Garcia v. Geier et al

Filing 21

MEMORANDUM OPINION AND ORDER by District Judge William P. Johnson granting 12 MOTION to Dismiss Defendants Michael Geier and Keith Riesberg. (kg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JUSTIN L. GARCIA,
Plaintiff,
v.

No. 1:16-cv-01141 WJ-KBM

MICHAEL GEIER, individually,
and in his official capacity;
KEITH RIESBERG, individually,
and in his official capacity;
RIO RANCHO POLICE DEPARTMENT;
and GOVERNING BODY FOR THE CITY
OF RIO RANCHO.
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS MICHAEL
GEIER’S AND KEITH RIESBERG’S MOTION TO DISMISS
THIS MATTER comes before the Court on Defendants Michael Geier’s and Keith
Riesberg’s Motion to Dismiss (Doc. 12) filed January 19, 2017. Having reviewed the relevant
pleadings and the applicable law, the Court finds Defendants’ Motion is well-taken, and is
therefore GRANTED.
BACKGROUND
Plaintiff Justin L. Garcia is a certified police officer employed by the Defendant City of
Rio Rancho (the “City”). At times relevant to Plaintiff’s Complaint, Defendant Geier was the
Chief of Police for the Rio Rancho Police Department (the “Department”) and Defendant
Riesberg was the Manager for the City. Plaintiff was a member of and official for, the Rio
Rancho Police and Communications Association, an affiliated chapter of the New Mexico
Coalition of Public Safety Officers (“the Union”).

This lawsuit arises out Plaintiff’s internal affairs (“IA”) investigation by the City
regarding possible misconduct. Plaintiff attended a Union meeting on March 31, 2016 while off
duty and as a private citizen. His attendance at the meeting was unrelated to his job duties. At
the meeting, Plaintiff and other Union members discussed “myriad topics, including, but not
limited to, memorandums of understanding between the Department and the Union, sergeant
testing, career development, Department participation and representation at out-of-state or police
unity events, officer pay and benefits, and employee morale.” Doc. 4 at ¶ 30. Plaintiff alleges
that according to Defendant Geier, Plaintiff’s statements at the Union meeting for which he was
retaliated against were related to workplace retaliation, employee discipline, Department
attendance or representation at special events, career development for Bargaining Unit members,
Departmental budget issues, and the membership’s discussion about holding a vote of no
confidence against Defendant Geier or his administration. Id. at ¶ 64. Defendant Geier claimed
that Plaintiff’s statements at the Union meeting impaired the ability, reputation, and efficiency of
Defendant Geier and the Department because Plaintiff’s statements were made in the wrong
venue and for the wrong purpose.
Six days after the Union meeting, Plaintiff was placed on paid administrative leave. He
subsequently filed a grievance pursuant to the Collective Bargaining Agreement between the
Union and the Department regarding the IA investigation. The IA investigation did not result in
any findings against Plaintiff, and he was ultimately restored to his law enforcement position
about three months later.
As a result of being placed on administrative assignment, Plaintiff alleges he was
temporarily deprived of certain job benefits. Specifically, Plaintiff’s schedule changed from four
10-hour days per week, to five 8-hour days per week; his work days changed from Wednesday

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through Saturday, with 3-days off each week, to Monday through Friday, with 2-days off each
week; he was removed from Traffic Division assignment and placed on an administrative
assignment; was required to surrender his badge, radio, weapons, and service vehicles; and he
was prohibited from performing law enforcement duties. Id. ¶ 32. He claims he was forced to
ride his bike to and from work, and was required to use accrued leave time to attend personal
appointments that were previously scheduled on his normal days off. Id. ¶ 35. Plaintiff claims
the paid administrative assignment and IA investigation violated his constitutional rights to free
speech, due process, and equal protection under the New Mexico and federal constitutions.
Plaintiff also alleges the IA investigation into his possible misconduct violated the Peace Officer
Employer-Employee Relations Act (“POEERA”), and the Public Employees Bargaining Act
(“PEBA”).
Defendants Geier and Riesberg filed a Motion to Dismiss (Doc. 12) on January 19, 2017.
Plaintiff filed a Response (Doc. 17) on February 2, 2017. Defendants filed a Reply (Doc. 19) on
February 16, 2017.
LEGAL STANDARD
I.

Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal of a case
for failure to state a claim upon which relief can be granted. Rule 8(a)(2), in turn, requires a
complaint to contain “a short and plain statement of the claim showing that the pleader is entitled
to relief.” Thus, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Although a court must accept all the complaint’s factual allegations as true, the same is not true

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of legal conclusions. See id. Mere “labels and conclusions” or “formulaic recitation[s] of the
elements of a cause of action” will not suffice. Twombly, 550 U.S. at 555. “Thus, in ruling on a
motion to dismiss, a court should disregard all conclusory statements of law and consider
whether the remaining specific factual allegations, if assumed to be true, plausibly suggest the
defendant is liable.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011).
II.

Qualified Immunity

“[G]overnment officials are not subject to damages liability for the performance of their
discretionary functions when their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Buckley v. Fitzsimmons,
509 U.S. 259, 268 (1993) (quotation omitted). The Tenth Circuit employs a two-part test to
analyze qualified immunity: “In resolving a motion to dismiss based on qualified immunity, a
court must consider whether the facts that a plaintiff has alleged make out a violation of a
constitutional right, and whether the right at issue was clearly established at the time of
defendant’s alleged misconduct.” Leverington v. City of Colorado Springs, 643 F.3d 719, 732
(10th Cir. 2011). It is within this Court’s discretion to determine which prong of the qualified
immunity test should be addressed first. Brown, 662 F.3d at 1164; Pearson v. Callahan, 555
U.S. 223, 236 (2009). If a plaintiff fails to demonstrate that a defendant’s conduct violated the
law, the court need not determine whether the law was clearly established. Hinton v. City of
Elwood, 997 F.2d 774, 782 (10th Cir. 1993).
DISCUSSION
Defendants Geier and Riesberg argue they are entitled to qualified immunity on
Plaintiff’s federal constitutional claims and Plaintiff’s state law claims fail to state a claim upon
which relief may be granted. Specifically, Plaintiff did not suffer an adverse employment action

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that would give rise to a First Amendment violation, nor did he suffer a deprivation of property
that would give rise to a Fourteenth Amendment violation. Similarly, there was no equal
protection violation because Plaintiff, as a City employee, cannot state a “class of one” equal
protection claim as a matter of law. Finally, Defendants argue Plaintiff’s state law claims cannot
proceed, as a matter of law, because 42 U.S.C. § 1983 does not apply to them. The Court
considers each argument in turn.
I.

First Amendment Retaliation

Defendants argue they are entitled to qualified immunity on Plaintiff’s First Amendment
retaliation claim because Plaintiff failed to allege with specificity the speech that he claims was
protected. Moreover, the topics of his speech are not matters of public concern, and Plaintiff did
not suffer an adverse employment action.
First, to assert a First Amendment claim, a plaintiff must identify the speech or
expressive right which resulted in the alleged retaliation. Defendants argue Plaintiff has not
alleged any specific statements that he made that he believes he was retaliated against for
making. Plaintiff claims he made statements at the Union meeting, but he does not allege the
content of any specific statements. Rather, he lists general topics that were discussed.
Second, Defendants argue Plaintiff failed to allege topics of speech that are matters of
public concern. Plaintiff did not plead what he actually said, and the categories of speech he
identifies in the Complaint are not afforded protection under the First Amendment because they
concern the working environment, career development, officer pay and benefits, the quality of
the administration, and Plaintiff’s own employment interests. Mere disputes over personnel
matters or working conditions do not implicate matters of public concern sufficient to trigger the
First Amendment. See Morris v. City of Colorado Springs, 666 F.3d 654, 661 (10th Cir. 2012).

