Case 5:20-cv-04077-DDC-GEB Document 22 Filed 09/21/21 Page 1 of 61
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF KANSAS
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`MARK A. BRUCE,
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`Plaintiff,
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`v.
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`Case No. 20-4077-DDC-GEB
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`LAURA KELLY, in her official
`capacity as Governor of the State of Kansas,
`WILL LAWRENCE, in his individual
`capacity as Chief of Staff to
`Governor Laura Kelly, and
`HERMAN T. JONES, in his official and
`individual capacities as Superintendent
`of the Kansas Highway Patrol,
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`
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`Defendants.
`_______________________________________
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`MEMORANDUM AND ORDER
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`Plaintiff Mark A. Bruce brings this civil rights lawsuit arising from his separation from
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`employment with the Kansas Highway Patrol (“KHP”). He asserts federal constitutional and
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`Kansas law claims against three defendants: (1) Laura Kelly, the Governor of Kansas, sued only
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`in her official capacity; (2) Will Lawrence, Governor Kelly’s Chief of Staff, sued only in his
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`individual capacity; and (3) Herman T. Jones, the current Superintendent of the KHP, sued both
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`in his individual and official capacities. Defendants have filed a Motion to Dismiss (Doc. 11),
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`asking the court to dismiss each claim asserted against them either for lack of subject matter
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`jurisdiction under Fed. R. Civ. P. 12(b)(1) or for failing to state a claim under Fed. R. Civ. P.
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`12(b)(6).1
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`1
`Defendants’ motion also asks the court to dismiss plaintiff’s claims for lack of personal
`jurisdiction under Fed. R. Civ. P. 12(b)(2) and for insufficiency of process under Fed. R. Civ. P. 12(b)(5).
`Doc. 11 at 7–8. But, defendants’ Reply withdraws this argument, explaining that, after defendants filed
`their Motion to Dismiss, plaintiff cured the service defects. Thus, the court doesn’t need to address the
`Rule 12(b)(2) and (b)(5) dismissal arguments.
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`

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`Case 5:20-cv-04077-DDC-GEB Document 22 Filed 09/21/21 Page 2 of 61
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`For reasons explained, the court grants defendants’ motion in part and denies it in part.
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`The court grants defendants’ request to dismiss Count IV—plaintiff’s 42 U.S.C. § 1983 claim
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`against Superintendent Jones for violating plaintiff’s First Amendment free speech rights—
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`because qualified immunity bars this claim.
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`But, the court denies the motion in part for Counts I, II, and III, and without prejudice.
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`Counts I and II allege § 1983 claims against Governor Kelly and Chief of Staff Lawrence for
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`violating plaintiff’s Fourteenth Amendment due process rights, and Count III alleges a Kansas
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`common law claim for tortious interference with prospective business relations against Chief of
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`Staff Lawrence. These claims require plaintiff to allege that defendants deprived him of a
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`property interest or prospective business advantage. Plaintiff alleges that a Kansas statute vested
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`him with such a property interest in continued employment with the KHP at the rank of Major as
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`a member of the classified service. Defendants disagree. They argue that the Kansas statute
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`conferred no such property interest. The Kansas statute at issue—Kan. Stat. Ann. § 74-2113—is
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`not a model of clarity. Each party offers a competing reading of the statute based on its plain
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`language. And, no case law interprets the statute’s language to decide whether the rank of Major
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`is a classified or unclassified position in the Kansas civil service. Without any guidance on this
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`unsettled and dispositive question, the court exercises its discretion to certify questions to the
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`Kansas Supreme Court under Kan. Stat. Ann. § 60-3201.
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`The court explains how it reaches these conclusions, below.
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`I.
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`The Court Won’t Convert the Motion to Dismiss to a Motion for Summary
`Judgment.
