Wood v. City of Farmington et al
Filing
44
MEMORANDUM OPINION AND ORDER by Sr. District Judge Robert C. Brack Granting in Part 31 Opposed MOTION to Dismiss City Defendants' Motion to Dismiss No. I: Dismissal of Counts III and IV on the Basis of Qualified Immunity and Dismissal o f Counts VI, VII, and IX for Failure to State a Claim, and Granting in Part 32 Opposed MOTION for Summary Judgment City Defendants' Motion for Summary Judgment No. I: Dismissal of Count I on the Basis of Qualified Immunity and Dismissal of Count II and V (jjs)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JASON WOOD,
Plaintiff,
v.
Civ. No. 1:18-cv-00500-RB-LF
CITY OF FARMINGTON,
FARMINGTON POLICE DEPARTMENT,
STEVE HEBBE, in his individual capacity,
DAVID GRIEGO, in his individual capacity,
CORBAN DAVIS, in his individual capacity,
MATTHEW VIETH, in his individual capacity,
KYLE DOWDY, in his individual capacity,
and DENNIS RONK, in his individual capacity,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Jason Wood worked as an officer in the K-9 unit of the Farmington Police
Department (FPD) until he resigned from his position in early 2018. On May 29, 2018, Plaintiff
filed this lawsuit against FPD, the City of Farmington (the City), and several officers in his
supervisory chain of command. Plaintiff alleges that Defendants subjected him to unfounded
discipline and took other adverse employment actions that caused him to resign from his position.
Plaintiff raises various federal and state law claims for damages based on Defendants’ conduct.
On November 21, 2018, Defendants moved to dismiss Plaintiff’s federal substantive due
process claims on qualified immunity grounds and the majority of Plaintiff’s state law claims for
failure to state a claim. (Doc. 31.) Defendants also separately moved for summary judgment on
Plaintiff’s federal procedural due process and conspiracy claims as well as Plaintiff’s state law
claim for breach of an implied contract. (Doc. 32.)
Having considered the motions, the briefing, and the relevant law, the Court concludes that
Defendants are entitled to summary judgment on Plaintiff’s federal procedural due process (Count
I) and conspiracy claims (Count II). With regard to Plaintiff’s two substantive due process claims,
Plaintiff has stipulated to the dismissal of Count III, and the Court finds that Count IV is subject
to dismissal for failure to state a claim. Because there are no remaining federal claims in this
matter, the Court declines to exercise supplemental jurisdiction over the remainder of Plaintiff’s
complaint. In sum, the Court GRANTS IN PART Defendants’ motion to dismiss (Doc. 31) and
motion for summary judgment (Doc. 32). Counts I though IV of Plaintiff’s complaint are hereby
dismissed with prejudice and Counts V through IX are dismissed without prejudice.
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Defendants seek summary judgment on three of Plaintiff’s claims: (1) procedural due
process violation under 42 U.S.C § 1983 (Count I); (2) conspiracy under 42 U.S.C. § 1983 (Count
II); and (3) breach of an implied contract of employment under New Mexico law (Count V). (Doc.
32.)
I.
Background1
Before turning to the facts concerning Plaintiff’s employment with FPD, the Court sets
forth the relevant provisions of the City’s personnel rules and FPD’s disciplinary procedures that
the parties raised in their briefing.
A. FPD’s Disciplinary Procedures Policy and the City’s Personnel Rules
FPD maintains a policy governing disciplinary procedures, Policy No. 126-01, that
provides “guidelines for supervisors in carrying out disciplinary action” and “prescribes
1
Except as otherwise noted, the following facts are undisputed. Because this is summary judgment, the
Court views the facts and all reasonable inferences therefrom in the light most favorable to Plaintiff, the
non-moving party. See S.E.C. v. Thompson, 732 F.3d 1151, 1156–57 (10th Cir. 2013) (quotation omitted).
2
progressive discipline with a recurring employee problem.” (Doc. 37-2 at 1.) Pursuant to Policy
No. 126-01, “the supervisor initiating [any disciplinary] action will make recommendations as to
the appropriate discipline to be taken.” (Id. at 2.) “Those recommendations are reviewed through
the chain of command for suggestions or comments, with the [FPD] Chief of Police having final
authority.” (Id.) Policy No. 126-01 specifies that FPD’s procedures and criteria for discipline, as
well as those for grievances or appeals of disciplinary action, are governed by the City’s Personnel
Rules. (Id. at 1–2.)
Section 21-7-1 of the City’s Personnel Rules provides that employees “may be disciplined
for cause.” (Doc. 37-4 at 1.) “Cause for disciplinary action includes acts involving unsatisfactory
work performance by an employee or employee conduct on or off the job which would create the
appearance of impropriety . . . .” (Id.) The City’s Personnel Rules provide a non-exhaustive list of
reasons for which an employee may be disciplined. (Id. at 1–2.)
