Smethurst v. Salt Lake City Corporation
Filing
31
MEMORANDUM DECISION AND ORDER granting 23 Defendant Salt Lake Citys Motion to Dismiss for Failure to State a Claim. The court GRANTS Defendants Motion to Dismiss Plaintiffs first cause of action and GRANTS Smethurst leave to amend. Smethursts second amended complaint is due within twenty-one days from the date of this order, by September 6, 2019. Signed by Judge Jill N. Parrish on 8/16/2019. (jds)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
ROBERT SMETHURST,
MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS WITH LEAVE
TO AMEND
Plaintiff,
v.
SALT LAKE CITY CORPORATION,
Case No. 2:18-CV-00085
District Judge Jill N. Parrish
Defendant.
Before the court is Defendant Salt Lake City’s (“the City”) Motion to Dismiss for Failure
to State a Claim. The City seeks dismissal of Plaintiff Robert Smethurst’s (“Smethurst”) first cause
of action, which asserts a claim against the City pursuant to 42 U.S.C. § 1983 for violations of
Smethurst’s Fifth and Fourteenth Amendment procedural due process rights. Smethurst opposes
the motion and, in the alternative, requests leave to amend.
I.
BACKGROUND 1
Smethurst was a long-time employee of the City. At the time of his termination he was
working for the City’s Department of Public Utilities. In late 2016, Smethurst, beset by personal
difficulties, sought leave pursuant to the Family and Medical Leave Act (FMLA). During early
2017, Smethurst took twelve weeks of FMLA leave, the entire amount to which he was entitled.
Nearing the end of his leave, Smethurst contacted the City to explore taking additional time in
order to complete a counseling program begun during his leave.
Smethurst directed his initial inquiry about additional leave to Darlene Harper, the City
employee he thought was responsible for leave and leave-related issues. Harper spoke with
Michael Morris in the City’s Human Resources department (“HR”) about Smethurst’s inquiry.
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The facts recited below are as alleged in Smethurt’s First Amended Complaint.
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Morris, interpreting the inquiry as an inability to return to work at the conclusion of the FMLA
leave, drafted a Notice of Intent to Separate Employment Due to Unavailability. Morris sent this
notice first to Kelly Brown, a supervisor in the utilities department, for approval and ultimately to
Smethurst. Smethurst responded to the notice by making numerous efforts to communicate with
the City; some went unanswered, while others were answered in an unresponsive manner.
Confused over the City’s failure to respond to his inquiries, Smethurst did not return to work at
the end of his FMLA leave, prompting Morris to draft a Separation Memorandum, which Brown
approved, terminating Smethurst’s employment. Smethurst did not receive a pre-termination
hearing.
Following receipt of the Separation Memorandum, Smethurst filed a notice of appeal to
the City’s Employee Appeals Board (“EAB”). The EAB is a creature of state law, established by
Utah Code § 10-3-1106, which is staffed by municipal employees and designated to hear appeals
like the one brought by Smethurst. Salt Lake City Ordinance 2.24.060 defines the standard of
review that will be applied to the various types of appeal. Where the appeal is from a disciplinary
decision, the EAB must apply a “clearly erroneous” standard, asking whether “the department
head’s decision to impose discipline was clearly erroneous in light of the record viewed in its
entirety.” Where the appeal is from a layoff designation, the EAB’s review is “limited to whether
the city substantially followed its layoff procedures.” And where the appeal is from a termination
decision for nondisciplinary reasons, 2.24.060 requires that the EAB consider only “whether the
city followed its procedures when it terminated the employee.”
