United States District Court, D. North Dakota
MEMORANDUM & ORDER
WILLIAM G. YOUNG, DISTRICT JUDGE. 
Plaintiff Thomas Nagel (“Nagel”) brought this
suit against the Defendants City of Jamestown, North Dakota
(the “City”), and Scott Edinger, the Chief of the
Police Department of Jamestown (“Edinger, ” and
collectively with the City, the “Defendants”)
alleging violations of his federal and state constitutional
rights. Pending before the Court are the Defendants'
motion for summary judgment and Nagel's motion for
partial summary judgment. For the reasons stated herein, the
Court GRANTS the Defendants' motion for summary judgment
on Counts I, II and IV and DENIES Nagel's motion for
partial summary judgment. The Court dismisses Count III
April 5, 2017, Nagel filed a complaint in the United States
District Court for the District of North Dakota against the
City and the chief of its police department, Edinger. Compl.
¶¶ 21-48, ECF No. 1. In his complaint, Nagel
alleges a violation of his First Amendment rights under 42
U.S.C. § 1983 (Count I); a violation of his Fourteenth
Amendment right to due process under 42 U.S.C. § 1983
(Count II); a violation of his constitutional rights under
Article I, sections 4, 5 and 9 of the North Dakota
Constitution (Count III); and a violation of the North Dakota
Administrative Code Chapter 4-07-19 (Count IV). Id.
April 3, 2018, the Defendants filed a motion for summary
judgment. Defs.' Mot. Summ. J., ECF No. 23. The parties
fully briefed the issues. Defs.' Mem. Supp. Mot. Summ. J.
(“Defs.' Mem.”), ECF No. 24; Pl.'s Resp.
Mot. Summ. J. (“Pl.'s Opp'n”), ECF No.
49; Defs.' Reply Pl.'s Resp. Mot. Summ. J.
(“Defs.' Reply”), ECF No. 54. Nagel also
filed a motion for partial summary judgment on Count II, a
portion of Count III, and Count IV. Pl.'s Mot. Partial
Summ. J., ECF No. 38. This motion was fully briefed as well.
Pl.'s Mem. Supp. Partial Summ. J. (“Pl.'s
Mem.”), ECF No. 43; Defs' Mem. Opp'n Partial
Summ. J. (“Defs.' Opp'n”), ECF No. 47;
Pl.'s Reply Defs' Resp. Mot. Partial Summ. J.
(“Pl.'s Reply”), ECF No. 51.
1, 2018, this Court heard oral argument on both motions and
took the matter under advisement. See ECF Nos. 55,
April 16, 1989, Nagel started working for the Jamestown
Police Department. Aff. Brian D. Schmidt (“Schmidt
Aff.”), Ex. 1 at 3, ECF No. 26-1. Edinger was the Chief
of the Police Department and Nagel's supervisor at all
material times. Aff. Scott Edinger (“Edinger
Aff.”) ¶ 1, ECF No. 37. Nagel was also affiliated
with the Fraternal Order of Police, a labor union that
represents some members of the police department. Compl.
¶ 2. In 1998, Nagel founded the James Valley Regional
Lodge Number 4 of the Fraternal Order of Police and became
its president for a period of eighteen years. Schmidt Aff.,
Ex. 2 (“CSC Hearing Transcript”), 154:11-19, ECF
No. 26-2. As the president, Nagel advocated for a change in
the retirement system of city employers. Schmidt Aff., Ex. 4,
¶ 12, ECF No. 26-4. Nagel's advocacy and behavior in
some meetings created tension with his superiors. Edinger
Aff. ¶¶ 2-9.
2013, after attending a class in which it was recommended to
police officers to use pseudonyms on social media, Nagel
changed his Facebook name to “Dominic Brimm” and
privatized his account. CSC Hearing Transcript at
156:11-157:6. According to Nagel's testimony, he also
created a false Facebook account under the name of Robert
Hines, who posed as a local kid who had dropped out of
school. Id. at 158:20-23. Nagel used the Hines
account to spy on people that the police department was
investigating. Id. at 158:11-25, 159:1-18; Schmidt
Aff., Ex. 5 (“Nagel's Deposition”),
60:1-61:18, ECF No. 26-5. Using the Hines account, Nagel
clicked on the Facebook page of Matt Thom
(“Thom”), the Stutsman County Deputy, and saw a
picture of Thom riding a jet-ski with the son of Stutsman
County Sheriff Kaiser (“Sheriff Kaiser”).