Depending on the type and egregiousness of the conduct necessitating disciplinary action,
the City’s Personnel Rules authorize department heads or supervisors to take four actions:
reprimand, suspension, demotion, and/or dismissal. (Id. §§ 21-7-3–21-7-7.) Specifically, FPD may
issue a verbal or written reprimand to an employee for cause. (Id. § 21-7-4.) FPD may suspend a
regular non-probationary employee for cause without pay for a period of up to three working days.2
(Id. § 21-7-5(a).) Any employee who chooses to appeal a suspension of less than three days “to
the city manager must do so within two working days of the notice of suspension.” (Id.) Next, FPD
may also “request that an employee be demoted for cause to a lower classification.” (Id. § 21-76.) An employee is entitled to a pre-demotion meeting, but may waive that right in writing. (Id.)
Lastly, FPD may “recommend that an employee be dismissed for cause.” (Id. § 21-7-7(a).) An
2
The Personnel Rules also include procedures authorizing suspensions without pay for a period of more
than three days; however, these provisions are not relevant to this case. (Doc. 37-4 §§ 21-7-5(b)–(d).)
3
employee is entitled to a pre-termination meeting with the department head and a representative
of the personnel division, but may waive that right in writing. (Id.) FPD shall submit findings and
recommended action to the city manager, who shall review the findings and may then either
dismiss the employee or take other appropriate action. (Id. § 21-7-7(c).)
An employee may appeal a suspension, a demotion, or a dismissal. (Id. §§ 21-7-9–21-710.) As for written reprimands, an employee may file a grievance. (Id. § 21-10-4.) The Personnel
Rules provide specific procedures for grievances and appeals, which the Court will address as
necessary in its analysis. (Id. §§ 21-7-10–21-7-11, 21-10-5.)
B. Plaintiff’s Employment
FPD hired Plaintiff as a police officer on March 20, 2012. (Doc. 39-B.) The events at issue
in this lawsuit occurred in 2017 and early 2018. In 2017, Plaintiff was the Canine Coordinator of
FPD’s K-9 unit. (See Doc. 39-C.) According to FPD Policy No. 241-06, the Canine Coordinator
is “an Officer in charge of the canine unit as designated” and “can authorize, deny, or restrict the
involvement of police canine teams” in field operations. (Doc. 37-6 at 1.)
On November 7, 2017, FPD disciplined Plaintiff as a result of an Internal Affairs (IA)
investigation that found Plaintiff had engaged in “unbecoming conduct.” (Doc. 39-C at 1.) The
November 2017 Notice of Corrective/Disciplinary Action summarized the incident for which
Plaintiff was disciplined as follows:
At the completion of a vehicle pursuit, Officer Wood was heard voicing
inappropriate and demeaning comments directed at the department related to a
command decision to terminate further efforts to subdue a wanted suspect. The
comments were captured on his body-worn camera system. The comments were
made in the presence of a fellow officer as well as members of other agencies
involved in the incident.
(Id.) As a result of this incident, Plaintiff was removed as the Canine Coordinator of the K-9 unit.
(Id.) He was also issued a one-day suspension without pay, which was deferred for a period of six
4
months. (Id.) Plaintiff was required to participate in the City’s Employee Assistance Program
(EAP). (Id.) If Plaintiff participated in the EAP and there were no other disciplinary issues for six
months, the notice indicated that the one-day suspension would be reduced to a letter of reprimand.
(Id.) As a result of being removed as the Canine Coordinator, Plaintiff lost $1.60 per hour from his
regular pay. (Doc. 37-1 ¶ 3.)
The November 2017 notice included a section containing Plaintiff’s comments regarding
the discipline imposed and the incident. (Doc. 39-C at 2.) Plaintiff stated: “I am happy to still be
in the unit as far as a strictly K9 handler capacity. . . . We as a unit have taken this opportunity to
turn this into a positive and I am proud of the fellow handlers. I apologize for my words during the
critical incident and will continue to work hard.” (Id.)
Approximately two months later, on January 31, 2018, FPD disciplined Plaintiff for
“unsatisfactory performance” following a second Internal Affairs (IA) investigation. (Doc. 39-D
at 1.) The January 2018 Notice of Corrective/Disciplinary Action indicated that the discipline was
being imposed due to Plaintiff’s actions during a November 29, 2017 incident in which he
responded to the Rimrock Inn to help another officer requesting back-up while arresting a resistant
male subject. (Id.) During the incident, Plaintiff deployed his police service dog. (Id.) The January
2018 notice stated that:
Ofc. J. Wood’s decision to remove his canine from his unit put him at a
disadvantage by tying up one of his hands and limiting all other options at his
disposal. He also made the decision to un-holster his service hand gun. Ofc. J.
Wood’s hands were both occupied when trying to give commands and deal with an
uncooperative subject. The assisting officer is calm and trying to de-escalate the
incident while Ofc. J. Wood is heard yelling in the background. Ofc. J. Wood
arrived on scene and took control without knowing all of the events that unfolded
prior to his arrival. Ofc. J. Wood would have been of more assistance if he had left
his [police service dog (PSD)] in the patrol unit and went hands-on with the subject.
Additionally, Ofc. J. Wood’s commands to the subject to “get down” and then to
the officer to “let him up,” . . . were confusing. Following the incident, Ofc. J. Wood
5
failed to document pertinent information in his report detailing the actions of the
subject in an attempt to justify his use of a canine to apprehend a suspect.