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`Before turning to defendants’ Motion to Dismiss, the court addresses an argument that
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`plaintiff asserts in his Opposition to defendants’ motion. Plaintiff argues that defendants’
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`Motion to Dismiss relies on matters outside the pleadings. So, plaintiff contends, the court must
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`2
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`Case 5:20-cv-04077-DDC-GEB Document 22 Filed 09/21/21 Page 3 of 61
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`invoke Fed. R. Civ. P. 12(d) and convert the motion to dismiss to one for summary judgment.
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`See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the
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`pleadings are presented to and not excluded by the court, the motion must be treated as one for
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`summary judgment under Rule 56.”). The court disagrees that defendants’ motion relies on
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`matters outside of the pleadings.
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`Plaintiff asserts that four exhibits attached to defendants’ Motion to Dismiss qualify as
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`matters outside of the pleadings, thus requiring the court to convert the Motion to Dismiss to a
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`Motion for Summary Judgment. Each exhibit is a document filed in a Kansas state mandamus
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`proceeding that plaintiff filed against Governor Kelly and Superintendent Jones. Exhibit 1 is a
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`Petition for Writ of Mandamus that plaintiff filed with the Kansas Supreme Court on January 15,
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`2020. Doc. 11-1; Pet. in Mandamus, Bruce v. Kelly, No. 122,370 (Kan. Jan. 15, 2020). Exhibit
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`2 is a Memorandum of Points and Authorities in Support of Petition in Mandamus that plaintiff
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`filed with the Kansas Supreme Court on January 15, 2020. Doc. 11-2; Mem. of P. & A. in Supp.
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`of Pet. in Mandamus, Bruce v. Kelly, No. 122,370 (Kan. Jan. 15, 2020). Exhibit 3 is a Joint
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`Response to Petition for Writ of Mandamus that Governor Kelly and Superintendent Jones filed
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`with the Kansas Supreme Court on May 1, 2020. Doc. 11-3; Joint Resp. to Pet. for Writ of
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`Mandamus, Bruce v. Kelly, No. 122,370 (Kan. May 1, 2020). Exhibit 4 is the Kansas Supreme
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`Court’s Order denying plaintiff’s Petition for Writ of Mandamus on May 27, 2020. Order, Bruce
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`v. Kelly, No. 122,370 (Kan. May 26, 2020).
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`Because each of the four exhibits is a public document filed with the Kansas Supreme
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`Court in plaintiff’s mandamus action, the court may take judicial notice of them. See, e.g., Gee
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`v. Pacheco, 627 F.3d 1178, 1194 (10th Cir. 2010) (holding that a district court properly
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`considered records from another lawsuit on a Rule 12(b)(6) motion to dismiss); see also Pace v.
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`3
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`Case 5:20-cv-04077-DDC-GEB Document 22 Filed 09/21/21 Page 4 of 61
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`Swerdlow, 519 F.3d 1067, 1072–73 (10th Cir. 2008) (finding that district court “was correct in
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`considering” state court documents of which it took judicial notice on a Rule 12(b)(6) motion to
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`dismiss); Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006) (explaining that a court may
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`“take judicial notice of its own files and records, as well as facts which are a matter of public
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`record” on a Rule 12(b)(6) motion to dismiss (citation and internal quotation marks omitted));
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`Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276, 1278 n.1 (10th Cir. 2004) (considering
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`only the allegations in the Complaint and those alleged in another lawsuit on a Rule 12(b)(6)
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`motion); St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979)
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`(explaining that “federal courts, in appropriate circumstances, may take [judicial] notice of
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`proceedings in other courts, both within and without the federal judicial system, if those
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`proceedings have a direct relation to matters at issue”).
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`Also, the court may consider the four exhibits that defendants have attached to their
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`Motion to Dismiss without converting the motion into one for summary judgment. See Tellabs,
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`Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (“[C]ourts must consider the
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`complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule
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`12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by
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`reference, and matters of which a court may take judicial notice.” (emphasis added)); see also
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`Pace, 519 F.3d at 1072–73 (finding that district court “was correct in considering” state court
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`documents of which it took judicial notice on a Rule 12(b)(6) motion to dismiss); Grynberg, 390
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`F.3d at 1278 n.1 (declining to “recharacterize the defendants’ motion as a summary judgment
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`motion because [the court] need consider only the allegations in [plaintiff’s] complaint and those
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`in the prior . . . action”).
