Butler v. Board of County Commissioners of the County of Douglas County, The, et al
Filing
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ORDER granting 12 Defendant's Partial Motion to Dismiss by Judge R. Brooke Jackson on 3/26/18. (jdyne, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 17-cv-01638-RBJ
GARY R. BUTLER, an individual,
Plaintiff,
v.
THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF DOUGLAS, a local
government entity; and
TONY G. SPURLOCK, Sheriff, Douglas County, State of Colorado, in his official and
individual capacity,
Defendants.
ORDER
This matter is before the Court on defendants Board of County Commissioners of the
County of Douglas’s and Tony G. Spurlock’s partial motion to dismiss plaintiff Gary R. Butler’s
complaint. ECF No. 12. Mr. Butler has subsequently filed a motion for a voluntary dismissal of
specific claims and defendants. After considering these motions, I GRANT Mr. Butler’s
voluntary dismissal motion and defendants’ partial motion to dismiss claims two through four of
Mr. Butler’s complaint.
I. BACKGROUND
Mr. Butler worked as a deputy sheriff and later as sergeant in the Douglas County
Sheriff’s Office (“Sheriff’s Office”) from 1991 until July 10, 2015. 1 ECF No. 1 at 3. During
this 24-year career, Mr. Butler had an exemplary record without any disciplinary issues. Id.
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The facts in this section are incorporated from Mr. Butler’s complaint, ECF No. 1, and defendants’
answer, ECF No. 11, and they are construed as true for the purposes of this partial motion to dismiss.
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Prior to his career with the Sheriff’s Office, however, Mr. Butler was convicted of felony
manslaughter in Utah in 1975. Id. at 4. In 1988, a Utah District Court judicially pardoned Mr.
Butler for the homicide conviction. Id. In the pardon order, the Utah Court noted that Mr. Butler
“may hereafter respond to any inquiries relating to conviction of crimes as though they never
occurred.” Id. The pardon also stated that Mr. Butler’s criminal records were sealed and could
only be inspected “by the request of Mr. Butler and upon order of the court.” Id.
Following the dictates of this judicial pardon, Mr. Butler did not disclose the homicide
conviction when he applied for a job with the Sheriff’s Office in 1991. Id. He eventually
discussed the conviction with then-Douglas County Undersheriff, David Weaver, in 2003. Id. at
6. Undersheriff Weaver was apparently unbothered by this revelation, reportedly saying that
“you have more than proven yourself to me” and taking no further action regarding this
information. Id. Indeed, Mr. Butler continued to receive raises and positive performance
evaluations after making this disclosure. Id.
Eventually Undersheriff Weaver became Sheriff and then was elected to the Board of
County Commissioners (“the County Board”), leaving the Sheriff position vacant. Id. at 7.
Defendant Tony Spurlock became the new Sheriff in 2014. While it is unclear from the briefing
how Sheriff Spurlock came to know of Mr. Butler’s conviction, in July 2015 Sheriff Spurlock
approached Mr. Butler regarding the Utah conviction. Id. Mr. Butler told him about the judicial
pardon and the provision therein stating that Mr. Butler need not disclose the conviction when
asked about his criminal record, and Mr. Butler also noted that he told now-Commissioner
Weaver about the conviction over ten years prior. Id. Unsatisfied with Mr. Butler’s explanation,
Sheriff Spurlock and the Sheriff’s Office apparently proposed to Mr. Butler that if he agreed to
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retire voluntarily there would be no further investigation into the conviction, and that the matter
would not become public. Id. at 8. Mr. Butler accepted that offer. Id.
However, Mr. Butler asserts that when he attempted to retire, the County Board refused
to let him do so. Id. Instead, Sheriff Spurlock terminated Mr. Butler on July 10, 2015 via a
termination letter. Upon receiving the termination letter, Mr. Butler reached out to the Sheriff’s
Office and Sheriff Spurlock on two occasions requesting a hearing regarding the decision to
terminate him. Id. at 8. Both requests for a hearing were denied. Id. Sheriff Spurlock then went
on a media tour of sorts, speaking on at least two news stations and stating that “[Mr. Butler]
committed a felony. He committed a heinous crime, in my opinion. He should have disclosed
that information to us when he was applying.” Id. at 9 (quoting statements made by Sheriff
Spurlock in an August 11, 2015 interview with CBS Channel 4). Sheriff Spurlock also sent a
written memorandum concerning Mr. Butler’s termination to the hundreds of individuals
employed by and/or associated with the Sheriff’s Office and the County. Id. He did not mention
the fact that Mr. Butler had been judicially pardoned in the interviews or in the memorandum.