(Id. at 1–2.) The January 2018 notice also included a section containing Plaintiff’s comments
regarding the discipline imposed. (Id. at 2.) Plaintiff stated: “Thank you for my time on this dept
as a K9 handler. It was my greatest achievement. Thank you for the thoughts of taking care of PSD
Cas after his retirement. Thank you for not finding Babodi in violation.” (Id.)
Plaintiff disputes the events that transpired during the second IA investigation. Citing to
portions of his verified complaint,3 Plaintiff states that after the incident at the Rimrock Inn,
Defendant Lt. Matt Veith called Plaintiff and notified him that he was being removed from his
duties because of “red flags” concerning job performance. (Doc. 1 (Compl.) ¶ 42.) Plaintiff
questioned Lt. Veith regarding these red flags, but Lt. Veith gave no response and subsequently
initiated the second IA investigation. (Id. ¶¶ 43–44.)
Defendant Corban Davis was also involved in the November 2017 incident. (Id. ¶ 45.)
According to Plaintiff, Davis failed to appropriately document the incident, but was given
additional time to produce the missing documentation. (Id.) FPD did not discipline Davis for his
failure to appropriately document the incident. (Id.) Plaintiff further asserts that Davis prepped
other officers on what to say to investigators during the IA investigation and specifically, to cast
blame on Plaintiff for the November 2017 incident. (Id. ¶ 46.) In so doing, Plaintiff asserts that
Davis violated FPD policies and procedures. (Id.) Additionally, Plaintiff maintains that Davis
intentionally misrepresented the contents of the videos of the incident. (Id. ¶ 47.)
3
Generally, a verified complaint may be treated as an affidavit for purposes of summary judgment if it
satisfies the standards for affidavits set out in Fed. R. Civ. P. 56, and if the allegations contained in the
verified complaint are not “merely conclusory.” See Lantec, Inc. v. Novell, Inc., 306 F.3d 1003, 1019 (10th
Cir. 2002) (citations omitted).
6
Plaintiff states he notified Defendant David Griego, who was conducting the second IA
investigation, that Davis and Lt. Veith had violated FPD policies and procedures in their
supervisory treatment of Plaintiff. (Id. ¶ 48.) Griego, however, indicated to Plaintiff that he was
under pressure from FPD administration to find against Plaintiff on the IA investigation. (Id. ¶ 50.)
In addition, Defendant Dennis Ronk indicated to Plaintiff that FPD could face a potential lawsuit
because Plaintiff’s police service dog had bitten the suspect during the November 2017 incident
and therefore, the findings of the IA investigation would be based on FPD’s liability situation
rather than the facts of the incident. (Id. ¶ 49.) Plaintiff also asserts that Ronk began to harass and
berate Plaintiff over minor matters during the course of the IA investigation and eventually began
to completely ignore Plaintiff in the workplace. (Id. ¶ 52.)
As a result of the January 2018 IA investigation, Plaintiff was removed from the K-9 unit
effective February 3, 2018. (Doc. 37-5.) He received a written reprimand and was suspended from
any field training duties, to include mentorship, for a period of six months. (Id.) Additionally, he
was suspended from any form of instructorship for a period of one year. (Id.) Because Plaintiff
had received discipline within six months of the November 2017 incident, FPD also imposed the
one-day suspension without pay that had been deferred in the November 2017 notice of
corrective/disciplinary action. (Id. at 2.)
Plaintiff lost $0.69 per hour in pay as a result of his removal from the K-9 unit. (Doc. 371 ¶ 4.) Additionally, his suspension from field training duties resulted in the loss of one hour of
overtime pay per shift, which amounted to approximately $37.00 per shift. (Id. ¶ 5.) Plaintiff also
lost eligibility for a $1500 bonus at the end of the year when he was cut from the mentorship
program. (Id. ¶ 6.) Because he lost the ability to teach at the police academy, Plaintiff asserts that
7
he was denied the opportunity to receive a master certification that would have made him eligible
for promotions within FPD. (Id. ¶ 7.)
It is undisputed that Plaintiff did not file a grievance or appeal any of the discipline imposed
as a result of the November 2017 and January 2018 IA investigations. (Docs. 32 ¶¶ 18–19, 28–29;
37 ¶ 1.) It is also undisputed that, after his first disciplinary action in November 2017 and until he
resigned in 2018, no FPD employee explicitly notified Plaintiff that he could grieve or appeal any
of the disciplinary actions taken against him. (Doc. 37-1 ¶ 2.) Plaintiff asserts that, had he been
advised that he could have the City review the discipline imposed, “he would have taken advantage
of any process available.” (Id.) In response, Defendants maintain that Plaintiff was aware of the
City’s Personnel Rules. (Doc. 39 at 3.) They point to two documents Plaintiff signed at the start of
his employment: (1) an “Employment Acceptance Agreement” that Plaintiff initialed indicating
he had received a copy of the City’s Personnel Rules and Administrative Regulations, and (2) an
“Acknowledgement Form” Plaintiff signed indicating he had received an Employee Handbook
containing the City’s Personnel Rules and Administrative Regulations. (Docs. 39-A; 39-B.)