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`Case 5:20-cv-04077-DDC-GEB Document 22 Filed 09/21/21 Page 5 of 61
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`But the court won’t consider plaintiff’s Declaration that he’s attached to his Opposition to
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`the Motion to Dismiss. Doc. 15-1. That document is outside the pleadings, and the court can’t
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`consider it on a motion to dismiss.2 Also, none of the assertions plaintiff makes in his
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`Declaration can change the motion’s outcome.
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`II.
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`Factual Background
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`The following facts come from plaintiff’s Complaint (Doc. 1). The court accepts them as
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`true and views them in the light most favorable to plaintiff. Doe v. Sch. Dist. No. 1, 970 F.3d
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`1300, 1304 (10th Cir. 2020) (explaining that on a motion to dismiss the court “accept[s] as true
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`all well-pleaded factual allegations in the complaint and view[s] them in the light most favorable
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`to” plaintiff (citation and internal quotation marks omitted)).
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`The KHP is an agency of the State of Kansas that enforces traffic, criminal, and other
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`laws of Kansas throughout the state. Doc. 1 at 2 (Compl. ¶ 8). In June 1989, the KHP hired
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`plaintiff as a trooper. Id. at 3 (Compl. ¶ 11). On March 14, 2008, the KHP promoted plaintiff to
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`the position of Major. Id. After his promotion, plaintiff served a probationary period of six
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`months, as Kan. Stat. Ann. § 75-2946 requires. Id. After this probationary period, plaintiff
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`attained permanent status as a Major in the classified service. Id.
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`On April 2, 2015, then-Governor of Kansas, Sam Brownback, appointed plaintiff to serve
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`as the Superintendent of the KHP, at the pleasure of the Governor. Id. (Compl. ¶ 12). In
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`November 2018, Laura Kelly was elected as the Governor of Kansas. Id. (Compl. ¶ 13). As
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`Governor-elect, Ms. Kelly announced that plaintiff would remain as KHP Superintendent. Id.
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`2
`Also, plaintiff’s Declaration contains improper legal conclusions. See, e.g., Doc. 15-1 at 2 (Bruce
`Decl. ¶ 5) (“Subsection (a) of [Kan. Stat. Ann. §] 74-2113 is intended to protect both the KHP and
`officers eligible for promotion to its highest positions.”).
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`Case 5:20-cv-04077-DDC-GEB Document 22 Filed 09/21/21 Page 6 of 61
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`On March 28, 2019, Governor Kelly’s Chief of Staff, Will Lawrence, summoned plaintiff
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`to Mr. Lawrence’s office for a meeting. Id. (Compl. ¶ 14). In the meeting, Mr. Lawrence told
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`plaintiff that Governor Kelly was not going to retain him as KHP Superintendent. Id. And, Mr.
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`Lawrence told plaintiff “that ‘we need you to resign.’” Id. After further discussion, plaintiff told
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`Mr. Lawrence that he would resign. Id. Mr. Lawrence then handed plaintiff a pre-prepared
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`resignation letter. Id. The letter read:
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`Dear Will:
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`This letter is to advise you that I hereby resign my position as
`Superintendent of the Kansas Highway Patrol, effective April 6,
`2019.
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`Sincerely,
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`Mark A. Bruce
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`Id. Plaintiff signed the resignation letter, and he handed it back to Mr. Lawrence. Id.
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`Mr. Lawrence then handed plaintiff a pre-prepared letter dated March 18, 20193 and
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`signed by Mr. Lawrence. Id. at 4 (Compl. ¶ 15). The letter stated in relevant part:
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`This letter is to confirm receipt and acceptance of your resignation from your
`position as the Superintendent of the Kansas Highway Patrol (KHP), effective April
`6, 2019. Effective immediately, you are relieved of all duties and authority and are
`being placed on administrative leave until the effective date of your resignation.