At a prehearing conference, the City determined that Smethurst’s appeal was from a
termination decision for nondisciplinary reasons. As a result, the EAB’s review was limited to
whether the City followed its own procedures in terminating Smethurst. Additionally, the City
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determined that the EAB panel hearing Smethurst’s appeal would be comprised solely of city
employees in supervisory positions. Smethurst objected, contending (1) he was terminated for a
disciplinary reason (implying that his termination should have been reviewed under the clearly
erroneous standard in accordance with City Ordinance 2.24.060) and (2) as a nonsupervisory
employee, he was entitled to a panel not entirely comprised of supervisory employees. Smethurst
raised these same objections at the hearing but the City overruled them. At the conclusion of the
hearing, the EAB determined that the City had followed its own procedures in terminating
Smethurst and upheld his termination.
Smethurst filed suit in this court on January 25, 2018. In his Amended Complaint, filed on
August 28, 2018, he alleges three causes of action under federal law and one cause of action under
state law. The City’s Motion to Dismiss is directed to Smethurst’s First Cause of Action in which
Smethurst alleges that the City should be held liable under 42 U.S.C. § 1983 for the violation of
his Fifth Amendment and Fourteenth Amendment rights to due process in the termination of his
public employment. Specifically, Smethurst alleges three procedural deficiencies: (1) the absence
of a pre-termination hearing; (2) the lack of a proper post-termination process because the EAB
was staffed with only supervisory employees; and (3) the lack of proper post-termination process
because the City limited review of his termination appeal to whether the City followed its own
procedures.
The City moves to dismiss Smethurst’s Fifth Amendment claim because it is not properly
brought against a municipality. Smethurst does not oppose the dismissal of his Fifth Amendment
claim and it is therefore dismissed. The City also moves to dismiss Smethurst’s Fourteenth
Amendment claim, arguing that Smethurst has failed to plead facts supporting a finding that the
City may be held liable for the alleged deprivation of Smethurst’s due process rights.
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II.
ANALYSIS
A. LEGAL STANDARD
“To 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)). “At the motionto-dismiss stage, [the court] must accept all the well-pleaded allegations of the complaint as true
and must construe them in the light most favorable to the plaintiff.” Albers v. Bd. of Cty. Comm’rs
of Jefferson Cty., 771 F.3d 697, 700 (10th Cir. 2014) (quoting Cressman v. Thompson, 719 F.3d
1139, 1152 (10th Cir. 2013)). “[A] court should disregard all conclusory statements of law [in the
complaint] and consider whether the remaining specific factual allegations, if assumed to be true,
plausibly suggest the defendant is liable.” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1214 (10th Cir. 2011).
B. ELEMENTS OF A § 1983 CLAIM
Section 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress . . . .
Section 1983 “‘is not itself a source of substantive rights,’ but merely provides ‘a method for
vindicating federal rights elsewhere conferred.’” Albright v. Oliver, 510 U.S. 266, 271, (1994)
(quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). “The first step in any such claim is to
identify the specific constitutional right allegedly infringed.” Id. Smethurst has alleged a claim for
termination without due process of his public employment in which he had a property interest
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based on the failure to provide a pre-termination hearing, the composition of the EAB panel, and
the EAB’s limited scope of review. The City does not argue that Smethurst has failed to allege a
deprivation of his procedural due process rights. For the purposes of this motion, the court will
therefore assume Smethurst has met his burden in this regard.
Next, the plaintiff must identify the “person” “acting under color of law,” who caused the
constitutional deprivation. Smethurst asserts that Salt Lake City should be held liable for his
constitutional deprivations. In Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658,
690–91 (1978) the Supreme Court held that “municipalities and other local government units,”
including cities, are “persons” as defined by § 1983 and therefore “can be sued directly under
§ 1983.” The issue here is whether Smethurst has successfully alleged that the City caused his
constitutional deprivation.