Plaintiff resigned from his position in early 2018. This lawsuit followed.
II.
Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). There is no genuine dispute as to any material fact unless the evidence is such that a
reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A dispute “is genuine if there is sufficient evidence on each side so that
a rational trier of fact could resolve the issue either way[,]” and it is material “if under the
substantive law it is essential to the proper disposition of the claim.” Becker v. Bateman, 709 F.3d
8
1019, 1022 (10th Cir. 2013) (quotation marks and citations omitted). In reviewing a motion for
summary judgment, the Court views the evidence and all reasonable inferences therefrom in the
light most favorable to the non-moving party. S.E.C. v. Thompson, 732 F.3d 1151, 1156–57 (10th
Cir. 2013) (quotation omitted). Initially, the party seeking summary judgment has the burden of
showing that there is no genuine dispute as to any material fact. See Shapolia v. Los Alamos Nat’l
Lab., 992 F.2d 1033, 1036 (10th Cir. 1993). Once the moving party meets its burden, the nonmoving party must show that genuine issues remain for trial. Id.
III.
Analysis
A. Plaintiff’s Procedural Due Process Claim (Count I)
The Fourteenth Amendment prohibits any state from “depriv[ing] any person of life,
liberty, or property, without due process of law.” U.S. Const. amend. XIV § 1. “In practice, this
simply means that a state can’t decide to take away a party’s property ‘unless fair procedures are
used in making that decision.’” Chiddix Excavating, Inc. v. Colo. Springs Utils., 737 F. App’x 856,
858 (10th Cir. 2018) (quoting Mitchell v. City of Moore, 218 F.3d 1190, 1198 (10th Cir. 2000)).
“To assess whether an individual was denied procedural due process, courts must engage in a twostep inquiry: (1) did the individual possess a protected interest such that the due process protections
were applicable; and, if so, then (2) was the individual afforded an appropriate level of process.”
Riggins v. Goodman, 572 F.3d 1101, 1108 (10th Cir. 2009) (quotation marks and citation omitted).
Defendants argue that they are entitled to summary judgment on Plaintiff’s procedural due
process claim for three reasons. (Doc. 32 at 10–15.) First, they contend that Plaintiff has failed to
demonstrate the existence of a constitutionally protected property interest. (Id. at 11–13.) Second,
Defendants argue that Plaintiff has waived any right to challenge the adequacy of the process he
9
received. (Id. at 13–14.) Third, they argue in the alternative that the individual Defendants are
entitled to qualified immunity. (Id. at 14–15.)
1. Property Interest in Continued Employment
“An individual has a property interest in a benefit for purposes of due process protection
only if he has a ‘legitimate claim of entitlement’ to the benefit, as opposed to a mere ‘abstract need
or desire’ or ‘unilateral expectation.’” Teigen v. Renfrow, 511 F.3d 1072, 1078–79 (10th Cir.
2007). “Such an interest arises not from the Due Process Clause of the Constitution itself, but is
created by independent sources such as a state or federal statute, a municipal charter or ordinance,
or an implied or express contract.” Id. at 1079 (quotation marks and citation omitted); see also
Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir. 2000) (“Property interests
are created and their dimensions are defined by existing rules and understandings that stem from
an independent source such as state law-rules or understandings that secure certain benefits and
that support claims of entitlement to those benefits.”). In this case, Plaintiff must therefore
establish, based on an independent source, that he possessed a property interest in his employment
that due process protects. See Coleman v. Utah State Charter Sch. Bd., 673 F. App’x 822, 827
(10th Cir. 2016) (stating that “[a] plaintiff must show a right to continued employment to establish
a property interest in public employment that due process protects.”). The Court looks to New
Mexico law to determine whether such an interest exists. See Hesse v. Town of Jackson, 541 F.3d
1240, 1245 (10th Cir. 2008) (“In the employment context, a property interest is a legitimate
expectation in continued employment. We determine whether such a property interest exists by
looking at state law.”) (quotation marks and citation omitted). “Under New Mexico law, a public
employee has a protected property interest only if he has an express or implied right to continued
employment.” Gonzales v. City of Albuquerque, 701 F.3d 1267, 1271 (10th Cir. 2012).
10
New Mexico law provides that “[e]mployment without a definite term is presumed to be at
will.” Trujillo v. N. Rio Arriba Elec. Coop., Inc., 41 P.3d 333, 341 (N.M. 2001) (citations omitted).
“In an at-will employment relationship, both the employer and the employee have the right to
terminate the employment relationship at any time for any reason.” Id. (citation omitted). “The
employment-at-will doctrine permits an employer to terminate an employee at will in the absence
of an express contract limiting the employer’s right to do so.” Weise v. Wash. Tru Sols., L.L.C.,
192 P.3d 1244, 1253 (N.M. Ct. App. 2008) (citation omitted). New Mexico courts “have
recognized two exceptions to the at-will employment rule: (1) wrongful termination under facts
disclosing unlawful retaliatory discharge or (2) where the facts disclose the existence of an implied
employment contract provision that limits the employer’s authority to discharge.” Trujillo, 41 P.3d
at 341 (quotation marks and citation omitted). “The parties may modify the at-will presumption
by a contractual agreement regarding termination . . . [or a] representation in an employee
handbook or personnel policies.” Id. (citations omitted).