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`You are to surrender all weapons on your person and turn over any other State of
`Kansas devices, equipment or property in your immediate possession. Your
`computer access and security badge have been inactivated. Please make
`arrangements with KHP staff to return all other State of Kansas devices, equipment,
`or property prior to the effective date of your termination.
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`. . . .
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`3
`Plaintiff’s Complaint initially refers to the date of the letter as March 18. Doc. 1 at 4 (Compl. ¶
`15). But later, it alleges that the letter was dated March 28. Id. (Compl. ¶ 16). Because the meeting
`between plaintiff and Mr. Lawrence occurred on March 28, the court assumes that the Complaint’s
`reference to March 18 is a typographical error. But even if it’s not, the date of the letter isn’t germane to
`the dispositive issues presented by defendants’ motion.
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`Case 5:20-cv-04077-DDC-GEB Document 22 Filed 09/21/21 Page 7 of 61
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`Should you have any questions about your benefits, leave, final pay warrant or other
`personnel matters while on paid administrative leave, please feel free to contact
`Susan Pfannenstiel . . . .
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`Thank you for your service to the State of Kansas. I wish you success in your future
`endeavors.
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`Id. (emphasis omitted).
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`During the March 28, 2019 meeting, Mr. Lawrence never discussed with plaintiff the
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`option of returning to plaintiff’s former rank of Major. Id. (Compl. ¶ 16). Based on plaintiff’s
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`March 28 conversation with Mr. Lawrence and the language of Mr. Lawrence’s letter, plaintiff
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`understood and believed that Governor Kelly was dismissing him from all employment with the
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`KHP. Id. As a consequence, on March 29, 2019, plaintiff initiated email communications with
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`Mr. Lawrence about retiring from the KHP. Id. Plaintiff initiated these communications because
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`“he understood and believed that he had no other choice but to retire from the KHP.” Id.
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`On April 2, 2019, plaintiff sent a letter to Governor Kelly, with a copy to Mr. Lawrence.
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`Id. at 5 (Compl. ¶ 17). The letter provided, in relevant part:
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`This letter serves as notice that I will retire from the Kansas Highway Patrol
`effective May 1, 2019. My last day on the payroll will be April 8, 2019.
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`. . . .
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`I am proud to have had the honor to serve and lead the Kansas Highway [Patrol]
`for the past 30 years. I wish the Agency and its employees nothing but the best in
`the future.
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`Id.
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`On January 27, 2020, plaintiff made a request under the Kansas Open Records Act,
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`asking for a list of email accounts for all current KHP employees maintained @ks.gov. Id.
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`(Compl. ¶ 18). The KHP provided the list to plaintiff in response to his request. Id.
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`Case 5:20-cv-04077-DDC-GEB Document 22 Filed 09/21/21 Page 8 of 61
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`The State of Kansas owns and controls the email accounts for all current KHP employees
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`that are maintained @ks.gov. Id. (Compl. ¶ 19). KHP employees primarily use these email
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`accounts to conduct official business and interact with the public. Id. Also, “these emails
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`accounts are open for, and compatible with, expressive activity.” Id.
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`On April 3, 2020, plaintiff sent emails to six KHP employees at their email accounts
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`maintained @ks.gov. Id. (Compl. ¶ 20). Most of the emails’ recipients were management-level
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`KHP employees, including Superintendent Jones. Id. In each of the emails, plaintiff discussed
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`the KHP’s past and present operations “including incidents of actual or potential wrongdoing,
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`impropriety, or malfeasance.” Id. Plaintiff’s email to Superintendent Jones read:
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`Since being appointed superintendent, you have consistently and constantly
`dishonored the position and the Patrol by engaging in unethical, immoral and illegal
`behavior. You have betrayed the oath of office and the badge you wear.
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`Id.
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`At the direction of Superintendent Jones, KHP’s General Counsel, Luther L. Ganieany,
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`Jr., sent an email to plaintiff’s attorney. Id. at 6 (Compl. ¶ 21). Mr. Ganieany’s email referred to
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`the April 3, 2020 emails plaintiff had sent to KHP employees. Id. In relevant part, Mr.
