Jackson v. Pleasant View City Corporation et al
Filing
31
MEMORANDUM DECISION and ORDER granting 23 Motion for Judgment on the Pleadings. Plaintiff's claims based on a property interest are dismissed with prejudice. Plaintiff's claims based on a liberty interest are dismissed without prejudice. Plaintiff is directed to file an amended Complaint within thirty (30) days of this Order. Signed by Judge Ted Stewart on 7/14/2015. (blh)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION
David Scott Jackson,
v.
MEMORANDUM DECISION AND
ORDER GRANTING
DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
Pleasant View City Corporation, et al.,
Case No. 1:14-CV-111 TS
Plaintiff,
Defendants.
Judge Ted Stewart
This matter is before the Court on Defendants’ Motion for Judgment on the Pleadings.
Defendants move that Plaintiff’s Verified Complaint be dismissed with prejudice. For the
reasons set forth below, the Court will grant Defendants’ Motion, but dismiss Plaintiff’s liberty
interest claim without prejudice.
I. BACKGROUND
Plaintiff was Chief of Police for the Pleasant View Police Department until his
unappointment by the Pleasant View City Council and Mayor on July 12, 2014. 1 While Plaintiff
was serving as Police Chief, the wife of a Pleasant View police officer contacted Plaintiff and
asked him to investigate a domestic family matter. 2 Plaintiff began investigating the matter, then
went on a vacation. When Plaintiff was gone, the Pleasant View City Administrator began a
separate investigation of the matter. 3 After returning from vacation, Plaintiff requested a
management meeting with the Mayor and the City Administrator to discuss his concerns with the
1
Docket No. 2, at 2.
2
Id. at 4.
3
Id.
1
City Administrator becoming prematurely involved in the investigation, and other similar
concerns relating to Defendants’ interference with police department operations. 4 The City
Administrator and Plaintiff engaged in a confrontational conversation. During the meeting, the
City Administrator claimed that Plaintiff had lost the trust and respect of his officers. Following
the meeting, the City Administrator gave Plaintiff a disciplinary form for insubordination and
placed him on administrative leave. 5 Later on, Defendants held a closed meeting at City Hall
where they allegedly made negative statements about Plaintiff. Plaintiff’s attorney was unable to
attend due to a scheduling conflict, and Plaintiff’s local attorney was denied entry to the
meeting. 6 A majority of police officers came to City Hall at the same time as the closed meeting,
and they remained present for the open meeting that followed. 7 In the open meeting, the City
Council voted 2-2 on the Mayor’s motion to unappoint Plaintiff as Police Chief, the Mayor voted
to break the tie, and he subsequently announced that Plaintiff was unappointed without cause. 8
II. LEGAL STANDARD
Plaintiff brings a 42 U.S.C. § 1983 action against Defendants, claiming his termination
deprived him of liberty and property interests without due process. 9 Pursuant to Rule 12(c) of
the Federal Rules of Civil Procedure, Defendants have submitted their Motion for Judgment on
the Pleadings. The Court reviews 12(c) motions under the standard of review applicable to a
Rule 12(b)(6) motion to dismiss.10 When reviewing a motion for judgment on the pleadings, the
4
Id. at 5.
5
Id.
6
Id. at 5–6.
7
Id. at 7–8.
8
Id. at 8.
9
Id. at 2.
10
Bishop v. Fed. Intermediate Credit Bank, 908 F.2d 658, 663 (10th Cir. 1990).
