Nicastle v. Adams County Sheriff's Office et al

Filing 89

ORDER. The Defendants Motion for Summary Judgment 48 filed 2/18/2011, is GRANTED as to the plaintiffs claims for denial of his right to due processof law and the plaintiffs tort claim under state law for violation of public policy; and the Defendants Motion for Summary Judgment 48 filed 2/18/2011, is DENIED otherwise. By Judge Robert E. Blackburn on 4/28/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 10-cv-00816-REB-KMT
MARK R. NICASTLE,
Plaintiff,
v.
ADAMS COUNTY SHERIFF’S OFFICE, and
SHERIFF DOUGLAS N. DARR, in his official and individual capacity,
Defendants.
ORDER CONCERNING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Blackburn, J.
This matter comes before me on the Defendants’ Motion for Summary
Judgment [#48]1filed February 18, 2011. The plaintiff filed a response [#58], and the
defendants filed a reply [#66]. I grant the motion in part and deny it in part.2
I. JURISDICTION
I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question) and
28 U.S.C. § 1367 (supplemental jurisdiction).
II. STANDARD OF REVIEW
Summary judgment is proper when there is no genuine issue as to any material
fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c);
1

“[#48]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
2

The issues raised by and inherent to the motion for summary judgment are fully briefed,
obviating the necessity for evidentiary hearing or oral argument. Thus, the motion stands submitted on the
papers. Cf. FED. R. CIV. P. 56(c) and (d). Geear v. Boulder Cmty. Hosp., 844 F.2d 764, 766 (10th
Cir.1988) (holding that hearing requirement for summary judgment motions is satisfied by court's review of
documents submitted by parties).

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute is “genuine” if the issue
could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986); Farthing v. City of Shawnee, 39 F.3d
1131, 1135 (10th Cir. 1994). A fact is “material” if it might reasonably affect the outcome
of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Farthing, 39
F.3d at 1134.
A party who does not have the burden of proof at trial must show the absence of
a genuine fact issue. Concrete Works, Inc. v. City & County of Denver, 36 F.3d
1513, 1517 (10th Cir. 1994), cert. denied, 514 U.S. 1004 (1995). Once the motion has
been properly supported, the burden shifts to the nonmovant to show, by tendering
depositions, affidavits, and other competent evidence, that summary judgment is not
proper. Concrete Works, 36 F.3d at 1518. All the evidence must be viewed in the light
most favorable to the party opposing the motion. Simms v. Oklahoma ex rel
Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326
(10th Cir.), cert. denied, 528 U.S. 815 (1999). However, conclusory statements and
testimony based merely on conjecture or subjective belief are not competent summary
judgment evidence. Rice v. United States, 166 F.3d 1088, 1092 (10th Cir.), cert.
denied, 528 U.S. 933 (1999); Nutting v. RAM Southwest, Inc., 106 F.Supp.2d 1121,
1123 (D. Colo. 2000).
Defendant, Sheriff Douglas N. Darr, asserts the defense of qualified immunity
and raises that defense as one of the bases for his motion for summary judgment. A
motion for summary judgment asserting qualified immunity must be reviewed differently
from other summary judgment motions. See Saucier v. Katz, 533 U.S. 194, 201
2