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`Ganieany’s email provided:
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`Such email communications from [plaintiff] directly with our employees is
`unwanted and disruptive to the working environment of the Patrol.
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`As a precaution, we are in the process of requesting the email address he sent these
`emails from blocked by the Kansas Office of Information Technology Services in
`order to prevent further harassment of our employees. Additionally, please advise
`[plaintiff] that any further unsolicited communications of a similar nature from him
`and directed to employees of the Patrol will be considered harassment as defined
`by [Kan. Stat. Ann. §] 21-2606 and the appropriate referral will be made.
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`8
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`Id.
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`Case 5:20-cv-04077-DDC-GEB Document 22 Filed 09/21/21 Page 9 of 61
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`Around April 30, 2020, the Kansas Office of Information Technology blocked plaintiff
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`from sending emails to the email accounts for all current KHP employees maintained @ks.gov.
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`Id. (Compl. ¶ 22). The Kansas Office of Information Technology took this action at the KHP’s
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`request and on the direction of Superintendent Jones. Id.
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`On May 28, 2020, plaintiff sent a letter to Superintendent Jones. Id. (Compl. ¶ 23). It
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`asked “‘that the KHP take measures to allow [plaintiff] to freely communicate, by email, with all
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`members of the agency[.]’” Id. On June 5, 2020, Mr. Ganieany, at Superintendent Jones’s
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`direction, sent a letter to plaintiff. Id. It read: “‘[T]his letter is to advise you that the block we
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`have placed on email communications from [your email account] and addressed to official KHP
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`email addresses will not be rescinded.’” Id. Plaintiff remains blocked from sending emails to
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`email accounts for all current KHP employees maintained @ks.gov. Id.
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`III. Legal Standard
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`A. Motion to Dismiss for Lack of Subject Matter Jurisdiction
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`Fed. R. Civ. P. 12(b)(1) permits a party to move the court to dismiss an action based on
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`lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). And, Rule 12(h)(3) requires the
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`court to dismiss an action if it “determines at any time that it lacks subject-matter jurisdiction.”
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`Fed. R. Civ. P. 12(h)(3).
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`“Federal courts are courts of limited jurisdiction and, as such, must have a statutory basis
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`to exercise jurisdiction.” Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002) (citation
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`omitted). Sections 1331 and 1332 of Title 28 of the United States Code confer federal district
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`courts with original jurisdiction over all civil actions arising under the constitution, laws, or
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`treaties of the United States or where there is diversity of citizenship. 28 U.S.C. §§ 1331–32.
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`Since federal courts are courts of limited jurisdiction, the party invoking federal jurisdiction
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`Case 5:20-cv-04077-DDC-GEB Document 22 Filed 09/21/21 Page 10 of 61
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`bears the burden to prove it exists. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
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`377 (1994).
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`Generally, a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ.
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`P. 12(b)(1) takes one of two forms: a facial attack or a factual attack. Baker v. USD 229 Blue
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`Valley, 979 F.3d 866, 872 (10th Cir. 2020). First, a “facial attack assumes the allegations in the
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`complaint are true and argues they fail to establish jurisdiction.” Id. (citations omitted). Second,
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`a “factual attack goes beyond the allegations in the complaint and adduces evidence to contest
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`jurisdiction. Id. (citations omitted). When considering a factual attack on subject matter
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`jurisdiction “a district court has ‘wide discretion to allow affidavits, other documents, and a
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`limited evidentiary hearing to resolve disputed jurisdictional facts.’” Id. (quoting Stuart v. Colo.
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`Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001)). And, the “court’s exercise of such
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`discretion does not convert a Rule 12(b)(1) motion into a summary judgment motion unless
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`‘resolution of the jurisdictional question is intertwined with the merits.’” Id. (quoting Holt v.
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`United States, 46 F.3d 1000, 1003 (10th Cir. 1995)).
