Richmond v. Harrison et al

Filing 28

MEMORANDUM DECISION AND ORDER Granting in Part and Denying in Part 20 Plaintiff's Motion for Leave to File Amended Complaint: The Motion is GRANTED as to the claims against Defendant Harrison and Defendant Roosevelt City. The Motion is DENIED as to the claims against Defendant Snow, which are dismissed without prejudice. Because this memorandum decision and order addresses the sufficiency of the allegations against Defendant Harrison, the pending 16 Motion to Dismiss t hat was filed prior to the Motion to Amend is MOOT. Because Vaun Ryan and Ryan Snow are no longer parties to the present action, their pending 15 Motion to Quash is also MOOT. Plaintiff is ORDERED to serve a copy of the First Amended Complaint, ref lecting the determinations of this memorandum decision and order, on the applicable parties within 14 days after the entry of this order. As to Roosevelt City, the service of the First Amended Complaint must be accompanied by the appropriate summons, served in a manner conforming with Rule Fed. R. Civ. P. 4(j)(2). This specific directive is issued under the authority regarding the time limit for service provided under Fed. R. Civ. P. 4(m). Because any defect in the service as to Roosevelt City will be cured, Roosevelt City's pending 15 Motion to Quash is also MOOT. Defendants are to respond to the First Amended Complaint with 14 days after service. Signed by Judge David Nuffer on 9/27/18. (dla)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
ZACHERY RICHMOND, an individual,
Plaintiff,
v.
RICK HARRISON; VAUN RYAN; RYAN
SNOW, each as individuals, and
ROOSEVELT CITY, through its Police
Department, and for the official actions of the
aforementioned Defendants; and DOES I-X,
unknown persons in interest,
Defendants.

MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART [20] PLAINTIFF’S
MOTION TO FOR LEAVE TO FILE
AMENDED COMPLAINT

Case No. 2:17-cv-00880-DN
District Judge David Nuffer

Plaintiff Zachery Richmond (“Richmond”) filed a motion for leave to file an amended
complaint (the “Motion”). 1 The proposed first amended complaint (“Amended Complaint”)
brings § 1983 claims for deprivation of procedural due process against Defendants Rick Harrison
(“Harrison”), Ryan Snow (“Snow”), and Roosevelt City (“the City”) (collectively
“Defendants”). 2 Defendants filed a memorandum in opposition to the Motion (the
“Opposition”). 3 Richmond replied in support (the “Reply”). 4 For the reasons set forth below, the
Motion is GRANTED IN PART and DENIED IN PART.

1

Motion for Leave to File Amended Complaint and Memorandum in Support, docket no. 20, filed November 16,
2017.
2

Motion, Exhibit 1, Proposed First Amended Complaint, docket no. 20-1, filed November 16, 2017.

3

Defendants’ Memorandum in Opposition to Plaintiff’s Motion for Leave to File Amended Complaint, docket no.
25, filed December 6, 2017.
4

Reply in Support of Motion for Leave to File Amended Complaint, docket no. 26, filed December 14, 2017.

BACKGROUND
Richmond filed his original Complaint on August 2, 2017. 5 The Complaint specified that
Richmond was hired by the City’s police department on October 24, 2012. 6 On June 16, 2016,
Richmond was provided with a notice of termination. 7 The notice specified that the termination
was due to a budgetary related reduction in force. 8 At some point prior to Richmond’s
termination, Richmond alleges that Harrison informed Richmond that he was a disciplinary
problem and needed to be let go. 9 On June 30, 2016, Richmond’s employment as a police officer
with the City officially ended. 10
In the original Complaint, Richmond argued that the reduction in force was a pretextual
basis for his termination that was carried out without any procedural due process. 11 In addition
to the Defendants Harrison, Snow, and Roosevelt City, the original Complaint named Vaun
Ryan, the mayor of Roosevelt City at the time of Richmond’s termination. 12 A summons and a
copy of the Original Complaint for all four defendants was served on Harrison. 13 Defendants and
Vaun Ryan filed a Motion to Quash, arguing that Harrison was not authorized to accept service

5

Complaint, docket no. 2, filed August 2, 2017.