Id. at 62:5-63:7.
early November 2015, KVLY, a television station in Fargo,
North Dakota, received a tip from a “Dominic
Brimm” about the improper conduct of some members of
the Stutsman County Sheriff's Department. Edinger Aff.
¶ 10. The hotline tip alleged that a county-owned
jet-ski had been used by a member of the Stutsman County
Sheriff's Office (“Sheriff's Office”) for
personal purposes, and included the Facebook picture. Aff.
Thomas Nagel (“Nagel Aff.”) ¶¶ 5-6, ECF
No. 45. After receiving the tip, Valley News Live reporter
Christine Stanwood (“Stanwood”) came to the
Stutsman County courthouse on November 4, 2015. Edinger Aff.
¶ 10. Nagel then had a camera interview with Valley News
Live, in which he commented on an alleged crime commited by a
member of the Sheriff's Office who had used a
government-owned jet-ski for personal use. Compl.
¶¶ 7-8; Schmidt Aff., Ex. 3 (“VNL
Interview”), ECF No. 26-3. In the interview, Nagel
aknowledged that Dominic Brimm was the alias he went by on
Facebook. VNL Interview at 1:45-1:52. He said that he knew
about the picture but denied being the one who sent it to
Valley News Live. Id. at 2:09-2:14. When asked about
who did, he answered: “I can say it is somebody that
would be in fear of losing their job.” Id. at
the interview, Nagel went to Edinger's office and told
him that he knew who had submitted the tip. CSC Hearing
Transcript at 263:10-265:22. That afternoon, Nagel visited
attorney Joseph Larson (“Larson”). Nagel's
Deposition at 118:11-25. In Larson's office, Nagel talked
to the North Dakota Game and Fish Department and verified
that the County did not own a jet-ski. Id. at
the Valley News Live interview, the County prohibited
Nagel's Fraternal Order from holding any meetings or
activities on County properties, and required the Fraternal
Order to remove vending machines from which it profited and
the ATM it housed in the County building. Id. at
filed two grievances against Edinger. Nagel filed the first
grievance after Edinger told him that some people wanted his
resignation. Edinger Aff. ¶ 22; Nagel's Deposition
at 126:10-18; CSC Hearing Transcript at 272:1-5. Edinger
responded to the grievance by explaining that Casey Bradley,
the Stutsman County Auditor, had mentioned this to him and
that no formal request for the resignation had been made.
Edinger Aff., Ex. 4, ECF No. 37-4. On November 5, 2015,
Sherriff Kaiser told Edinger that he wanted Nagel to stay out
of the Sheriff's Office. Edinger Aff. ¶ 23; CSC
Hearing Transcript at 273:22-274:2. The Sheriff's Office
and Police Department offices are located within the same
building and are separated by a hallway. Edinger Aff. ¶
16; Aff. Chad Kaiser (“Kaiser Aff.”) ¶ 6,
ECF No. 27. According to Kaiser's and Edinger's
testimony, the Valley News Live incident had created
“extreme tension” between the two offices.
Edinger Aff. ¶ 15; Kaiser Aff. ¶ 5. Edinger ordered
Nagel to stay out of the Sheriff's Office. Edinger Aff.
¶ 20; CSC Hearing Transcript at 274:15-21. Nagel filed
his second grievance on January 27, 2016, in which he stated
that Edinger had an obligation to put the order in writing.
CSC Hearing Transcript at 218:21-219:2; Edinger Aff., Ex. 3
at 3-4, ECF No. 37-3. Nagel did not follow through with any
of the grievances. Edinger Aff. ¶ 27; CSC Hearing
Transcript at 273:22-274:12.
the Police Department and Sheriff's Office requested that
the North Dakota Criminal Bureau of Criminal Investigation
(“BCI”) conduct a criminal investigation on the
jet-ski issue. Compl. ¶ 9; Edinger Aff., Ex. 1
(“BCI Report”), 8-9, ECF No. 37-1; Edinger Aff.,
Ex. 9 (“Edinger's Deposition”), 98:10-99:24,
ECF No. 37-9. Various members of the Jamestown Police
Department and Sheriff's Office were interviewed. BCI
Report at 2-7, 11-36, 82-96, 112-16. The BCI never
interviewed Nagel. Id. at 32-36. On December 31,
2015, Nagel's attorney sent another letter to the BCI
asserting that Stutsman County leased a jet-ski and
concluding that an enforcement officer had a “duty to
pursue exonerating and exculpatory evidence.”