(2001), overruled in part, Pearson v. Callahan, ___ U.S. ___, 129 S. Ct. 808 (2009);
Holland v. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001), cert. denied, 535 U.S.
1056 (2002). After a defendant asserts qualified immunity, the burden shifts to the
plaintiff. Scull v. New Mexico, 236 F.3d 588, 595 (10th Cir. 2000). To overcome a
claim of qualified immunity, the plaintiff first must establish "that the defendant's actions
violated a constitutional or statutory right." Albright v. Rodriguez, 51 F.3d 1531, 1534
(10th Cir. 1995); Wilson v. Layne, 526 U.S. 603, 609 (1999) (noting the court must first
decide whether the plaintiff has alleged deprivation of a constitutional right). This
burden means coming forward with specific facts establishing the violation. Taylor v.
Meacham, 82 F.3d 1556, 1559 (10th Cir.1996).
If the plaintiff establishes a violation of a constitutional or statutory right, then he
must demonstrate that the right at issue was clearly established at the time of the
defendant's alleged unlawful conduct. Albright, 51 F.3d at 1534. To demonstrate
clearly established law, “there must be a Supreme Court or Tenth Circuit decision on
point, or the clearly established weight of authority from other courts,” which find the law
to be as the plaintiff maintains. Medina v. City and County of Denver, 960 F.2d 1493,
1498 (10th Cir.1992), overruled in part, Williams v. City & County of Denver, 99
F.3d 1009, 1014 - 1015 (10th Cir. 1996). The plaintiff must demonstrate a substantial
correspondence between the conduct in question and prior law establishing that the
defendant's actions clearly were prohibited. Hilliard v. City and County of Denver,
930 F.2d 1516, 1518 (10th Cir. 1991) (citing Hannula v. City of Lakewood, 907 F.2d
129, 131 (10th Cir. 1990)). In determining whether the right was "clearly established,"
the court assesses the objective legal reasonableness of the action at the time and asks
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whether "the right [was] sufficiently clear that a reasonable officer would understand that
what he is doing violates that right." Wilson v. Layne, 526 U.S. at 615. However, the
plaintiff need not establish a "’precise factual correlation between the then-existing law
and the case at hand . . . .’" Patrick v. Miller, 953 F.2d 1240, 1249 (10th Cir.1992)
(quoting Snell v. Tunnell, 920 F.2d 673, 699 (10th Cir. 1990)). “[W]hether an official
protected by qualified immunity may be held personally liable for an allegedly unlawful
official action generally turns on the ‘objective legal reasonableness' of the action . . .
assessed in light of the legal rules that were ‘clearly established’ at the time it was
taken.” Anderson v. Creighton, 483 U.S. 635, 639 (1987) (quotations and citations
omitted).
If the plaintiff satisfies both of these elements, then the burden shifts to the
defendant. Unless the defendant demonstrates that there is no disputed issue of
material fact relevant to the immunity analysis, a motion for summary judgment based
on qualified immunity must be denied. Salmon v. Schwarz, 948 F.2d 1131, 1136 (10th
Cir.1991). If the plaintiff fails to satisfy either part of the two-pronged inquiry, then the
court must grant qualified immunity. Albright, 51 F.3d at 1535. In short, although the
court must review the evidence in the light most favorable to the plaintiff, a defendant’s
assertion of qualified immunity may be overcome only when the record demonstrates
clearly that the plaintiff has satisfied his heavy two-part burden. In civil rights cases, a
defendant’s unlawful conduct must be demonstrated with specificity. Davis v. Gracey,
111 F.3d 1472, 1478 (10th Cir. 1997).
In a recent opinion, the United States Supreme Court altered somewhat the
analytical process that may be used when a defendant claims the protection of qualified

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immunity. Pearson v. Callahan, ___ U.S. ___, 129 S. Ct. 808 (2009). Under Saucier
v. Katz, a court addressing a claim of qualified immunity first must determine whether
the plaintiff has adduced facts sufficient to make out a constitutional or statutory
violation. Saucier, 533 U.S. at 201. Under Saucier, a court must address and resolve
this first question before proceeding to the second step of the analysis, a determination
of whether the claimed constitutional or statutory right was established clearly at the
time of the alleged violation. Id. In Pearson, the Supreme Court held that the
sequential two step analysis mandated in Saucier
should no longer be regarded as mandatory. The judges of the district
courts and the courts of appeals should be permitted to exercise their
sound discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances
in the particular case at hand.
Pearson, ___ U.S. ___, ___, 129 S.Ct. 808, 818 (2009). The Supreme Court noted,
however, that the sequence set forth in Saucier is often the appropriate analytical
sequence. Id.
III. UNDISPUTED MATERIAL FACTS
Defendant Douglas N. Darr is the Sheriff of Adams County, Colorado. Plaintiff
Mark Nicastle is an employee of the Adams County Sheriff. Until July, 2008, Nicastle
was a lieutenant in the sheriff’s office. In July, 2008, Sheriff Darr demoted Nicastle to
sergeant. Nicastle claims that Sheriff Darr demoted Nicastle because Nicastle told
Sheriff Darr that Nicastle planned to run for sheriff in the 2010 election and because
Nicastle made statements and took actions as part of his effort to run for sheriff.
Sheriff Darr learned that Nicastle planned or desired to run for sheriff in
November, 2005. In December, 2006, Sheriff Darr and Nicastle argued with each other,