Id.
Despite being 66 years old at the time he was terminated, Mr. Butler was able to find a
new job within a month of his termination. Id. at 8, 10. However, Mr. Butler asserts that after
Sheriff Spurlock spoke on the news and publicized information regarding Mr. Butler’s
conviction without also noting the judicial pardon, Mr. Butler was discharged from his new job.
Id. at 10. Mr. Butler also asserts that he lost two other employment opportunities based upon
Sheriff Spurlock’s public statements. Id.
Mr. Butler filed this suit on July 16, 2017 asserting four claims against Mr. Spurlock in
his individual and official capacity as representative of the Sheriff’s Office, as well as against the
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County Board. ECF No. 1. Mr. Butler first claims that the County Board and Mr. Spurlock, in
his official and individual capacities, violated his Due Process rights with regard to his liberty
interest in his reputation and continued employment. Id. at 10–14. Second, Mr. Butler asserts a
Due Process claim regarding his property interest in his continued employment with the Sheriff’s
Office, again against the County Board and Mr. Spurlock in his official and individual capacities.
Id. at 14–16. Third, Mr. Butler asserts a claim of promissory estoppel against the County Board
and Mr. Spurlock in his official capacity for terminating Mr. Butler in 2015 despite defendants’
being on “constructive notice” of his pardoned conviction since 2003 when he told then
Undersheriff, now Commissioner Weaver. Id. at 16–18. Finally, Mr. Butler asserts a claim of
promissory estoppel against the County Board and Mr. Spurlock in his official capacity for
allegedly reneging on their promise to let him retire and to keep the conviction private. Id. at
18–20.
On August 22, 2017 Defendants filed an answer and a partial motion to dismiss. ECF
Nos. 11, 12. Defendants seek to dismiss claims two through four of the complaint, and to
entirely dismiss the County Board as a defendant in this matter. ECF No. 12. On September 29,
2017 Mr. Butler filed an unopposed motion for voluntary dismissal of several claims. ECF No.
20. In particular, he moves to dismiss the County Board as a defendant on all claims and to
dismiss claims two and three in their entireties. As such, under the terms of Mr. Butler’s
voluntary dismissal motion, only claims one (against Mr. Spurlock in his individual and official
capacity) and four (against Mr. Spurlock in his official capacity alone) of Mr. Butler’s complaint
remain in this case.
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Because defendants’ partial motion to dismiss, ECF No. 12, does not seek dismissal of
Mr. Butler’s first claim for relief at this stage, the only live issue before this Court is whether
claim four against Mr. Spurlock in his official capacity should be dismissed.
II. STANDARD OF REVIEW
To survive a Rule 12(b)(6) motion to dismiss, the complaint must contain “enough facts
to state a claim to relief that is plausible on its face.” Ridge at Red Hawk, L.L.C. v. Schneider,
493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)). A plausible claim is a claim that “allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). While the Court must accept the well-pleaded allegations of the complaint as true and
construe them in the light most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210
(10th Cir. 2002), conclusory allegations are not entitled to be presumed true, Iqbal, 556 U.S. at
681. However, so long as the plaintiff offers sufficient factual allegations such that the right to
relief is raised above the speculative level, he has met the threshold pleading standard. See, e.g.,
Twombly, 550 U.S. at 556; Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008).