C. MUNICIPAL LIABILITY
1. Applicability of Monell v. Department of Social Services
In Monell v. Department of Social Services, 436 U.S. 658 (1978), the Supreme Court set
forth the elements necessary to hold a municipality liable under § 1983. See Schneider v. City of
Grand Junction Police Dept., 717 F.3d 760, 769 (10th Cir. 2013) (discussing municipal liability in
the Tenth Circuit). Before addressing these elements, the court first considers Smethurst’s
argument that Monell’s elements do not apply to a § 1983 claim that alleges a deprivation of due
process by a municipality. According to Smethurst, a plaintiff asserting a violation of his right to
procedural due process need only establish possession of “a constitutionally protected liberty or
property interest” and a lack of due process. See Opp’n Mot. Dismiss at 4.
The court is not persuaded. Monell itself established no such limitation nor is one found in
the cases applying Monell. Moreover, none of the cases Smethurst cites supports his argument that
the Monell factors are inapplicable to procedural due process claims. For example, in Tapia v. City
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of Albuquerque, 10 F. Supp. 3d 1323, 1355 (D.N.M. 2014), the court does apply the Monell factors
to a procedural due process claim. And the other cases Smethurst cites do not apply Monell only
because the courts in those cases did not reach the issue of municipal liability. See Couture v. Bd.
of Educ. of Albuquerque Pub. Sch., 535 F.3d 1243, 1249–51 (10th Cir. 2008) (reversing district
court’s denial of qualified immunity as to individual defendants); West v. Grand Cty., 967 F.2d
362, 366 (10th Cir. 1992) (affirming district court’s finding that employee failed to establish a
constitutional deprivation); Sonnet v. Lankford, 2016 WL 9086969 at * 3 (D. Wyo. May 9, 2016)
(finding that plaintiff failed to establish a constitutional deprivation). Thus, the absence of
references to Monell in these cases sheds no light on its applicability to a § 1983 claim alleging a
deprivation of procedural due process against a municipality.
2. Monell Framework
A § 1983 claim against a municipality must satisfy the requirements articulated in Monell
v. Department of Social Services, 436 U.S. 658 (1978). Monell recognized that a cause of action
against a municipality lies under § 1983 where “execution of a government’s policy or custom,
whether made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury.” Id. at 694. The Tenth Circuit has interpreted Monell
and its progeny as imposing three requirements on plaintiffs bringing § 1983 claims against a
municipality. They are: (1) the existence of an official policy or custom, (2) causation, and (3) state
of mind. Schneider, 717 F.3d at 769. The City’s Motion to Dismiss calls into question the Amended
Complaint’s sufficiency with regard to the first and second requirements of this “Monell
framework.” While the court finds that Smethurst has failed to adequately plead all of the elements
necessary to hold Salt Lake City liable for Smethurst’s alleged due process violations, it is possible
that Smethurst may be able to cure these deficiencies. The court will therefore grant him leave to
amend.
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a. Official Policy or Custom
To hold the City liable, Smethurst must first establish the existence of an official municipal
policy or custom that caused the alleged deprivations of his due process. While § 1983 creates a
vehicle for municipal liability, it does not give rise to a respondeat superior theory of municipal
liability. Monell, 436 U.S. at 693. Indeed, “[t]he ‘official policy’ requirement [is] intended to
distinguish acts of the municipality from acts of employees of the municipality, and thereby make
clear that municipal liability is limited to action for which the municipality is actually responsible.”
Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986). The Tenth Circuit has defined an official
municipal policy or custom as follows:
A municipal policy or custom may take the form of (1) “a formal
regulation or policy statement”; (2) an informal custom
“amoun[ting] to ‘a widespread practice that, although not authorized
by written law or express municipal policy, is so permanent and well
settled as to constitute a custom or usage with the force of law’”;
(3) “the decisions of employees with final policymaking authority”;
(4) “the ratification by such final policymakers of the decisions—
and the basis for them—of subordinates to whom authority was
delegated subject to these policymakers’ review and approval”; or
(5) the “failure to adequately train or supervise employees, so long
as that failure results from ‘deliberate indifference’ to the injuries
that may be caused.”
Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (alterations in original) (quoting
Brammer–Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189–90 (10th Cir. 2010)).