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Finally, Defendants contend that Plaintiff has not met his burden to adequately plead that
he suffered an adverse employment action.

Simply being placed on paid administrative

assignment pending an investigation does not constitute an adverse employment action.
Moreover, relieving a public employee of accoutrements is not actionable. See Couch v. Bd. of
Trustees of Mem’l Hosp. of Carbon Cty., 587 F.3d 1223, 1236 (10th Cir. 2009). A public
employer can violate an employee’s First Amendment rights by subjecting the employee to
repercussions that would not be actionable under Title VII, but the alleged repercussions must be
multiple and compounding rather than isolated incidents. Baca v. Sklar, 398 F.3d 1210, 1220–21
(10th Cir. 2005); Couch, 587 F.3d at 1237–38.

Here, Defendants argue, Plaintiff merely

complains of being placed on paid leave pending the IA investigation, which does not constitute
an adverse employment action.
Plaintiff spends the vast majority of the Response arguing that his speech at the Union
meeting was not made pursuant to his official duties, and was made while he was off duty, and
therefore must have been a matter of public concern. He relies upon a number of out-ofjurisdiction cases to support his proposition that when a public employee speaks in his capacity
as a union member, his speech is protected. See, e.g., Baumann v. D.C., 744 F. Supp. 2d 216,
224 (D.D.C. 2010). In Baumann, the defendants argued the plaintiff’s speech was unprotected
because it was made in his official capacity rather than his personal capacity as a citizen. Id.
The court rejected the defendants’ position, and found the plaintiff was speaking as a citizen on
matters of public concern. Id. Critically in Baumann and unlike the present case, the defendants
did not argue that the plaintiff’s speech was not a matter of public concern. See id. at n. 2.

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Plaintiff states that other jurisdictions have held that personnel grievances raised by
unions may be matters of public concern.1 Plaintiff cites Ellins v. City of Sierra Madre, 710 F.3d
1049, 1057–58 (9th Cir. 2013) (emphasis in original), where the Ninth Circuit explained that
“precedent instructs that collective personnel grievances raised by unions may be matters of
public concern.”

However, in this case and unlike in Ellins, there are no allegations the

grievances at issue were collective union grievances.
In the Reply, Defendants point out that Plaintiff has failed to allege that any specific
speech was a matter of public concern. Defendants also emphasize that paid administrative leave
is not an adverse employment action. Defendants do not disagree with Plaintiff’s position that he
was not speaking at the Union meeting pursuant to his official duties. Rather, Defendants state
this distinction is immaterial because Plaintiff has nonetheless failed to allege that in speaking as
a private citizen, his speech touched on matters of public concern.
A. Matter of Public Concern
The Court agrees with Defendants that Plaintiff failed to identify the specific speech
resulting in the alleged retaliation, so his First Amendment retaliation claim fails. “In analyzing
a public employee’s First Amendment retaliation claim, the Supreme Court has instructed that
we must first decide whether the speech at issue touches on a matter of public concern and, if so,
we must then proceed to ask whether the employee’s interest in commenting on the issue
“outweighs” the interest of the state as employer. Casey v. W. Las Vegas Independent School
District, 473 F.3d 1323, 1327 (10th Cir. 2007); See also Hulen, 322 F.3d at 1237. “If the speech

1

Plaintiff also cites two other cases from other circuits, Fuerst v. Clarke, 454 F.3d 770, 774 (7th Cir. 2006), and
Boddie v. City of Columbus, Miss., 989 F.2d 745, 750 (5th Cir. 1993). Both cases are inapposite. Boddie dealt with
a freedom of association claim, which is not before the Court. The court in Fuerst held a police officer is not a
policy-making official and thus cannot be terminated for political reasons.