III. ANALYSIS
As noted, the only contested claim at this stage is Mr. Butler’s fourth claim for relief
against Sheriff Spurlock in his official capacity. See ECF No. 1 at 18–20 (“Doctrine of
Promissory Estoppel-Re: Right to Retire and Privacy”). In this claim, Mr. Butler asserts that
Sheriff Spurlock proposed that in exchange for Mr. Butler voluntarily retiring, there would be no
further investigation into his conviction by the Sheriff’s Office and the matter would not become
public in any manner. Id. at 19. Mr. Butler accepted Sheriff Spurlock’s offer and attempted to
retire, but was told he was not allowed to retire. Id. Mr. Butler asserts that the Sheriff’s Office
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breached a promise “by refusing to permit Mr. Butler to retire and . . . communicating into the
public domain[] allegations of the Utah matter and Mr. Butler’s conduct in the employment
application process with the Sheriff’s Office.” Id. Mr. Butler argues that he has suffered
personal and professional damage due to this promise being broken and the information
regarding his conviction becoming public. Id. Specifically, Mr. Butler notes that he lost three
employment opportunities due to Sheriff Spurlock’s breach of his promise that Mr. Butler could
retire and the matter would not become public. Id.
To successfully plead a claim for promissory estoppel, a plaintiff must show that (1) the
promisor made a promise to the promisee; (2) the promisor should reasonably have expected that
the promise would induce action or forbearance by the promisee; (3) the promisee in fact
reasonably relied on the promise to his or her detriment; and (4) the promise must be enforced to
prevent injustice. Braddock Fin. Corp. v. Washington Mut. Bank, 637 F. Supp. 2d 924, 933 (D.
Colo. 2009). Sheriff Spurlock makes two arguments as to why Mr. Butler has failed to state a
claim for promissory estoppel against the Sheriff’s Office. ECF No. 12 at 13. First, Sheriff
Spurlock argues that Mr. Butler failed to plead that Sheriff Spurlock made a “promise.” To
support this argument, Sheriff Spurlock notes that throughout Mr. Butler’s complaint, Mr. Butler
characterizes Sheriff Spurlock’s proposal that Mr. Butler retire as an “offer” rather than a
“promise.” See ECF No. 1 at 8, 19. While that is true, I note that elsewhere in the complaint Mr.
Butler refers to the proposal as a “promise.” See id. at 19 (“Defendants breached their
promises”; “The promises created by the Defendant’s actions”) (emphasis added). Further,
putting semantics aside, I find that Sheriff Spurlock’s statement to Mr. Butler regarding the
opportunity to retire could be reasonably construed as having promissory intent. Therefore, I
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find that Mr. Butler sufficiently pled that a promise was made and thus satisfies the first element
of a promissory estoppel claim.
However, I agree with Sheriff Spurlock’s assertion that Mr. Butler failed to plead that he
relied on Sheriff Spurlock’s promise to his detriment. ECF No. 12 at 14; see Braddock Fin.
Corp., 637 F. Supp. 2d at 933 (D. Colo. 2009) (a plaintiff asserting a claim for promissory
estoppel must show that he or she reasonably relied on the promise to his or her detriment). Mr.
Butler’s only discussion of this element comes in the form of his conclusive statement that he
“relied to his detriment on the Defendants’ proposal . . . .” ECF No. 1 at 19. He does not
provide any additional argument concerning the manner in which he relied on the promise or the
detriment that he suffered in doing so. 2 Id. As such, Mr. Butler fails to state a claim for relief.
See Twombly, 550 U.S. at 555 (“[A] plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”).
However, because the gist of defendant’s motion concerns a shortcoming in the
complaint as pled, the Court grants the motion to dismiss the Fourth Claim but also grants the
plaintiff leave to amend. He may attempt, if he wishes, in an amended complaint to state facts
that would state a plausible promissory estoppel claim.
ORDER
For the aforementioned reasons, I therefore GRANT Defendant’s Partial Motion to
Dismiss, ECF No. 12. Plaintiff’s Second and Third Claims have been withdrawn and are
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While I note that Mr. Butler provides arguments with regard to this element in his Response to
Defendants’ Partial Motion to Dismiss, see ECF No. 24 at 8–10, courts generally do not consider
arguments that are raised for the first time in a response to a dispositive motion. Montoya v. Newman,
115 F. Supp. 3d 1263, 1276 (D. Colo. 2015) (referencing Lawmaster v. Ward, 125 F.3d 1341, 1346 (10th
Cir. 1997). I find no compelling reason to do so here.
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dismissed with prejudice. Plaintiff’s Fourth Claim is dismissed without prejudice and with leave
to amend.
DATED this 26th day of March, 2018.
BY THE COURT:
___________________________________
R. Brooke Jackson
United States District Judge
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