In this case, Plaintiff asserts that he had a “protected property interest in continued
employment established through both an implied contract of employment and the requirement of
‘just cause’ for disciplinary action.” (Compl. ¶ 66.) In his response brief, Plaintiff repeatedly
references an “implied contract” that gave rise to a property interest in continued employment.
(Doc. 37 at 10.) Plaintiff, however, fails to identify the source, such as an employee handbook,
that gave rise to an implied contract of employment between himself and FPD. The Court therefore
is not persuaded by Plaintiff’s general assertion that he had an implied contract of employment.
That being said, Plaintiff does point to other sources that Defendants do not dispute placed
limitations on FPD’s ability to discipline Plaintiff—specifically, FPD’s policy governing
disciplinary procedures (Policy No. 126-01) and the City’s Personnel Rules. (Docs. 37 at 10; 37-
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4; 37-2.) As set forth earlier, Policy No. 126-01 specifies that FPD employs progressive discipline
procedures in accordance with the City’s Personnel Rules. (Doc. 37-2.) The City’s Personnel Rules
in turn expressly provide that regular employees may be disciplined “for cause.” (Doc. 37-4.) The
Personnel Rules further set forth procedural requirements that City departments must follow in
imposing discipline ranging from reprimands to dismissal. (Id.)
Because FPD’s ability to discipline and to ultimately discharge employees was limited by
the “for cause” requirement in the City’s Personnel Rules, the Court concludes that Plaintiff has
established a property interest in continued employment. See West v. Grand Cty., 967 F.2d 362,
366 (10th Cir. 1992) (“[W]hen a person’s employment can be terminated only for specified
reasons, his or her expectation of continued employment is sufficient to invoke the protections of
the Fourteenth Amendment.”) (citations omitted); see also Kingsford v. Salt Lake City Sch. Dist.,
247 F.3d 1123, 1129 (10th Cir. 2001) (when “there are substantive restrictions on the ability of the
employer to terminate the employee[,]” a continued expectation of employment is established)
(citation omitted); City of Albuquerque v. AFSCME Council 18 ex rel. Puccini, 249 P.3d 510, 513
(N.M. Ct. App. 2011) (“[E]mployees with a legitimate expectation of continued employment are
protected from termination without just cause, notice, and opportunity to be heard.”) (citation
omitted); Blan v. Correct Care Sols., LLC, Civ. No. 17-CV-182 NF/KHR, 2017 WL 8640634, at
*3 (D.N.M. Dec. 11, 2017) (finding plaintiff failed to establish a protected property interest in
continued employment where she was unable to point to a statute or contractual provision limiting
her employer’s ability to discharge her only for cause).
In their motion for summary judgment, Defendants do not directly address whether
Plaintiff had a protected property interest in continued employment based on the City’s Personnel
Rules. (Doc. 32 at 11–12.) Rather, Defendants argue that “not all property interests deserve
12
constitutional protection,” and that in this case, the imposed disciplinary actions were de minimus
and thus insufficient to trigger procedural due process protections. (Doc. 32 at 11–12 (citing Dill
v. City of Edmond, 155 F.3d 1193, 1207 (10th Cir. 1998) abrogated in part on other grounds by
Currier v. Doran, 242 F.3d 905 (10th Cir. 2001)).) Defendants, however, do not dispute that
Plaintiff’s removal from the unit coordinator position and ultimately, the K-9 unit, resulted in two
reductions in base pay, and that Plaintiff’s suspension was without pay. These disciplinary actions
were sufficient to trigger due process protections. See Bailey v. Kirk, 777 F.2d 567, 575 (10th Cir.
1985) (holding that the plaintiff’s suspensions without pay “implicated a property interest entitled
to due process safeguards in light of cases which hold that temporary suspensions without pay are
not de minimis and impinge on protected property interests”); Teigen, 511 F.3d at 1079 (finding
that plaintiffs’ property interest in continued employment did not trigger due process protections
because the plaintiffs remained employed at the same rank and did not suffer any decrease in
compensation as a result of the alleged discipline). The Court therefore rejects Defendants’
argument that Plaintiff did not have a constitutionally protected property interest.
2. Adequacy of Process Afforded
“An essential principle of due process is that a deprivation of life, liberty or property be
preceded by notice and opportunity for hearing appropriate to the nature of the case.” Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quotation and citation omitted). Thus, “the
root requirement” of the due process clause is that “an individual be given an opportunity for a
hearing before he is deprived of any significant property interest.” Id. (brackets, quotation and
citation omitted). “For government employees, such a hearing requires: (1) oral or written notice
to the employee of the charges against him; (2) an explanation of the employer’s evidence; and (3)
an opportunity for the employee to present his side of the story.” Riggins, 572 F.3d at 1108
13
(brackets, quotation, and citation omitted). “A full evidentiary hearing is not required[,]” but the
employee must “be given notice and an opportunity to respond.” Id. (quotation omitted). The Tenth
Circuit has stated that:
We have upheld as sufficient to meet these requirements informal proceedings,
such as pretermination warnings and an opportunity for a face-to-face meeting with
supervisors, and even a limited conversation between an employee and his
supervisor immediately prior to the employee’s termination. The objective of the
process is an initial check against mistaken decisions – essentially, a determination
of whether there are reasonable grounds to believe that the charges against the
employee are true and support the proposed action.