2
Court accepts all factual allegations in the complaint as true and consider such allegations and all
reasonable inferences drawn therefrom in a light most favorable to the plaintiff. 11 To survive a
12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” 12 Further, while a plaintiff’s factual allegations are
to be taken as true, the complaint must “raise a right to relief above the speculative level.” 13
III. DISCUSSION
A. PROPERTY INTEREST
Plaintiff claims Defendants deprived him of a property interest in his continuing
employment without due process. “When a plaintiff claims a property interest in [his] job,
[courts] ask whether [he] had ‘a legitimate expectation of continuing employment.’” 14 “State
law determines whether a claim to entitlement to employment is sufficient.” 15 The Utah Code
provides certain rights of notice, hearing, and appeal, which might create a property interest in
employment, but the code excludes police chiefs from its protections. 16 Utah courts have
recognized that the code specifically allows municipalities to terminate top-level employees,
such as a police chief, without cause. 17 By definition, at-will employees may be dismissed
11
Nelson v. State Farm Mut. Auto. Ins. Co., 419 F.3d 1117, 1119 (10th Cir. 2005).
12
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
13
Twombly, 550 U.S. at 555.
14
Eisenhour v. Weber Cty., 744 F.3d 1220,1222 (10th Cir. 2014).
15
McDonald v. Wise, 769 F.3d 1202, 1210 (10th Cir. 2014).
16
Utah Code § 10-3-1106.
17
Pearson v. South Jordan City, 275 P.3d 1035, 1043 (Utah Ct. App. 2012).
3
without cause and lack a property interest in their employment. 18 Consequently, there is no due
process violation based on Plaintiff’s unappointment.
Plaintiff claims that the procedures outlined in the City’s code confer upon him a
property interest in his continuing employment. The municipal code states:
The city council may remove the chief from office without cause, without charges being
pressed, and without trial but with opportunity to be heard, whenever, in the opinion of
the mayor with advice and consent of the city council, the good of the police service in
the community will be served thereby; and the action of the mayor in making such
removal shall be final and conclusive. 19
Because the code says the police chief may be removed from office without cause, Plaintiff does
not have a property interest in his continuing employment. The code also does not require a trial
or charges—further limitations which suggest that Plaintiff is employed at-will and lacks a
property interest in his employment. While the municipal code requires an opportunity to be
heard, it does not require any particular level of hearing, and it does not require Defendants to
place any particular weight on Plaintiff’s comments. 20 Further, an opportunity to be heard,
without additional substantive limitations, does not create a property interest protected by the
Fourteenth Amendment. 21
Plaintiff claims that the provisions concerning the advice and consent of the city council
and the good of the city create a substantive property right. However, the Tenth Circuit has held
that “where a governing body retains discretion and the outcome of the proceeding is not
18
Darr v. Town of Telluride, 495 F.3d 1243, 1252 (10th Cir. 2007).
19
Docket No. 2, at 17.
20
Docket No. 23, at 10.
21
Crown Point I v. Intermountain Rural Elec. Ass’n., 319 F.3d 1211, 1216 (10th Cir.
2003) (quoting Jacobs, Visconsi & Jacobs v. City of Lawrence, 927 F.2d 1111, 1117 (10th Cir.
1991)).
4
determined by the particular procedure at issue, no property interest is implicated.” 22 In other
words, since the City Council and the Mayor collectively had the discretion to dismiss Plaintiff
and were not limited to a particular outcome by the procedures, the procedures did not create a
property interest. Additionally, the provisions allowing the Mayor to act based on his opinion
and the directive that his decision be final and conclusive, further suggest that no property
interest is created by the procedural requirements of the municipal code.
Plaintiff also claims that the municipal code is ambiguous and that this alleged ambiguity
creates a property interest. The alleged ambiguity concerns who had the discretion to remove
Plaintiff—the City Council or the Mayor. 23 Any ambiguity is irrelevant here because the Mayor
acted as the tie-breaker. Thus, both the Mayor and the City Council unappointed Plaintiff. Even
if the code were ambiguous, the question of who has the authority to dismiss Plaintiff is
procedural, rather than substantive, and no property right is implicated. 24 The municipal code
contains no ambiguity concerning the City’s discretion to remove Plaintiff without cause.