6

Id. ¶ 10.

7

Id. ¶ 11.

8

Id.

9

Complaint ¶ 16.

10

Id. ¶ 12.

11

Id. ¶ 18.

12

Id. ¶ 5.

13

Summons in a Civil Action, docket no. 4, filed August 7, 2017; Summons in a Civil Action, docket no. 5, filed
August 7, 2017; Summons in a Civil Action, docket no. 6, filed August 7, 2017; and Summons in a Civil Action,
docket no. 7, filed August 7, 2017.

2

for any of the other named defendants. 14 Harrison also filed a Motion to Dismiss, seeking
dismissal of the causes of action against him in the original Complaint. 15
In response to the issues raised in these two motions, Richmond sought consent from the
Defendants and Vaun Ryan to amend the Complaint under Fed. R. Civ. P. 15(a)(2). 16 The
proposed Amended Complaint dropped Vaun Ryan as a named defendant and provided
additional, specific allegations regarding Defendants Snow and Harrison. 17 Defendants did not
consent to the amendment and Richmond filed the Motion to Amend. 18
STANDARD OF REVIEW
The Federal Rules of Civil Procedure allow amendments to pleadings “when justice so
requires.” 19 Leave to amend complaints should be “freely given,” 20 as long as the amendment
would not be “futile,” 21 or otherwise susceptible to dismissal. 22 “Mere conclusory statements”
will not survive dismissal: 23 a well-pleaded complaint requires sufficient factual allegations 24 to

14

Defendants Vaun Ryan, Ryan Snow, and Roosevelt City’s Motion to Quash for Deficient Service of Process, or,
in the Alternative, Rule 12(b)(5) Motion to Dismiss, and Memorandum in Support, docket no. 15, filed September
22, 2017.
15
Defendant Rick Harrison’s Rule 12(B)(6) Motion to Dismiss Plaintiff’s Complaint and Memorandum in Support,
docket no. 16, filed September 22, 2017.
16

Motion ¶ 10.

17

Motion ¶ 11.

18

Motion ¶ 13.

19

Fed. R. Civ. P. Rule 15(a)(2).

20

Foman v. Davis, 371 U.S. 178, 182 (1962).

21

Anderson v. Suiters, 499 F.3d 1228, 1238 (10th Cir. 2007); see also Duncan v. Manager, Dep’t of Safety, City &
County of Denver, 397 F.3d 1300, 1315 (10th Cir. 2005).
22

Watson ex rel. Watson v. Beckel, 242 F.3d 1237, 1239–40 (10th Cir. 2001); see also E.Spire Commc'ns, Inc. v.
N.M. Pub. Regulation Comm'n, 392 F.3d 1204, 1211 (10th Cir. 2004).
23

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

24

Id. at 679.

3

render the claims “plausible” 25 when considered in a light most favorable to the plaintiff. 26 This
“factual content” must enable “the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” 27
While this pleading standard applies to all cases generally, it can have a particular “bite”
in the context of § 1983 claims because plaintiffs must, in addition to sufficiently establishing a
constitutional right and its violation, sufficiently respond to defendants’ qualified immunity
affirmative defense “at the earliest possible stage of litigation.” 28
DISCUSSION
In support of the Motion to Amend, Richmond argues that the proposed Amended
Complaint is not futile because it sufficiently alleges claims against Defendants Harrisons and
Snow in their individual capacities. 29 Defendants argue in the Opposition that the Motion to
Amend should be denied because the proposed Amended Complaint is futile as due process
protections do not apply to employees discharged as a result layoffs or reorganizations. 30
Additionally, Defendants argue that, because the doctrine of qualified immunity requires
pleading that a government actor individually acted in a way that violated constitutional
protections, the motion to Amend should be denied as to Defendant Snow. 31 Defendants assert
that the allegations in the proposed Amended Complaint do not show that Defendant Snow acted

25

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

26

Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).

27

Iqbal, 556 U.S. at 678.

28

Robbins v. State of Okla., 519 F.3d at 1242, 1249 (10th Cir. 2008); see also VanZandt v. Oklahoma Dep’t of
Human Servs., 276 Fed.App’x 843, 847 (10th Cir. 2008).
29

Motion at 5.