Id. (quotation, footnote, and citations omitted). The procedures that are constitutionally required
depend on the circumstances of a particular case. If only minimal procedural protections occur
before the adverse employment action, due process requires post-termination procedures that
provide the employee “with the opportunity to challenge [the adverse employment action] in a
more detailed fashion.” Montgomery v. City of Ardmore, 365 F.3d 926, 938 (10th Cir. 2004).
Similarly, the adequacy of available post-deprivation procedures depends on the earlier process
afforded. “When the [pre-deprivation] process offers little or no opportunity for the employee to
present his side of the case, [post-deprivation procedures] become much more important.”
Benavidez v. City of Albuquerque, 101 F.3d 620, 626 (10th Cir. 1996).
On the summary judgment record presented in this case, the undisputed facts establish that
Plaintiff received adequate process prior to being disciplined. Specifically, Plaintiff received ample
notice based on the November 2017 and January 2018 notices of disciplinary action in that each
provided a summary of the underlying incident, listed the department policies that Plaintiff
allegedly violated, and set forth the specific discipline being imposed. (Docs. 39-C; 39-D.) Plaintiff
does not deny that the notices adequately apprised him of the proposed discipline. The only
challenge Plaintiff raises regarding the notices is that FPD violated Policy No. 126-01 because the
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notices were not signed by FPD’s chief of police. (Doc. 37 at 3–4.) This argument is without merit
because the notices were in fact signed by FPD’s police chief and Plaintiff’s supervisory chain of
command on the same date that Plaintiff signed them. (Docs. 39-A; 39-B.)
In addition to receiving adequate notice, the record also establishes that Plaintiff had the
opportunity to be heard prior to being disciplined. Because Plaintiff completed the section in each
disciplinary notice entitled “[e]mployee’s comments and plan to correct problem,” it is clear that
Plaintiff met with his supervisor to discuss the underlying incidents and the proposed discipline.
(Id.) That Plaintiff had the opportunity to present “his side of the story,” Riggins, 572 F.3d at 1109,
is further supported by Plaintiff’s verified complaint, in which he acknowledges that he met with
IA investigators and his supervisors to discuss the underlying incidents, his concerns regarding the
IA investigations, and the proposed discipline. (Compl. ¶¶ 42–43, 48, 50, 55.) These undisputed
facts, viewed in the light most favorable to Plaintiff, establish that Plaintiff received the predeprivation procedural protections that the Due Process Clause requires, namely, notice of the
reasons for the proposed discipline, a description of alleged facts underlying each of those reasons,
and an opportunity to respond and present his side of the story.
Regarding post-deprivation procedures, Plaintiff does not dispute that he failed to pursue
the available post-deprivation procedures Defendants offered regarding the November 2017 and
January 2018 disciplinary actions. (Docs. 32 ¶¶ 18–19, 28–29; 37 ¶ 1.) Plaintiff claims, however,
that FPD did not notify him that he could grieve or appeal the disciplinary actions, and further,
that had he been advised of these procedures, he would have taken advantage of them. (Doc. 37-1
¶ 2.) Although Defendants have not disputed Plaintiff’s assertion that no FPD employee notified
him of the availability of post-deprivation procedures at the time he was being disciplined,
Defendants do present evidence establishing that Plaintiff was provided a copy of the City’s
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Personnel Rules when he began his employment. (Docs. 39-A; 39-B.) Because the City’s
Personnel Rules set forth the available post-deprivation procedures, the Court finds that Plaintiff
was already on notice of these procedures from the time he began his employment. Furthermore,
even if no FPD employee advised Plaintiff of these procedures, the Court observes that both the
November 2017 and the January 2018 disciplinary notices Plaintiff received stated that he was
being disciplined in accordance with Policy No. 126-01. (Docs. 39-C; 39-D.) As discussed earlier,
Policy No. 126-01 specifies that an employee can file a grievance or appeal a disciplinary action
and that these procedures follow the guidelines in the City’s Personnel Rules. (Id.) Viewing this
evidence and all reasonable inferences therefrom in the light most favorable to Plaintiff, the Court
concludes that Plaintiff had adequate notice of the availability of post-deprivation procedures.
By failing to take advantage of the available post-deprivation procedures, the Court agrees
with Defendants that Plaintiff has waived his right to challenge them in federal court. See Santana
v. City of Tulsa, 359 F.3d 1241, 1244 (10th Cir. 2004) (“A party cannot create a due process claim
by ignoring established procedures.”); Sandoval v. City of Boulder, 388 F.3d 1312, 1329 (10th Cir.