Plaintiff relies heavily on Henderson v. Sotelo 25 for the proposition that the advice and
consent provision creates a substantive right, but neither the facts nor the law support Plaintiff’s
argument. 26 Although the City Council tied 2-2 on the Mayor’s motion to unappoint Plaintiff,
the Mayor had the statutory authority to break the tie, and consequently the Mayor did receive
the advice and consent of the City Council. 27 Additionally, unlike Henderson, Plaintiff and
22
Ripley v. Wyo. Med. Ctr., Inc., 559 F.3d 1119, 1125–26 (10th Cir. 2009) (quoting
Crown Point I, 319 F.3d at 1217).
23
Docket No. 26, at 12–14.
24
Ripley, 559 F.3d at 1125–26 (10th Cir. 2009) (quoting Crown Point I, 319 F.3d at
25
761 F.2d 1093 (5th Cir. 1985).
26
Id. at 1097.
27
Docket No. 23, at 12.
1217).
5
Defendants did not stipulate that the advice and consent was not obtained prior to the
termination. 28 Even though the advice and consent issue was undisputed in Henderson, the court
still held that the purpose of the advice and consent provision was to maintain an appropriate
balance of power in city government, “rather than to afford the appointed employees a
proprietary interest in continued employment absent a showing of just cause for dismissal.” 29
The court went on the state that “rather than granting a right to continued employment, [the
provision] merely conditions an employee’s removal on compliance with certain specified
procedures.” 30 As stated, the Tenth Circuit has held that “procedural protections alone do not
create a protected property right in future employment.” 31
B. LIBERTY INTEREST
Because Plaintiff has failed to establish a property interest, he must establish that
Defendants’ actions deprived him of a liberty interest before he can prevail on a due process
claim. To satisfy a liberty-interest claim, a plaintiff must demonstrate that: (1) statements were
made that impugned the employee’s good name, reputation, honor, or integrity, (2) the
statements were false, (3) the statements occurred in the course of terminating the employee and
foreclosed other employment opportunities, and (4) the statements were published. 32 In their
reply, Defendants focus on the publication element and the Court will do the same.
28
Henderson, 761 F.2d at 1097.
29
Id.
30
Id.
31
See Asbill v. Housing Authority of Cactaw Nation, 726 F.2d 149, 1502 (10th Cir.
32
McDonald, 769 F.3d at 1210.
1984).
6
The Court finds that Plaintiff has not alleged publication or claimed Defendants placed
the impugning statements on file. 33 In Bailey v. Kirk, 34 the Tenth Circuit noted that courts have
held that the presence of false and defamatory information in an employee’s personnel file may
constitute publication if not restricted for internal use. 35 It is unnecessary to speculate what the
legal conclusion might be for publication based on placing false and defamatory information in a
personnel file, however, because Plaintiff has not made such an allegation in his Complaint.
Plaintiff’s Complaint does not contain sufficient factual matter for the element of publication to
“state a claim to relief that is plausible on its face,” 36 and consequently, Plaintiff’s Complaint
does not “raise a right to relief above the speculative level” 37 for the publication element.
However, the Court will grant Defendant’s Motion without prejudice on this issue. The
Court will permit Plaintiff an opportunity to amend his Complaint to attempt to state a claim on
the alleged deprivation of a liberty interest.
IV. CONCLUSION
It is therefore
ORDERED that Defendants’ Motion for Judgment on the Pleadings (Docket No. 23) is
GRANTED. Plaintiff’s claims based on a property interest are dismissed with prejudice.
Plaintiff’s claims based on a liberty interest are dismissed without prejudice. Plaintiff is directed
to file an amended Complaint within thirty (30) days of this Order.
33
Docket No. 29, at 9, 12.
34
777 F.2d 567 (10th Cir. 1985).
35
Id. at 580 n.18.
36
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
37
Twombly, 550 U.S. at 555.
7
DATED July 14, 2015.
BY THE COURT:
________________________________________
TED STEWART
United States District Judge
8
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