Id. at 109-10. On February 4, 2016, the BCI
investigation closed, having concluded that the Sheriff's
Office did not own a jet-ski and that there was insufficient
evidence to support a criminal prosecution. Id. at
62, 122; Nagel Aff. ¶ 8 & Ex. 2.
Police Department and the Sheriff's Office also conducted
a joint internal investigation of potential violations
related to the Valley News Live report. Edinger's
Deposition at 102:8-103:4; Compl. ¶ 9. The investigation
included thirty interviews of employees of the Jamestown
Police and Sheriff's Office. Aff. John Johnson
(“Johnson Aff.”) ¶ 5, ECF No. 32. During his
interview, Sheriff Kaiser stated that the jet-ski depicted in
the picture belonged to his brother-in-law and that the whole
incident had caused “huge tension” in both his
personal life and at work. Kaiser Aff., Ex. 1, 4:16-24,
11:14-12:7, ECF No. 27-1. He recalled that his wife had taken
a picture of Thom and his son on the jetski and sent it to
Thom. Id. at 5:6-7, 9:23-10:1. The picture then
became public when Thom designated it as his Facebook profile
picture. BCI Report at 42. Several of the interviewees
affirmed that Nagel knew the source of the anonymous tip sent
to Valley News Live. Gross Aff., Ex. 1, 23:1-24:1, ECF No.
35-1; Hirchert Aff. Ex. 1, 10:13-11:12, ECF No. 25-1; CSC
Hearing Transcript at 263:10-265:22.; Overvold Aff., Ex. 1,
5:9-6:17, ECF No. 30-1; Falk Aff., Ex. 1 (“Prochnow
Interview”), 25:8-14, 27:19-28:2, 49:14-50:23, ECF No.
was the last officer to be interviewed. Johnson Aff. ¶
8. On February 12, 2016, Johnson sent Nagel an email
explaining that he had been assigned to conduct an
investigation about the Valley News Live broadcast. Johnson
Aff., Ex. 1, 1-2, ECF No. 32-1. On February 15, 2016, Larson
sent an email to Johnson saying that Johnson and
Edinger's actions violated Nagel's constitutional
rights and that Nagel could not be disciplined for exercising
his permitted rights. Johnson Aff., Ex. 2, ECF No.32-2.
Johnson responded that he was investigating the Valley News
Live incident to determine whether there had been violations
of the Rules and Regulations of the Jamestown Police
Department and that there had been no
“complaint.” Johnson Aff., Ex. 3 at 2, ECF No.
32-3. Larson filed a motion for a temporary restraining
order, or in the alternative, a writ of mandamus in the
District Court of North Dakota. Johnson Aff., Ex. 5, ECF No.
32-5. Larson argued that Nagel's answers to the
investigation could “be used to discipline the employee
including termination of employment.” Id. at
¶ 5. The court entered a writ of mandamus excluding any
member of the Stutsman County Sheriff's Department or any
other investigative agency from Nagel's interview.
Johnson Aff., Ex. 6, ECF No. 32-6.
February 19, 2016, Nagel was interviewed in the presence of
his attorney. Johnson Aff., Ex. 7, 2:8-15, ECF No. 32-7.
Johnson read Nagel his rights, which included a “right
to be informed of the allegations involved.”
Id. at 3:3-4:1. Johnson also informed Nagel that his
statements could be used to seek disciplinary action against
him. Id. During the interview, Johnson explained to
Nagel that he was investigating violations of the Jamestown
Police Department Rules and Regulations and the Law
Enforcement Code of Ethics related to the Valley News Live
incident. Id. at 4:10-7:2. In the interview, Nagel
was questioned about the Valley News Live interview and
confronted with evidence from Thom's, Gross's, and
Edinger's interviews and evidence from the Valley News
Live report. Id. at 17:5-23:20.
investigative reports concluded that Nagel's actions were
directly related to his role as a police officer and had
“brought discredit” to the Jamestown Police
Department and the Stutsman County Sheriff's Office.
Johnson Aff., Ex. 10 at 11, ECF No. 32-10. The report stated
that Nagel's responses indicated that Nagel knew who had
sent the tip, as Nagel had stated to several of his
colleagues. The report concluded that Nagel had lied to the
investigators about his knowledge of who was responsible ...