2004) (holding that employee waived her procedural due process claim by failing to request a
hearing to contest a decision not to promote her); Lee v. Regents of Univ. of Cal., 221 F. App’x
711, 714 (10th Cir. 2007) (plaintiff “waived any challenge to the fairness of [his employer’s] posttermination hearing procedures because he never requested a post-termination hearing”); Koessel
v. Sublette Cty. Sheriff’s Dept., 717 F.3d 736, 749 (10th Cir. 2013) (“Whether, in light of the
pretermination process, this post-termination process is constitutionally sufficient is a question we
need not reach, as Koessel waived that issue by failing to request his [post-termination] hearing
with the Sheriff’s Office.”).
16
Based on the foregoing reasons, the Court concludes that Defendants are entitled to
summary judgment on Plaintiff’s procedural due process claim (Count I). This claim is dismissed
with prejudice.
B. Plaintiff’s Conspiracy Claim (Count II)
In Count II of his complaint, Plaintiff asserts a conspiracy claim under 42 U.S.C. § 1983
alleging that the individual Defendants conspired to deprive him of his procedural and substantive
due process constitutional rights. (Compl. ¶¶ 80–87.) Defendants argue that they are entitled to
summary judgment on this claim because Plaintiff has failed to establish the existence of an
underlying constitutional violation. (Doc. 31 at 15–16.) The Court agrees.
In order to succeed on a § 1983 conspiracy claim, a plaintiff “must prove both the existence
of a conspiracy and the deprivation of a constitutional right.” Thompson v. City of Lawrence, 58
F.3d 1511, 1517 (10th Cir. 1995) (citation omitted). A conspiracy claim fails where the plaintiff
fails to establish a constitutional violation. Id. (determining that conspiracy claim failed because
the plaintiff failed to establish the existence of a constitutional violation, which was “an essential
element of the conspiracy claim”); see also Berry v. Oklahoma, 495 F. App’x 920, 922 (10th Cir.
2012) (“[B]ecause Berry has not established a constitutional violation, his § 1983 conspiracy claim
also fails.”); Leatherwood v. Rios, 705 F. App’x 735, 739 (10th Cir. 2017) (determining that
plaintiff could not prevail on § 1983 conspiracy claim because “he failed to establish the existence
of a constitutional violation as necessary to state this claim”).
As discussed in this Order, the Court has determined that Plaintiff has failed to establish
the existence of an underlying constitutional due process violation. Because an essential element
of the conspiracy claim is absent, Defendants are entitled to summary judgment on Plaintiff’s
conspiracy claim and this claim is dismissed with prejudice.
17
DEFENDANTS’ MOTION TO DISMISS4
I.
Legal Standard
“[T]o withstand a Rule 12(b)(6) motion to dismiss, a complaint must contain enough
allegations of fact, taken as true, to state a claim to relief that is plausible on its face.” Khalik v.
United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). In ruling on a motion to dismiss, the Court “accept[s] the well-pled factual
allegations in the complaint as true, resolve[s] all reasonable inferences in the plaintiff’s favor, and
ask[s] whether it is plausible that the plaintiff is entitled to relief.” Diversey v. Schmidly, 738 F.3d
1196, 1199 (10th Cir. 2013) (quotation marks and citations omitted).
II.
Analysis
Defendants contend that Plaintiff’s substantive due process claims, as asserted in Counts
III and IV of Plaintiff’s complaint, are subject to dismissal. (Doc. 31 at 9–18.) In his response brief,
Plaintiff has stipulated to the dismissal of Count III. (Doc. 36 at 2.) Count III is therefore dismissed
with prejudice and the Court turns to consider the parties’ arguments regarding Count IV. In Count
IV, Plaintiff alleges a substantive due process claim based on a “deprivation of a protected property
interest in [his] continued employment with [] FPD.” (Compl. ¶ 97.) With respect to this claim,
Defendants contend that Plaintiff fails to state a claim for relief and alternatively, that the
individual Defendants are entitled to qualified immunity on this claim. (Doc. 31 at 16–18.)
“A Fourteenth Amendment substantive due process claim arises when a plaintiff alleges
the government deprived him of a fundamental right.” Koessel, 717 F.3d at 749 (citation omitted).
“Substantive due process protects fundamental liberty interests and protects against the exercise
4
The facts in this section are taken from Plaintiff’s Complaint (Doc. 1), and all well-pleaded factual
allegations are presented in this section as true and construed in the light most favorable to Plaintiff. See In
re Gold Res. Corp. Sec. Litig., 776 F.3d 1103, 1108 (10th Cir. 2015). The Court recites only the facts and
procedural background necessary to resolve Defendants’ motion to dismiss.
18
of government authority that ‘shocks the conscience.’” Id. (quoting Seegmiller v. LaVerkin City,
528 F.3d 762, 767 (10th Cir. 2008)). The Tenth Circuit “has not determined whether public
employment is a fundamental liberty interest protected by substantive due process . . . .” Id. (citing
Potts v. Davis Cty., 551 F.3d 1188, 1193 n.1 (10th Cir. 2009). Even if it were, Plaintiff does not
assert in this case that Defendants deprived him of a fundamental liberty interest. Therefore, to
prevail on his substantive due process claim as asserted in Count IV, Plaintiff must show that
Defendants’ conduct shocks the conscience.
To show that Defendants’ conduct is conscience shocking, Plaintiff “must prove a
government actor abused his or her authority or employ[ed] it as an instrument of oppression in a
manner that shocks the conscience.” Id. at 750 (quotation marks and citation omitted).