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is not a matter of public concern, then the speech is unprotected and the inquiry ends.” BrammerHoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1203 (10th Cir. 2007). The parties here do
not dispute that Plaintiff was not speaking pursuant to his official duties, rather this case hinges
on whether Plaintiff’s speech concerned a matter of public concern. The Court finds it did not.
“[I]f an employee does not speak pursuant to his official duties, but instead speaks as a
citizen, the court must determine whether the subject of the speech is a matter of public
concern.” Brammer-Hoelter, 492 F.3d at 1202. “[S]peech relating to internal personnel disputes
and working conditions ordinarily will not be viewed as addressing matters of public concern.”
Morris, 666 F.3d at 661 (quoting David v. City & Cnty. of Denver, 101 F.3d 1344, 1355 (10th
Cir. 1996)).

On the other hand, “[s]peech which discloses any evidence of corruption,

impropriety, or other malfeasance on the part of [state] officials, in terms of content, clearly
concerns matters of public import.” Hulen, 322 F.3d at1237 (quoting Conaway v. Smith, 853
F.2d 789, 796 (10th Cir. 1988) (alteration in original)).
“In deciding whether an employee’s speech touches on a matter of public concern, or
constitutes a personal grievance, courts look at the content, form and context of a given
statement, as revealed by the whole record. They also consider the motive of the speaker—was
the speech calculated to redress personal grievances or [did it have] a broader public purpose [?]”
Hulen, 322 F.3d at 1237 (internal citations omitted) (alterations in original); See also Lighton v.
Univ. of Utah, 209 F.3d 1213, 1224–25 (10th Cir. 2000); See also Conaway, 853 F.2d at 795
(quoting Connick v. Myers, 461 U.S. 138, 146 (1983) (“court must first consider whether the
speech related to a matter of public concern, meaning the speech can be ‘fairly considered as
relating to any matter of political, social or other concern to the community’”).

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Plaintiff does not specify any particular speech that he claims formed the basis for the
alleged retaliation, and he does not allege he had any public purpose in speaking out at the Union
meeting. Instead, Plaintiff simply argues that certain categories of speech he made at the Union
meeting are protected under the First Amendment. Even considering those categories, and
taking the allegations as true, Plaintiff has not sufficiently alleged any protectable speech
regarding matters of public concern that would invoke the First Amendment’s protection.
Plaintiff spends virtually his entire Response reiterating that he was speaking at the Union
meeting as a private citizen and not as a government employee, but this is not a position that
Defendants disagree with in any regard. Plaintiff simply fails to allege any specific speech that
involves matters of public concern.
This case contrasts with Hulen, where the speech concerned “plagiarism and copyright
violations, emotional abuse of students, abuse and harassment of staff, misuse of state funds,
receipt of kickbacks from a publisher in return for adopting textbooks, and a claimed inadequate
investigation of the allegations and alleged retaliation against those who made the allegations.”
Hulen, 322 F.3d at 1238. This type of speech touched on matters of public concern because it
bore on potentially illegal conduct. Likewise, in Brammer-Hoelter, the public teachers’ speech
concerned grievances about speech restrictions, school charter renewal, and school elections.
492 F.3d at 1206. The speech took place over numerous meetings, many of which were attended
by members of the public. See id. at 1199. The Tenth Circuit held these topics were matters of
public concern because the allegations of speech restrictions concerned potential illegal conduct,
and the charter renewal and school election were of particular importance to the school
community and parents. See id.

