* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 21 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARIBOB L. HAMMETT,

Plaintiff - Appellee, No. 97-6374

v. (D.C. No. 96-CV-1333) OKLAHOMA DEPARTMENT OF MENTAL HEALTH & SUBSTANCE ABUSE SERVICES, Sued as State of Oklahoma ex rel; SHARRON BOEHLER, in her individual capacity; DWIGHT HOLDEN, MD, in his individual capacity; J. B. PRATT, MD, in his individual capacity; LAVERN PHILLIPS, in her individual capacity; PAUL BLEVINS, JD, in his individual capacity; JOHN A. CALL, PHD, JD, in his individual capacity; BETTY PFEFFERBAUM, MD, JD, in her individual capacity; and DUANE STEBENS, Ed.D, in his individual capacity, (W.D. Okla.)

Defendants - Appellants.

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.-2-

After examining the briefs and the appellate record , this panel has determined unanimously to grant the parties’ reques t for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff Maribob Hammett brought an action againstthe State of Oklahoma, the Oklahoma Department of Mental Health and Substance Abuse Services [DMHSAS], and individual members of the Board of the DMHSAS in which she alleged a 42 U.S.C. § 1983 violation of h er First and Fourteenth Amendment rights, a violation of Oklahoma’s whistle blowing statute, and other state law claims including intentional infliction o f emotional distress and wrongful termination. All of the defendants filed a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss all of Plainti ff’s claims. The district court denied the motion to dismiss. The individual members of the Board of DMHSAS [Defe ndants] appeal only the court’s refusal to dismiss the First Amend ment section 1983 claim on qualified immunity grounds. Plaintiff argues that disciplinary actions taken in retaliation against her as the Patient Advocate Gen eral for the DMHSAS violated her First Amendment right of free speech. Defendants contend that Plaintiff’s First Amendment claim is barred because they are entitled to qualified immunity, and they assert that the district court’s denial of their Rule 12(b)(6) motion to-3-

dismiss is immediately appealable because it was pu rely a legal decision. Orders denying qualified immunity before trial are immediately appealable when they resolve issues of law. See Behrens v. Pelletier , 516 U.S. 299, 311, 313 (1996); Johnson v. Jones , 515 U.S. 304, 312-14 (1995); Clanton v. Cooper , 129 F.3d 1147, 1152 (10th Cir. 1997). This court summarized when the denial of qualified immunity is appealable in Foote v. Spiegel : A determination that the law allegedly violated by the defendant was clearly established at the time of the challenged a ctions is an abstract issue of law that is immediately appealable. A det ermination that under either party’s version of the facts the defen dant violated clearly established law is also immediately appeala ble. However, government officials cannot appeal pretrial denial of qualified immunity to the extent the district court’s order d ecides nothing more than whether the evidence could support a finding t hat particular conduct occurred. An order denying qualified immun ity on summary judgment is not appealable if it merely determines the facts asserted by the plaintiff are sufficiently supported by evid ence in the record to survive summary judgment. 118 F.3d 1416, 1422 (10th Cir. 1997) (citations omitted); see also Wilson v. Meeks , 98 F.3d 1247, 1251-52 (10th Cir. 1996) (surveying circuit court cases applying the rules announced in Behrens and Johnson ). In its denial of Defendants’ Rule 12(b)(6) motion t o dismiss the First Amendment claim on qualified immunity grounds, the district court relied on our decision in Ramirez v. Oklahoma Dep’t of Mental Health , 41 F.3d 584, 589 (10th Cir. 1994). The court stated that, “[h]aving const rued plaintiff’s allegations in the light most favorable to her, as this Court mustdo at this stage of the litigation,-4-