30

Opposition at 5–6.

31

Id. at 6.

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in this manner. 32 The issue of due process protections will be addressed first, followed by the
issues pertaining to the allegations against Defendants in their individual capacities.
The Proposed Amended Complaint Sufficiently Alleges the Constitutional Violation of
Deprivation of Property and Liberty without Due Process
Richmond’s proposed Amended Complaint alleges facts sufficient to render his claims of
constitutional violations plausible and not futile. Bringing claims under § 1983, Richmond has
alleged that he had a constitutional property right to continued public employment 33 as well as a
liberty right to his good name and reputation, 34 and that Defendants violated those rights when
he was terminated without “notice and . . . opportunity to be heard” regarding his termination
and the reasons for that termination. 35 In Utah, a police officer “has a recognized property right
in his job.” 36 And while public employers owe no due process to employees terminated as “the
result of a layoff or reorganization,” 37 public employees may bring procedural due process
claims if they are “terminated for some form of misconduct without being given adequate
opportunity to respond to the allegations.” 38
Additionally, one may bring a § 1983 claim for an “infringement upon a liberty interest”
in one’s reputation so long as it is connected with “tangible interests such as employment.” 39 As
a police officer, Richmond had a constitutional property right to continued public employment as
well as a liberty right to his reputation in connection with future employment, and notably,

32

Id. at 9.

33

Amended Complaint ¶ 40.

34

Id. ¶ 53.

35

Id. ¶ 41; see also Id. ¶ 27–30.

36

Becker v. Sunset City, 216 P.3d 367, 369 (Utah Ct. App. 2009); see also Utah Code Ann. § 10–3–1105(1) (2007);
id. § 10–3–1106.
37

Utah Code Ann. § 10–3–1105(1)(b) (2007).

38

Johnson v. City of Murray, 909 F.Supp.2d 1265, 1293 (D. Utah 2012).

39

McGhee v. Draper, 639 F.2d 639, 642–43 (10th Cir. 1981); see also Paul v. Davis, 424 U.S. 693, 701 (1976).

5

Defendants do not challenge the existence of such rights. The sole dispute in this case comes
down to the motive behind Richmond’s termination and whether it triggered his right to due
process.
Taken in the light most favorable to Richmond, the facts alleged in the proposed
Amended Complaint sufficiently plead that he was “terminated for some form of misconduct”
and without the requisite process due to a police officer. While the Notice of Termination
informed Richmond that his “termination was due to a reduction in force necessitated by
budgetary constraints,” 40 Richmond alleges that documents from the City obtained posttermination reveal that he was terminated due to claims of, among other things, “high incidents
[sic] of citizen complaints;” “complaints by other like agencies;” “history of adverse attitude and
behavior towards supervisory personnel;” and “general management problems.” 41
Richmond further alleges that prior to termination, Harrison told him “he was a
disciplinary problem and needed to be let go,” 42 and that subsequently Harrison “made
statements to one or more individuals to the effect that Richmond’s termination was based on
vendetta and/or disciplinary issues,” and not on “a necessary reduction in force.” 43 Richmond
also includes among his allegations that “Harrison exhibited disparate treatment” 44 towards him
in his final months as an officer in Roosevelt City’s police department, “singling out Richmond

40

Amended Complaint ¶ 9.

41

Id. ¶ 50.

42

Id. ¶ 22.

43
44

Id.
Amended Complaint ¶ 43.

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for discipline” even as “other officers within the department were not disciplined for similar
acts.” 45 Richmond requested due process after his termination, and was denied. 46
When Richmond later attempted to apply for law enforcement jobs, 47 he alleges that
“Defendants provided information to the Potential Employers” 48 which “gave the impression that
Richmond had an extensive disciplinary history with the City, caused many problems while
employed with the City, and was the source of many citizen complaints while employed with the
City.” 49 Taken together in the light most favorable to Richmond, the documents, Harrison’s
alleged comments to Richmond and others, as well as the allegations of disparate treatment and
allegations of unchallenged negative information passed to potential employers plausibly plead
that Richmond’s due process was improperly denied him as to protected property and liberty
interests, and thus that his constitutional rights were violated.
The Proposed Amended Complaint Sufficiently Alleges Constitutional Violations as to
Defendant Richmond but not to Defendant Snow
Defendants Richmond and Snow are individually implicated only in the first cause of
action of the proposed Amended Complaint for deprivation of a protected property interest
without due process. 50 Although the alleged facts in the proposed Amended Complaint
sufficiently plead this constitutional due process violation, the Amended Complaint only pleads
the violation sufficiently against Defendant Harrison, but not against Snow.