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Regarding the topics that did not touch on matters of public concern in Brammer-Hoelter,
the plaintiff’s complaints about staffing levels, dissatisfaction with supervisors’ performance,
and workload, the court explained that “[s]tatements revealing official impropriety usually
involve matters of public concern. Conversely, speech that simply airs grievances of a purely
personal nature typically does not involve matters of public concern.” Id. at 1205–06 (internal
citations and quotation marks omitted). Speech regarding grievances about internal departmental
affairs, disputes over employment terms, and workplace frustration are not matters of public
concern, while speech concerning public elections and the candidates are matters of public
concern. Id. In sum, matters that are “internal in scope and personal in nature” are not matters
of public concern. Id. (quoting Bunger v. Univ. of Okla., 95 F.3d 987, 992 (10th Cir. 1996)).
Because the employees’ speech concerned their duties as teachers and internal personnel
disputes, it was not a matter of public concern. See id. at 1199.
Here, Plaintiff has not alleged any specific statements he made at the Union meeting, so
the Court is unable to examine the content and form of his speech. See Conaway, 853 F.2d at
796 (“whether an employee’s speech addresses a matter of public concern must be determined by
the content, form, and context of a given statement, as revealed by the whole record”). However,
based on the “myriad categories” of speech that Plaintiff identifies in the Complaint, the Court
has examined the context of the speech and finds it concerned Mr. Garcia’s personal grievances
about his job, and therefore did not touch upon a matter of public concern. The topics of the
speech concerned memorandums of understanding between the Department and the Union,
sergeant testing, career development, Department participation and representation at out-of-state
or police unity events, officer pay and benefits, and employee morale. These topics do not
concern corruption, impropriety, or malfeasance on the part of City officials. See Brown v. Town

10

of LaBarge, WY, 97 F. App’x 216, 227 (10th Cir. 2004) (city employee’s allegations of misuse of
employer credit card and harassment were matters of public concern because they disclosed
corruption and illegal conduct and they were topics of public debate and local newspaper article);
Dill v. City of Edmond, Okl., 155 F.3d 1193, 1202 (10th Cir. 1998) (public concern prong met
because speech dealt with belief that exculpatory evidence existed and was being withheld by
police officers in murder investigation).
Moreover, taking the allegations as true, there is no allegation the speech was calculated
to disclose such misconduct. Rather, the speech deals with personal grievances about officer job
duties, pay and benefits, and personnel matters. See Brammer-Hoelter, 492 F.3d at 1205. These
topics are relevant only to City personnel and involve essentially private, internal matters. See
Conaway, 853 F.2d at 796. There are no allegations Plaintiff was attempting to expose what he
perceived to be improper or illegal conduct. See id. (quoting Connick, 461 U.S. at 148) (speech
touched on public concern when plaintiff “reported to his superiors facts which appeared to
involve special favors for government officials, illegal payoffs, and circumstances of released
substandard electrical work which, he felt, posed danger to public life, health, and safety. In all
three incidents, [plaintiff] sought ‘to bring to light actual or potential wrongdoing or breach of
public trust on the part of a public officer.’”). Here, in contrast, Plaintiff and his colleagues
discussed officer pay, promotions, and other conditions of their employment at the Union
meeting. “When employee expression cannot be fairly considered as relating to any matter of
political, social, or other concern to the community, government officials should enjoy wide
latitude in managing their offices.” Connick, 461 U.S., at 146. Accordingly, Plaintiff’s First
Amendment retaliation claim fails because Plaintiff has not alleged any specific speech involving
matters of public concern.

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B. Adverse Employment Action
The Court finds that even if Plaintiff had sufficiently alleged speech on matters of public
concern, being placed on paid administrative leave for a short period of time pending an IA
investigation does not amount to an adverse employment action. Plaintiff bears “the burden of
establishing both a detrimental employment decision (adverse employment action) and
‘causation—that is, that the constitutionally protected speech was a substantial motivating factor
in the employer’s decision to adversely alter the employee’s conditions of employment.’” Couch,
587 F.3d at 1236 (quoting Maestas v. Segura, 416 F.3d 1182, 1188 & n. 5 (10th Cir. 2005)).
Plaintiff has not plausibly alleged an adverse employment action because he complains only of
being placed on paid administrative leave during the pendency of the IA investigation.
Furthermore, the temporary loss of his job accoutrements does not amount to an adverse
employment action. Plaintiff was not terminated and was in fact restored to his law enforcement
position after the IA investigation did not result in any findings against him.
Although “First Amendment protection extends beyond employer conduct amounting to
termination of employment or the substantial equivalent,” the employer’s action must deter a
reasonable person from exercising his First Amendment rights in order to constitute an adverse
action. Couch, 587 F.3d at 1237–38. This district and the Tenth circuit have previously found
that paid administrative leave does not constitute an adverse employment action. Juarez v. Utah,
263 F. App’x 726, 731 (10th Cir. 2008); Gerald v. Locksley, 785 F. Supp. 2d 1074, 1117
(D.N.M. 2011); Otero v. N.M. Cors. Dep’t, 640 F.Supp.2d 1346, 1355 (D.N.M. 2009).2 In this