the Court is satisfied that plaintiff’s complaint i s sufficient to withstand dismissal.” Appellant’s App., Doc. F at 3. Becaus e the court appropriately accepted all well-pleaded factual allegations in Pl aintiff’s complaint as true and drew all reasonable inferences in her favor, its de cision denying qualified immunity at the Rule 12(b)(6) stage did not involve any disputed questions of fact. We conclude that we have jurisdiction to rev iew the denial of Defendants’ motion to dismiss on the basis of qualified immunity because the court’s decision solely involved applying principles of law to an assumed set of facts. See Mitchell v. Forsyth , 472 U.S. 511, 528 n.9 (1985) (stating that “the appealable [immunity] issue is a purely legal one: whether th e facts alleged . . . support a claim of violation of clearly established law”); Seamons v. Snow , 84 F.3d 1226, 1238 (10th Cir. 1996) (retaining jurisdiction and r eversing Rule 12(b)(6) motion to dismiss on qualified immunity because the compla int, and all inferences in favor of plaintiff, established a claim that defend ants violated clearly established law); accord Dickerson v. McClellan , 101 F.3d 1151, 1156-57 (6th Cir. 1996) (concluding that where the facts giving rise to a c laim of qualified immunity are undisputed, the court could exercise jurisdiction o ver the appeal to the extent that it raised legal questions); Hafley v. Lohman , 90 F.3d 264, 266 (8th Cir. 1996) (stating that an interlocutory denial of a motion t o dismiss on grounds of qualified immunity is a final appealable order), cert. denied , U.S. , 117 S. Ct. 1081-5-

(1997). We review de novo the denial of a motion to dismiss based on qualifi ed immunity because it is a question of law. See Bella v. Chamberlain , 24 F.3d 1251, 1254 (10th Cir. 1994), cert. denied , 513 U.S. 1109 (1995). At the Rule 12(b)(6) stage, qualified immunity protects defendants performing discretionary functions from individual liability unless, on the face of the complaint, the plaintiff alleges the violation of “clearly establi shed statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982); see Hafley , 90 F.3d at 266. Once a defendant pleads qualified immunity as an affirmative defense, the p laintiff must (1) allege sufficient facts showing that the defendant’s actio ns violated a constitutional or statutory law, and (2) show “‘that the relevant law was clearly established when the alleged violation occurred.’” Clanton , 129 F.3d at 1153 (quoting Gehl Group v. Koby , 63 F.3d 1528, 1533 (10th Cir. 1995)). In our ass essment of whether Plaintiff has asserted a violation of a constitutio nal right and whether the constitutional right was clearly established so that reasonable officials would have understood that their conduct violated that right, we, like the district court before us, must construe the complaint and amended complai nt in the light most favorable to Plaintiff, accept all well-pleaded all egations as true, and draw all reasonable inferences in Plaintiff’s favor. See Bella , 24 F.3d at 1254; see also-6-

Conley v. Gibson , 355 U.S. 41, 45-46 (1957) (noting that a complaint should not be dismissed for failure to state a claim unless itappears beyond doubt that a “plaintiff can prove no set of facts” that would en title him to relief). At this stage of the proceedings, we do not determine the merits of Plaintiff’s claim that Defendants’ conduct actually violated clearly estab lished statutory or constitutional rights. Plaintiff rests her section 1983 claim on an allege d violation of her First Amendment right to free speech. She alleges that s he was retaliated against for her speech on matters of public concern. Specifica lly, she contends that Defendants restricted her duties and rights as Pati ent Advocate General to the DMHSAS and eventually terminated her in retaliationfor her speech. The alleged speech encompasses Plaintiff’s reporting of specifi c patient complaints and alleged violations of the rights of patients in DMH SAS facilities to those facilities and to her supervisor. Plaintiff’s spee ch also includes her letter to a member of the Oklahoma Legislature which described patient abuses within the DMHSAS, Plaintiff’s advocacy on behalf of her clients, her reporting of the abuses to the DMHSAS, and her resulting inability t o discharge her duties in the face of DMHSAS harassment. Generally, public employment cannot be conditioned “on a basis that infringes the employee’s constitutionally protectedinterest in freedom of-7-

