The opinion of the court was delivered by: Susan Webber Wright United States District Judge
Memorandum Opinion and Order
Before the Court are defendants' motion to dismiss and amended motion to dismiss to which plaintiff responded. For the reasons stated below, the motions are granted in part and denied in part.
Plaintiff Stan Falk filed this action on April 25, 2006, alleging he was constructively discharged from his employment with the Arkansas Department of Health and Human Services ("ADHHS") in retaliation for exercising his First Amendment right to free speech. He also claims defendants violated the Arkansas Whistle-Blower Act, Ark. Code Ann. § 21-1-601 et seq.
According to the allegations of his complaint, Falk had been employed by the ADHHS*fn1 from 1976 to 2006. He became the Assistant Director of the Arkansas Public Health Laboratory ("PHL") on or about August 2003. He claims that on or about February 10, 2005, he reported to federal regulators that the PHL was not in compliance with federal regulations. He said the PHL was falsifying proficiency test results and performing improper testing in the virology laboratory. Plaintiff states that as a result of reporting the violations, the PHL was decertified and State officials were embarrassed. Falk says he was suspended and then demoted from Assistant Lab Director to a chemistry position. He also was removed from his job responsibilities as a bio-safety officer as well as other safety and security responsibilities. He asserts that as a result of the demotion, he was constructively discharged from his employment.
Defendants, who are all employees of the Division of Health of the ADHHS, seek dismissal of Falk's First Amendment claim for failure to state a claim, Eleventh Amendment immunity, and qualified immunity. Defendants argue Falk's Whistle-Blower claim should be dismissed for failure to state a claim and because it is barred by sovereign immunity, statutory immunity, and qualified immunity.
In deciding a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, all facts alleged in the complaint are assumed to be true. Doe v. Northwest Bank Minn., N.A., 107 F.3d 1297, 1303-04 (8th Cir. 1997). The complaint must be reviewed in the light most favorable to the plaintiff, McMorrow v. Little, 109 F.3d 432, 434 (8th Cir. 1997), and should not be dismissed unless it is clear beyond doubt that the plaintiff can prove no set of facts thereunder which would entitle him or her to relief. Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996). The Court may grant a motion to dismiss on the basis of a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 326 (1989).
A motion to dismiss is not a device for testing the truth of what is asserted or for determining whether the plaintiff has any evidence to back up what is in the complaint. ACLU Foundation v. Barr, 952 F.2d 457, 467 (D.C. Cir. 1991). The issue is not whether the plaintiff will ultimately prevail but whether the plaintiff is entitled to offer evidence to support the claims, irrespective of a judge's disbelief of a complaint's factual allegations or a judge's belief that the plaintiff cannot prove what the complaint asserts. Id. See also Hickman v. Tosco Corp., 840 F.2d 564, 565 (8th Cir. 1988); Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir. 1982). Thus, a motion to dismiss should be granted "as a practical matter . . . only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief." Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
Plaintiff brings his First Amendment claim pursuant to 42 U.S.C. § 1983. He sues defendants in both their individual and official capacities. The Eleventh Amendment protects state officials sued in their official capacities from all claims except for certain forms of prospective equitable relief, such as reinstatement. See Campbell v. Arkansas Dep't of Correction, 155 F.3d 950, 962 (8th Cir.1998). Falk seeks compensatory and punitive damages as well as reinstatement. The Court finds the motions to dismiss Falk's claim for damages against defendants in their official capacities should be granted based on sovereign immunity. The motions should be denied as to his claim for injunctive relief (reinstatement) against defendants in their official capacities. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 n.10 (1989)(state official in his or her official capacity when sued for injunctive relief is a "person" under § 1983).
Defendants further argue that in light of the Supreme Court's ruling in Garcetti v. Ceballos, ___ U.S. ___, 126 S.Ct. 1951 (2006), Falk fails to state a claim for relief. Ceballos was a deputy district attorney, and in his capacity as a calendar deputy, he had the responsibility to supervise other lawyers. After a defense attorney contacted him about a pending criminal case, Ceballos investigated an affidavit that supported a search warrant in the case. He determined that the warrant contained inaccuracies, reported his findings to his supervisors, and followed up by preparing a disposition memorandum recommending dismissal of the case. Based on Ceballos' statements, a meeting was held to discuss the affidavit. Despite Ceballos' concerns, his supervisor determined to proceed with the case, pending disposition of a defense motion challenging the search. Ceballos was called by the defense at the suppression hearing and repeated his observations about the affidavit. The trial court rejected the challenge to the warrant.
Ceballos claimed that in the aftermath of these events, he was subjected to retaliatory employment actions, including reassignment and denial of a promotion. The fact that Ceballos "spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case" was dispositive. 126 S.Ct. at 1960. The Supreme Court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. Defendants argue, pursuant to Garcetti, that Falk was merely reporting improper ...