2

The weight of authority from other jurisdictions follows the reasoning that being on paid leave is not an adverse
employment action. See Alaniz v. Zamora–Quezada, 591 F.3d 761, 773 (5th Cir. 2009); Peltier v. United States,
388 F.3d 984, 988 (6th Cir. 2004); Swearnigen-El v. Cook County Sheriff’s Dept., 602 F.3d 852, 860 (7th Cir.
2010). But see Dahlia v. Rodriguez, 735 F.3d 1060 (9th Cir. 2013) (holding that paid administrative leave could be
adverse employment action in context of threats of physical violence and threats of criminal charges by superiors).
There are no such allegations here of threats by Plaintiff’s supervisors.

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case, there is no allegation Plaintiff’s pay was reduced.

He was simply placed in an

administrative position pending the outcome of the IA investigation. Although his vehicle
privileges were temporarily revoked and his schedule was somewhat altered,3 these changes
were temporary and there is no allegation they deviated from standard City procedures.
Plaintiff’s badge and weapon were temporarily revoked, but only because he had no need for
these items while in his temporary administrative role. Finally, the Court agrees with Defendants
that there is no merit to Plaintiff’s contention that he was subjected to humiliation because he had
to ride his bike to work. Plaintiff chose to ride his bike to work, and there are no allegations in
the Complaint that Defendants revoked the vehicle privilege to force Plaintiff to ride his bike to
work. In short, there are no allegations that show Plaintiff suffered an adverse employment
action while on temporary, fully-paid administrative leave.
II.

Procedural Due Process

Defendants contend they are entitled to qualified immunity on Plaintiff’s due process
claim because the Complaint does not allege the deprivation of a property interest.

Plaintiff

states he has a protectable property interest in his employment and his law enforcement
certification. Doc. 4 at ¶¶ 115–16. However, Defendants point out that Plaintiff does not allege
he was deprived of his employment or his law enforcement certification. In fact, Plaintiff was
restored to his position after the paid administrative assignment and did not lose his certification.
Therefore, there was no deprivation of property that could give rise to a due process claim.
Even if there was a loss of property here, Defendants maintain it was de minimus and did
not implicate due process concerns. “Not all property interests deserve constitutional protection.
Courts have long recognized that de minimus property interests do not trigger procedural due
process protections.” Dill, 155 F.3d at 1207 (quoting Goss v. Lopez, 419 U.S. 565, 575 (1975)).
3

Although Plaintiff’s schedule was altered, his total weekly hours remained the same. See Doc. 4 at ¶ 32.

