                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         JUL 21 1998
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 MARIBOB L. HAMMETT,
             Plaintiff - Appellee,                      No. 97-6374
 v.                                               (D.C. No. 96-CV-1333)
 OKLAHOMA DEPARTMENT OF                                 (W.D. Okla.)
 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,
             Defendants - Appellants.


                          ORDER AND JUDGMENT *


Before ANDERSON, McKAY, and LUCERO, Circuit Judges.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and the appellate record, this panel has

determined unanimously to grant the parties’ request for a decision on the briefs

without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case

is therefore ordered submitted without oral argument.

      Plaintiff Maribob Hammett brought an action against the 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 her First and Fourteenth

Amendment rights, a violation of Oklahoma’s whistleblowing statute, and other

state law claims including intentional infliction of emotional distress and

wrongful termination. All of the defendants filed a Federal Rule of Civil

Procedure 12(b)(6) motion to dismiss all of Plaintiff’s claims. The district court

denied the motion to dismiss.

      The individual members of the Board of DMHSAS [Defendants] appeal

only the court’s refusal to dismiss the First Amendment section 1983 claim on

qualified immunity grounds. Plaintiff argues that disciplinary actions taken in

retaliation against her as the Patient Advocate General 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

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dismiss is immediately appealable because it was purely 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 actions is an abstract
      issue of law that is immediately appealable. A determination that
      under either party’s version of the facts the defendant violated
      clearly established law is also immediately appealable. However,
      government officials cannot appeal pretrial denial of qualified
      immunity to the extent the district court’s order decides nothing more
      than whether the evidence could support a finding that particular
      conduct occurred. An order denying qualified immunity on summary
      judgment is not appealable if it merely determines the facts asserted
      by the plaintiff are sufficiently supported by evidence 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 to 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 construed plaintiff’s allegations in

the light most favorable to her, as this Court must do at this stage of the litigation,

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the Court is satisfied that plaintiff’s complaint is sufficient to withstand

dismissal.” Appellant’s App., Doc. F at 3. Because the court appropriately

accepted all well-pleaded factual allegations in Plaintiff’s complaint as true and

drew all reasonable inferences in her favor, its decision 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 review 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 the 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 reversing Rule 12(b)(6) motion

to dismiss on qualified immunity because the complaint, and all inferences in

favor of plaintiff, established a claim that defendants 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 claim of qualified immunity are

undisputed, the court could exercise jurisdiction over 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 to dismiss on grounds of qualified

immunity is a final appealable order),    cert. denied ,    U.S.     , 117 S. Ct. 1081


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(1997).

       We review de novo the denial of a motion to dismiss based on qualified

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 established 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 plaintiff must (1) allege

sufficient facts showing that the defendant’s actions 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 assessment of whether

Plaintiff has asserted a violation of a constitutional 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 complaint in the light most

favorable to Plaintiff, accept all well-pleaded allegations as true, and draw all

reasonable inferences in Plaintiff’s favor.     See Bella , 24 F.3d at 1254; see also


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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 it appears beyond doubt that a

“plaintiff can prove no set of facts” that would entitle 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 established statutory or

constitutional rights.

      Plaintiff rests her section 1983 claim on an alleged violation of her First

Amendment right to free speech. She alleges that she was retaliated against for

her speech on matters of public concern. Specifically, she contends that

Defendants restricted her duties and rights as Patient Advocate General to the

DMHSAS and eventually terminated her in retaliation for her speech. The alleged

speech encompasses Plaintiff’s reporting of specific patient complaints and

alleged violations of the rights of patients in DMHSAS facilities to those

facilities and to her supervisor. Plaintiff’s speech 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 to discharge her duties in the

face of DMHSAS harassment.

      Generally, public employment cannot be conditioned “on a basis that

infringes the employee’s constitutionally protected interest in freedom of


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expression.” Connick v. Myers , 461 U.S. 138, 142 (1983);            see Ramirez , 41 F.3d

at 593. “[I]t is essential that public employees be 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 claim

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 patients in Oklahoma’s

Department of Mental Health system “involves a matter 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 concern 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 principles 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 allegedly 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 our interpretation in

Ramirez , the relevant Oklahoma statutes, and the DMHSAS regulations,

Plaintiff’s alleged speech certainly involved matters of public concern. That


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Plaintiff’s speech was motivated by a desire to expose wrongdoing and was

related to her job duties as Patient Advocate General 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 retaliatory

action in this case, and the Oklahoma statutes discussed therein,       see 41 F.3d at

593-94, so that reasonable officials would have understood 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 against public school teacher who

was harassed, reprimanded, and suspended for speech may give rise to First

Amendment claim), cert. denied , 479 U.S. 1085 (1987).

       Further, the DMHSAS regulations and another Oklahoma 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 whistle 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 its accompanying regulations.


                                            -8-
Plaintiff also alleges that Defendants knew or should have known of the

Oklahoma statute which prohibits a state agency from taking disciplinary action

against an employee for disclosing public information or reporting violations of

state or federal law, such as violations of patients’ 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 that statute which was enacted in

1982, a disciplinary action may constitute, among other 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 at the DMHSAS and by writing

to a member of the Legislature may not be stymied by the alleged retaliatory

actions.

        At this stage of the proceedings Defendants have not demonstrated that,

under the balancing test established by      Pickering v. Board of Education   , 391 U.S.

563, 568 (1968), the state interest in regulating Plaintiff’s speech outweighs

Plaintiff’s First Amendment interest in reporting patient 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


        1
         This determination does not preclude Defendants from asserting the
qualified immunity defense as the facts develop more fully. See Ramirez , 41 F.3d
at 595 & n.7.

                                              -9-
determination that Defendants were not entitled to qualified immunity at this

stage of the proceedings. Because Plaintiff has alleged a clearly established right

of which a reasonable person should have known, and given the scant factual

record on this Rule 12(b)(6) motion, it is premature 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 generally inappropriate because

qualified immunity defense requires a factual review);   cf. Workman v. Jordan ,

958 F.2d 332, 336 (10th Cir. 1992) (stating that court 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




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