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`B. Motion to Dismiss for Failure to State a Claim
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`Fed. R. Civ. P. 12(b)(6) allows a party to move the court to dismiss an action for failing
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`“to state a claim upon which relief can be granted[.]” Fed. R. Civ. P. 12(b)(6). For a complaint
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`to survive a Rule 12(b)(6) motion to dismiss, the pleading “must contain sufficient factual
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`matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
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`Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
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`“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
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`draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678
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`(citing Twombly, 550 U.S. at 556).
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`When considering a Rule 12(b)(6) motion to dismiss, the court must assume that the
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`factual allegations in the complaint are true but it is “‘not bound to accept as true a legal
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`conclusion couched as a factual allegation.’” Id. (quoting Twombly, 550 U.S. at 555). And,
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`although this pleading standard doesn’t require “‘detailed factual allegations,’” it demands more
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`than a “pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of
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`a cause of action’” which, as the Supreme Court explained, “‘will not do.’” Id. (quoting
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`Twombly, 550 U.S. at 555).
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`IV. Analysis
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`Plaintiff’s Complaint asserts four claims: (1) a 42 U.S.C. § 1983 claim against Governor
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`Kelly for violating plaintiff’s Fourteenth Amendment due process rights (Count I); (2) a 42
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`U.S.C. § 1983 claim against Chief of Staff Lawrence for violating plaintiff’s Fourteenth
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`Amendment due process rights (Count II); (3) a Kansas common law claim for tortious
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`interference with prospective business relations against Chief of Staff Lawrence (Count III); and
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`(4) a 42 U.S.C. § 1983 claim against Superintendent Jones for violating plaintiff’s First
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`Amendment free speech rights (Count IV).
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`Defendants ask the court to dismiss all four claims asserted by the Complaint. They
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`make six arguments supporting their motion. They argue: (1) the Eleventh Amendment bars any
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`claims asserted against the State of Kansas and against individual defendants in their official
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`capacities, and thus, the court must dismiss those claims for lack of subject matter jurisdiction;
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`(2) the claims premised on plaintiff’s assertion of a right under Kan. Stat. Ann. § 74-2113(a) to
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`return to permanent status in the classified service as a Major in the KHP (Counts I, II, and III)
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`are barred by res judicata and collateral estoppel; (3) Counts I, II, and III fail to state a plausible
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`claim for relief because plaintiff did not have a property interest or prospective business
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`Case 5:20-cv-04077-DDC-GEB Document 22 Filed 09/21/21 Page 12 of 61
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`expectation in continued employment with the KHP; (4) defendant Lawrence is entitled to
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`qualified immunity against Count II; (5) Count IV fails to state a plausible claim for relief
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`because blocking emails to a government email system or government email address does not
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`violate the First Amendment; and (6) Colonel Jones is entitled to qualified immunity against
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`Count IV. The court addresses each argument, in turn, below.
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`A. Eleventh Amendment Immunity
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`Defendants argue that Eleventh Amendment immunity bars the claims the Complaint
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`asserts against defendants in their official capacities. See Doc. 1 at 2 (Compl. ¶¶ 5, 7) (asserting
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`that plaintiff sues Governor Kelly only in her official capacity and Superintendent Jones both in
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`his individual and official capacities). The Eleventh Amendment generally bars suits against
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`states and their agencies based on their sovereign immunity. Levy v. Kan. Dep’t of Soc. &
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`Rehab. Servs., 789 F.3d 1164, 1168 (10th Cir. 2015) (“The ultimate guarantee of the Eleventh
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`Amendment is that nonconsenting States may not be sued by private individuals in federal
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`court.” (quoting Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001))). Eleventh
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`Amendment immunity also extends to suits seeking to recover money damages from state actors
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`acting in their official capacities. See Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429
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`(1997) (“It has long been settled that the [Eleventh Amendment’s] reference to actions ‘against
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`one of the United States’ encompasses not only actions in which a State is actually named as the
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`defendant, but also certain actions against state agents and state instrumentalities.”).
