U.S. District Judge Alan Johnson's Ruling On Request For Summary Judgement

Case 1:14-cv-00045-ABJ Document 208 Filed 04/14/17 Page 1 of 52
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IN THE UNITED STATES DISTRICT COURT) spr? | pv| 3.

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FOR THE DISTRICT OF WYOMING S ,! .; ; c - ; V1 I
CiiiYhHNE
CRAIG HEDQUIST, and HEDQUIST

CONSTRUCTION, INC. a Wyoming
Corporation,
Plaintiffs, Case No. 14-CV-0045-J
V.
JOHN PATTERSON, ANDREW

BEAMER, and THE CITY OF CASPER,
Defendants.
ORDER ON PARTIES' COLLECTIVE MOTIONS FOR SUMMARY

JUDGMENT (ECF NOS. 158,160,163,165, and 169)
This matter is before the Court on Defendant John Patterson's, in his Individual
Capacity, Motionfor Summary Judgment (ECF No. 158), Motionfor Summary Judgment
by Defendant Beamer in his Individual Capacity and Joinder in Summary Judgment
Briefing Submitted by Co-Defendants (ECF No. 160), Plaintiffs' Motion for Partial
Summary Judgment on Defendants' Stated Affirmative Defenses (Immunities) (ECF No.
163), The City ofCasper and John Patterson in his Ojficial Capacity's Motion for
Summary Judgment as to the Plaintiffs' First and Second Causes ofAction (ECF No.
165), and The City ofCasper's Motion for Summary Judgment (ECF No. 169).
The Court having carefully considered the aforementioned motions, their
accompanying memoranda, responses, and replies thereto, and being fully advised on the
matter finds as follows.
BACKGROUND
This case arises out of Craig Hedquist's and Hedquist Construction, Inc.'s ("HCI")
(collectively "Plaintiffs") claims that John Patterson^ inhis official and individual
capacity, Andrew Beamer^, in his individual capacity, and the City ofCasper
(collectively "Defendants") retaliated against Craig Hedquist in his capacity as a City
Councilman and the principal of HCI, for speaking out against the alleged inefficient and
incompetent practices of the City of Casper. Second Am. CompL for Civil Rights
Violations (ECF No. 75). Plaintiffs seek compensatory damages and punitive damages in
an amount to be determined at trial. Id. In their Second Amended Complaintfor Civil
Rights Violations, Plaintiffs assert two causes of action for First Amendment Retaliation.
Id. Defendants deny these allegations. Defs.' Answers (ECF Nos. 82, 84, 85).
Plaintiff, Craig Hedquist, is a majority shareholder of HCI, a road, water, and
sewer construction company, which has bid, received, and performed numerous water
' John Patterson worked for the City of Casper as the City Manager from August 1,
2011 until October 30, 2015. Patterson Depo., at 8:78:14.
^Andrew Beamer is a City of Casper employee and worked as the City Engineer
during the issues of this case. Beamer Depo., at 11:714:8. Mr. Beamer managed
capital construction projects, visited jobsites, and participated in construction-
related meetings. Id. Mr. Beamer has known Mr. Hedquist throughout his time
with the city. Id.
and street improvement projects for the City of Casper. Hedquist Depo. at 8-11. Mr.
Hedquist announced his candidacy to represent Ward II on the Casper City Council^ by
publishing the following letter in the Casper Star Tribune in the Summer of 2012.
Hi, my name is Craig Hedquist and I'm running for Casper City Council in
Ward II. Why am I running? Simple, I'm a local business owner who's tired
of watching how our government operates.
Like many of you, I've complained about the inefficiencies, policies and
seeming lack of "common sense" in our government but until now, I
haven't stepped up and into the fray! Again, like many of you, I am very
unhappy with national politics but to be honest, it seems to me it is time to
"clean our own porch" before we lecture the neighbors about "their weeds".
So if you are tired, fed up, angry or just confused by your local government
and its haphazard policies (or lack of), please don't re-elect the same ones
who have failed already.
So, who am I? I am a father of four (all grown), husband of 30 years and

proud grandfather of one. But more important to this election and why I am
asking for your vote: I am the managing owner of Hedquist Construction, a
locally headquartered business (which I have been blessed with by my
father, to whom I give all credit). This private sector business experience
affords me some advantageous financial and business skills. I can balance a
check book and deal with real numbers and actual costs.
And for the record, regardless of what the government thinks, "We Built
This Business", not them.
Please vote August 21st and again November 6th.

Thank you and God Bless.
Craig P. Hedquist
Second Am. Complfor Civil Rights Violations, at^f 16.
^The Casper City Council is made up of nine members. Three councilmembers

per each ward, with three wards, while the Mayor and Vice-President of the City
Council are elected by the members of the Council. Casper, Wyo., Municipal Code
2.04.
Mr. Hedquist was elected to the City Council in November 2012 and took office in
January 2013. Hedquist Depo., 12:1525. While representing Ward II, Mr. Hedquist
was the President of HCI and owned roughly 52 percent of the company. Id. at 13.
During the time Mr. Hedquist was on the City Council, HCI worked on four separate
projects for the City of CasperThe All American Center, the Zone II/III water project,
the 2013 Arterials & Collectors West project, and the Fairgrounds Roadway. Hedquist
Depo., at 39:2141:6.
The alleged protected speech
Before and after Mr. Hedquist took office, he was a vocal critic of the way the
City of Casper operated, specifically, of the way the city administered its public works
contracts. Second Am. Compl.for Civil Rights Violations, at^j 14. In August of 2012,
before Mr. Hedquist was elected, Mr. Hedquist met with the City Manager, John
Patterson and City staff regarding the alleged wasteful and inefficient operations of the
City, as well as "incompetent" City employees. Hedquist Depo. 128:2132:14.
In December of 2012, after the election, but before Mr. Hedquist took office, Mr.
Hedquist along with several contractors met with City Manager John Patterson and his
assistant Pete Meyers. Pis.' Briefin Opp. to Def. Patterson's Mot. for Summ. J., Ex. 6.
Mr. Hedquist and the other contractors were critical of the City for not "outsourcing
much more of its construction work" to private contractors, for not putting smaller jobs
up for bid, and for hiring out-of-state engineers among other topics. Id.
[Mr.] Hedquist repeatedly raised the example of the Fairgrounds watermain

break (the fact that a small crack was repaired, followed by a major break
later) as an example of our incompetence and bad judgment. Claims were
made that we ignored the advice of professional engineering firms, and that
if we had only listened, then we could have saved the taxpayers money. We
should have expanded the project sooner, or better yet, we should have
budgeted to include the watermain replacement up front.
Id. Sixteen days later, John Patterson emailed Mr. Hedquist to thank him for bringing the
contractors by and for a productive meeting. Id. Ex. 7.
Before and after Mr. Hedquist took office, he requested job cost data on public
works projects. Pis.' Briefin 0pp. to Def. Patterson's Mot,for Summ. J., Ex. 1; Def.
Patterson's, in his individual Capacity Reply in Supp. Ofhis Mot. for Summ. J., FN 3.
Mr. Hedquist claims he wanted to show the City how it was not spending taxpayer dollars
in an efficient matter, specifically on paving and rotomilling operations. Hedquist Depo.
122:4122:12, 124:3124:16. In March of 2013 several emails and a letter were
exchanged between John Patterson, Mr. Hedquist, and Public Works Director Rick
Harrah about putting together data on the City's rotomill and paving operations. Pis.'
Briefin 0pp. to Def. Patterson's Mot. for Summ. J., Ex. 9, Email firom John Patterson to
Shawna Halasz (March 13,2013, 10:16 MST); Ex. 10, Letter from Rick Harrah to John
Patterson (undated)."^ Mr. Harrah advised Mr. Patterson that the way the City tracked the
rotomilling and paving operations was flawed in two ways: it used Blue Book estimates
to track equipment costs and its labor costs did not include fringe benefits. Id. Ex. 10,
Letter fi-om Rick Harrah to John Patterson (undated).
^ See this Court's Order Denying Plaintiffs' Motion to Reconsider Magistrate

Judge's Order, ECF No. 205.
It is abundantly clear that I need to make changes to our current cost

tracking system. It is completely reasonable for a citizen or city
councilmember to expect accountability from their municipal workforce,
and we should be able to easily provide this information when requested.
More importantly, this information is vital to me as the Public Services
Director so that I might better manage the operations of my department.
Id. This letter was not brought to the attention of Mr. Hedquist while he was on the
City Council. Pis.' Briefin 0pp. to Def. Patterson's Mot.for Summ. J., Ex. 1.
In June of 2013, Mr. Hedquist met with Rick Harrah, Scott Baxter, and City
Engineer Andrew Beamer on Indian Paintbrush Street concerning the Arterials &
Collectors West Project. Beamer Depo., at 30:2533:22; HCI 30(b)(6) Depo., at
112:1114:20. Mr. Hedquist and the City employees had a discussion regarding what
concrete should and should not be replaced on the project. Id. Mr. Hedquist claims he
was advocating for the best interest of the City. Pis.' Briefin 0pp. to Def. Patterson's
Mot. for Summ. J., Ex. 1, at TI11. At the meeting Mr. Hedquist informed the others that
he was speaking both as the principal of HCI and as a City Councilman. Id; Beamer
Depo., at 30:2533:22. Mr. Beamer thought this to be a conflict of interest and so
decided to audio record the meetings and conversations with Mr. Hedquist. Beamer
Depo., at 33:433:15.
On August 26, 2013 Shawna Halasz, HCI Project Coordinator, sent out several
letters regarding HCI not receiving payment from the City of Casper on city contracts.
Pis.' Briefin Opp. to Def. Patterson's Mot. for Summ. J., Ex. 35, Letters from HCI to
City of Casper, at 1-6. Mr. Hedquist claims the City was late on payments to HCI for
over $750,000. Pis.' Briefin Opp. to Def Patterson's Mot.for Summ. J., Ex. 1.
On August 27, 2013, Mr. Hedquist sent a letter to City Manager John Patterson
requestingjob cost information for Aster Street in Casper "including but not limited to
asphalt, diamonds for valve boxes and manholes, crack sealing and traffic control." Ph.'
Briefin 0pp. to Def Patterson's Mot.for Summ. J., Ex. 14, Letter from Craig Hedquist
of HCI to John Patterson (August 27, 2013). Mr. Hedquist signed the letter as Vice
President of HCI and the letter was on HCI letterhead. Id. Mr. Hedquist claims this
evidences another attempt to save the City money. Id, Ex. 1, at K 14. The same day, Mr.
Hedquist attended a meeting with Michael Lansing, Mr. Patterson, Mayor Kenyene
Schlager, and Bill Luben, City Attorney, where Mr. Hedquist voiced his complaints about
the City Engineer being improperly involved in city contracts. Hedquist Depo., at
83:1886:2. Mr. Hedquist also voiced his displeasure with the City being late in
payments and owing HCI over $750,000. Id. A "pre-writ" check was prepared and
deposited into HCPs account the next day, August 28, 2013. Halasz Depo., at 91.
On August 28, 2013, employees of HCI, Plaintiff Mr. Hedquist and Jim Francis;
employees of Civil Engineering Professionals, Inc. (CEPI), Nick Larsen and Chris
Stevens; and City of Casper employees, Tim Rail, Clint Conner, Mike Dean, and
Defendant Reamer, all met at the comer of Poplar Street and Boulder Drive. Beamer's
Mot., at 4. Attendees discussed the status of the Zone II/III water project. Briefin Opp. to
Def Patterson's Mot. for Summ. J., Ex. 15, Beamer Recording (August 28, 2013). Before
the meeting began Mr. Hedquist made it known to everyone that he was speaking as the
owner of HCI and not speaking as a City Councilman. Id. During the conversation, Mr.
Hedquist voiced his objection to HCI doing the striping and manholes for the project
since they were not part of the contract. Id. Mr. Hedquist again broughtup the issue of
HCI not receiving payment from the City (unbeknownst to him that a check was being
deposited that day).
Craig Hedquist: You guys going to start paying on time?

