By: Derek Hawkins//September 30, 2015//
Civil
WI Court of Appeals – District III
Officials: Stark, P.J., Hruz, J., and Thomas Cane, Reserve Judge.
First Amendment – Dismissal of Claims – Court Error
2014AP2479 Eric N. Soderlund v. David B. Zibolski
Eric Soderlund appeals an order that granted David Zibolski’s motion for judgment on the pleadings and dismissed Soderlund’s claims. Soderlund argues the circuit court erroneously determined he failed to state a retaliation claim under 42 U.S.C. § 1983 (2012) for violation of his First Amendment rights. We hold: (1) Soderlund failed to plead a claim against Zibolski in his official capacity; (2) based on our adoption of the federal incorporation-by-reference doctrine, the circuit court properly considered a document referenced in the complaint without transforming Zibolski’s motion into one for summary judgment; and (3) Soderlund’s speech was not protected by the First Amendment, because he spoke on a matter of personal concern, rather than public concern, and because he spoke in his capacity as a public employee, rather than as a citizen. Accordingly, we affirm.
Decision
Affirmed – Recommended for Publication.