Maxfield, v. Bressler, et al.

Filing 56

ORDER granting 48 Defendants Early Motion for Partial Summary Judgment; Plaintiffs claims against Defendant Dave Bressler in his official capacity are DISMISSED WITH PREJUDICE; and This action remains pending against Defendant in his individual capacity, by Judge William J. Martinez on 8/28/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 12-cv-2970-WJM-BNB
DELBERT E. MAXFIELD,
Plaintiff,
v.
DAVE BRESSLER, individually and in his official capacity as Director of Weld County
Paramedic Services,
Defendant.

ORDER GRANTING DEFENDANT’S EARLY MOTION FOR
PARTIAL SUMMARY JUDGMENT

Plaintiff Delbert E. Maxfield (“Plaintiff”) brings this civil action under 42 U.S.C. §
1983 against Defendant Dave Bressler (“Defendant”) alleging violations of the First
Amendment and a related state claim. (Am. Compl. (ECF No. 22.)) This matter is
before the Court on Defendant’s Early Motion for Partial Summary Judgment (“Motion”).
(ECF No. 48.) For the reasons set forth below, Defendant’s Motion is granted.
I. BACKGROUND
The relevant undisputed facts are as follows. This case arises out of Plaintiff’s
termination from his employment as a Program Coordinator for the Weld County
Paramedic Services. Plaintiff filed a Complaint on November 13, 2012, and an
Amended Complaint on July 5, 2013, alleging that the Board of County Commissioners
(the “Board”) and Dave Bressler, the Director of the Weld County Paramedic Services,
had discharged Plaintiff in retaliation for exercising his First Amendment rights. (Am.

Compl.)
On November 18, 2013, the Court granted in part and denied in part Defendants’
Renewed Motion to Dismiss (“Dismissal Order”). (ECF No. 37.) The Court found
Plaintiff’s allegations sufficient to state a claim against Bressler, but found that Plaintiff
had failed to allege sufficient facts to state a claim against the Board. (Id. at 12.) On
January 31, 2014, Bressler (“Defendant”) filed a Motion for Clarification, asking the
Court to dismiss Plaintiff’s official capacity claims against him as a logical extension of
the reasoning in the Dismissal Order. (ECF No. 46.) In clarification of the Dismissal
Order, the Court noted that Defendant had failed to move for dismissal of those claims
in the Motion to Dismiss, and the Court thus declined to address them sua sponte in the
Dismissal Order. (ECF No. 47.)
As a result, Defendant filed the instant Motion seeking dismissal of the official
capacity claims. (ECF No. 48.) Plaintiff filed a Response opposing the Motion (ECF
No. 49), and Defendant filed a Reply (ECF No. 50).
II. DISCUSSION
Summary judgment is appropriate only if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem
Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). W hether there is a genuine dispute
as to a material fact depends upon whether the evidence presents a sufficient
disagreement to require submission to a jury or conversely, is so one-sided that one
party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49

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(1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000); Carey v. U.S.
Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987).
Defendant moves for partial summary judgment as to the claims brought against
him in his official capacity. (ECF No. 48.) “[A] suit against a state official in his or her
official capacity is not a suit against the official but rather is a suit against the official’s
office. As such, it is no different from a suit against the State itself.” Will v. Mich. Dep’t
of State Police, 491 U.S. 58, 71 (1989) (internal citations omitted). Here, Defendant is
sued in his official capacity as Director of the Weld County Paramedic Services, and
thus Plaintiff’s official capacity claims are treated as claims against Weld County itself.
In the Dismissal Order, the Court held that, to impose municipal liability for a
constitutional violation, the plaintiff must demonstrate that some official policy is
responsible for the violation by proving the following: “(1) a continuing, persistent and
widespread practice of unconstitutional misconduct; (2) deliberate indifference or tacit
approval of such misconduct; and (3) that the plaintiff was injured by virtue of the
unconstitutional acts pursuant to the board’s custom and that the custom was the
moving force behind the unconstitutional acts.” (ECF No. 37 at 10 (quoting Gates v.
Unified Sch. Dist. No. 449, 996 F.2d 1035, 1041 (10th Cir. 1993)) (internal quotation
marks and brackets omitted).) The Amended Complaint alleges that Defendant
retaliated against Plaintiff for exercising his First Amendment rights, and that the Board
then ratified that decision. (See Am. Compl. ¶¶ 17-26.) Because Plaintiff did not allege
that any official enactment or policy by the Board caused the violation of his First
Amendment rights, the Court found that Plaintiff’s allegations were insufficient to

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impose liability on the Board, and therefore dismissed those claims pursuant to Federal
Rule of Civil Procedure 12(b)(6). (Id. at 12.)
Defendant argues that this same insufficiency of allegations requires dismissal of
Plaintiff’s official capacity claims against him. (ECF No. 48 at 3-4.) Plaintiff opposes
the Motion, arguing that there are disputes of material fact as to the Board’s level of
involvement in the alleged violation, and the extent of its support of Defendant’s
unconstitutional actions. (ECF No. 49 at 2-3.) However, Plaintiff points to no evidence
supporting this argument, asking instead for leave to take discovery. (Id. at 3.)
The Court finds that Plaintiff’s argument and the evidence cited in support
thereof falls far short of demonstrating the genuine dispute of material fact required to
defeat summary judgment. Plaintiff’s theory of liability against Defendant in his official
capacity is identical to his theory of liability against the Board, which failed for the
reasons set forth in the Dismissal Order. (ECF No. 37 at 9-12.) Plaintiff failed to allege
in his Amended Complaint that any official policy or custom was the moving force
behind the constitutional violation he suffered, and he has not produced any new
allegations or evidence sufficient to satisfy that requirement. Plaintiff’s request for
discovery within his Response is unsupported by any contention of a policy or custom
that he seeks to discover, and is therefore meritless.1 Even ignoring the absence of
evidence and taking all of Plaintiff’s allegations as true—a legal standard far more

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The Court further notes that, as with Plaintiff’s similar request in his Response
opposing the Renewed Motion to Dismiss, the request for discovery within a response brief
violates both D.C.COLO.LCivR. 7.1(c) and WJM Revised Practice Standard III.B. (See ECF
No. 37 at 11 n.4.) Plaintiff did not file a motion for discovery necessary to oppose summary
judgment, as is permitted under Federal Rule of Civil Procedure 56(d)(2). Accordingly, the
Court denies Plaintiff’s discovery request.

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generous to Plaintiff than is required on summary judgment, cf. Stone, 210 F.3d at
1136—Plaintiff fails to establish Weld County’s liability. See Monell, 436 U.S. at 690;
Gates, 996 F.2d at 1041. Accordingly, the Court finds that Plaintiff’s official capacity
claims against Defendant fail as a matter of law, and the Motion is granted.
III. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Defendant’s Early Motion for Partial Summary Judgment (ECF No. 48) is
GRANTED;

2.

Plaintiff’s claims against Defendant Dave Bressler in his official capacity are
DISMISSED WITH PREJUDICE; and

3.

This action remains pending against Defendant in his individual capacity.
Dated this 28th day of August, 2014.
BY THE COURT:

William J. Martínez
United States District Judge

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