Andrew Beamer: We've already had this discussion.
Hedquist: Oh, no, are you fucking going to stand up, bitch, are you going
to start paying me?
Beamer: What did you say?
Hedquist: You heard me.
Beamer: I did hear you.
Hedquist: Yeah. Yeah. You ~ the only part of the contract that you even
comprehend is the side that I have to -
Beamer: That is not true, Craig, but we can have this discussion another
time.
Hedquist: We will have this discussion. I promise.
Beamer: I'm sure we will.
Hedquist: Do you know who is talking to you?

Beamer: I've known you for many years Craig, yes.
Hedquist: Because I was told that you guysdo I come and tell you that
I'm the councilman and tell you that or do II want to make sure, are you
paying me for that extra work? Okay. Then we have an issue.
Id. Mr. Beamer had recorded the audio of the meeting and showed it to Mr. Patterson and
Mr. Harrah, his supervisors, that day. Beamer Depo., 44:1745:9.
As a result of the verbal altercation, Mr. Beamer filed a workplace violence
complaint against Mr. Hedquist on August 30, 2013. Briefin 0pp. to Def. Patterson's
Mot.for Summ. J., Ex. 17. On the complaint and in response to the question "How would
you like to see this issue resolved?" Mr. Beamer wrote, "Ideally Hedquist Construction
would no longer be considered a responsible bidder on future projects." Id.

Public Services Director Rick Harrah sent a letter to Mr. Patterson the next day,
August 29, 2013, voicing his concern about Mr. Hedquist's comments to Mr. Beamer.
Patterson's Mot., Ex. 2, at 22, Letter from Rick Harrah to John Patterson (August 29,
2013). In his letter, Mr. Harrah also raised other instances when Mr. Hedquist berated and
insulted City staff for their alleged lack of competence. Id.
Investigation and proceedings
The City retained Casper attorney Judy Studer to serve as substitute City Attorney
and retained Kathleen Dixon to serve as the investigating attorney in regard to the
workplace violence complaint. Id., at 95. On September 20, 2013, Ms. Dixon concluded
the complaint of workplace violence was "substantiated." Patterson's Mot., Ex. 2, at 95.
On September 27, 2013, a Notice of Contested Case Rights and Procedures was served
on Mr. Hedquist, informing him a hearing would be held. Briefin Opp. to Def
Patterson's Mot.for Summ. J., Ex. 22, Notice of Contested Case Rights and Procedures
(September 27,2013). During her investigation, Ms. Dixon was also asked to initiate a
conflict of interest investigation regarding Mr. Hedquist's interests as an HCI shareholder
while serving on the Casper City Council. Dixon Depo., 1'2A8:21. After Mr.
Hedquist's attorney, Mike Lansing, objected to Ms. Dixon's role in the matter due to an
alleged conflict of interest herself, Ms. Dixon agreed to step aside and let Wes Reeves
serve as counsel for the City Manager's office. Dixon Depo., 57:857:14.
On December 10, 2013, Mr. Reeves determined there was "clear and convincing
evidence" that Mr. Hedquist's conduct violated ethics and conflict of interest laws. Brief
in Opp. to Def Patterson's Mot. for Summ. J., Ex. 24, Letter from Wes Reeves to John
9
Patterson (December 10, 2013). The same day, the Casper Star Tribune reported on the
letter and quoted City ManagerJohn Patterson on his thoughts regarding Mr. Hedquist's
requests for job cost information.
According to the [Reeves] letter, Hedquist clearly used his position as a

council member to obtain information about the cost of street work
performed by the city earlier this year.
Reeves cited an Aug. 27 letter by Hedquist asking for cost information

