Nixon v. City and County of Denver Colorado, The et al

Filing 21

ORDER granting 18 Motion to Dismiss for Failure to State a Claim, by Judge Richard P. Matsch on 4/4/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action No. 13-cv-02324-RPM
RICKY NIXON,
Plaintiff,
v.
CITY AND COUNTY OF DENVER and
CHARLES GARCIA, former Manager of Safety in his official capacity,
Defendants.
_____________________________________________________________________
ORDER FOR DISMISSAL
_____________________________________________________________________
The plaintiff, Ricky Nixon, has been the subject of a very large volume of publicity
arising out of his actions as a Denver police officer in two incidents. They are referred
to as the Landau and Denver Diner incidents respectively occurring on January 15,
2009, and July 12, 2009. The First Amended Complaint, filed on January 13, 2014,
contains detailed factual allegations of the publicity, unfavorable to the plaintiff and the
Denver Police Department, arising out of these incidents, the investigations made and
the disciplinary proceedings affecting Mr. Nixon. He alleges that despite his exoneration
in the investigation conducted and the recommendations of command officers, he was
fired by the defendant Charles Garcia, then Manager of Safety, on April 11, 2011.
That decision was reversed after an evidentiary hearing by a panel of hearing
officers of the Denver Civil Service Commission on January 13, 2012. That decision
was affirmed on appeal to the Commission on October 11, 2012. The City appealed to
the Denver District Court for limited judicial review as provided by C.R.C.P. 106. Judge

Starrs reversed the Commission’s decision on September 26, 2013. Mr. Nixon has
appealed to the Colorado Court of Appeals.
In this civil action, the plaintiff seeks damages from the City1, claiming that the
adverse employment actions against him were unfounded and motivated by the City’s
reaction to adverse publicity and political pressure. This, he says was in violation of the
First and Fourteenth Amendments to the U.S. Constitution, protecting his freedom to
speak on issues of public concern and a deprivation of his liberty interest in his
reputation.
The defendant moved for dismissal of the First Amended Complaint under
Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Taking all of the factual allegations as
true, the motion is granted.
Most of the speech that is alleged is that of the plaintiff in his defense throughout
the many hearings and reports concerning the disputed termination. The exception is
that Mr. Nixon appeared before the Civil Service Commission to protest a proposal to
change the rules governing a police officer’s right to seek review of adverse
employment actions. That is protected speech because that is clearly a matter of public
concern and not just personal to the plaintiff. That was in 2013 and would not be a
motivating factor in Manager Garcia’s termination decision in 2011.
The plaintiff has failed to show that his statements and those of his supporters
concerning all of the administrative processes seeking reversal of the Manager’s
decision were anything more than comments about those proceedings. What the

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The amended complaint names Charles Garcia as former Manager of Public Safety
in his official capacity. That is redundant to the claims against the City.
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plaintiff contends is that he has been deprived of a right to preserve his employment
and his liberty by the City’s insistence on supporting the termination. There is nothing to
support any claim of unconstitutionality of the process followed. The plaintiff challenges
Judge Starrs’ decision but that is not reversible in this court.
The plaintiff concedes dismissal of his civil conspiracy claim.
Upon the foregoing, it is
ORDERED, that this civil action is dismissed for failure to state a claim for relief.
DATED: April 4th, 2014
BY THE COURT:
s/Richard P. Matsch
________________________________
Richard P. Matsch, Senior District Judge

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