The City argues that Smethurst has failed to identify any City policy or custom giving rise
to his injury. But Smethurst’s Amended Complaint does identify an official municipal policy
addressing the standard of review applied by the EAB. And Smethurst alleges that the City
announced at the prehearing conference that it would be limiting the EAB’s review “pursuant to
City Ordinance.” Am. Compl. ¶ 47. An ordinance qualifies as an official policy or custom as “a
formal regulation or policy statement.” Bryson, 627 F.3d at 788. While the Amended Complaint
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does not reference the ordinance by its official designation, Smethurst identifies it as City Code
2.24.060 in his Opposition to the Motion to Dismiss and the court may consider it. See Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). The City does not contest that this
ordinance governs the standard of review applied to EAB decisions. Instead, the City asserts that
the policy or custom identified must itself be unconstitutional. Reply at 4. But the Supreme Court
has “reject[ed] [the] contention that only unconstitutional policies are actionable under the statute.”
City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). 2 Thus, accepting Smethurst’s allegations
as true, the Amended Complaint adequately pleads the existence of an official municipal policy or
custom giving rise to the alleged lack of post-termination due process.
While Smethurst’s Amended Complaint identifies an official policy giving rise to his claim
of an inadequate post-termination proceeding, it does not allege facts plausibly suggesting the
existence of an official municipal policy or custom giving rise to the City’s failure to provide a
pre-termination hearing or the City’s decision to staff the EAB panel with only supervisory
employees. Thus, the court will grant the city’s motion to dismiss these claims. But the court will
grant Smethurst leave to amend to see whether he can identify policies or customs giving rise to
the remainder of his alleged due process deprivations.
b. Causation
To establish municipal liability, Smethurst must next “demonstrate a direct causal link
between the municipal action and the deprivation of federal rights.” Board of County Com’rs of
Bryan County, Okl. v. Brown, 520 U.S. 397, 404 (1997). The causation requirement, in conjunction
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The identification of an unconstitutional policy or custom, though not required, considerably
simplifies the causation and state of mind analyses in the second and third parts of the Monell
framework. E.g. Board of County Com’rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 404
(1997) (“Where a plaintiff claims that a particular municipal action itself violates federal law, or
directs an employee to do so, resolving these issues of fault and causation is straightforward.”).
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with the official policy or custom requirement, allows a fact-finder to conclude that the
municipality “subject[ed a person], or cause[d a person] to be subjected” to an illegal deprivation
of his or her federal rights, in violation of § 1983. To successfully plead causation, “the challenged
policy or practice must be ‘closely related to the violation of the plaintiff’s federally protected
right.’” Cacioppo v. Town of Vail, Colo., 528 Fed. Appx. 929, 932 (10th Cir. 2013) (quoting
Schneider, 717 F.3d at 770). In the language of Monell, the plaintiff must show “that ‘the
municipality was the “moving force” behind the injury alleged.’” Schneider, 717 F.3d at 770 (10th
Cir. 2013) (quoting Brown, 520 U.S. at 404).
Smethurst fails to allege facts that plausibly suggest the City caused the deprivation of his
procedural due process rights. As to his claim that the City applied an improper standard of review,
it is unclear whether Smethurst is alleging that City Ordinance 2.24.060 itself is unconstitutional
or otherwise unlawful, or whether he is alleging that the City employee’s determination of the
applicable standard of review was unlawful. 3 If the former, Smethurst avoids “difficult problems
of proof” by alleging facts plausibly suggesting that an unlawful official municipal policy or
custom directly caused the deprivation of his due process rights. Brown, 520 U.S. at 406. On the
other hand, if he is alleging that the deprivation of his right to due process was caused by a City
employee’s choice of the wrong standard of review, that allegation alone would not sustain a
§ 1983 claim. See City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (“If the mere exercise
of discretion by an employee could give rise to a constitutional violation, the result would be
3
The Amended Complaint does not directly address causation. Rather, Smethurst alleges that “[a]t
the prehearing conference the City announce[d] that pursuant to City Ordinance the [EAB]’s
review would be” limited, Am. Compl. ¶ 47, and at the hearing “[t]he City, through its HR director,
instruct[ed] the Board members . . . not to rule on the merits of Mr. Smethurst’s claim or appeal
but . . . only to determine if the City had followed its procedures in terminating his employment,”
Id. ¶ 50, even though Smethurst “was being terminated for a disciplinary decision, i.e., not showing
up to work[,]” Amended Complaint ¶ 49.