for work performed on Aster Street - information he probably would not
have obtained if he were not a council member. Such information would
give him an advantage bidding on future work.
"That was an unusual circumstance when Craig asked for that because it
was kind of like, ^I wonder what the purpose is?"' Patterson said.
It was the first time a council member had asked for a breakout of costs
associated with street work, Patterson said.
Briefin 0pp. to Def. Patterson's Mot.for Summ. J., Ex. 28, Casper city council to
prosecute Craig Hedquist conflict-of-interest case, Casper Star Tribune, December 10,
2013.
On January 17, 2014, the investigating attorney, Wes Reeves, filed a Petition for
Removal from Office or Other Remedies and Notice of Contested Case Rights and
Procedures concerning the conflict of interest and workplace violence allegations.
Patterson's Mot., Ex. 2, at 62. However, the motion was dismissed by the City Council
after Mr. Hedquist's attorneys filed a Motion to Dismiss the Petition due to the petition
failing to allege a "conviction" for violation of a law. Id., at 73. The City Council held an
informal hearing on April 29, 2014 regarding the allegations during which four City
employees gave statements in support of the allegations against Mr. Hedquist.
10
Patterson's Mot, Ex. 1, at 92. Neither Mr. Hedquist nor his attorneys attended the
meeting. Id.
On May 15,2014 the City Council voted to request Mr. Hedquist submit his
resignation as City Councilman based on allegations of him violating the City's code of
ethics. Casper City CouncilMinutes, May 15, 2014, http://www.casperwy.gov/cms/
one.aspx?portalid=6 3067&pageid=87505. Mr. Hedquist declined to resign at that time,
but did resign the following year in July of 2015. HedquistDepo., 285:18^290:2.
The alleged retaliation
Apart from the aforementioned investigation, removal proceedings, and negative
press releases. Plaintiffs allege Defendants retaliated against them for speaking out
against alleged inefficient and incompetent practices of the City of Casper. On March 4,
2014 City Manager John Patterson asked Police Chief Jim Wetzel to run a license plate
he believed to be associated with Mr. Hedquist^. Briefin 0pp. to Def. Patterson's Mot.
for Summ. J., Ex. 26, Audio of Patterson/Wetzel, Phone Conversation (March 4, 2014);
WetzelDepo., at 16:2518:9. Chief Wetzel did not run the license plate as Mr. Patterson
requested. Id.
Police Chief Wetzel, at the request of Mr. Patterson, approached Natrona County
District Attorney Michael Blonigan to inquire whether or not Mr. Heduqist could be
charged with a crime in connection with his epithet directed at Mr. Beamer during the
^See related case Hedquist v. Walsh et al.. Case No. 16-CV-265, in which Plaintiff
Craig Hedquist alleges City of Casper Police Chief Chris Walsh violated the
Driver's Privacy Protection Act (DPPA), 18 U.S.C. 2721 et seq., by obtaining
Hedquist's personal information for a purpose not permitted.
11
August 28,2013 progress meeting. Blonigan Depo., at 17:518:24. Mr. Blonigan said
no, "I would run out of tickets if I wrote everybody a ticket that swore on a construction
site." Id.
Plaintiffs also claim they were retaliated against through the City's administration
of their public works contracts. Briefin 0pp. to Def. Patterson's Mot.for Summ. J., Ex.
1, at 31-34. On November 14, 2013 Public Works Director Rick Harrah issued HCI a
letter withdrawing the status of substantial completion, which was previously given by
the City Engineer's office, and stated that retroactive liquidated damages were being
assessed against HCI due to the withdrawal. Id., Ex. 39, Letter from Rick Harrah to Craig
Hedquiest (November 14, 2013). Due to late substantial completion and final completion,
all four of HCI's contracts (The All American Center, the Zone II/III water project, the
2013 Arterials & Collectors West project, and the Fairgrounds Roadway) were mediated
during 2014, which resulted in HCI paying the City $139,000 in liquidated damages.
HedquistDepo., at 39:21-41:6, 182:25-183:4, 198:7-198:13, 310:8-311:8; o/
Casper's Second Mot., at 3.
After the mediation on the four contracts, HCI was labeled a "non-responsible"
bidder under Wyo. Stat. 15-1-113(c). Plaintiffs claim this was retaliation which cost the
City of Casper over $800,000. Briefin 0pp. to Def. Patterson's Mot.for Summ. J., Ex. 1,
at K34. Defendants claim this was in response to HCI not completing the four previous
contracts and the resulting liquidated damages assessed against them. City ofCasper's
Second Mot., at 4; Beamer's Mot., at 6-7. In 2015, HCI submitted bids for five public
works contracts with the City of Casper: the Fort Casper Pathway, Country Club Road
12
Improvements, Casper Family YMCA Site Utilities, West Yellowstone Highway, and
Walnut Street Reconstruction and the Carnation Street Improvement. Briefin 0pp. to
Def. Patterson's Mot. for Summ. J., Ex. 40. Each time HCI was the lowest bidder.
However, the City Council awarded the bids to the second lowest bidder because it had
determined HCI to be a non-responsible bidder. Id.
SUMMARY JUDGMENT STANDARD OF REVIEW
Summary judgment is appropriate where "there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a). A dispute of fact is genuine if a reasonable juror could resolve the disputed fact in
favor of either side. See Anderson v. Liberty Lobby, Inc., All U.S. 242, 248 (1986). A
dispute of fact is material if under the substantive law it is essential to the proper
disposition of the claim. Adler v. Wal-MartStores, Inc., 144 F.3d 664, 670 (10th Cir.
1998). When the Court considers the evidence presented by the parties, "[t]he evidence
of the non-movant is to be believed, and all justifiable inferences are to be drawn in the
non-movant's favor." Anderson, 477 U.S. at 255.
The party moving for summary judgment has the burden of establishing the
nonexistence of a genuine dispute of material fact. Lynch v. Barrett, 703F.3dll53, 1158
(10th Cir. 2013). The moving party can satisfy this burden by either (1) offering
affirmative evidence that negates an essential element of the nonmoving party's claim, or
(2) demonstrating that the nonmoving party's evidence is insufficient to establish an
essential element of the nonmoving party's claim. See Fed. R. Civ. P. 56(c)(l)(A)-(B).
13
Once the moving party satisfies this initial burden, the nonmoving party must
support its contention that a genuine dispute of material fact exists either by (1) citing to
particularmaterials in the record, or (2) showing that the materials cited by the moving
party do not establish the absence of a genuine dispute. See id The nonmoving party
must "do more than simply show that there is some metaphysical doubt as to material
facts." Matsushita Elec. Indus, v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather,
to survive a summary judgment motion, the nonmoving party must "make a showing
sufficient to establish the existence of [every] element essential to that party's case, and
on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, All
U.S. 317, 322 (1986). Further, when opposing summary judgment, the nonmoving party
cannot rest on allegations or denials in the pleadings but must set forth specific facts
showing that there is a genuine dispute of material fact for trial. See Travis v. Park City
Mun. Corp., 565 F.3d 1252, 1258 (10th Cir. 2009).
When considering a motion for summary judgment, the court's role is not to weigh
the evidence and decide the truth of the matter, but rather to determine whether a genuine
dispute of material fact exists for trial. Anderson, 477 U.S. at 249. Credibility
determinations are the province of the fact-fmder, not the court. Id. at 255.
14
DISCUSSION
This case arises out of Craig Hedquist and Hedquist Construction, Inc. ("HCI")
(collectively "Plaintiffs") claims that John Patterson, in his official and individual
capacity, Andrew Beamer, in his individual capacity, and the City of Casper (collectively
"Defendants") retaliated against Craig Hedquist in his capacity as a City Councilman and
the principal of HCI, for speaking out against the alleged inefficient and incompetent
practices of the City of Casper. Second Am. Complfor Civil Rights Violations. Plaintiffs
are seeking compensatory damages and punitive damages in an amount to be determined
at trial. Id. In their Second Amended Complaintfor Civil Rights Violations, Plaintiffs
assert two causes of action for First Amendment Retaliation. Id. Defendants deny these
allegations. Defs. Answer.
This is an action under 42 U.S.C. 1983 and the Court's jurisdiction is founded
upon the existence of a federal question. "The district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the
United States." 28 U.S.C. 1331.
There are (5) five separate motions for summary judgment in this case.
(1) Defendant John Patterson, in his individual capacity, filed Defendant John
Patterson's, in his individual capacity, Motionfor Summary Judgment, together with
Briefin Support ofDefendant Patterson's Motionfor Summary Judgment, ("Patterson's
Motion"), on August 22, 2016. The Court characterizes the issues raised in Patterson's
Motion as thus: Was Plaintiff Hedquist's speech pursuant to his official duties as a City
15
Councilman? Was Plaintiff Hedquist's speech a matter ofpublic concern? Was Plaintiff
HCI's speech a matter of public concern? Was Plaintiffs' speech a motivating factor in
the adverse actions taken by Defendants? Is John Patterson, in his individual capacity,
entitled to the affirmative defense of qualified immunity? May Plaintiffs recover punitive
damages against John Patterson, in his individual capacity?
(2) Defendant Andrew Beamer, in his individual capacity, filed Motion for
Summary Judgment by Defendant Beamer in his Individual Capacity and Joinder in
Summary Judgment Briefing Submitted by Co-Defendants, together with Defendant
Andrew Beamer's Briefin Support ofhis Motionfor Summary Judgment ("Beamer's
Motion"), on August 22, 2016. The Court characterizes the issues raised in Beamer's
Motion as thus: Was Plaintiff HCI's speech a matter of public concern? Was Plaintiffs'
speech a motivating factor in the adverse actions taken by Defendants? Is Defendant
Andrew Beamer, in his individual capacity, entitled to the affirmative defense of
qualified immunity? May Plaintiffs recover punitive damages against Andrew Beamer, in
his individual capacity?
(3) Defendants City of Casper and John Patterson, in his official capacity, filed
The City ofCasper and John Patterson in his Official Capacity's Motionfor Summary
Judgment as to the Plaintiffs' First and Second Causes ofAction, together with
Memorandum in Support ofthe City ofCasper and John Patterson in his Official
Capacity's Motionfor Summary Judgment as to Plaintiffs' First and Second Causes of
Action ("City of Casper's First Motion"), on August 22, 2016. The Court characterizes
16
the issues raised in City of Casper's First Motion as thus: Was Plaintiff Hedquist's speech
pursuant to his official duties as a City Councilman? Was Plaintiff Hedquist's speech a
matter ofpublic concern? Was Plaintiff HCI's speech a matter of public concern? Was
Plaintiffs' speech a motivating factor in the adverse actions taken by Defendants?
(4) Defendants City of Casper and John Patterson, in his official capacity, filed
The City ofCasper's Motionfor SummaryJudgment, together with the Memorandum in
Support ofthe City ofCasper and John Patterson in His Official Capacity's Motionfor
SummaryJudgment ("City of Casper's Second Motion"), on August 22,2016. The Court
characterizes the issues raised in City of Casper's Second Motion as thus: Must Plaintiff
HCI claim a valid property interest when stating a claim for First Amendment
Retaliation? Was Plaintiffs' speech a motivating factor in the adverse actions taken by
Defendants?
(5) Plaintiffs filed their Motion for Partial Summary Judgment on Defendants'
Stated Affirmative Defenses (Immunities), together with Plaintiffs' Memorandum in
Support ofMotion for Partial Summary Judgment on Defendants' Stated Affirmative
Defenses (Immunities) ("Plaintiffs' Motion"), on August 22, 2016. The Court
characterizes the issue raised in Plaintiffs' Motion as thus: Is John Patterson, in his
official capacity, permitted to assert the affirmative defense of absolute immunity?
The Court will address these issues in a manner that seems logical when analyzing
First Amendment Retaliation claims.
17
1) Must Plaintiff HCI claim a property interest when stating a claim for First
Amendment Retaliation?
Defendants City of Casper and John Patterson, in his official capacity, argument
Defendants City of Casper and John Patterson, in his official capacity, are the only
defendants who argued this issue and so all references to "Defendants" in this section will
refer exclusively to City of Casper and John Patterson, in his official capacity.
Defendants correctly stated that one element of a 1983 claim is Plaintiffs must
show they were deprived of "rights, privileges or immunities secured by the law or the
Constitution of the United States." Paratt v. Taylor, 451 U.S. 527, 535 (1981); see also
City ofCasper's Second Motion, at 9. Defendants argue Plaintiffs have not established a
First Amendment claim because HCI has no legitimate claim of entitlement to the
responsible bidder status or to an award of any City of Casper project. Id. at 8-11.
Defendants argue, because Plaintiffs have no legitimate claim of entitlement. Plaintiffs'
remedy is limited to injunctive relief to prevent a contract awarded to one not legally
entitled to it, as opposed to damages which Plaintiffs have claimed. M at 11-13.
Plaintiffs Respond
Plaintiffs simply point out that the claim is for First Amendment Retaliation and
the 10th Circuit does not require Plaintiffs to claim a legitimate entitlement to a property
interest. Pis.' Briefin 0pp. to Def City ofCasper's Mot.for Summ. J.,dXl. Plaintiffs
then proceed to argue how their claims would succeed under a Garcetti/Pickering
analysis, which the Court will address in another issue. Id. at 9-14.
18
Analysis
Section 1983 of Title 42 of the U.S. Code authorizes private parties to enforce
their federal constitutional rights against municipalities, state and local officials, and
other defendants who act under color of state law.
Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought against a judicial
officer for an act or omission taken in such officer's judicial capacity,
injunctive relief shall not be granted unless a declaratory decree was
violated or declaratory relief was unavailable. For the purposes of this
section, any Act of Congress applicable exclusively to the District of
Columbia shall be considered to be a statute of the District of Columbia.
42 U.S.C.A. 1983.
There are two essential elements: (1) that the conduct alleged was committed
while acting under color of state law; and (2) that the conduct alleged deprived the
Plaintiff of rights, privileges or immunities secured by the law or the Constitution of the
United States. Monell v. Dep't ofSoc. Servs. ofCity ofN.Y., 436 U.S. 658 (1978)
(emphasis added). Defendants City of Casper and John Patterson, in his official capacity,
claim this second element has not been met by Plaintiffs.
There are several federal constitutional and statutory rights protected under 1983:
procedural due process. Board ofRegents v. Roth, 408 U.S. 564 (1972), substantive due
process, County ofSacramento v. Lewis, 523 U.S. 833 (1998), free speech, Elrod v.
Burns, 427 U.S. 347 (1976); Garcetti v. Ceballos, 547 U.S. 410 (2006), protection from
19
unreasonable searches and seizures, Terry v. Ohio, 392 U.S. 1 (1968), among others. In
the case before the Court, Plaintiffs, Craig Hedquist and HCI, have asserted claims for
First Amendment Retaliation. Second Am. Compl for Civil Rights Violations. The issue
at present only pertains to HCI, in that Defendants claim HCI does not have a property
right to a "responsible bidder" status or any City of Casper project. Defendant City of
Casper's Second Motion, at p. 3. Defendants City of Casper and John Patterson, in his
official capacity, improperly rely on Buckley. City ofCasper's Second Motion, at p. 8. In
Buckley, the plaintiff was contending a denial of procedural due process. Buckley Const,
Inc., 933 F.2d at 857. A procedural due process challenge has a two-step approach, the
"first asks whether there exists a [life,] liberty or property interest which has been
interfered with by the state..." Ky. Dep't ofCorr. v. Thompson, 490 U.S. 454,460
(1989). In a First Amendment claim the protected right concerns that of freedom of
speech. In particular when plaintiffs allege First Amendment Retaliation claims, the
Court uses the Garcetti/Pickering analysis outlined by the U.S. Supreme Court. See
Garcetti v. Ceballos, 547 U.S. 410 (2006); see also Pickering v. Bd. ofEducation, 391
U.S. 563 (1968).
InBd. ofCounty Comm'rs Wabaunsee Cty., Kan. v. Umbehr, 518 U.S. 668, 670
(1996), the U.S. Supreme Court held that the First Amendment protects independent
contractors from "termination of at will government contracts in retaliation for their
exercise of freedom of speech." Taken with O'Hare Truck Service v. City ofNorthlake,
518 U.S. 712 (1996), the Court established that the same First Amendment principles that
20
pertain to public employees also pertain to government contractors. The Supreme Court
limited its holding in Umbehr to contractors with preexisting commercial relationships
with government. See Umbehr, 518 U.S. at 670. As often occurs, a split in the Circuits
developed on the issue of whether to extend protections to bidders and applicants of
government contracts. Compare McClintockv. Eichelberger, 169 F.3d 812, 817 (3d Cir.
1999) (reftising to extend protection to a past, but not current, contractor) with Oscar
Renda Contracting, Inc. v. City ofLubbock, Tex., 463 F.3d 378, 386 (5th Cir. 2006)
(concluding the U.S. Supreme Court would "not require a contractor to have a prior
relationship with a governmental entity before being able to assert a First Amendment
claim...").
It is clear from the foregoing case law that Plaintiff HCI's property interest to the
"responsible bidder" status or any City of Casper contract is not relevant to the Court's
analysis under a First Amendment retaliation claim. See also Glover v. Mabrey, 384 F.
App'x 763, 776 (10th Cir. 2010) (noting the difference between a due process claim and a
First Amendment claim where the latter does not require plaintiff to plead a property or
liberty interest). For the aforementioned reasons. City of Casper's Second Motion is
DENIED.
2) Constitutional Analysis
As a preliminary matter. Plaintiffs must allege sufficient retaliation in order to
trigger First Amendment scrutiny. See PheIan v. Laramie Cty. Cmty. Coll Bd. of
21
Trustees, 235 F.3d 1243 (10th Cir. 2000). "As a threshold requirement for the application
of the First Amendment, the government action must abridge or restrict protected
speech." U.S. West, Inc. v. FCC, 182 F.3d 1224, 1232 (10th Cir.1999). InPhelan, the
Tenth Circuit determined a government censure was not an adverse employment action
that triggers First Amendment scrutiny. Phelan, 235 F.3d at 1247. In Zilich v. Longo, 34
F.3d 359, 363-64, cited in Phelan, the Sixth Circuit held a City Council resolution
expressing disapproval of a former council member does not violate the First
Amendment.
Here, Plaintiffs, Craig Hedquist and HCI, have alleged their protected speech was
retaliated against by Defendants Andrew Beamer, John Patterson, and the City of Casper
in the form of a work place investigation, a conflict of interest investigation, removal
proceedings, and a non-responsible bidder status which impacted Mr. Hedquist's
business. Unlike the government actions the Tenth Circuit determined did not trigger
First Amendment scrutiny, these alleged retaliatory actions could impermissibly deter the
exercise of free speech rights and as such trigger First Amendment scrutiny.
Garcetti/Pickering
Generally, a public employee's speech is protected by the First Amendment. A
public employer may not "discharge an employee on a basis that infringes that
employee's constitutionally protected interest in freedom of speech." Rankin, 483 U.S. at
383; see also Connickv. Myers, 461 U.S. 138, 142 (1983). "Speech by citizens on
matters of public concern lies at the heart of the First Amendment," and "public
employees do not renounce their citizenship when they accept employment." Lane v.
22
Franks, 134 S. Ct. 2369,2378 (2014). Therefore, the Supreme Court "has cautioned time
and again that public employers may not condition employment on the relinquishment of
constitutional rights." Id.
When addressing First Amendment Retaliation claims, the Court uses the
Garcetti/Pickering analysis as outlmed by the U.S. Supreme Court. See Garcetti, 547
U.S. 410 (2006); Pickering, 391 U.S. 563 (1968); see also Trant v. Oklahoma, 754 F.3d
1158, 1165 (10th Cir. 2014); Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d
1192, 1202 (10th Cir. 2007). As stated above, claims by independent contractors are also
subject to this analysis. Umbehr, 518 U.S. 668, 673. The elements of a First Amendment
Retaliation claim are:
(1) whether the speech was made pursuant to an employee's official duties;
(2) whether the speech was on a matter of public concern; (3) whether the
government's interests, as employer, in promoting the efficiency of the
public service are sufficient to outweigh the plaintiff's free speech interests;
(4) whether the protected speech was a motivating factor in the adverse
employment action; and (5) whether the defendant would have reached the
same employment decision in the absence of the protected conduct.
Dixon V. Kirkpatrick, 553 F.3d 1294, 1302 (10th Cir. 2009).
The first three elements of the Garcetti/Pickering analysis are issues of law for the
court, while the last two are factual issues typically decided by the jury. Trant, 754 F.3d,
1165. Defendants argue summary judgment should be awarded in their favor because the
first, second, and fourth elements of the Garcetti/Pickering analysis have not been met.
23
A) Was Plaintiffs speech made pursuant to his official duties as a City