45

Id. ¶ 16.

46

Id. ¶ 28.

47

Id. ¶ 32.

48
49
50

Amended Complaint ¶ 33.
Id. ¶ 34.
Id. at 8.

7

Due to qualified immunity, a § 1983 claim cannot survive dismissal if it is not clear “that
each Government-official defendant, through his own individual actions, has violated the
Constitution.”51 In other words, plaintiffs must show (1) each defendant acted in such a way to
violate the plaintiff’s constitutional rights, and (2) information available to defendants at the time
made it “apparent” that they were “violating the plaintiff[’s] ‘clearly established’ constitutional
rights.” 52 For the sake of a § 1983 claim, “a right is clearly established . . . ‘when a Supreme
Court or Tenth Circuit decision is on point[.]”53 The constitutional property right to public
employment 54 and liberty right to reputation 55 were both clearly established in the Tenth Circuit
at the time of Richmond’s termination. Therefore, Richmond may overcome Defendants’
qualified immunity if he can show through the factual allegations that it should have been
apparent to each defendant that his conduct violated Richmond’s clearly established
constitutional rights.
Defendant Harrison
As stated above, the proposed Amended Complaint plausibly alleges that Harrison should
have been aware his conduct violated Richmond’s constitutional rights relative to Richmond’s
property interest in public employment. That Harrison gave the Notice of Termination to
Richmond would, taken as true, indicate he was aware that Richmond’s termination was

51

Iqbal, 556 U.S. at 662; see also Glover v. Mabrey, 384 F. App’x 763, 767 (10th Cir. 2010).

52

Anderson v. Creighton, 483 U.S. 635, 639-40 (1987)); see also Moya v. Garcia, 895 F.3d 1229, 1232 (10th Cir.
2018) (quoting Thomas v. Kraven, 765 F.3d 1183, 1194 (10th Cir. 2014)).
53

Thomas, 765 F.3d at 1194 (internal quotation omitted).

54

See, e.g., Kingsford v. Salt Lake City School Dist., 247 F.3d 1123, 1128 (10th Cir. 2001); Becker v. Sunset City,
216 P.3d 367, 369 (Utah Ct. App. 2009); Johnson v. City of Murray, 909 F.Supp.2d 1265, 1293 (D. Utah 2012); see
also Utah Code Ann. § 10–3–1105(1) (2007); id. § 10–3–1106.
55

See, e.g., Paul, 424 U.S. at 701; McGhee, 639 F.2d at 642 –43.

8

officially “a reduction in force necessitated by budgetary constraints.” 56 Yet according to
Richmond, it was also Harrison who told him “he was a disciplinary problem” who “needed to
be let go,” 57 and Harrison who subsequently “made statements to one or more individuals to the
effect that Richmond’s termination was based on vendetta and/or disciplinary issues,” and not on
“a necessary reduction in force.” 58
This discrepancy between the Notice’s stated reason for termination and the nature of the
comments allegedly made by Harrison plausibly suggest Harrison’s awareness of the
constitutional violation of Richmond’s property interest. Thus, Richmond has alleged facts
sufficient to overcome Harrison’s qualified immunity and bring a cause of action against
Harrison in his individual capacity.
Defendant Snow
Unlike the factual allegations regarding Harrison, the Amended Complaint does not
allege enough specific facts against Snow, and therefore does not overcome his qualified
immunity. While the Amended Complaint states that Snow stated in the letter dated June 30,
2016, that Richmond would not be able to appeal his termination, 59 Snow also asserted in the
letter that the termination was for the same officially stated reasons from Richmond’s June 16,
2016 notice of termination letter: 60 “a layoff” 61 due to “budgetary reasons.” 62 The remaining

56

Amended Complaint ¶ 9.