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in a personal conversation, about who Sheriff Darr would support for sheriff in the next
election. At that time, state law barred Sheriff Darr from seeking a third term as sheriff.
At a meeting of the Fraternal Order of Police Lodge 1, held in March, 2007, Nicastle
announced that he was going to run for sheriff in the next election. Nicastle made some
comments at this meeting that can be seen as critical of Sheriff Darr’s administration.
Sheriff Darr was present at this meeting, and after Nicastle’s statement, Sheriff Darr
announced that he was seeking to change the law that barred him from seeking a third
term. Sheriff Darr said he would seek a third term as sheriff if he was successful in his
effort to get the law changed.
In July, 2008, Sheriff Darr demoted Nicastle from the rank of lieutenant to the
rank of sergeant. Sheriff Darr says this demotion was based on the result of three
investigations by internal affairs and a series of performance issues concerning
Nicastle. Sheriff Darr conducted a pre-demotion hearing with Nicastle on June 11,
2008. Nicastle’s lawyer was present. Nicastle was informed of Sheriff Darr’s concerns
and was told that Sheriff Darr was considering demotion as a sanction. Nicastle made
verbal responses to Sheriff Darr’s concerns at this hearing, and Nicastle was permitted
to provide a written statement to the sheriff. An administrative hearing was held on July
16, 2008, at which Nicastle and his attorney were present. At the hearing, Nicastle had
an opportunity to respond to Sheriff Darr’s performance concerns. following the predemotion hearing and the administrative hearing, Sheriff Darr demoted Nicastle to
sergeant. In addition, Sheriff Darr canceled vacation time requested by Nicastle,
removed from Nicastle the privilege of using a take home vehicle, and made comments
to others in which Sheriff Darr was critical of Nicastle.

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IV. FIRST AMENDMENT CLAIM
I have reviewed the apposite arguments, authorities, and evidence presented by
the parties concerning Nicastle’s claims under the First Amendment. It is apparent that
there exist genuine issues of material fact concerning these claims that are not
appropriate for summary resolution. Therefore, I deny the defendants’ motion for
summary judgment on the First Amendment claims. I address below Darr’s claim of
qualified immunity as it applies to the First Amendment claims.
V. DUE PROCESS CLAIM
Nicastle contends that Sheriff Darr deprived Nicastle of constitutionally protected
property and liberty interests without due process of law, in violation of the Fourteenth
Amendment.3 In response, Sheriff Darr argues that, viewing the evidence in the record
in the light most favorable to Nicastle, there is no basis to conclude that Nicastle was
deprived of a constitutionally protected property or liberty interest when Nicastle was
demoted. I agree. To establish his procedural due process claim, Nicastle must show
(1) that he possessed a liberty or property interest to which due process protection is
applicable; and (2) that he was deprived of that interest without adequate due process
of law. See, e.g., Hennigh v. City of Shawnee, 155 F.3d 1249, 1253 (10th Cir. 1998).
A. Property Interest
Nicastle argues that he had a legitimate property interest in his rank as lieutenant
in the Adams County Sheriffs Department. “The standard for the existence of a
property right in [public] employment is whether the plaintiff has a legitimate expectation

3

Nicastle dismissed his substantive due process claim in an oral motion made at the Trial
Preparation Conference, held April 15, 2011.