Councilman?
Defendants John Patterson, in his individual capacity, City of Casper, and John
Patterson, in his official capacity, argue
John Patterson, in his individual capacity, filed a separate motion for summary
judgment from City of Casper and John Patterson, in his official capacity. However, both
motions made the same argument as it concerns Plaintiff Hedquist's speech being made
pursuant to his official duties as a City Councilman and so the arguments are combined
here. See City ofCasper's First Mot., at \A;Patterson's Mot., at 13.
Defendants argue, with the exception of Hedquist's announcement of his
candidacy for City Council in the Casper Star Tribune, his speech was pursuant to his
official duties as Councilman. Def. City ofCasper's First Mot., at 14. Defendants argue
the subject matter of Hedquist's speech included the "funding of the downtown
convention center, the purchase of new police cars, or the City's reimbursement of the
Boys and Girls Club for improvements to city property that the Club leased." Def.
Patterson's Mot., at 14. All these matters. Defendants argue, are part of Hedquist's
official duties as a councilmember. Id.
Plaintiffs argue
Plaintiffs argue Hedquist's speech should be protected because of Supreme Court
precedent protecting speech by elected officials. Pis.' Briefin Opp. to Def. City of
Casper's Mot. for Summ. J., at 7. Plaintiffs argue that Hedquist was critical of the Casper
City government before he ran for office, during his campaign, and as serving as a Casper
City Councilman. Id. Plaintiffs argue Hedquist was elected by his constituents to look
24
into the inefficiencies of the Casper City government and as an elected official, his
speech should be protected from retaliation. Id. at 10. See also Pis.' Brief in Opp. to Def.
Patterson's Mot.for Summ. J. (making the same arguments).
Analysis
Generally, speech by citizens on matters ofpublic concern is protected. Lane, 134
S. Ct. at 2378. However, "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 fi*om employer discipline."
Garcetti, 547 U.S. 410 (2006). The majority in Garcetti instructs the Court that a public
employee's speech pursuant to official responsibilities is categorically unprotected, even
if it is a matter of public concern. It is not clear, however, whether Garcetti is applicable
to elected officials' speech or not. A critical aspect of an elected official's duties is to
engage in political speech, "In fact, debate and diversity of opinion among elected
officials are often touted as positive in the public sphere." Werkheiser v. Pocono Twp.,
780 F.3d 172, 178 (3d Cir. 2015). In a ^VQ-Garcetti decision the Court ruled that an
elected state official's firee speech rights were violated when the Georgia House of
Representatives refused to seat him because of statements he made criticizing the war in
Vietnam. Bond v. Floyd, 385 U.S. 116, 136 (1966). The Court reasoned that the
"manifest function of the First Amendment.. .requires that legislators be given the widest
latitude to express their views of policy," and that "debate on public issues should be
25
uninhibited, robust, and wide-open." Id; see also Velez v. Levy, 401 F.3d 75 (2d Cir.
2005).
Even before being elected to the City Council, Hedquist had spoken out about
inefficiencies and incompetence he perceived to be in Casper's City government. Pis.'
Briefin 0pp. to Def. Patterson's Mot. for Summ. J., at 10. Once elected to office,
Hedquist continued to speak out against the alleged inefficiencies and incompetence.
While Hequist's title and officialpublic duties had changed after being elected, his stance
on government efficiency and the public concern for it remained the same. This Court
acknowledges that, "[t]he critical question under Garcetti is whether the speech at issue is
itself ordinarily within the scope of an employee's duties, not whether it merely concerns
those duties." Lane, 134 S. Ct. at 2379, (2014). For elected officials however, all matters
that concern the official's constituency are within the scope of their duties.
There are significant differences with the type of employee in Garcetti compared
to the present case. In Garcetti, the Plaintiff Ceballos, a supervising deputy district
attorney, was subject to discipline by his supervisors for recommending dismissal of a
case on the basis of purported governmental misconduct. Garcetti, 547 U.S 410.
"Government employers, like private employers, need a significant degree of control over
their employees' words and actions; without it, there would be little chance for the
efficient provision of public services." Id. at 418. In the case before the Court, Hedquist
claims retaliation came in the form of a workplace violence investigation, a conflict of
interest investigation, and a petition to remove him fi-om office. Compl. at ^ 148.
26
Plaintiffs claim these retaliations came from the City of Casper, John Patterson, and
Andrew Beamer. Id. None of the Defendants are Hedquist's supervisors like in Garcetti.
An appointed or hired public official is not the same as an elected public official. The
case before the Court is more akin to Bond, where the plaintiff suffered retaliation from
his legislative peers. Bond, 385 U.S. at 136. This Court does not see the value in
restricting the debate on public issues as it pertains to elected officials. A debate, the U.S.
Supreme Court in Bond said, "should be uninhibited, robust, and wide-open." Id.
Therefore, Defendants' motions are DENIED as they relate to the issue of
whether Plaintiff Hedquist's speech was made pursuant to his official duties.
B) Was Plaintiff Hedquist and/or HCl's speech a matter of public concern?
Defendant John Patterson, in his individual capacity, argues
John Patterson, in his individual capacity, is a named defendant in the First
Amendment Retaliation claim brought by Craig Hedquist, and as such Patterson
addresses the speech as it relates to Craig Hedquist. John Patterson argues Mr. Hedquist's
comments toward Mr. Beamer during the August 28, 2013 meeting, should be considered
"fighting words" and are therefore unprotected speech. Patterson's Mot., at 14-15.
Patterson also argues any speech that may not be considered fighting words should be
considered "personal disputes and grievances," not speech that is on matters of public
concern. Id. Patterson recites Mr. Harrah's letter of August 29, 2013 in which Mr. Harrah
recounts past instances where Mr. Hedquist interacts with city employees in an
27
unprofessional manner. Id. at 15;Patterson's Mot., Ex. 2, at 22, Letter from Rick Harrah
to John Patterson (August 29, 2013). Patterson argues all other manner of speech by Mr.
Hedquist was "uttered in the context of Hedquist's disputes with the City as a contractor,
consisting of epithets about the public employees with whom he dealt on behalf of his
company, or personal disputes and grievances related to the work performed by his
company." Patterson's Mot, at 17.
Defendant Andrew Beamer, in his individual capacity, argues
Andrew Beamer, who served as City of Casper's City Engineer during this time, is
a named defendant in the First Amendment Retaliation claim brought by HCI, and as
such Beamer addresses the speech as it concerns HCI. Beamer, similar to Patterson, also
argues the August 28, 2013 speech constitutes fighting words, and is therefore not
entitled to First Amendment protection. Beamer's Mot., at 10-12. Beamer also argues that
HCI's contract disputes with the City are not on matters of public concern because they
amount to personal grievances between a contractor and the City. Id., at 12-17.
Defendants City of Casper and John Patterson, in his official capacity, argue
The City of Casper is a named defendant in the First Amendment Retaliation
claim brought by HCI, and as such the City addresses the speech as it concerns HCI. John
Patterson, in his official capacity, is a named defendant in the First Amendment
Retaliation claim brought by Craig Hedquist, and as such Patterson addresses the speech
as it concerns Craig Hedquist.
28
The City of Casper argues speech alleged by HCI does not pertain to matters of
public concern, but only concerns work HCI was doing for the City and is therefore a
personal grievance. City ofCasper's First Mot., at 17-19. The City of Casper argues the
speech "addressed matters only important and directly related to the private business
interests of HCI. Spoken by Hedquist and the company he controls, the speech was solely
of personal interest..." M at 18-19.
John Patterson, in his official capacity, argues Mr. Hedquist's speech was uttered
in the context of his private disputes with the City as a contractor and therefore did not
concern matters of public concern. Id. at 15-16.
Plaintiffs argue
Plaintiffs argue Mr. Hedquist "was critical of inefficiencies and incompetence of
City government," before Mr. Hedquist was elected to the City Council, and while Mr.
Hedquist was serving as a Casper City Councilman he continued to speak out on the
matter. Pis.' Briefin 0pp. to Def City ofCasper's Mot for Summ. J., at 7. Plaintiffs
argue Mr. Hedquist had requested job cost data from city employees in order to save the
City and the taxpayers money. Id.
Analysis
A public employee's speech is protected by the Free Speech Clause only if the
speech is on a matter of public concern. Connick, 461 U.S. 138; see also Duryea v.
Guarnieri, 131 S. Ct. 2488 (2011). The Court in Lane reiterated that to be a matter of
public concern, the speech must fairly relate to a matter of "political, social, or other
29
concern to the community," or is "a subject of legitimate news interest," and that this
determination is made by evaluating the "content, form, and context" of the speech. Lane,
134 S. Ct. at 2380. The Court focuses "on the motive of the speaker and whether the
speech is calculated to disclose misconduct or merely deals with personal disputes and
grievances unrelated to the public interest." Trant, 754 F.3d at 1165, citing Lighton v.
Univ. of Utah, 209 F.3d 1213, 1224 (10th Cir. 2000).
Similar to Lane, Plaintiffs in this case claim the speech at issue concerns
government efficiency and wasteful government practices. Pis.' Briefin Opp. to Def City
ofCasper's Mot.for Summ. J., at 2. The Court in Lane stated that "corruption in a public
program and misuse of state fundsobviously involves a matter of significant public
concern." Lflwe, 134 S. Ct. at 2380; See also Garcetti, 547 U.S., at 425, 126 S.Ct. 1951
("Exposing governmental inefficiency and misconduct is a matter of considerable
significance.") '"[T]he use of public funds and ... the objectives, purposes and mission'
of a government agency are 'well within the rubric of matters of 'public concern.'"
Glover v. Mabrey, 384 Fed.Appx. 763, 769-70 (10th Cir.2010) (quoting Schrier v. Univ.
ofColo., All F.3d 1253, 1263 (10th Cir.2005)); also Gardetto v. Mason, 100 F.3d
803, 814 (10th Cir.1996).
To begin with, fighting words are not protected by the First Amendment. NAACP
V. Claiborne Hardware Co., 458 U.S. 886, 927 (1982). The Tenth Circuit has described
fighting words as "epithets (1) directed at the person of the hearer, (2) inherently likely to
cause a violent reaction, and (3) playing no role in the expression of ideas." Burns v. Bd.
30
ofCty. Comm'rs ofJackson Cty., 330 F.3d 1275, 1285 (10th Cir. 2003) (quoting Cannon
V. City & County ofDenver, 998 F.2d 867, 873 (10th Cir. 1993)).
Craig Hedquist: You guys going to start paying on time?