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In Dill, the plaintiff was a police officer and his schedule was changed so that he no longer had
Sundays off, when he used to have Sundays off because of his seniority within the department.
Id. at 1206–07. The plaintiff was also transferred from detective to patrol division. The Tenth
Circuit held the plaintiff’s change in schedule and assignment did not trigger procedural due
process when it merely inconvenienced him and defeated his expectations in having Sundays off.
Id. at 1207.
Plaintiff does not respond to Defendant’s arguments regarding Plaintiff’s Fourteenth
Amendment claim, so the Court concludes Plaintiff has either abandoned the claim or consents
to Defendants’ arguments in this regard. See D.N.M.LR-Civ. 7.1(b) and 7.3(a). Plaintiff merely
states that he “will be put to his burden of proof concerning the entirety of his claims, including
his claims for violations of due process.” Doc. 17 at 19. He argues that he “is only required to
demonstrate a prima facie showing that he has stated a claim that is entitled to relief–and, not
that he is able to prove each element of his case at its inception.” Id. at 20. While these
statements are not necessarily incorrect, at this early pleading stage Plaintiff does have the
burden to allege facts that, accepted as true, state a claim to relief that is plausible on its face.
Iqbal, 556 U.S. at 678. Plaintiff has not done so with regards to his remaining constitutional
claims against these particular Defendants.
“To determine whether a plaintiff was denied procedural due process, we engage in a
two-step inquiry: (1) Did the individual possess a protected interest to which due process
protection was applicable? (2) Was the individual afforded an appropriate level of process?”
Hennigh v. City of Shawnee, 155 F.3d 1249, 1253 (10th Cir. 1998). A procedural due process
claim must be based on a showing that the state deprived the plaintiff of a protected property or

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liberty interest.

Lybrook v. The Members of the Farmington Municipal Schools Board of

Education, 232 F.3d 1334, 1341 (10th Cir. 2000).
Plaintiff’s due process claim is premised on his allegations that Defendants failed to
provide him with due process of law in relation to his adverse employment action and IA
investigation by failing to provide him with notice of and details regarding the investigation; and
failing to provide him with the identity of the complainant against him, among other related
grievances.

See Doc. 4 at ¶ 128.

Plaintiff alleges a protectable property interest in his

employment with the Department and his law enforcement certification, but he does not allege
those interests were taken away. In fact, under Plaintiff’s own allegations, he was restored to his
law enforcement position after the IA investigation did not result in any findings against him.
Plaintiff also filed a grievance pursuant to the collective bargaining agreement between the
Department and the Union.
Moreover, if there was any deprivation, under Plaintiff’s allegations it was de minimus.
See Dill, 155 F.3d at 1207. Plaintiff was placed on paid administrative leave on April 6, 2016.
A little over a month later, on May 12, 2016, the Department concluded the IA investigation and
did not sustain any findings against Plaintiff for any misconduct. The Department continued a
supplemental investigation into Plaintiff’s alleged misconduct until July 14, 2016, when the
Department finally notified Plaintiff that the Department’s investigation against him was closed
and the allegations were not sustained. The change in Plaintiff’s schedule, while perhaps
inconvenient, does not arise to a constitutional violation.
Finally, though neither party addressed this point in the briefing, there are no plausible
allegations of what these particular individual Defendants did to allegedly deprive Plaintiff of his
procedural due process rights, thus providing another basis for dismissal. “Personal liability

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under § 1983 must be based on personal involvement in the alleged constitutional violation.”
Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011) (quoting Foote v. Spiegel, 118 F.3d
1416, 1423 (10th Cir. 1997) (footnote omitted)). The Court carefully examined the Complaint,
and there are simply no allegations of what any particular Defendant did to effectuate the alleged
constitutional deprivations.

As the Tenth Circuit explained in Brown, “it is particularly

important in a § 1983 case brought against a number of government actors sued in their
individual capacity ... that the complaint make clear exactly who is alleged to have done what to
whom ... as distinguished from collective allegations.” Id. at 1165. The procedural due process
claim here fails for the additional reason that Plaintiff has not alleged what the individual
Defendants did to deprive Plaintiff of his property interests in his position and his law
enforcement certification.
III.