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`But, the immunity conferred by the Eleventh Amendment “is not absolute.” Muscogee
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`(Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012). As our Circuit has explained,
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`three exceptions exist to Eleventh Amendment immunity. Id. They are:
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`First, a state may consent to suit in federal court. Second, Congress may abrogate
`a state’s sovereign immunity by appropriate legislation when it acts under Section
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`5 of the Fourteenth Amendment. Finally, under Ex parte Young, 209 U.S. 123
`(1908), a plaintiff may bring suit against individual state officers acting in their
`official capacities if the complaint alleges an ongoing violation of federal law and
`the plaintiff seeks prospective relief.
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`Id. (further citations omitted).
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`
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`The first two exceptions don’t apply here. First, Kansas hasn’t waived its immunity.
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`Jones v. Courtney, 466 F. App’x 696, 700 (10th Cir. 2012) (explaining that while “Kansas has
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`consented to suit for damages under the Kansas Tort Claims Act[,]” it has not waived Eleventh
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`Amendment immunity because the statute expressly disclaims a waiver (citing Kan. Stat. Ann. §
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`75-6116(g)) (further citations and internal quotation marks omitted)). Second, Congress did not
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`abrogate state sovereign immunity when it enacted 42 U.S.C. § 1983. Ellis v. Univ. of Kan. Med.
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`Ctr., 163 F.3d 1186, 1195–96 (10th Cir. 1998) (citing Quern v. Jordan, 440 U.S. 332, 338–40
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`(1979)).
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`But, the third exception applies here, plaintiff argues. The Supreme Court’s Ex Parte
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`Young decision “held that the Eleventh Amendment generally will not operate to bar suits so
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`long as they (i) seek only declaratory and injunctive relief rather than monetary damages for
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`alleged violations of federal law, and (ii) are aimed against state officers acting in their official
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`capacities, rather than against the State itself.” Hill v. Kemp, 478 F.3d 1236, 1255–56 (10th Cir.
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`2007). Plaintiff asserts that his claims against Governor Kelly and Superintendent Jones in their
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`official capacities satisfy the Ex Parte Young criteria because: (1) plaintiff’s claims allege
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`ongoing violations of federal law—i.e., in the form of depriving plaintiff of his constitutional
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`rights; see Doc. 1 at 7, 11–12 (Compl. ¶¶ 27, 49, 52); and (2) plaintiff asserts that he seeks
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`prospective injunctive relief in the form of reinstatement of employment and an injunction
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`ordering Superintendent Jones to remove the block placed against plaintiff sending emails to the
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`email accounts of current KHP employees. Id. at 8, 12 (Compl. ¶¶ 29, 52). The court agrees that
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`Case 5:20-cv-04077-DDC-GEB Document 22 Filed 09/21/21 Page 14 of 61
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`these claims fall within the Ex Parte Young exception to Eleventh Amendment immunity. Thus,
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`Eleventh Amendment immunity doesn’t bar plaintiff’s claims asserted against defendants acting
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`in their official capacities based on alleged ongoing violations of federal law for which plaintiff
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`seeks prospective injunction relief. But, to the extent one could construe plaintiff’s claims as
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`ones seeking money damages from state officials sued in their official capacities, the Eleventh
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`Amendment bars those claims. Ellis, 163 F.3d at 1196.
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`B. Res Judicata or Collateral Estoppel
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`Next, defendants assert that either res judicata or collateral estoppel—or both—bar
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`plaintiff’s claims based on his assertion of a right to return to permanent status in the classified
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`service as a Major in the KHP. Each of plaintiff’s Counts I, II, and III assert that defendants
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`Governor Kelly and Chief of Staff Lawrence deprived plaintiff of a protected property interest
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`and tortiously interfered with plaintiff’s prospective business relations in continued employment
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`with the KHP under Kan. Stat. Ann. § 74-2113(a). Doc. 1 at 7–8, 10 (Compl. ¶¶ 27, 33, 42–43).