Andrew Beamer; We've already had this discussion.
Hedquist: Oh, no, are you fucking going to stand up, bitch, are you going
to start paying me?
Beamer: What did you say?
Hedquist: You heard me.
Briefin 0pp. to Def Patterson's Mot. for Summ. J., Ex. 15, Beamer Recording (August
28, 2013). Mr. Hedquist's epithet-laced words directed at Mr. Beamer were clearly
"fighting words" not entitled to First Amendment protection. Other portions of the
conversation may be protected however. See Burns v. Bd. ofCty. Comm'rs ofJackson
Cty., 330 F.3d 1275, 1285 (10th Cir. 2003).
During the conversation, Mr. Hedquist also voiced his disagreement with HCI
having to do work items not in the contract.
Unidentified Speaker: What do we have for manholes here?

Hedquist: There's no item for it. Just like there's no item for the striping.
Beamer: I don't believe you stripeddid you stripe off the street?
Hedquist: That's what I mean, you can't just say it has to be done.
Somebody has to do it, I agree, but
Id. Mr. Hedquist again raised the issue of HCI not receiving payments in excess of
$750,000 and the issue of HCI doing change work and then not receiving payment.
Hedquist: Because I was told that you guysdo I come and tell you that
I'm the councilman and tell you that or do I~I want to make sure, are you
paying me for that extra work? Okay. Then we have an issue.
Beamer: Okay.
Hedquist: We were told that we would be paid to do something down here.
31
Id. All these comments demonstrate HCI's personal grievances with the City. Whether it
was HCI receiving their payments or HCI doing work not in the contract, these issues do
not touch on matters of public concern. The conversation on August 28, 2013 between
Mr. Beamer and Mr. Hedquist, speaking on behalf of HCI, contained fighting words
which are not protected by the First Amendment. Other portions of the conversation
which were not fighting words did not contain matters of public concern but were matters
ofpersonal dispute and grievance between a city employee and an HCI employee. As
such, this speech is not protected under a First Amendment Retaliation claim.
All other speech engaged in by HCI concerns matters that relate to the contracts
with the City, being paid in accordancewith those contracts, or other grievances the
company may havehad with the City. In a written response to Defendants, HCI laid out
twenty-seven (27) separate instances in which HCI alleged it had engaged in protected
speech for which was later retaliated against. CityofCasper's First Mot., Ex. 13, at 2-12.
The speech and/or statements engaged in by HCI all concern the ongoing contract work
HCI was doing for the City. These items all concernpersonal disputes and grievances
between a contractor and the City.
During the June 2013 meeting at Indian Paintbrush concerningthe Arterials &
Collectors West Project, Mr. Hedquist claimed he was speaking both as an HCI employee
and a City Councilman. Beamer Depo., at 30:25^33:22; HCI 30(b)(6) Depo., at 112:1
114:20. City employees and Mr. Hedquist were discussing which concrete should and
should not be replaced. In looking at the speech from HCI's perspective and motive, this
is not a matter of public concern exposing governmental inefficiency and misconduct, but
32
rather a contractor advocating for the best outcome from the contractor's standpoint. "In
deciding how to classify particular speech, courts focus on the motive of the speaker and
attempt to determine whether the speech was calculated to redress personal grievances or
whether it had a broader pubhc purpose." Gardetto v. Manson, 100 F.3d 803, 812 (10th
Cir. 1996).
The August 26,2013 letters sent from Shawna Halasz, HCI Project Coordinator,
regarding HCI not receiving payment from the City of Casper on city contracts also
concernprivate business interests of HCI. Pis.' Briefin 0pp. to Def. Patterson's Mot. for
Summ. J., Ex. 35, Letters from HCI to City of Casper, at 1-6. The same can be said for
Mr. Hedquist's meeting with Michael Lansing, Mr. Patterson, Mayor Kenyene Schlager,
and City Attorney Bill Luben, where Mr. Hedquistvoiced his displeasure with the City
being late on payments and owing HCI over $750,000. HedquistDepo., at 83:1886:2.
It is true that '"[T]he use of public funds and ...the objectives, purposes and mission' of a
government agency are 'well within the rubric of matters of 'public concern.'" Glover v.
Mabrey, 384 F. App'x 763, 769-70 (10th Cir. 2010) {quoting Schrier v. Univ. ofColo.,
427 F.3d 1253, 1263 (10th Cir. 2005)). However our focus must be "on the motive of the
speaker and whether the speech is calculated to disclose misconduct or merely deals with
personal disputes and grievances unrelated to the public's interest."Lighton v. Univ. of
Utah, 209 F.3d 1213, 1224 (10th Cir. 2000). As it relates to HCI, the Court concludes the
speech engaged in dealt with matters ofpersonal disputes and grievances, not matters of
public concern. As such, the City of Casper and Andrew Beamer's Motions are
33
GRANTED as they relate to the issue of HCI engaging in speech that concerned public
matters.
Speech engaged in by Mr. Hedquist as a candidate for City Council and later as a
City Councilman are matters of public concern. As the Tenth Circuit has said, and this
Court has previously noted, '"[T]he use of public funds and ...the objectives, purposes
and mission' of a government agency are 'well within the rubric of matters of 'public
concern.'" Glover, 384 F. App'x at 769-70; see also Burns v. Bd. ofCty. Comm'rs of
Jackson Cty., 330 F.3d 1275, 1287 (10th Cir. 2003). The letter published in the Casper
Star Tribune in the Summer of 2012 addresses the City's use of public funds. Second
Am. Compl.for CivilRights Violations, at ^ 16. The meeting with Mr. Patterson
concerning the efficiency and competence of city employees in August of 2012 touched
on the objectives, purposes, and mission of the City of Casper. Hedquist Depo. 128:2
132:14. Mr. Hedquist's attempts at being provided job cost data on rotomilling and
paving in order to save the City money is a clear attempt at exposing governmental
inefficiency and misconduct. Pis.' Briefin 0pp. to Def. Patterson's Mot for Summ. J.,
Ex. 1;Def. Patterson's, in his individual Capacity Reply in Supp. Ofhis Mot. for Summ.
J., FN 3;. Pis.' Briefin Opp. to Def. Patterson's Mot. for Summ. J., Ex. 9, Email from
John Patterson to Shawna Halasz (March 13,2013, 10:16 MST); Ex. 10, Letter from
Rick Harrah to John Patterson (undated). The August 27, 2013 letter Mr. Hedquist sent to
City Manager John Patterson, requesting job cost information for Aster Street in Casper
"including but not limited to asphalt, diamonds for valve boxes and manholes, crack
sealing and traffic control," similarly touches on government efficiency. Pis.' Briefin
34
0pp. to Def. Patterson's Mot.for Summ. J., Ex. 14, Letter from Craig Hedquist of HCI to
John Patterson (August 27, 2013). Although Mr. Hedquist signed the letter as Vice
President of HCI and the letter was on HCI letterhead, it is clear from the record that this
issue was of concern to Mr. Hedquist as a City Councilman. Therefore, City of Casper's
First Motion and Patterson's Motion are DENIED as they relate to the issue of Mr.
Hedquist's speech involving matters of public concern.
C) Was Plaintiffs' speech a substantial or motivating factor in the adverse

