Nesvold v. Roland

37 F. Supp. 3d 1027, 2014 U.S. Dist. LEXIS 174021, 2014 WL 7216681
District Court, W.D. Wisconsin·Decided December 17, 2014·No. No. 13-cv-744-wmc·Published·Cited by 3 cases

Opinion

OPINION AND ORDER

WILLIAM M. CONLEY, District Judge.

Plaintiff Terry R. Nesvold asserts a - First Amendment retaliation claim and a Fourteenth Amendment Due Process claim against his former employer Burnett County and former supervisor Sheriff Dean W. Roland. In addition to his federal claims, Nesvold also alleges Roland assaulted him in violation of state law. Before the court is defendants’ motion for summary judgment. (Dkt. # 34.) Because Roland is entitled to qualified immunity for his actions in response to Nesvold’s speech and because Nesvold does not have a protected interest in his employment as Jail Administrator, the court will grant judgment to defendants on plaintiffs federal claims. The court will also decline to exercise supplemental jurisdiction over his state law assault claim, dismissing it without prejudice.

UNDISPUTED FACTS1

A. The Parties

Plaintiff Terry R. Nesvold worked as the Burnett County Jail Administrator from approximately August 2003 to Febru[1030]*1030ary 28, 2013. Defendant Dean W. Roland is the Sheriff of defendant Burnett County, and was Nesvold’s supervisor at all times relevant to this lawsuit. Burnett County is a government entity organized and existing under the laws of the State of Wisconsin, located in the northwestern part of the state, south of Douglas County, North of Polk County and nestled against the St. Croix River.

B.Nesvold’s Job Duties

As the Burnett County Jail Administrator, Nesvold was responsible for overseeing the daily operations of the Burnett County Jail and the Burnett County Dispatch Center. According to Nesvold, his job duties included: overseeing scheduling; defining policy and procedure; budgeting; coordinating the purchase of equipment; attending meetings with probation judges and state jail administrators; coordinating with jail administrators from other counties; overseeing dispatch, including supervising dispatch personnel; and acting as a liaison between local governmental units. (Deposition of Terry Nesvold (“Nesvold Depo.”) (dkt. # 33) 20-22.) The Jail Administrator job description formally listed certain “essential ac-countabilities,” including: managing and overseeing staff activity as per policy and department goals; reviewing the budget, including accounting for moneys spent and revenues received; keeping the general public, staff and inmates safe and secure; initiating new programming with the jail to reduce expenditures, to rehabilitate and to promote positive attitudes of inmates; serving as the contact person for outside entities; overseeing continuous training of staff; overseeing the warrants are entered correctly and timely; and negotiating contracts concerning inmate housing issues. (Affidavit of Dean W. Roland (“Roland Aff.”), Ex. 4 (dkt. # 37-4).)

C. Dispatch Center Consolidation

During the period leading up to the events at issue in this lawsuit, the Burnett County Dispatch Center and the Burnett County Jail were combined. This meant that Burnett County employed individuals served in a dual capacity as both Jailer and Dispatcher.

In 2012, Burnett County hired a consultant to study whether Burnett County’s Dispatch Center should be consolidated with Polk County’s Dispatch Center. (From other facts, the court infers that this consolidation would have required Burnett County to operate the Dispatch Center separately from the Jail.) The County formed a small committee to work with the consultant and provide information. Both Burnett County and Polk County employees provided information to the consultant. Among others, Nesvold spoke with the consultant about how Burnett County ran its Dispatch Center. Both Nesvold and his staff also answered the consultant’s question.

Candice Fitzgerald, the Burnett County Administrator/Human Resources Director at that time, reviewed the consultant’s report and determined that it was too risky for Burnett County to continue with a combined dispatch/jail. Moreover, Fitzgerald also supported consolidation with Polk County’s Dispatch Center because of cost savings, separation of duties between jailer and dispatch employees, and problems Burnett County had experienced with its Dispatch Center.

D. Restriction on Communication with Board Supervisors

At some point, Sheriff Roland complained to Administrator Fitzgerald that employees were speaking directly with County Board Supervisors (or members, [1031]*1031the parties use both terms interchangeably) about the consolidation plan. Roland requested that all County Board Supervisor questions should be routed to him. In the fall of 2012, Fitzgerald, Roland and Chief Deputy Scott Burns had a meeting in which they agreed that members of the Sheriffs Department should not talk with County Board Supervisors about the consolidation.

In September 2012, Roland also spoke with Nesvold about the potential consolidation and specifically ordered him to not have any contact or communications regarding the proposed consolidation with Board Supervisors or the media. If contacted, Nesvold was also told to direct any inquiries to Roland. This order applied to all communications whether or not they occurred outside of work and work hours.

Roland reiterated his directive to Nes-vold right before a Board meeting held on or around November 1, 2012. Specifically, Roland told Nesvold that the consolidation was a “done deal” and to “keep his fucking mouth shut.” (Nesvold Depo. (dkt. #33) 52.)

On November 14, 2012, the County Board Supervisors attended tours of both the Burnett County and Polk County Dispatch Centers. After the tours, there was a question and answer sessions, at which Nesvold was present. Roland again reinforced his order not to speak with the County Board Supervisors before the tour.

E. Nesvold’s Communication with Board Supervisors

These orders not to talk to his elected officials bothered Nesvold. As described next, Nesvold chose not to obey Roland.

Nesvold sent numerous emails to County Board Supervisors during the time frame of early November 2012 through February 2013, regarding the proposed consolidation. Nesvold also met with County Board Supervisors three or four times outside of the Sheriffs Department, and approximately eight additional times when County Board Supervisors came to his office. Outside of the office, Nesvold met with County Board Supervisor Gene McLain on approximately November 10, and November 17, 2012, at Nesvold’s wife’s business, and again in December or January 2013 at Loggers Bar and Grill.2 Nes-vold also met with County Board Supervisor Dale Dresel in November 2012 at his wife’s business. During those meetings, Nesvold met outside of working hours while he was not in uniform, and while driving his personal vehicle.

Both McLain and Dresel expressed concern about the consolidation proposal, and asked Nesvold to find out some more information for them. (Nesvold Depo. (dkt. # 33) 49-50.) Nesvold used a jail administrator listserv to obtain certain information, which he described as “factfinding stuff’ at his deposition. (Id. at 50.)

At the time Nesvold was communicating with County Board Supervisors, Nesvold knew that he was violating Roland’s order. Nesvold complained to Roland about this order restricting him from speaking to County Board Supervisors, and Roland told him to “shut your fucking mouth.” (Id.

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Nesvold v. Roland, 37 F. Supp. 3d 1027, 2014 U.S. Dist. LEXIS 174021, 2014 WL 7216681 (W.D. Wis. 2014).

37 F. Supp. 3d 1027 (Nesvold v. Roland) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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