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`As relief for these alleged violations of constitutional and Kansas law, Count I seeks an order
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`requiring plaintiff’s reinstatement to his employment with the KHP at the rank of Major with
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`permanent status, and Counts II and III seek money damages. Id. at 8–10 (Compl. ¶¶ 29, 36, 43).
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`Defendants assert that res judicata or collateral estoppel bar Counts I, II, and III because
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`plaintiff already litigated these claims in his mandamus action filed with the Kansas Supreme
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`Court. In plaintiff’s mandamus action, he sought “a writ of mandamus, compelling the
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`respondents [Governor Kelly and Superintendent Jones] to perform their clear legal duty under
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`[Kan. Stat. Ann. §] 74-2113(a).” Doc. 11-1 at 2 (Pet. in Mandamus ¶ 5). And, plaintiff asked for
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`“judgment against the respondents [Governor Kelly and Superintendent Jones] in the form of an
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`order of mandamus, compelling the respondents to return [plaintiff] to his rank of Major, with
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`Case 5:20-cv-04077-DDC-GEB Document 22 Filed 09/21/21 Page 15 of 61
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`permanent status, in the classified service of” the KHP and for “judgment against the
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`respondents in the form of an award of damages in excess of $10,000, consisting of lost salary
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`and benefits, plus an award of attorney’s fees.” Id. at 6. The Kansas Supreme Court denied
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`plaintiff’s Petition for Writ of Mandamus after “[a]ssuming without deciding that there is any
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`mandatory duty subject to control through a writ of mandamus” and concluding that “the
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`undisputed facts indicate that [plaintiff] is not entitled to the relief sought because of his
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`resignation.” Doc. 11-4 at 1.
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`With this background, the court explains the law governing the doctrines of res judicata
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`and collateral estoppel. Then, it turns to defendants’ res judicata and collateral estoppel
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`arguments against Counts I, II, and III.
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`1. Res Judicata
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`The full faith and credit provision of 28 U.S.C. § 1738 requires that federal courts “must
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`give to a state-court judgment the same preclusive effect as would be given that judgment under
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`the law of the State in which the judgment was rendered.” Migra v. Warren City Sch. Dist. Bd.
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`of Educ., 465 U.S. 75, 81 (1984). The preclusive effect of a state court decision on an action
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`filed in federal court is a matter of state law. Weaver v. Boyles, 172 F. Supp. 2d 1333, 1339 (D.
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`Kan. 2001), aff’d, 26 F. App’x 908 (10th Cir. 2002) (citing Heck v. Humphrey, 512 U.S. 477,
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`480 n.2 (1994)). The court thus applies Kansas law to determine whether the Kansas Supreme
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`Court’s decision denying plaintiff’s writ of mandamus precludes plaintiff’s claims in this lawsuit
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`based on res judicata. See Migra, 465 U.S. at 81 (“[T]he preclusive effect in federal court of [a]
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`state-court judgment is determined by [state] law.”).
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`“The doctrine of res judicata (or claim preclusion) prohibits a party from asserting in a
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`second lawsuit any matter that might have been asserted in the first lawsuit.” Winkel v. Miller,
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`205 P.3d 688, 697 (Kan. 2009) (citation and internal quotation marks omitted); see also King v.
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`Union Oil Co., 117 F.3d 443, 445 (10th Cir. 1997) (“Res judicata, or claim preclusion, precludes
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`a party or its privies from relitigating issues that were or could have been raised in an earlier
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`action, provided that the earlier action proceeded to a final judgment on the merits.”).
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`“The doctrine of res judicata rests upon considerations of economy of judicial time and
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`public policy which favors establishing certainty in judgments.” Neunzig v. Seaman Unified Sch.
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`Dist. No. 345, 722 P.2d 569, 576 (Kan. 1986); see also Plotner v. AT & T Corp., 224 F.3d 1161,
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`1168 (10th Cir. 2000) (“The fundamental policies underlying the doctrine of res judicata (or
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`claim preclusion) are finality, judicial economy, preventing repetitive litigation and forum-
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`shopping, and the interest in bringing litigation to an end.” (citations and interna