actions taken by Defendants?
John Patterson, in his individual capacity, the City of Casper, and John Patterson,
in his official capacity, argue
Defendant John Patterson, in his individual capacity, filed a separate motion for
sunmiaryjudgment from City of Casper and John Patterson, in his official capacity.
However, both motions made the same argument as it concerns Plaintiffs' speech not
playing a substantial or motivating factor in the adverse actions taken by Defendants and
so the arguments are combined here. See City ofCasper's First Mot., at \9; Patterson's
Mot, at 18. Andrew Beamer, in his individual capacity, also argued this issue. However,
due to the Court granting summary judgment against HCI, that argument is moot.
Beamer's Motion, at 18.
Defendants concede that this fourth prong of the Garcetti/Pickering analysis is
usually reserved as a question for the jury. However, Defendants argue there is no
evidence from which a jury could reasonably conclude the protected speech was a
35
motivating factor in the adverse action. City ofCasper's First Mot., at 19-23; Patterson's
Mot., at 18-22. Defendants characterize the alleged adverse actions as "the substantiated
workplace violence claim, Patterson's Petition to the City Council to remove Hedquist
from office, and the City's decision to label HCI non-responsible." City ofCasper's First
Mot., at 19. Defendants argue all three of these alleged retaliations were conducted in
response to a workplace violence incident, conflict of interests, and HCI's
underperformance of the 2013 contracts.
Plaintiffs argue
Plaintiffs argue there is causal connection between the speech and the alleged
retaliation. Pis.' Briefin Opp. to Def City ofCasper *s Mot.for Summ. J, at 19-21.
Plaintiffs argue Mr. Patterson engaged in a public smear campaign by claiming Mr.
Hedquist should be removed because he was "self-dealing and asked for the data only to
get a bidding advantage for his business..." Id. Plaintiffs argue Mr. Pattersonknew the
true intentions behind the request for job cost data on rotomilling and paving was to save
the City money, yet questioned Mr. Hedquist's motives in public. Id. at 21. Plaintiffs also
argue because the City removed the non-responsible bidder status from HCI after Mr.
Hedquist had resigned from the City Counsel, it is reasonable to conclude there was a
concerted effort to get Mr. Hedquist off of the City Council. Id.
Analysis
The causation of an adverse action taken against an employee presents an issue
regarding the employer's motives. This case, like so many others, presents evidence of
36
adverse actions being taken against Mr. Hedquist for what could be a variety of
motivations. The issue of dual-motives in First Amendment Retaliation cases was first
addressed in Ml Healthy City Sch. Dist. Bd. ofEduc. v. Doyle, 429 U.S. 274, 286 (1977).
There the U.S. Supreme Court established when there is evidence of speech and non-
speech motives, the employee's burden is to show that the speech was a motivating factor
in the adverse action. Id. The employer has the burden of demonstrating it would have
made the same decision regardless, based on non-speech reasons. Id.
The fourth and fifth steps of the Garcetti/Pickering analysis are not typically
appropriate for summary judgment andare usually reserved for the trierof fact subject to
the preponderance of the evidence standard. Craig v. City ofOsawatomie, 143 F.3d 1343,
1346 (10th Cir. 1998^; Saye v. St. Vrain Valley Sch. Dist. RE-IJ, 785 F.2d 862, 867 (10th
Cir. 1986). However, where there is no evidence from which a trier of fact could
reasonably conclude the protected speech was a motivating factor in the adverse action,
summary judgment is appropriate. Maestas v. Segura, 416 F.3d 1182 (10th Cir, 2005);
To withstand summary judgment at step three, therefore, an employee must

produce evidence linking the employer's action to the employee's speech.
Speculation or hunches amidst rumor and innuendo will not suffice. Nor
can a plaintiff sustain his burden at step three simply by showing that the
elimination of the protected activity may have been welcomed by the
defendants...[Ejvidence such as a long delay between the employee's
speech and challenged conduct, or evidence of intervening events, tend to
undermine any inference of retaliatory motive and weaken the causal link.
Id. at 1188-89 (internal citations omitted).
In Burns, 330 F.3d 1275, the Tenth Circuit upheld the District Court's grant of
summary judgment to defendants on plaintiffs First Amendment claim. Id. at 1287-1288.
37
The District Court for the District of Kansas determined there was no evidence that
plaintiffs protected speech was a substantial or motivating factor in his termination. Id,
The plaintiff in Burns, a county employee, had spoken out against his department
concerning a pickup trade and a pay plan. Id. at 1286. The Tenth Circuit said this
sufficiently concerned a matter of public concern. Id. However, the plaintiff was
terminated because he used a "profane epithet at a County Commissioner and allegedly
us[ed] physical force against him." Id. at 1287. The District Court and the Tenth Circuit
both recognized the reasoning for plaintiff being fired was his profane remarks and use of
force, while there was no evidence that showed the protected speech played a substantial
or motivating factor in plaintiffs termination. Id. at 1287-1288.
In the case before the Court, Plaintiffs have alleged retaliation in the form of a
workplace violence investigation conducted against Mr. Hedquist, a conflict of interest
investigation conducted againstMr. Hedquist, removal proceedings of Mr. Hedquist, and
the label of non-responsible bidder placed on HCI. All these adverse actions are
supported by Plaintiffs' speculation and hunches that a concerted effort withinthe City of
Casper and amongst city employees was attempting to remove Mr. Hedquist from the
City Counsel.
The workplace violence claim arose out ofthe August 28, 2013 incident between
Mr. Hedquist and Mr. Beamer. Briefin 0pp. to Def. Patterson's Mot.for Summ. J., Ex.
15, Beamer Recording (August 28,2013). Mr. Hedquist had asked Mr. Beamer "Oh, no,
are you fucking going to stand up, bitch, are you going to start paying me?" Id. The
38
workplace violence investigation came directly after Mr. Hedquist's epithet and dispute
with Mr. Bearner. City ofCasper's First Mot., Ex. 12. The investigating attorney looked
at the intent, vocal tone, facial expressions, movement of feet, chest movement, among
several other factors of Mr. Hedquist's remarks before concluding Mr. Beamer was
subjected to workplace violence. Id. The investigating attorney did not address Mr.
Hedquist's speech nor can Plaintiffs point to any evidence which shows Mr. Hedquist's
protected speech played a "substantial part" in the adverse action.
HCI's non-responsible bidder status was in response to HCI's four contracts being
late in performance in 2013. Due to late substantial completion and fmal completion
times, all four of HCI's projects were mediated during 2014, which resulted in HCI
paying the City $139,000 in liquidated damages. Hedquist Depo., at 39:2141:6,
182:25183:4, 198:7198:13, 310:8311:8; City ofCasper's Second Mot., at3. When
HCI applied for additional city contracts in 2015, the City Council decided not to award
the contracts due to the four previous contracts being substantially late and the non-
responsible bidder status. Mr. Beamer did make a statement on August 30, 2013 in which
he stated he would like to see HCI be labeled non-responsible for the epithet directed at
Mr. Beamer during the August 28, 2013 incident. Briefin 0pp. to Def Patterson's Mot.
for Summ. J., Ex. 17. However, "evidence such as a long delay between the employee's
speech and challenged conduct, or evidence of intervening events, tend to undermine any
inference of retaliatory motive and weaken the causal link." Maestas, 416 F.3d at 1188-
89. The delay of roughly seventeen months and the intervening events of mediation
39
between HCI and the City of Casper along with liquidated damages undermines
Plaintiffs' claims. The Court does not see any evidence that Mr. Hedquist's protected
speech played a substantial part in the City of Casper labeling HCI as a non-responsible
bidder. Plaintiffs' mere speculation does not suffice.
The removal proceedings of Mr. Hedquist from the Casper City Council began
with a Conflict of Interest Investigation by Ms. Dixon and Mr. Reeves. Dixon Depo.,
7:248:21; Briefin Opp. to Def. Patterson's Mot. for Summ. J., Ex. 24, Letter from Wes
Reeves to John Patterson (December 10, 2013). The investigating attorney, Mr, Reeves,
in a letter to City Manager John Patterson, determined there was "clear and convincing
evidence" that Mr. Hedquist's conduct violated ethics and conflict of interest laws. Brief
in Opp. to Def.Patterson's Mot. for Summ. J., Ex. 24, Letter from Wes Reeves to John
Patterson (December 10, 2013). Plaintiffs cite to the Casper Star Tribune report which
was publishedthe same day as the letter, claiming this shows a concertedeffort to
conceal Mr. Hedquist's attempts at saving the City money by requestingjob cost data.
Briefin Opp. to Def Patterson's Mot. for Summ. J., Ex. 28, Casper city council to
prosecute Craig Hedquist conflict-of-interest case, Casper Star Tribune, December 10,
2013. While this may have been a mischaracterization of Mr. Hedquist's intent by
requesting the job cost data. Plaintiffs' claims of a conspiracy to remove Mr. Hedquist
from the City Council lacks supporting evidence. Maestas, 416 F.3d at 1189.
Mr. Reeves and John Patterson filed a Petition for Removalfrom Office or Other
Remedies and Notice ofContested Case Rights and Procedures concerning the conflict of
40
interest and workplace violence allegations. City ofCasper's First Mot, Ex. 9. However,
the motion was later dismissed by the City Council. Id., Ex. 10. The investigation letter
from Mr. Reeves, the petition for removal, and the recommendation to dismiss all discuss
the possible conflicts of interest with respect to Mr. Hedquist's duties as an elected City
Councilman and in operating HCL Failing to disclose the nature and extent of his interest
in HCI while on the council, acting as chief spokesman for HCI, and claiming to be
speaking as a City Councilman and an HCI employee all contributed to the investigation.
City ofCasper's First Mot., Ex. 9 and 10. During the June of 2013 meeting on Indian
Paintbrush concerning the Arterials & Collectors West Project, Mr. Hedquist informed
those present that he was speaking both as the principal of HCI and as a City
Councilman. Beamer Depo., at 30:2533:22; HCI30(b)(6) Depo., at 112:1114:20;
Pis.' Briefin Opp. to Def Patterson's Mot.for Summ. J., Ex. 1, at H 11. During the
August 28, 2013 confrontation with Mr. Beamer, Mr. Hedquist asked "Do you know who
is talking to you?...[D]o I come and tell you that I'm the councilman..Briefin Opp. to
Def Patterson's Mot. for Summ. J., Ex. 15, Beamer Recording (August 28, 2013).
Similar to Burns, Plaintiffs have failed to produce evidence beyond speculation
and hunches that shows Mr. Hedquist's speech was a substantial or motivating factor in
the adverse actions taken against him. Therefore, City of Casper's First Motion and
Patterson's Motion are GRANTED as they relate to the issue of whether Plaintiffs'
speech played a substantial or motivating factor in the adverse actions taken by
Defendants.
41
3) Qualified Immunity
Individual capacity claims are subject to the defense of qualified immunity. Bliss
V. Franco, 446 F.3d 1036, 1043 (10th Cir. 2006). The U.S. Supreme Court explained that
qualified immunity protects private party state actors against reasonable mistakes of law,
not mistakes of fact. Saucier v. Katz, 533 U.S. 194 (2001). A controlling precedent of the
U.S. Supreme Court or the Tenth Circuit is necessary to clearly establish federal law. "To
defeat an assertion of qualified immunity, the plaintiff bears the burden of showing both
(1) a violation of a constitutional right; and (2) that the constitutional right was clearly
established at the time of the violation."
A clearly established right is one that is sufficiently clear that every

