Kosidowski v. Washington County et al

Filing 71

REPORT AND RECOMMENDATIONS re 62 MOTION for Summary Judgment filed by Kirk Smith, Washington County. This Court hereby recommends to the District Court that Washington County Defendants' Renewed Motion for Summary Judgment is Granted and that the judgment be entered in favor of Washington County and Sheriff Kirk Smith. Magistrate Judge Brooke C. Wells no longer assigned to case. Objections to R&R due by 11/9/2010. Signed by Magistrate Judge Brooke C. Wells on 10/26/2010. (jtj)

IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF UTAH

MIKE KOSIDOWSKI,
Plaintiff,
v.
COUNTY OF WASHINGTON, and
SHERIFF KIRK SMITH,
Defendants.

)
)
) REPORT & RECOMMENDATION
)
GRANTING DEFENDANTS’
)
MOTION FOR SUMMARY
JUDGMENT
)
)
)
Civil No. 2:06CV903 CW
)
)
Magistrate Judge Brooke Wells
)
)
Judge Clark Waddoups

BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Mike Kosidowski commenced this action against Washington County,
Utah, and Washington County Sheriff Kirk Smith (collectively “Washington County
Defendants”) for an alleged civil rights violation arising out of Kosidowki’s termination
from employment as a corrections officer due to his use of excessive force in a physical
confrontation with an inmate. Kosidowki contends that his termination was arbitrary and
capricious because he was fired whereas another officer involved in the same incident
(Officer Jamie Kiel) was suspended instead of being terminated. He also contends that
Washington County Defendants violated his procedural due process rights and

discriminated against him on the basis of his religion. Kosidowski likewise brings a
cause of action for common law wrongful termination.
Washington County Defendants filed a Renewed Motion for Summary Judgment
under Federal Rule of Civil Procedure 56. (Doc. 62). That Motion was further supported
by the Affidavits of John Willie and Kaye Reese. (Doc. 64 & 65). When Kosidowski
failed to timely respond to the Renewed Motion for Summary Judgment, Washington
County Defendants filed a Request to Submit for Decision. (Doc. 67). This Court then
filed an Order to Show Cause requiring Kosidowski to show cause why Defendants’
Renewed Motion for Summary Judgment should not be granted. (Doc. 68). Kosidowski
responded with an uncaptioned and untitled document filed on June 16, 2010. (Doc. 69).
Washington County Defendants filed a reply on July 7, 2010 (Doc. 70).
ANALYSIS
I.

THE SUMMARY JUDGMENT STANDARD.

Under Federal Rule of Civil Procedure 56, a court may grant summary judgment
“if the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A
“nonmoving party must, at a minimum, direct the court to facts which establish a genuine
issue for trial. In the face of a properly supported motion for summary judgment, the

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nonmoving party may not rely upon unsupported allegations without any significant
probative evidence tending to support the complaint.” White v. York Int'l Corp., 45 F.3d
357, 360 (10th Cir. 1995).
Kosidowski must comply with these standards even though he is a pro se litigant.
“As a general rule, a party who represents himself will be held to the same standard of
knowledge and practice as any qualified member of the bar.” Lundahl v. Quinn, 2003 UT
11, ¶ 3, 67 P.3d 1000; see also Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994)
(“This court has repeatedly insisted that pro se parties follow the same rules of procedure
that govern other litigants.”) When a pro se litigant fails to comply with the procedural
rules, courts “cannot fill the void by crafting arguments and performing the necessary
legal research.” Sportsmans Warehouse, Inc. v. Leblanc, 311 Fed. Appx. 136, 137 (10th
Cir. Colo. 2009). Further, arguments made by pro se litigants that totally lack legal
analysis or authority should not be considered. See Winter v. Northwest Pipeline Corp.,
820 P.2d 916, 918-19 (Utah 1991).
II.

WASHINGTON COUNTY DEFENDANTS ARE ENTITLED TO
SUMMARY JUDGMENT ON KOSIDOWSKI’S PROCEDURAL
DUE PROCESS CLAIM.

The undisputed facts show that Kosidowski was afforded due process in his
termination from employment as a corrections officer. Kosidowski was afforded due
process by the Notice of Intent served on him, his pre-termination hearing, his post-

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termination appeal to the Washington County Commission, and his opportunity for
further appeal to the Washington County Career Service Council and State District Court.
Through the Notice of Intent and his pre-termination hearing Kosidowski was
given sufficient opportunity to present evidence in his defense and to show why the
termination of his employment as a corrections officer was unwarranted. Kosidowski was
afforded further due process in the form of post-termination appeals of which he was
informed and aware. After the termination of his employment, Kosidowski appealed to
the Washington County Commission, but the Commission disagreed with him. After the
County Commission affirmed his termination, Kosidowski was informed of their decision
and informed of his right to appeal to the Washington County Career Service Council.1
Thus, it is clear from the administrative record that Kosidowski was not denied
procedural due process. See West v. Grand County, 967 F.2d 362 (10 th Cir. 1992).
In his response to the Order to Show Cause, Kosidowski does not dispute that he
received this due process. Indeed, he offers no argument whatsoever about why his due
process rights were violated. In response to the Washington County Defendants’
Renewed Motion for Summary Judgment, Kosidowski “may not rely upon unsupported

1

In its March 31, 2008 Order denying Washington County Defendants’ Motion for
Summary Judgment Without Prejudice (Doc. 46), the Court expressed concern over whether
“[Kosidowski] was notified of his right to appeal the Commission Ruling after his termination.”
Id. at 2. It is undisputed, however, that Washington County Defendants sent Kosidowski notice
of his right to appeal to the address provided by Kosidowski on his Driver’s License.
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allegations without any significant probative evidence tending to support the complaint.”
White, 45 F.3d at 360. As such, Kosidowski has failed to meet his burden to overcome
summary judgment.
III.

