United States Court of Appeals For the Eighth Circuit ___________________________ No. 18-3298 ___________________________ Randy Henry lllllllllllllllllllllPlaintiff - Appellant v. J. Bret Johnson, in his individual capacity; Corey Schoeneberg, in his individual capacity; Stacey Mosher, in her individual capacity; Ronald K. Replogle, in his individual capacity; Luke Vislay, in his individual capacity; Sarah Eberhard, in her individual capacity; Gregory D. Kindle, in his individual capacity; Sandra K. Karsten, in her individual capacity; Gregory K. Smith, in his individual capacity; Malik A. Henderson, in his individual capacity; Kemp A. Shoun, in his individual capacity lllllllllllllllllllllDefendants - Appellees ____________ Appeal from United States District Court for the Western District of Missouri - Jefferson City ____________ Submitted: November 13, 2019 Filed: February 20, 2020 ____________ Before SHEPHERD, GRASZ, and KOBES, Circuit Judges. ____________ GRASZ, Circuit Judge. Sergeant Randy Henry sued eleven members or former members of the Missouri State Highway Patrol (“MSHP”) after adverse employment actions were allegedly taken against him in retaliation for protected First Amendment speech. The district court1 granted summary judgment to each of the eleven defendants on all seven claims. Henry appeals the grant of summary judgment for three of these claims. We affirm. I. Background This suit arises out of the May 2014 drowning of twenty-year-old Brandon Ellingson while he was in MSHP custody on the Lake of the Ozarks. Ellingson’s death resulted in a series of civil and criminal cases and internal MSHP investigations of the drowning. While these investigations were occurring, MSHP Sergeant Randy Henry spoke out several times about MSHP’s role in the drowning. In October 2014, Henry testified twice before a special committee of the Missouri legislature organized to look into a 2011 merger of the Missouri Highway Patrol with the Missouri Water Patrol — the combined entity now known as MSHP. Henry first testified in his official capacity as an MSHP member, and later testified in plain clothes as a private citizen. In June 2015, Henry also gave deposition testimony for a civil lawsuit concerning the Ellingson case. These instances make up what will be referred to as Henry’s “testimonial speech.” Henry also spoke numerous times to a member of the press and members of the Ellingson family about what he claimed was an internal MSHP cover-up of the drowning. Henry also raised the possibility of internal MSHP corruption during the 1 The Honorable Willie J. Epps, Jr., United States Magistrate Judge for the Western District of Missouri, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c). -2- investigation of the Ellingson drowning by insinuating the special prosecutor in the case may have been involved in a quid pro quo with MSHP to exonerate her son in a rape investigation. Henry posted this allegation on a Facebook page dedicated to Ellingson. The social media post outlined how the son was cleared of the rape allegation after a DNA analysis was undertaken by MSHP, and suggested the special prosecutor had a conflict of interest ...
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