reasonable official would have understood that what he is doing violates
that right. Although plaintiffs can overcome a qualified-immunity defense
without a favorable case directly on point, existing precedent must have
placed the statutory or constitutional question beyond debate. The
dispositive question is whether the violative nature of the particular conduct
is clearly established.
Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016) (internal citations omitted).
In Pearson v. Callahan, 555 U.S. 223 (2009), the Supreme Court held that federal
district courts have discretion to first decide whether the complaint states a violation of a
federally protected right, or to proceed directly to the qualified immunity issue of whether
the defendant violated clearly established federal law. Id. at 242-43.
42
A) Is Defendant John Patterson, in his individual capacity, entitled to the

affirmative defense of qualified immunity?
Defendant John Patterson, in his individual capacity, argues
John Patterson, in his individual capacity, argues Plaintiff Hedquist has not shown
that the right to be free from retaliation was clearly established in a particularized way,
such that Patterson would have understood that his conduct was a violation of Hedquist's
constitutional rights. Patterson's Motion, at 24. Patterson characterizes the issue as
"whether a reasonable City Manager would have known that initiating investigations and
serving as Petitioner in a Petition to remove a City Councilman from office for conflicts
of interest could constitute retaliation for exercise of the councilman's First Amendment
rights." Id. Defendant John Patterson argues there is no clearly established law on the
issue Defendant presented.
Plaintiffs respond
Plaintiffs' response was essentially a referral to their previously cited First
Amendment Retaliation case law. Pis.' Briefin 0pp. to Def. Beamer 's Mot. for Summ. J.,
at 23. "The law outlined herein was clearly settled long before these Defendants started
down the path they chose.. .The Court should deny the request for qualified immunity..."
Id.
Analysis
In their Second Amended Complaintfor Civil Rights Violations, Plaintiffs assert
causes of action for First Amendment Retaliation, The first cause of action is brought by
43
Plaintiff Craig Hedquist against Defendant John Patterson, in his individual and official
capacities. Compl As previously noted by this Court, neither the Supreme Court nor the
Tenth Circuit have discussed whether or not Garcetti is applicable to elected officials'
speech or not. The majority in Garcetti instructs the Court that a public employee's
speech pursuant to official responsibilities is categorically unprotected, even if it is a
matter of public concern. Garcetti, 547 U.S. 410 (2006). However, a critical aspect of an
elected official's duties is to engage in political speech. This Court does not see the value
in restricting the debate on public issues as it pertains to elected officials. A debate, the
U.S. Supreme Court in Bond, said "should be uninhibited, robust, and wide-open." Bond,
385 U.S. at 136.
While the Court finds Plaintiffs' argument persuasive, the Court must also
acknowledge that the law is anything but clearly established. "A clearly established right
is one that is 'sufficiently clear that every reasonable official would have understood that
what he is doing violates that right.'" Mullenix, 136 S.Ct. at 308 (quoting Reichle v.
Howards, 566 U.S. 658, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012)). There must be
fairly close factual correspondence between the prior precedents and the case before the
Court. Anderson v. Creighton, 483 U.S. 635, 640 (1987). During the Court's review of
parties' collective motions, the Court did not find a case with a similar factual
correspondence to the case before the Court. The Court agrees that John Patterson, in his
individual capacity, is entitled to qualified immunity, therefore John Patterson's Motion,
as it relates to the issue of qualified immunity, is GRANTED.
44
B) Is Defendant Andrew Beamer, in his individual capacity, entitled to the

affirmative defense of qualified immunity?
Defendant Andrew Beamer, in his individual capacity, argues
Andrew Beamer, who served as City of Casper's City Engineer during this time,
argues Plaintiff has failed to demonstrate that Beamer violated HCI's constitutional right
and that the constitutional right was clearly established at the time of the alleged conduct.
Beamer's Motion, at 22. "HCI has not identified any Supreme Court or Tenth Circuit
precedentthat prohibits a City official following the direction of his City Council to
recommend that a City contract go to the second lowest bidder after the lowest bidder
underperforms previous contracts." Id. at 24.
Plaintiffs respond
Plaintiffs' response was essentially a referral to their previously cited First
Amendment Retaliation case law. Pis.' Briefin 0pp. to Def Beamer's Mot.for Summ. J.,
at 23. "The law outlined herein was clearly settled long before these Defendants started
down the path they chose...The Courtshould deny the request for qualified immunity..."
Id
Analysis
In their Second Amended Complaintfor CivilRights Violations^ Plaintiffs assert
causes of action for First Amendment Retaliation. The second cause of action is brought
by Plaintiff HCI against Defendant Andrew Beamer, in his individual capacity, and the
City of Casper. Compl. 152-167. As already noted, individual capacity claims are
45
subject to the defense of qualified immunity. Bliss v. Franco, 446 F.3d 1036, 1043 (10th
Cir. 2006). "Once a defendant has raised qualified immunity as an affirmative defense,
the plaintiff bears the heavy two-part burden of demonstrating that (1) the defendant
violated a constitutional right and (2) the constitutional right was clearly established at
the time of the alleged conduct." Reeves v. Churchich, 484 F.3d 1244, 1250 (10th Cir.
2007). In Pearson the Supreme Court ruled the district courts can proceed directly to the
qualified immunity issue of whether the defendant violated clearly established federal
law. Id. at 242-43.
The Court previously addressed the state of the law for First Amendment
Retaliation claims as they pertain to independent contractors. In Umbehr, 518 U.S. at
670, the U.S. Supreme Court held that the First Amendment protects independent
contractors from "termination of at will government contracts in retaliation for their
exercise of freedom of speech." A review of the case law provided by Plaintiffs yielded
just one comparable case. Glover v. Mabrey, 384 F. App'x 763 (10th Cir. 2010). In
Glover, management of the Oklahoma Department of Transportation (ODOT) issued a
report in which they recommended plaintiff, an independent contractor, be designated an
"irresponsible bidder" and suspended from obtaining future work with ODOT after the
independent contractor criticized ODOT in the media for mismanaging a highway
project. Id. at 774. In reviewing defendants motion to dismiss, the Tenth Circuit, held
Plaintiff sufficiently alleged protected speech under Pickering. Id. The independent
contractor also sufficiently stated a claim for retaliation against ODOT's CEO, director,
46
and general counsel, by showing the link between their recommendation and the
independent contractor's protected speech. Id. The Tenth Circuit also directly discussed
the issue of qualified immunity in Glover as it pertains to independent contractors.
The Supreme Court has clearly stated that the speech of independent
contractors [is] protected, and the Pickering balancing test, adjusted to
weigh the government's interests as contractor rather than as employer,
determines the extent of [the] protection...[The independent contractor]
alleged the report, the recommendation and the Board's adoption of the
recommendation were in retaliation for its protected speech. As the cases
above indicate, freedom from retaliation for protected activity was clearly
established when the defendants acted and they are not entitled to qualified
immunity.
Id. at 778-79 (emphasis added)(citations omitted).
This Court finds Glover to be directly on point and answers the issue of Mr.
Reamer's claimed entitlement to qualified immunity. The Court finds that HCI's right to
freedom fi:om retaliation for his protected speech was clearly established at the time Mr.
Reamer acted. As such, Mr. Reamer is not entitled to qualified immunity. Reamer's
Motion is therefore DENIED as it relates to the issue of qualified immunity.
4) Is Defendant John Patterson, in his official capacity, permitted to assert the

affirmative defense of absolute immunity? (Plaintiffs' Motion)
Plaintiffs Argue
Plaintiffs argue Defendant John Patterson, in his official capacity, is not entitled to
any immunity defense. Plaintiffs' Motion, at 1-2. Plaintiffs argue a claim brought against
an individual in his or her official capacity is equivalent to claims brought against the
municipality, and therefore immunity defenses such as qualified and absolute immunity
47
are not permitted. Id. at 4-6. Plaintiffs first argued John Patterson, in his official capacity,
is not permitted to assert a qualified immunity defense in Plaintiffs' Motion, then argued
the same reasoning also applies to absolute immunity in their reply. Pis.' Reply to Def.
City ofCasper's Resp. to Mot for Partial Summ. J. on Defs.' Stated Affirmative Defenses
(Immunities), ECFNo. 182.
Defendants John Patterson, in his official capacity, and the City of Casper Respond
As this issue only concerns Defendants City of Casper and John Patterson, in his
official capacity, they are the only defendants who responded to this issue and so all
reference to "Defendants" will refer exclusively to City of Casper and John Patterson, in
his official capacity.
Defendants point out that the affirmative defense asserted by John Patterson, in his
official capacity, is for absolute immunity, not for qualified immunity. Defs. John
Patteron, in his Official Capacity, and the City ofCasper's Resp. to Pis.' Mot.for Partial
Summ. J., ECF No. 175, at 4. Defendants argue John Patterson, in his official capacity, is
entitled to absolute immunity because he was acting as a prosecutor in filing the Petition
for Removalfrom Office or Other Remedies and Notice ofContested Case Rights and
Procedures. Id. at 7. Defendants conclude by arguing that because John Patterson, in his
official capacity, is entitled to absolute immunity, the City of Casper is entitled to
immunity as well. Id. at 9.
Analysis
In their Second Amended Complaintfor Civil Rights Violations, Plaintiffs assert
two causes of action for First Amendment Retaliation. The first cause of action is
48
brought by Plaintiff Craig Hedquist against Defendant John Patterson, in his individual
and official capacities. Id. The second cause of action is brought by Plaintiff HCI against
Defendants City of Casper and Andrew Beamer, individually. Id. Defendant John
Patterson, in his official capacity, asserted the following affirmative defense in his
answer: "To the extent that Patterson is sued in his official capacity for conduct that is
prosecutorial in nature, Patterson is entitled to absolute immunity." Answer ofDefs. John
Patterson, in his Official Capacity, and the City ofCasper to Second Am. Compl. for
Civil Rights Violations, ECF No. 84, at p. 17.
There are two types of immunity: qualified and absolute. Harlow v.
Fitzgerald, 457 U.S. 800, 807 (1982); Butz v. Economou, 438 U.S. 478, 508 (1978);
Buckley v. Fitzsimmons, 509 U.S. 259,268 (1993).
In most cases, qualified immunity is sufficient to "protect officials who are