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of continued employment.” Hennigh v. City of Shawnee, 155 F.3d 1249, 1253 (10th
Cir. 1998). Such a property interest is defined by existing rules or understandings that
arise from an independent source, such as state law rules or understandings that
secure certain benefits and support claims of entitlement to those benefits. Id. “(I)f
state statutes or regulations place substantive restrictions on a government actor's
ability to make personnel decisions, then the employee has a protected property
interest.” Id. For example, if a statute restricts the reasons for a discharge to just cause
shown, then an employee has a right to continued employment until just cause is
shown. Id. The same analysis is applied to determine if a person has a property right
in a particular employment status. Id. at 1254.
Procedural detail in a statute or regulation, standing alone, is not sufficient
to establish a protected property interest in an employment benefit.
However, if the statute or regulation places substantive restrictions on the
discretion to demote an employee, such as providing that discipline may
only be imposed for cause, then a property interest is created.
Id.
Nicastle relies on §30-10-506, C.R.S. as the basis for his contention that he had
a constitutionally protected property interest in his status as a lieutenant. This statute
provides, in relevant part:
Each sheriff may appoint as many deputies as the sheriff may think proper
and may revoke such appointments at will; except that a sheriff shall adopt
personnel policies, including policies for the review of revocation of
appointments. Before revoking an appointment of a deputy, the sheriff
shall notify the deputy of the reason for the proposed revocation and shall
give the deputy an opportunity to be heard by the sheriff.
§30-10-506, C.R.S. This statute does not create a property interest in a particular rank
held by a sheriff’s employee. First, the statute addresses only revocation of an
appointment as a deputy, as opposed to a particular rank held by a deputy. More
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important, the statute provides procedural detail but does not place substantive
restrictions on the discretion of a sheriff to revoke an appointment or to demote an
employee.
Nicastle states in his affidavit that based on the policies then in effect in Adams
County, he had an expectation that he would receive notice and a fair and adequate
opportunity to be heard before he was demoted or terminated. Response [#58], Exhibit
10 (Nicastle affidavit), ¶ 11. However, Nicastle does not cite any specific policies on
which his expectation was based. Assuming such policies exist, they do not create a
property interest in a particular rank held by a sheriff’s employee. As described by
Nicastle, the policies provide procedural detail, but do not place substantive restrictions
on the discretion of a sheriff to terminate or demote an employee.
Viewing the evidence in the record in the light most favorable to Nicastle, there is
no basis to conclude that Nicastle had a property interest in his rank as lieutenant in the
Adams County Sheriffs Department. Thus, the defendants are entitled to summary
judgment on Nicastle’s due process claim based on his alleged property interest in his
rank as lieutenant.
B. Liberty Interest
Nicastle claims also that Sheriff Darr’s derogatory comments to others about
Nicastle violated a liberty interest that is entitled to constitutional protection. To
establish his claim that Sheriff Darr’s derogatory statements deprived Nicastle of a
constitutionally protected liberty interest, Nicastle must prove four elements:
First, to be actionable, the statements must impugn the good name,
reputation, honor, or integrity of the employee. Second, the statements
must be false. Third, the statements must occur in the course of
terminating the employee or must foreclose other employment
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opportunities. And fourth, the statements must be published.
Sandoval v. City of Boulder, 388 F.3d 1312, 1329 (10th Cir. 2004). To the extent a
plaintiff seeks to prove that other employment opportunities are foreclosed, the plaintiff
must show that the statements made the employee “categorically ineligible” for the other
employment opportunities. Id. The fact that other employment is more difficult to
obtain, though not impossible, is not sufficient to establish foreclosure of other
opportunities. Id.
There is no evidence in the record indicating that Nicastle’s employment was
terminated. It is undisputed that Nicastle remains employed by the Adams County
Sheriff. There is no evidence in the record that Sheriff Darr’s alleged statements made
Nicastle categorically ineligible for other employment opportunities. Viewing the
evidence in the record in the light most favorable to Nicastle, no rational trier of fact
could find that Nicastle has established the third element of his due process claim
based on deprivation of a liberty interest. Thus, the defendants are entitled to summary
judgment on Nicastle’s due process claim based on his alleged liberty interest.
C. Conclusion
Viewing the evidence in the record in the light most favorable to Nicastle, there
is no basis to conclude that Nicastle had a property interest in his rank as lieutenant in
the Adams County Sheriffs Department, and there is no basis to conclude that Nicastle
could establish the third element of his due process claim based on deprivation of a
liberty interest. Therefore, the defendants are entitled to summary judgment on
Nicastle’s due process claims.
VI. QUALIFIED IMMUNITY