WASHINGTON COUNTY DEFENDANTS ARE ENTITLED TO
SUMMARY JUDGMENT ON KOSIDOWSKI’S SUBSTANTIVE
DUE PROCESS CLAIM.

The fact that Kosidowski was terminated whereas another officer was suspended
does not evidence arbitrary and/or capricious action on the part of the Washington County
Defendants. “[A] substantive-due-process claim, if viable, requires assessing whether a
governmental action is arbitrary, irrational, or shocking to the contemporary conscience.”
Darr v. Town of Telluride, 495 F.3d 1243, 1257 (10th Cir. 2007). An act is said to be
arbitrary and capricious when it is done for reasons that are trivial, unrelated to his or her
employment or wholly unsupported by a basis in fact. Smith v. Town of Eaton, 910 F.2d
1469, 1472 (7th Cir. 1990). Further, in order to constitute a violation of substantive due
process, a government official’s conduct “must generally be intended to inflict harm to be
conscience shocking in the constitutional sense.” Herts v. Smith, 345 F.3d 581, 587 (8th
Cir. 2003). Significantly, “[t]he Due Process Clause of the Fourteenth Amendment is not
a guarantee against incorrect or ill-advised personnel decisions.” Bishop v. Wood, 426
U.S. 341, 350 (1976).
Washington County Defendants did not act in a manner that was arbitrary,

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capricious, or shocking to the conscience because they conducted an the extensive factual
investigation of the allegations that Kosidowski used excessive force against an inmate.
The reasons for Kosidowski’s termination were not trivial, they were related to his job
and they are supported by the record. Thus, Washington County Defendants are entitled
to summary judgment.
Kosidowski must produce evidence that his termination was done for reasons that
are trivial, unrelated to his or her employment or wholly unsupported by a basis in fact.
See Smith, 910 F.2d at 1472. Instead, Kosidowski has failed to make any legal arguments
in his favor and he relies “upon unsupported allegations without any significant probative
evidence tending to support the complaint.” White, 45 F.3d at 360. He has provided no
evidence that his conduct was unworthy of a termination, and no evidence that Officer
Jamie Kiel was inadequately or improperly disciplined. Nor has Kosidowski shown that
the investigation of the incident was anything but fair and impartial. Kosidowski has thus
failed to meet his burden and summary judgment should be granted to Washington
County Defendants.
IV.

THIS COURT LACKS JURISDICTION OVER KOSIDOWSKI’S
RELIGIOUS DISCRIMINATION CLAIM.

Kosidowski ’s Second Amended Complaint alleges discrimination on the basis of
his religion “due to the fact that he was not practicing Mormon or LDS [sic].”
Kosidowski improperly asserts that he may raise this claim under 42 U.S.C. section 1983.
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On the contrary, the proper framework for Kosidowski ’s religious discrimination claim is
Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000e et seq. See Frye v.
Grandy, 625 F. Supp. 1573, 1574-75 (D. M.D. 1986).
“In Utah, a Title VII plaintiff must file a charge of discrimination with the
appropriate state agency within 300 days after the alleged unlawful discriminatory
practice occurs. The filing is a prerequisite to a civil suit under Title VII.” Boyer v.
Cordant Tech., Inc., 316 F.3d 1137, 1138 (10th Cir. 2003) (citing 42 U.S.C. § 2000e et
seq.); see also Aronson v. Greesly, 961 F.2d 907, 911 (10th Cir. 1992). Here, Kosidowski
failed to file any charges of discrimination with the appropriate administrative agency.
This Court therefore lacks jurisdiction over Kosidowski’s religious discrimination claim.
In his response to the Order to Show Cause, Kosidowski failed to respond to these
arguments against his religious discrimination claim. Consequently, the Washington
County Defendant are entitled to summary judgment.
V.

THIS COURT LACKS JURISDICTION TO HEAR KOSIDOWSKI’S
COMMON LAW WRONGFUL TERMINATION CLAIM.

Kosidowski’s Second Amended Complaint alleges that he was wrongfully
terminated by Washington County Defendants. As noted above, Washington County
Defendants are entitled to summary judgment on Kosidowski’s civil rights claims.
Consequently, this Court lacks jurisdiction to hear Kosidowski’s common law wrongful
termination claim.
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RULING
Based on the pleadings on file and for good cause appearing, this Court hereby
recommends to the District Court that Washington County Defendants’ Renewed Motion
for Summary Judgment (Doc. 62) is GRANTED and that judgment be entered in favor of
Washington County and Sheriff Kirk Smith.
Copies of the foregoing report and recommendation are mailed to all parties who
are hereby notified of their right to object. Any objection must be filed within 14 days
after being served and failure to object may constitute a waiver of objections upon
subsequent review

DATED this 26th day of October, 2010.
BY THE COURT:

______________________
Magistrate Judge Brooke Wells

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