required to exercise their discretion and the related public interest in
encouraging the vigorous exercise of official authority." We have
recognized, however, that some officials perform "special functions"
which, because of their similarity to functions that would have been
immune when Congress enacted 1983, deserve absolute protection from
damages liability.
Buckley v. Fitzsimmons, 509 U.S. at 268-69 (quoting Butz, 438 U.S. at 506).
One such form of absolute immunity is prosecutorial immunity where a prosecutor
may assert the affirmative defense when acting as an advocate for the state by engaging
in conduct that is "intimately associated with the judicial phase of the criminal process."
Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976); see also Van de Kamp v. Goldstein,
555 U.S. 335 (2009). In Van de Kamp, the Supreme Court held that even a prosecutor's
49
administrative actions are protected by absolute prosecutorial immunity when they are
closely related to the trial process. The Tenth Circuit has provided a useful standard in
that "[t]he more distant a function is from the judicial process, the less likely absolute
immunity will attach." Snell v. Tunnell, 920 F.2d 673, 687 (10th Cir. 1990).
However, this Court need not discuss how distant the Defendant John Patterson, in
his official capacity, was from the judicial process. The absolute and qualified immunity
defenses are available in personal-capacity claims. In official capacity claims, the
defendant may assert only those immunities the entity possesses, such as the
municipality's immunity from punitive damages. "[0]fficial-capacity suits 'generally
represent only another way of pleading an action against an entity of which an officer is
an agent'...the only immunities available to the defendant in an official-capacity action
are those that the governmental entity possesses." Hafer v. Melo, 502 U.S. 21, 25 (1991)
(quoting Monell v. New York CityDept. ofSocial Services, 436 U.S. 658, 690 (1978));
see also Kentucky V. Grahm, 473 U.S. 159, 167 (1985).
The issue before the Court arises under John Patterson's, in his official capacity,
assertion of the affirmative defense absolute immunity "for conduct that is prosecutorial
in nature." Answer ofDefs. John Patterson, in his Official Capacity, and the City of
Casper to Second Am. Compl.for CivilRights Violations, at p. 17. Because this absolute
immunity defense is not being asserted by John Patterson, in his personal capacity, the
Court sees no reason to analyze the judicialprocess relationship under Defendants'
prosecutorial immunity argument. Plaintiffs' Motion is therefore GRANTED.
50
4) May Plaintiffs recover punitive damages against Andrew Beamer, in his

individual capacity?
In Smith v. Wade, 461 U.S. 30 (1983), the Supreme Court held that a 1983
plaintiff may recover punitive damages against an official in her personal capacity.
"[P]unitive damages are appropriate in a section 1983 case 'when the defendant's
conduct is shown to be motivated by evil motive or intent, or when it involves reckless or
callous indifference to the federally protected rights of others." Wulfv. City of Wichita,
883 F.2d 842, 867 (10th Cir. 1989) (quoting Smith, 461 U.S. at 46). If a reasonable jury
could find that the defendant acted with malice or callous indifference, the matter of
punitive damages should be submitted to the jury. See Cameron v. City ofN.Y., 598 F.3d
50, 69 (2d Cir. 2010) (holding district court should instruct jury on punitive damages
when plaintiff introduces some evidence defendant acted with notice or callous
indifference).
The Supreme Court has repeatedly affirmed the historical nature of the
Seventh Amendment right to a trial by jury in federal cases involving
punitive damages. Its decisions, taken together, indicate that this right
includes the right to a jury determination regarding the amount of punitive
damages. See [Capital Sols., LLC v. Konica Minolta Bus. Sols. U.S.A., Inc,
695 F.Supp.2d 1149, 1152 (D. Kan. 2010)] (holding that "the Seventh
Amendment does require that the jury also be allowed to determine the
amount of any punitive damages awarded").
Jones V. United Parcel Serv., Inc., 674 F.3d 1187, 1205-06 (10th Cir. 2012).
John Patterson, in his individual capacity, argued against punitive damages.
However, because the Court granted him qualified immunity, that argument is moot.
Patterson's Motion, at 24-25. Andrew Beamer, in his individual capacity, also argued
51
against punitive damages, but because the Court granted summaryjudgment against HCI,
that argument is moot. Beamer's Motion, at 24.
CONCLUSION
For the foregoing reasons, it is hereby
ORDERED Defendant John Patterson's, in his Individual Capacity, Motionfor
Summary Judgment (ECV No. 158), is GRANTED. It is further
ORDERED Motionfor Summary Judgment by Defendant Beamer in his Individual
Capacity and Joinder in Summary Judgment Briefing Submitted by Co-Defendants (EOF
No. 160), is GRANTED. It is further
ORDERED Plaintiffs' Motionfor Partial Summary Judgment on Defendants'
Stated Affirmative Defenses (Immunities) (ECF No. 163) is GRANTED. It is further
ORDERED The City ofCasper and John Patterson in his Official Capacity's
Motion for Summary Judgment as to the Plaintiffs' First and Second Causes ofAction
(ECF No. 165) is GRANTED. It is further
ORDERED The City ofCasper's Motion for Summary Judgment (ECF No. 169),
is DENIED in part and moot as to other arguments in lieu of this Order.
Dated this day of April, 2017.
ALAN B. JOHNSO>r
UNITED STATES DISTRICT JUDGE
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Case 1:14-cv-00045-ABJ Document 208 Filed 04/14/17 Page 1 of 52

IN THE UNITED STATES DISTRICT COURT) spr? | pv| 3.

CRAIG HEDQUIST, and HEDQUIST

Plaintiffs, Case No. 14-CV-0045-J

JOHN PATTERSON, ANDREW

ORDER ON PARTIES' COLLECTIVE MOTIONS FOR SUMMARY

by Defendant Beamer in his Individual Capacity and Joinder in Summary Judgment

Summary Judgment on Defendants' Stated Affirmative Defenses (Immunities) (ECF No.

The Court having carefully considered the aforementioned motions, their

matter finds as follows.

(collectively "Defendants") retaliated against Craig Hedquist in his capacity as a City

an amount to be determined at trial. Id. In their Second Amended Complaintfor Civil

Plaintiff, Craig Hedquist, is a majority shareholder of HCI, a road, water, and

So, who am I? I am a father of four (all grown), husband of 30 years and

Please vote August 21st and again November 6th.

^The Casper City Council is made up of nine members. Three councilmembers

The alleged protected speech

City, as well as "incompetent" City employees. Hedquist Depo. 128:2132:14.

[Mr.] Hedquist repeatedly raised the example of the Fairgrounds watermain

contractors by and for a productive meeting. Id. Ex. 7.

in an efficient matter, specifically on paving and rotomilling operations. Hedquist Depo.

122:4122:12, 124:3124:16. In March of 2013 several emails and a letter were

Letter fi-om Rick Harrah to John Patterson (undated).

^ See this Court's Order Denying Plaintiffs' Motion to Reconsider Magistrate

It is abundantly clear that I need to make changes to our current cost

Collectors West Project. Beamer Depo., at 30:2533:22; HCI 30(b)(6) Depo., at

Depo., at 30:2533:22. Mr. Beamer thought this to be a conflict of interest and so

deposited that day).

Craig Hedquist: You guys going to start paying on time?

Hedquist: Do you know who is talking to you?

Mr. Harrah, his supervisors, that day. Beamer Depo., 44:1745:9.

As a result of the verbal altercation, Mr. Beamer filed a workplace violence

would no longer be considered a responsible bidder on future projects." Id.

insulted City staff for their alleged lack of competence. Id.

Investigation and proceedings

conflict of interest investigation regarding Mr. Hedquist's interests as an HCI shareholder

requests for job cost information.

According to the [Reeves] letter, Hedquist clearly used his position as a

Reeves cited an Aug. 27 letter by Hedquist asking for cost information

Procedures concerning the conflict of interest and workplace violence allegations.

employees gave statements in support of the allegations against Mr. Hedquist.

ethics. Casper City CouncilMinutes, May 15, 2014, http://www.casperwy.gov/cms/

one.aspx?portalid=6 3067&pageid=87505. Mr. Hedquist declined to resign at that time,

The alleged retaliation

Apart from the aforementioned investigation, removal proceedings, and negative

HedquistDepo., at 39:21-41:6, 182:25-183:4, 198:7-198:13, 310:8-311:8; o/

Casper's Second Mot., at 3.

determined HCI to be a non-responsible bidder. Id.

SUMMARY JUDGMENT STANDARD OF REVIEW

Summary judgment is appropriate where "there is no genuine dispute as to any

non-movant's favor." Anderson, 477 U.S. at 255.

nonexistence of a genuine dispute of material fact. Lynch v. Barrett, 703F.3dll53, 1158

(2) demonstrating that the nonmoving party's evidence is insufficient to establish an

Mun. Corp., 565 F.3d 1252, 1258 (10th Cir. 2009).

are seeking compensatory damages and punitive damages in an amount to be determined

allegations. Defs. Answer.

United States." 28 U.S.C. 1331.

Patterson's, in his individual capacity, Motionfor Summary Judgment, together with

Briefin Support ofDefendant Patterson's Motionfor Summary Judgment, ("Patterson's

damages against John Patterson, in his individual capacity?

Summary Judgment by Defendant Beamer in his Individual Capacity and Joinder in

Summary Judgment Briefing Submitted by Co-Defendants, together with Defendant

Andrew Beamer's Briefin Support ofhis Motionfor Summary Judgment ("Beamer's