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Sheriff Darr asserts the affirmative defense of qualified immunity. Under the
doctrine of qualified immunity, government officials performing discretionary functions
are shielded from liability for civil damages if their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would know.
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To surmount this defense, Nicastle
must establish facts showing (1) that Sheriff Darr’s actions violated a constitutional or
statutory right of Nicastle’s; and (2) that the right at issue was clearly established at the
time of Darr’s alleged unlawful conduct.
In his response to the motion for summary judgment, Nicastle argues that the
evidence in the record demonstrates a violation of his constitutional rights which
precludes the entry of summary judgment on his claims and that the rights in question
were clearly established at the time of Sheriff Darr’s actions. Nicastle contends that
Sheriff Darr retaliated against Nicastle based on various statements made by Nicastle
as he prepared to run for Sheriff. Nicastle argues that this retaliation violated Nicastle’s
First Amendment right to free speech. Applying the four part Pickering / Connick test
applied by the United States Court of Appeals for the Tenth Circuit in Jantzen v.
Hawkins, I conclude that Nicastle has established facts that would permit a reasonable
fact finder to conclude that Sheriff Darr violated Nicastle’s First Amendment right to free
speech when Sheriff Darr arguably retaliated against Nicastle based on Nicastle’s
statements. 188 F.3d 1247, 1257 (10th Cir. 1999); Pickering v. Bd. of Educ., 391 U.S.
563 (1968); Connick v. Myers, 461 U.S. 138 (1983). Based on the holding of the
United States Court of Appeals for the Tenth Circuit in Jantzen and the opinions of the
United States Supreme Court which undergird Jantzen, I conclude that the First