Equal Protection

Next, Defendants argue they are entitled to qualified immunity on Plaintiff’s equal
protection claim. Plaintiff complains that an investigator used a different method of recording
non-management witness statements from the method that was used in recording management
witness statements during the IA investigation. Defendants contend Plaintiff’s equal protection
claim fails because Plaintiff does not allege that this different recording approach prejudiced him
in any meaningful way, and he does not allege a different recording process was used for
investigating other officers.
Moreover, Defendants maintain that an equal protection claim cannot be based on
animosity of a supervisor toward a public employee instead of membership in a protected class.
In other words, public employees cannot assert “class of one” equal protection claims. See
Pignanelli v. Pueblo Sch. Dist. No. 60, 540 F.3d 1213, 1220 (10th Cir. 2008) (“A public

16

employee-turned-plaintiff must be a member of an identifiable class to bring an equal protection
claim.”).
Other than providing a brief summary of Defendants arguments regarding the equal
protection claim, Plaintiff makes no meaningful response to those arguments, so the Court finds
Plaintiff has either abandoned his equal protection claim, or he concedes to Defendants’
arguments. For example, Plaintiff does not address Defendants’ well-supported argument that a
public employee cannot as a matter of law state an equal protection claim based on a “class of
one.”
The Equal Protection Clause governs claims of arbitrary government classification.
Engquist v. Oregon Dep’t of Agr., 553 U.S. 591, 602 (2008).

When similarly situated

individuals are treated differently, the Equal Protection Clause requires “a rational reason for the
difference . . . Thus, when it appears that an individual is being singled out by the government,
the specter of arbitrary classification is fairly raised, and the Equal Protection Clause requires a
‘rational basis for the difference in treatment.’ Id. (quoting Vill. of Willowbrook v. Olech, 528
U.S. 562, 564 (2000)). In Engquist the Supreme Court held a “class of one” equal protection
theory, where a plaintiff is irrationally singled out and treated differently, does not apply in the
public employment arena. Id. at 598; See also Pignanelli, 540 F.3d at 1218 (“[C]lear Supreme
Court precedent precludes a public employee from making out an equal protection claim on the
sole basis that she was treated differently by her employer.”).
In this case, Plaintiff makes no allegation that the City treated him differently from others
similarly situated on account of his membership in a certain class. Plaintiff does not allege that a
different disciplinary or recording process was used for his IA investigation into potential
misconduct than was used for other officers’ investigations.

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Rather, he claims only that

“Defendants failed to provide Plaintiff with equal protection of laws . . . by using different or
disparate methods of recording the IA interviews of management employees versus the method
used to record Plaintiff and four additional members of the Bargaining Unit during their IA
interviews.” Doc. 4 at ¶ 118. To the extent Plaintiff attempts to assert a “class of one” equal
protection claim, the claim fails as a matter of law. See Engquist, 553 U.S. at 602.
IV.

State Law Claims

Lastly, Defendants argue Plaintiff improperly seeks to bring a number of state law claims
under 42 U.S.C. § 1983. These claims fail as a matter of law because to bring a claim under §
1983, Plaintiff must allege deprivation of a federal right by a person acting under color of state
law. See West v. Atkins, 487 U.S. 42, 48 (1988) (“To state a claim under § 1983, a plaintiff must
allege the violation of a right secured by the Constitution and laws of the United States, and must
show that the alleged deprivation was committed by a person acting under color of state law.”).
Plaintiff responds only that the Court has supplemental jurisdiction over the state law
claims because they are related to his First Amendment retaliation claim and thus part of the
same case and controversy as the § 1983 claims. He makes no attempt to address Defendants’
argument that a § 1983 claim is viable only when it alleges violations of federal rights rather than
state rights.
Counts 2 and 4 through 6 of the Complaint seek damages under § 1983 for alleged
violations of the New Mexico Constitution or New Mexico statutes. See Doc. 4 at ¶¶ 104–111;
123–154. The Court dismisses these counts because § 1983 does not apply to Plaintiff’s state
claims. Moreover, the Court has already found Plaintiff’s First Amendment and Fourteenth
Amendment claims fail as a matter of law, therefore the state law claims cannot remain in this
action.

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Accordingly, the Court grants Defendants’ Motion to Dismiss (Doc. 12). Plaintiffs’
claims against Defendants Michael Geier and Keith Riesberg are DISMISSED WITH
PREJUDICE.

SO ORDERED

UNITED STATES DISTRICT JUDGE

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