. Further, email messages sent on the Department of Human Services server and using a State of Iowa account are for work purposes. III. Free Speech and Government Employees When the government acts as an employer regarding its employee, it has broader powers to regulate speech than when it acts against a private citizen. Waters v. Churchill, 511 U.S. 661, 671 (1994) (holding the government has far broader powers when it acts as employer than when it acts as sovereign). The courts balance the interests of an employee, as a citizen, to comment upon matters of public concern and the interests of the State, as an employer, in Case 5:17-cv-04007-LTS Document 8-1 Filed 03/20/17 Page 4 of 17 5 promoting efficiency of public services it performs through its employees. Connick v. Myers, 461 U.S. 138, 142 (1983); Pickering v. Board of Education, 391 U.S. 563 (1968). The Government’s interest in efficiently accomplishing its mandate as an employer includes the power to restrict speech, even when that power would not exist to the Government acting as sovereign. Waters, 511 U.S. at 674-75. The government has wide discretion and control over the management of its personnel. Hinshaw v. Smith, 436 F.3d 997, 1004-05 (8th Cir. 2006) (citing Connick, 461 U.S. at 151). The Eighth Circuit applies the Pickering balancing test considering the employee’s right to engage in particular speech along with considerations such as “whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise.” Id. (citing Rankin v. McPherson, 483 U.S. 378, 388 (1987)). Public Concern. Mr. Mial’s personal religious views are not a matter of public concern. Whether particular speech is a matter of public concern is judged by the context, form, and context of a statement. Connick, 461 U.S. at 147-48. Taking the Complaint on its face, the context, form, and content of the speech in question concerns an email sign-off, “In Christ.” It is not a substantive commentary, discourse, or comment on any particular public policy or practice. According to Mr. Mial’s contentions, it signifies his personal Case 5:17-cv-04007-LTS Document 8-1 Filed 03/20/17 Page 5 of 17 6 commitment to proclaim Christ in all things. Complaint para. 21. This particular speech does not meet the first element as being on a topic of public concern. Daniels v. City of Arlington, Tex., 246 F.3d 500, 504 (5th Cir. 2001) (holding officer’s communication of personal views by wearing a cross pin on his uniform was not speech addressing a legitimate public concern, and the Department’s neutral policy against pins did not offend the First Amendment). Speech in Official Capacity. The second inquiry is whether the speech in question was made in the employee’s official capacity, or was a private expression outside the workplace. Garcetti v. Ceballos, 547 U.S. 410, 413-14 (2006). It is undisputed that Mr. Mial included the message “In Christ” on workplace communications created on the state’s computer equipment. Balancing Employee’s Interest with Interest of the Employer. The Pickering balancing test applies only if the first two elements are affirmative – it is a matter of public concern and speech was made as part of the employee’s official duties. Thus, it does not apply where the issue is not one of public concern. To the extent the Court disagrees and finds the Pickering analysis relevant, under the balancing test, the Defendants prevail. Under Pickering, the Court must balance the employee’s stated interest in maintaining the valediction, with the employer’s stated interest, of removing personal messages from work emails, of avoiding Establishment Clause problems by giving the appearance of promoting a particular religion, and of ensuring all employees are required to abide by employer directives equally. Case 5:17-cv-04007-LTS Document 8-1 Filed 03/20/17 Page 6 of 17 7 Defendants assert their interest in controlling work related communication, avoiding the appearance of promoting a particular religion, and in equal enforcement of the rules outweigh Mr. Mial’s personal interest in his e-mail sign-off. See, e.g., Bishop v. Aronov, 926 F.2d 1066, 1076 (11th Cir. 1991) (holding, even in light of the strong presumption of academic freedom, the University has the final say on what a professor may or may not say in class). IV. Establishment