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Amendment free speech rights asserted by Nicastle in this case were clearly
established when Sheriff Darr took the actions alleged by Nicastle.
Nicastle argues also that Sheriff Darr violated Nicastle’s First Amendment right to
freedom of association when Darr retaliated against Nicastle based on Nicastle’s
association with those who supported Nicastle’s candidacy or whose support Nicastle
sought. When a government employer takes adverse action based on an employee’s
political association or beliefs, the test established in Elrod v. Burns, 427 U.S. 347
(1976) and Branti v. Finkel, 445 U.S. 507 (1980) is applicable. Jantzen, 188 F.3d at
1251. In essence, Nicastle must show (1) that his political affiliation or beliefs were a
motivating factor in the adverse action taken against Nicastle by Sheriff Darr and (2)
that Nicastle’s employment did not require political allegiance to Sheriff Darr. Notably,
the Tenth Circuit held in Jantzen that the First Amendment right to political affiliation
does not include “the mere right to affiliate with oneself” when an employee chooses to
run for elective office. 188 F.3d at 1252. However, this right does include the “freedom
to associate with others for the common advancement of political beliefs . . . .” Id. at
1253. The right of political affiliation includes commonality of political purpose and
support of political candidacy and is not limited to membership in a political party. Id.
Applying the Elrod / Branti test applied by the United States Court of Appeals for
the Tenth Circuit in Jantzen v. Hawkins, I conclude that Nicastle has established facts
that would permit a reasonable fact finder to conclude that Sheriff Darr violated
Nicastle’s First Amendment right to freedom of association when Sheriff Darr arguably
retaliated against Nicastle based on Nicastle’s association with those who supported
Nicastle’s candidacy or whose support Nicastle sought. 188 F.3d at 1251 - 1256.
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Based on the holding of the United States Court of Appeals for the Tenth Circuit in
Jantzen and the opinions of the United States Supreme Court which undergird
Jantzen, I conclude that the First Amendment freedom of association rights asserted by
Nicastle in this case were clearly established when Sheriff Darr took the adverse actions
alleged by Nicastle.
In response to Sheriff Darr’s motion for summary judgment asserting the defense
of qualified immunity, Nicastle has established facts showing that a reasonable fact
finder could conclude that Sheriff Darr’s actions violated Nicastle’s First Amendment
rights and that the First Amendment rights at issue were clearly established at the time
of Sheriff Darr’s alleged unlawful conduct. Thus, Sheriff Darr is not entitled to qualified
immunity on Nicastle’s First Amendment claims.
Contrastingly, for the reasons discussed above, I conclude that Nicastle has not
established facts showing that a reasonable fact finder could conclude that Sheriff
Darr’s actions violated Nicastle’s right to due process of law. Because Nicastle has not
come forward with evidence to support his contention that Sheriff Darr’s actions violated
Nicastle’s due process rights, Sheriff Darr is entitled to qualified immunity on Nicastle’s
due process claims.
VIII. PUBLIC POLICY CLAIM
Nicastle asserts also a tort claim under state law for violation of public policy. In
response to the defendants’ motion for summary judgment, Nicastle concedes that he
cannot establish his tort claim for violation of public policy. Thus, the defendants are
entitled to summary judgment on this claim.
IX. INJUNCTIVE RELIEF

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Nicastle seeks injunctive relief rescinding an administrative order issued by
Sheriff Darr restricting certain activities by Nicastle. The administrative order concerns
Nicastle’s ability to attend events during business hours related to Nicastle’s campaign
for sheriff. administrative Darr argues that, because Nicastle no longer is campaigning
for sheriff, Nicastle’s request for injunctive relief now is moot. Nicastle argues that the
administrative order remains in effect and is legally improper. Given the evidence in the
record, I conclude that the issue of injunctive relief concerning the administrative order
may not be fully moot. Therefore, I await the presentation of evidence at trial to
determine this issue.
X. CONCLUSION
I conclude that Nicastle has demonstrated the existence of genuine issues of
material fact concerning his First Amendment claim and that Nicastle has met the two
part burden he must meet in response to Sheriff Darr’s claim of qualified immunity
concerning the First Amendment claim. Therefore, I conclude that defendants’ motion
for summary judgment must be denied as to Nicastle’s First Amendment claim. On the
other hand, viewing the evidence in the record in the light most favorable to Nicastle, no
reasonable fact finder could find in favor of Nicastle on his due process claims.
Defendants’ are entitled to summary judgment on the due process claims. Nicastle
concedes that he cannot establish his state law tort claim for violation of public policy;
thus, Defendants’ are entitled to summary judgment on this claim. Nicastle’s claim for
injunctive relief concerning Sheriff Darr’s administrative order is not moot; thus,
defendants’ are not entitled to summary judgment on this claim.
XI. ORDERS

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THEREFORE, IT IS ORDERED as follows:
1. That the Defendants’ Motion for Summary Judgment [#48] filed February
18, 2011, is GRANTED as to the plaintiff’s claims for denial of his right to due process
of law and the plaintiff’s tort claim under state law for violation of public policy; and
2. That the Defendants’ Motion for Summary Judgment [#48] filed February
18, 2011, is DENIED otherwise.
Dated April 28, 2011, at Denver, Colorado.
BY THE COURT:

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