expression.” Connick v. Myers , 461 U.S. 138, 142 (1983); see Ramirez , 41 F.3d at 593. “[I]t is essential that public employees b e able to speak out freely [on matters of public concern] without fear of retaliatory dismissal.” Connick , 461 U.S. at 149. We rely on Oklahoma statutes, DMHSAS regulations, and this court’s decision in Ramirez to hold that Plaintiff has sufficiently stated a c laim alleging a clearly established free speech right to report patient abuses and treatment at DMHSAS facilities. Ramirez determined that the quality of care given to patie nts in Oklahoma’s Department of Mental Health system “involves a matt er of public concern.” 41 F.3d at 593; see Connick , 461 U.S. at 145-46 (discussing public concern as a matter relating to “political, social or other conc ern to the community”). In Ramirez , we recognized Oklahoma’s strong public policy of protecting patients from abuse. See 41 F.3d at 593-94. We are convinced that the prin ciples of Oklahoma law discussed in Ramirez apply equally to this case. Similar to the duty of medical and nursing personnel to safeguard patients, Plaintiff’s job description and its authorizing regulations alleged ly obligated her to protect the interests and rights of mental health patients within the DMHSAS. See Appellants’ App., Docs. A & B & Exhs. 1-4. Under o ur interpretation in Ramirez , the relevant Oklahoma statutes, and the DMHSAS re gulations, Plaintiff’s alleged speech certainly involved matte rs of public concern. That-8-

Plaintiff’s speech was motivated by a desire to exp ose wrongdoing and was related to her job duties as Patient Advocate Gener al reinforces the public importance of her speech. We also hold that the constitutional right alleged by Plaintiff was clearly established by Ramirez , which was decided in 1994 before the alleged reta liatory action in this case, and the Oklahoma statutes discussed therein, see 41 F.3d at 593-94, so that reasonable officials would have und erstood that their conduct violated that right. See Medina v. City & County of Denver , 960 F.2d 1493, 1498 (10th Cir. 1992); see also Wren v. Spurlock , 798 F.2d 1313, 1318 (10th Cir. 1986) (holding that adverse employment action again st public school teacher who was harassed, reprimanded, and suspended for speechmay give rise to First Amendment claim), cert. denied , 479 U.S. 1085 (1987). Further, the DMHSAS regulations and another Oklahom a statute give a reasonable official notice that it would be a violation of Plaintiff’s rights to discipline or terminate her after she blew the whis tle on improprieties at the DMHSAS. It is a logical and reasonable inference that Defendants, who are members of the board of the DMHSAS, would be aware of DMHSAS regulations which describe the function and responsibility of the Patient Advocate General. This inference is especially reasonable in light of the fact that the DMHSAS itself created the Patient Advocate General position and i ts accompanying regulations.1 This determination does not preclude Defendants fr om asserting the

qualified immunity defense as the facts develop more fully. See Ramirez , 41 F.3d at 595 & n.7. -9- Plaintiff also alleges that Defendants knew or shou ld have known of the Oklahoma statute which prohibits a state agency fro m taking disciplinary action against an employee for disclosing public informati on or reporting violations of state or federal law, such as violations of patient s’ rights, and for discussing the operations and functions of the agency with a member of the Legislature. See Okla. Stat. Ann. tit. 74, § 840-2.5(A). Under thatstatute which was enacted in 1982, a disciplinary action may constitute, among o ther things, a withholding of work, reprimand, admonishment, warning of possible dismissal or dismissal. See id. § 840-2.5(D). Plaintiff’s alleged attempt to care for patients in an aggressive manner by reporting violations to her supervisor atthe DMHSAS and by writing to a member of the Legislature may not be stymied b y the alleged retaliatory actions. At this stage of the proceedings Defendants have no t demonstrated that, under the balancing test established by Pickering v. Board of Education , 391 U.S. 563, 568 (1968), the state interest in regulating P laintiff’s speech outweighs Plaintiff’s First Amendment interest in reporting p atient abuses by DMHSAS facilities. 1 See Ramirez , 41 F.3d at 594-95. For these reasons, we cannot say that the district court was erroneous in its-10-

determination that Defendants were not entitled to qualified immunity at this stage of the proceedings. Because Plaintiff has al leged a clearly established right of which a reasonable person should have known, andgiven the scant factual record on this Rule 12(b)(6) motion, it is prematur e to grant qualified immunity.
See Seamons , 84 F.3d at 1238-39; see also 2 James Wm. Moore, Moore’s Federal Practice , § 12.34[4][b] & n.56 (3d ed. 1998) (stating that dismissal for failure to state a claim on qualified immunity grounds is gene rally inappropriate because qualified immunity defense requires a factual review); cf. Workman v. Jordan , 958 F.2d 332, 336 (10th Cir. 1992) (stating that co urt cannot frame question of qualified immunity as factual to avoid determining whether the law was clearly established at time of alleged violation).
AFFIRMED. Entered for the Court

Monroe G. McKay Circuit Judge