of Religion The State of Iowa respects individual religious convictions, but does not endorse or promote a particular religion. The First Amendment provides, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const. amend. I. Governmental entities violate the Establishment Clause through endorsement of religion. Lynch v. Donnelly, 465 U.S. 668, 688 (1984). The Fourteenth Amendment renders the Establishment Clause applicable to state actors. Reed v. Town of Gilbert, ––– U.S. ––––, 135 S.Ct. 2218, 2226 (2015); Everson v. Bd. Of Ed. of Ewing, 330 U.S. 1, 15 (1947). The First Amendment, as incorporated through the Due Process Clause of the Fourteenth Amendment, applies to state and municipal governments, state-created entities, and state and municipal employees. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1268 (11th Cir.2004); S.D. v. St. Johns County School District, 632 F. Supp.2d 1085, 1090 (M.D.Fla.2009). The Establishment Clause applies not only to statutes, but also to acts Case 5:17-cv-04007-LTS Document 8-1 Filed 03/20/17 Page 7 of 17 8 and decisions of individual government actors, “as their conduct bespeaks government conduct.” Id. Am. Humanist Ass'n, Inc. v. City of Ocala, 127 F. Supp. 3d 1265, 1279 (M.D. Fla. 2015). CCUSO policy requires all employees to constrain business communications to business purposes, and to avoid placing personal messages within them. Mr. Mial’s requested accommodation to continue using “In Christ” in his professional, work email, was declined. As a government employee, Mr. Mial work-related communication “bespeaks government conduct.” His endorsement of the Christian faith on government documents could be construed as CCUSO’s endorsement of the Christian faith. This endorsement presents a problem under the Establishment Clause. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 309 (2000) (holding school sponsorship of a religious message is impermissible). CCUSO documents are public documents unless an exception applies. To the extent CCUSO documents describe a particular patient’s care, those documents are considered confidential as to the public, but are still official documents of the patient’s care. V. Religious Discrimination Mr. Mial must either establish direct evidence of discrimination (termination on the basis of his religion) or establish a case through the burden shifting framework. The term “religion” as it is used in 42 U.S.C. 2000e-2 includes “all aspects of religious observance and practice, as well as believe, unless an employer demonstrates that [it] is unable to reasonably accommodate an Case 5:17-cv-04007-LTS Document 8-1 Filed 03/20/17 Page 8 of 17 9 employee’s . . . religious observance or practice without undue hardship.” Huston v. Local No. 93, Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am., 559 F.2d 477, 480 (8th Cir. 1977). Mr. Mial contends allowing his valediction was a “miniscule” accommodation. The Defendants disagree. Violating the Constitution by sponsoring a particular religious viewpoint is not a reasonable accommodation. Defendants assert they cannot reasonably accommodate the employee’s request without incurring undue hardship. Cook v. Chrysler Corp., 779 F. Supp. 1016, 1022 (E.D. Mo. 1991), aff'd, 981 F.2d 336 (8th Cir. 1992) (holding employee retains the burden of persuasion that defendant can reasonably accommodate the religious beliefs without undue hardship). VI. Retaliation If the State, acting as employer, may require employees to refrain from including personal and/or religious valedictions from work communications, there is no viable claim for retaliation. Under either federal or state law, the first element to a retaliation claim is an assertion that the employee engaged in a protected activity. Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir.2004), cert. denied, 546 U.S. 860 (2005) (articulating a three element test for retaliation, the first element being the Plaintiff engaged in a protected activity); Fitzgerald v. Salsbury Chem., Inc., 613 N.W.2d 275, 281 (Iowa 2000) (articulating the three elements of retaliation, protected activity, discharge, and a causal connection between the protected activity and discharge). The Defendants assert Mr. Mial’s Case 5:17-cv-04007-LTS Document 8-1 Filed 03/20/17 Page 9 of 17 10 speech was not protected. His valediction was not protected. His complaint about the content-neutral policy of avoiding personal messages in work email is not protected. Thus, assuming the facts as stated in the Complaint are true, as is required for a motion to dismiss, even if he was terminated because he including “In Christ” as a valediction, it is not actionable because there was no protected activity at the core of the dispute. VII. Negligence The state law claim of negligence is subject to the State of Iowa’s Tort Claims Act, Chapter 669. Iowa Code § 669.2(3) (defining tort claim). Under the Iowa Tort Claims Act, “the legislature abrogated, in part, the State's immunity from suits sounding in tort.” Blacketer v. State, Division of Narcotics Enforcement, 2007 WL 4191979 (Iowa Ct. App. Nov. 29, 2007) (unpublished) (citing Drauhaus v. State, 584 N.W.2d 270, 272 (Iowa 1998)). A citizen’s right to sue the State “is limited by the conditions set forth by the legislature in chapter 669. Drahaus, 584 N.W.2d at 272. “The procedural requirements of the ITCA are jurisdictional.” McGill v. Fish, 790 N.W.2d 113, 118 (Iowa 2010) (citing Swanger v. State, 445 N.W.2d 344, 349-50 (Iowa 1989). A plaintiff must comply with the substantive and procedural requirements of the Iowa Tort Claims Act, Iowa Code Chapter 669 (formerly found in Chapter 25A) before jurisdiction of the subject matter and parties is obtained. Hansen v. State, 298 N.W.2d 263, 265 (Iowa 1980); Lloyd v. State, 251 N.W.2d 551, 555 (Iowa 1977). Mr. Mial has not done so. Case 5:17-cv-04007-LTS Document 8-1 Filed 03/20/17 Page 10 of 17 11 The Courts have long held that the state appeal board has primary or exclusive jurisdiction over tort claims against the State. Charles Gabus Ford, Inc. v. Iowa State Highway Comm’n, 224 N.W.2d 639, 648 (Iowa 1974). Negligence is covered by the State Tort Claims Act. McGill, 790 N.W.2d at 120. The Iowa Tort Claims act is jurisdictional. Feltes v. State, 385 N.W.2d 544, 548 (Iowa 1986). Failure to administratively exhaust deprives this court of jurisdiction. Id. “A claim must be dismissed if the district court has no subject matter jurisdiction.” McGill, 2010 WL 4260202 at *3 (citing Feltes, 385 N.W.2d at 549) (emphasis supplied). The grounds for a motion to dismiss must be based on the pleadings themselves, unless judicial notice can be taken of additional facts. Haupt v. Miller, 514 N.W.2d 905, 911 (Iowa 1994). The court may judicially notice a public document issued by a state agency. Salsbury Lab. v. Iowa Dep’t of Envtl. Quality, 276 N.W.2d 830, 835-36 (Iowa 1979). An affidavit from the Executive Secretary of the Iowa State Appeals Board is attached, confirming that no tort claim has been filed. This claim must be dismissed for lack of jurisdiction. VIII. Qualified Immunity As government officials, the CCUSO Defendants are entitled to qualified immunity for the performance of discretionary functions. Davis v. Hall, 375 F.3d 703, 711 (8th Cir. 2004). “Qualified immunity ‘is an immunity from suit rather than merely a defense to liability.’ It entitles an individual to not be subject to trial or the other burdens of litigation and ‘is effectively lost if a case Case 5:17-cv-04007-LTS Document 8-1 Filed 03/20/17 Page 11 of 17 12 is erroneously permitted to go to trial.’” Jones v. McNeese, 746 F.3d 887, 894 (8th Cir. 2014) (quoting Solomon v. Petray, 699 F.3d 1034, 1038 (8th Cir. 2012) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985))). To defeat this qualified immunity, Plaintiff must show how each Defendant’s individual conduct violated a “clearly established statutory or constitutional right of which a reasonable person would have known.” Id. To make this showing, Plaintiff must: (1) considering the facts in the light most favorable to the Plaintiff demonstrate that each Defendant violated a constitutional right; and if that criterion is satisfied, (2) show the constitutional right was clearly established. Ware v. Morrison, 276 F.3d 385, 387 (8th Cir. 2002) (establishing standard). However, under the facts as relayed above, Defendants assert they are entitled to qualified immunity on Plaintiff’s claims. It is well established that a government employer cannot take adverse employment actions against its employees for exercising their First Amendment rights. Connick, 