57

Id. ¶ 22.

58

Id.

59

Amended Complaint ¶ 11.

60

Id. ¶ 9.

61

Id.

62

Amended Complaint ¶ 10.

9

allegations do not plausibly demonstrate that Snow made this denial aware of any pretextual
motivations for the termination.
The Amended Complaint attempts to allege that Snow was aware of Harrison’s
comments regarding disciplinary issues. But the mere existence of documents obtained from the
city regarding Richmond’s purported behavior towards supervisory personnel 63 does not
immediately mean that Snow had access to those documents. 64 That Snow met with Harrison to
discuss “Snow’s displeasure with the Roosevelt Police Department,” 65 or that “at or around the
time” of this meeting, “one or more of the Defendants” decided to terminate Richmond’s
employment do not clearly connect Snow a constitutional violation of Richmond’s due process
rights. 66
Even if Snow agreed with Harrison to specifically terminate Richmond’s employment,
the Amended Complaint states in a conclusory manner that Snow did so “in order to deprive
Richmond of his rights to due process”—with no allegation that he actual knew or was aware of
the real reasons for Richmond’s termination. 67 Because the Amended Complaint does not
sufficiently plead that it would have been apparent to Snow his conduct might violate
Richmond’s constitutional right to due process , the claims against Snow do not overcome his
qualified immunity. The claims against Snow cannot survive dismissal and therefore cannot
remain in the Amended Complaint. Dismissal of these claims without prejudice is appropriate.

63

Id. ¶ 23.

64

Id. ¶ 11.

65

Id. ¶ 20.

66

Id. ¶ 21.

67

Amended Complaint ¶ 45.

10

ORDER
IT IS HEREBY ORDERED that the Motion 68 is GRANTED in part and DENIED in part.
The Motion is GRANTED as to the claims against Defendant Harrison and Defendant Roosevelt
City. The Motion is DENIED as to the claims against Defendant Snow, which are dismissed
without prejudice.
IT IS FURTHER ORDERED that because this memorandum decision and order
addresses the sufficiency of the allegations against Defendant Harrison, the pending Motion to
Dismiss 69 that was filed prior to the Motion to Amend is MOOT.
IT IS FURTHER ORDERED that because Vaun Ryan and Ryan Snow are no longer
parties to the present action, their pending Motion to Quash 70 is also MOOT.
Plaintiff is ORDERED to serve a copy of the First Amended Complaint, reflecting the
determinations of this memorandum decision and order, on the applicable parties within 14 days
after the entry of this order.
As to Roosevelt City, the service of the First Amended Complaint must be accompanied
by the appropriate summons, served in a manner conforming with Rule Fed. R. Civ. P. 4(j)(2).
This specific directive is issued under the authority regarding the time limit for service provided
under Fed. R. Civ. P. 4(m). Because any defect in the service as to Roosevelt City will be cured,
Roosevelt City’s pending Motion to Quash 71 is also MOOT.

68

Motion for Leave to File Amended Complaint and Memorandum in Support, docket no. 20, filed Nov. 16, 2017.

69

Defendant Rick Harrison’s Rule 12(B)(6) Motion to Dismiss Plaintiff’s Complaint and Memorandum in Support,
docket no. 16, filed September 22, 2017.
70
Defendants Vaun Ryan, Ryan Snow, and Roosevelt City’s Motion to Quash for Deficient Service of Process, or,
in the Alternative, Rule 12(b)(5) Motion to Dismiss, and Memorandum in Support, docket no. 15, filed September
22, 2017.
71
Defendants Vaun Ryan, Ryan Snow, and Roosevelt City’s Motion to Quash for Deficient Service of Process, or,
in the Alternative, Rule 12(b)(5) Motion to Dismiss, and Memorandum in Support, docket no. 15, filed September
22, 2017.

11

Defendants are to respond to the First Amended Complaint with 14 days after service, as
required under Fed. R. Civ. P. 15(a)(3).
Signed September 27, 2018.
BY THE COURT
________________________________________
David Nuffer
United States District Judge

12