“Substantive due process prohibits ‘only the most egregious official conduct[,]’” id. (quoting
Seegmiller, 527 F.3d at 767), and “[e]ven most intentionally inflicted injuries caused by misuse of
government authority will not meet this standard[,]” id. (citations omitted). Negligent conduct does
not shock the conscience, and
plaintiff must do more than show the government actor intentionally or recklessly
caused injury to the plaintiff by abusing or misusing government power. The
plaintiff must demonstrate a degree of outrageousness and a magnitude of potential
or actual harm that is truly conscience shocking. This is a high level of
outrageousness.
Ward v. Anderson, 494 F.3d 929, 937–38 (10th Cir. 2007) (quoting Camuglia v. City of
Albuquerque, 448 F.3d 1214, 1222–23 (10th Cir. 2007)).
Plaintiff asserts that the allegations in his complaint regarding the IA investigations meet
the conscience shocking standard. (Doc. 36 at 10.) The Court disagrees. These allegations, even if
taken as true, “do not demonstrate an abuse of government authority, let alone one sufficient to
shock the judicial conscience.” Koessel, 717 F.3d at 750. Although Plaintiff claims that FPD’s
19
conduct was an abuse of governmental authority, the Court notes that in both the November 2017
and January 2018 notices of disciplinary action, Plaintiff did not dispute the underlying facts or
raise any concerns regarding either IA investigations. Indeed, in the November 2017 notice,
Plaintiff went so far as to apologize for his comments during the incident, thus apparently
acknowledging that the findings of the IA investigation were warranted.5 Nor did Plaintiff appeal
or file a grievance following the disciplinary actions.
As such, Plaintiff fails to show that Defendants abused their authority, much less that they
did so in a manner that would shock the judicial conscience. The Court therefore dismisses
Plaintiff’s substantive due process claim (Count IV) with prejudice. See id. at 750–51 (county’s
conduct in terminating Koessel did not rise to the level of a substantive due process violation where
“Koessel did not even request a hearing, let alone dispute the allegations in his termination notice
or present any evidence [to his employer] in his own defense”); See also Curtis v. Okla. City Pub.
Sch. Bd. of Educ., 147 F.3d 1200, 1216 (10th Cir. 1998) (finding no substantive due process
violation where school board dismissed an employee after a hearing during which the board
received no evidence, did not discuss the specific grounds for the employee’s termination, and did
not state the reasons for its decision).
PLAINTIFF’S STATE LAW CLAIMS
Having dismissed with prejudice Plaintiff’s federal due process and conspiracy claims,
there are no claims remaining in this lawsuit over which the Court has original jurisdiction.
5
Although the November 2017 and January 2018 notices were not described in detail in Plaintiff’s
complaint, they were referred to in the complaint and attached to the parties’ briefing. Therefore, the Court
will consider their content. See Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (on a motion to
dismiss, district courts may consider “documents that the complaint incorporates by reference . . . or
documents attached as exhibits to the complaint” or “documents referred to in the complaint if the
documents are central to the plaintiff’s claim and the parties do not dispute the documents’ authenticity”).
20
Plaintiff’s remaining claims are all claims brought under New Mexico law. Although Defendants
have moved for summary judgment or dismissal on a number of these claims in the motions before
the Court,6 the Court declines to exercise supplemental jurisdiction over Plaintiff’s state law
claims. See 28 U.S.C. § 1367(c)(3) (providing that a district court may decline to exercise
supplemental jurisdiction if “the district court has dismissed all claims over which it has original
jurisdiction”); Koch v. City of Del City, 660 F.3d 1228, 1248 (10th Cir. 2011) (stating that “[w]hen
all federal claims have been dismissed, the court may, and usually should, decline to exercise
jurisdiction over any remaining state claims”) (citation omitted); Carlsbad Tech., Inc. v. HIF Bio,
Inc., 556 U.S. 635, 639 (2009) (“A district court’s decision whether to exercise [supplemental]
jurisdiction after dismissing every claim over which it had original jurisdiction is purely
discretionary.”). Counts V through IX of Plaintiff’s complaint are therefore dismissed without
prejudice to Plaintiff pursuing these claims in state court.
CONCLUSION
IT IS THEREFORE ORDERED THAT:
1. Defendants’ Motion to Dismiss (Doc. 31) and Motion for Summary Judgment (Doc.
32) are GRANTED IN PART;
2. Counts I though IV of Plaintiff’s complaint are hereby dismissed with prejudice; and
6
In their motion for summary judgment (Doc. 32), Defendants seek summary judgment on Plaintiff’s
breach of implied contract of employment claim under New Mexico law (Count V). In their motion to
dismiss (Doc. 31), Defendants seek dismissal of Plaintiff’s state law claims for constructive discharge
(Count VI), wrongful termination (Count VII), and breach of implied covenant of good faith and fair dealing
(Count IX).
21
3. Counts V through IX of Plaintiff’s complaint are dismissed without prejudice.
IT IS SO ORDERED.
____________________________
ROBERT C. BRACK
SENIOR U.S. DISTRICT JUDGE
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