461 U.S. at 142. The employee's speech rights are not absolute, for there are competing interests as explained by the Supreme Court in Connick v. Myers, 461 U.S. 138 (1983), and Pickering v. Bd. of Educ., 391 U.S. 563 (1968). Whether speech activity is constitutionally protected is determined by analyzing whether it relates to a matter of public concern. See Connick, 461 U.S. at 147. If the speech is protected, the public employer's interest in promoting efficiency is balanced against that of the employee in speaking as a citizen. Pickering, 391 U.S. at 568. A government employer is not liable for an adverse employment action taken against its employees for their speech if the government interest outweighs the interest of the employees in their expressive conduct. Richardson v. Sugg, 448 F.3d 1046, 1062– 63 (8th Cir.2006). Shockency v. Ramsey Cty., 493 F.3d 941, 948 (8th Cir. 2007). “The inquiry into the protected status of speech is one of law, not fact.” Connick, 461 U.S. at 148 Case 5:17-cv-04007-LTS Document 8-1 Filed 03/20/17 Page 12 of 17 13 n. 7. The balancing of the Pickering factors is a legal chore for the court, though fact disputes concerning any of the factors are appropriately submitted to a jury. See Gordon v. City of Kansas City, Mo., 241 F.3d 997, 1003 (8th Cir.2001). [W]hen the government endeavors to police itself and its employees in an effort to avoid transgressing Establishment Clause limits, it must be accorded some leeway, even though the conduct it forbids might inevitably be determined to violate the Establishment Clause and the limitations it imposes might restrict an individual's conduct that might well be protected by the Free Exercise Clause if the individual were not acting as an agent of government. The decisions governmental agencies make in determining when they are at risk of Establishment Clause violations are difficult, and, in dealing with their employees, they cannot be expected to resolve so precisely the inevitable tensions between the Establishment Clause and the Free Exercise Clause .... Though school boards, like all instrumentalities of government, must observe the basic free exercise rights of its employees, the scope of the employees' rights must sometimes yield to the legitimate interest of the governmental employer in avoiding litigation by those contending that an employee's desire to exercise his freedom of religion has propelled his employer into an Establishment Clause violation. Marchi v. Bd. of Cooperative Educ. Servs. of Albany, 173 F.3d 469, 476 (2nd Cir.) (internal citations omitted), cert. denied, 528 U.S. 869 (1999) (as cited in Allen v. Sch. Bd. for Santa Rosa Cty., Fla., 782 F. Supp. 2d 1304, 1322–23 (N.D. Fla. 2011), on reconsideration sub nom. Allen v. Sch. Bd. for Santa Rosa Cty., Florida, No. 3:10CV142, 2011 WL 13112091 (N.D. Fla. May 12, 2011). Defendants acted reasonably in declining the requested accommodation to avoid the appearance of promoting religion in violation of the Establishment Clause. Available caselaw supports the defendants. Morgan v. Swanson, 659 F.3d 359, 383–84 (5th Cir. 2011) (holding school principal entitled to qualified Case 5:17-cv-04007-LTS Document 8-1 Filed 03/20/17 Page 13 of 17 14 immunity because no law put principal on notice that restricting distribution of religious materials after school on the school lawn was a violation). To the extent this court or the Eighth Circuit disagree, such a ruling would be new law, and would not bar qualified immunity because the law was not clearly established at the time of the disputed conduct. Hinshaw v. Smith, 436 F.3d 997, 1002 (8th Cir. 1996) (stating standard whether legal norms allegedly violated were clearly established at the time of the challenged action); Gorman v. Bartch, 152 F.3d 907, 914-15 (8th Cir. 1998) (finding, under facts, that reasonable officials would not have known the ADA applied to transport of arrestees); Offet v. Solem, 936 F.2d 363, 366 (8th Cir. 1991) (holding governmental officials are not required to guess at their peril the development of constitutional doctrine). Qualified immunity should be granted. IX. Personal Responsibility A Plaintiff may bring a section 1983 claim only against those individuals actually responsible for the constitutional deprivation. Doyle v. Camelot Care Centers, 305 F.3d 605, 614-615 (7th Cir. 2002); Delefont v. Beckelman, 264 F. Supp. 650, 656, (N.D. Ill 2003). Defendants are only liable for actions for which each is directly responsible. Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990). A general responsibility for supervising operations is insufficient to establish the personal involvement necessary to support liability. Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997). In bringing a 1983 claim a Plaintiff Case 5:17-cv-04007-LTS Document 8-1 Filed 03/20/17 Page 14 of 17 15 may not rely on the doctrine of respondeat superior, but must allege personal involvement in the wrongdoing. Plaintiff alleges personal conversations on the issue with Defendants Pingel, Turner, and Wittrock, at paragraphs 24 and 25. The allegations against DHS Director Palmer and MHDS Division Administrator Shults are solely in their supervisory capacity, which is not a ground for relief under § 1983. X. Immunity from Claims for Money Damages Plaintiff’s Amended Complaint seeks a financial award and attorney’s fees from State defendants. The Eleventh Amendment bars suits for money damages against officials of the State. Hafer v. Melo, 502 U.S. 21, 25 (1991) (“[T]he Eleventh Amendment bars suits in federal court ‘by private parties seeking to impose a liability which must be paid from public funds in the state treasury.’” (quoting Edelman v. Jordan, 415 U.S. 651, 663 (1974)). The claims against the CCUSO defendants in their official capacities are claims against the State of Iowa. Leventhal v. Schaffer, No. 07-cv-4059, 2008 WL 111301 *4 (N.D. Iowa Jan. 8, 2008). “When a state is directly sued in federal court, it must be dismissed from litigation upon its assertion of Eleventh Amendment immunity. . ..” Barnes v. Missouri, 960 F.2d 63, 64 (8th Cir. 1992). XI. Unavailability of Certain Claimed Injunctive Relief Mr. Mial seeks certain injunctive relief that is contrary to law or not within the purview of the Defendants to grant. For example, Mr. Mial seeks (2) a Declaration that the concept of the “separation of church and state” is not Case 5:17-cv-04007-LTS Document 8-1 Filed 03/20/17 Page 15 of 17 16 even in the United States Constitution. This is not within the power of the Defendants to grant. How others interpret and describe the Constitution is within their rights of free speech. Conclusion The facts in this case are straight-forward. Mr. Mial, a state employee, was asked to exclude personal messages from his work emails. He declined, and his probationary employment was terminated. The valediction at issue was “In Christ.” Other employees were similarly counseled to exclude valedictions such as “Go Hawks” or “Semper Fi.” Those employees acceded to their employer’s directive. Speech of government employees can be regulated to address the work needs of the employer and to avoid the establishment of religion. CCUSO has a content-neutral policy of requiring employees to avoid personal valedictions in emails. Defendants reasonably declined Plaintiff’s requested accommodation of using the valediction to avoid violating the Establishment Clause. Plaintiff’s other claims fail because Defendants’ actions were not unlawful, retaliatory, or negligent. WHEREFORE, the Defendants pray this lawsuit is DISMISSED, with costs taxed to Plaintiff, and any other relief appropriate under the circumstances. Respectfully submitted, THOMAS J. MILLER Attorney General of Iowa /s/ Gretchen Witte Kraemer Case 5:17-cv-04007-LTS Document 8-1 Filed 03/20/17 Page 16 of 17 17 GRETCHEN WITTE KRAEMER Special Assistant Attorney General Hoover State Office Building 1305 E. Walnut St., 2nd Floor Des Moines, Iowa 50319 Phone: (515) 281-6707 Fax: (515) 281-7219 Email: gkraeme@dhs.state.ia.us ATTORNEYS FOR DEFENDANTS Original E-filed. Copies electronically served on parties of record. PROOF OF SERVICE The undersigned certifies that the foregoing document was served upon each of the persons identified as receiving a copy in the following manner on this 20 day of March, 2017: U.S. Mail FAX Hand Delivery Overnight Courier Federal Express Other ECF System Participant (Electronic Service) Signature: /s/__gwk___________ Case 5:17-cv-04007-LTS Document 8-1 Filed 03/20/17 Page 17 of 17 Case 5:17-cv-04007-LTS Document 8-2 Filed 03/20/17 Page 1 of 1