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indistinguishable from respondeat superior liability.”) (plurality opinion). To state a claim,
Smethurst must allege that the City caused the deprivation of his due process rights by some
mechanism other than “solely . . . employ[ing] a tortfeasor.” Monell, 436 U.S. at 691.
As for Smethurst’s allegations that the City violated his due process rights by not granting
him a pre-termination hearing and by impermissibly staffing the review board with only
supervisors, the court has already found that Smethurst has failed to allege an official policy or
custom. Thus, he cannot establish a causal link to his alleged deprivations.
c. State of Mind
The final element of a municipal liability claim is state of mind. Neither party addresses
the state of mind requirement in their briefing. Accordingly, the court has limited its assessment of
Smethurst’s claim to the first two elements of the Monell framework. But the court notes that
Smethurst will need to allege state of mind to successfully state a claim. This analysis may vary
depending on whether Smethurst alleges that the City acted pursuant to an unlawful policy or
custom, or whether an unlawful action was taken pursuant to a facially lawful policy or custom.
See Brown, 520 U.S. at 405 (discussing pleading requirements when an unlawful policy is alleged);
but see, Schneider, 717 F.3d at 770 and Waller v. City & Cty. of Denver, No. 17-1234, 2019 WL
3543115, at *4 (10th Cir. Aug. 5, 2019) (discussing the applicability of the deliberate indifference
standard to certain municipal liability claims).
III.
LEAVE TO AMEND
At the conclusion of his response, Smethurst seeks “leave to file an amended complaint to
cure any deficiencies found by this Court” should “the Court determine[] Mr. Smethurst has in fact
failed to meet the pleading requirements.” Opp’n Mot. Dismiss at 8 n.2. Under local rules, this
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request is an improper motion for leave to amend. See DUCivR 15-1. 4 Failure to abide by the local
rules is a sufficient basis for denying a motion. Nhano-Lopez v. Houser, 625 F.3d 1279, 1284 (10th
Cir. 2010) (“Local rules that are consistent with the national rules have the force of law.”).
Nevertheless, the court retains discretion in applying the local rules. Vittoria North America, L.L.C.
v. Euro-Asia Imports Inc., 278 F.3d 1076, 1081 (10th Cir. 2001) (“[T]his court has . . . recognized
that district courts have discretion in applying local rules”) (quoting Hernandez v. George, 793
F.2d 264, 266 (10th Cir. 1986)). And, under Fed. R. Civ. P. 15(a)(2), courts “should freely give
leave [to amend] when justice so requires.” Absent “undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of
[the] amendment[,]” justice requires leave be given. U.S. ex rel Ritchie v. Lockheed Martin Corp.,
558 F.3d 1161, 1166 (10th Cir. 2009) (alterations in original) (quoting Foman v. Davis, 371 U.S.
178, 182 (1962)).
None of the above concerns are implicated by Smethurst’s request for leave to amend.
Smethurst has not unduly delayed. His request for leave to amend this complaint was filed on
November 9, 2018, less than one year after the case was filed. Additionally, the City will not be
prejudiced if leave is granted because Smethurst does not seek to supplement his complaint with
additional claims and the scheduling order has been stricken pending the resolution of this motion.
Thus, there are no discovery deadlines that would limit the City’s ability to put on a defense. The
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DUCivR 15-1 states:
Parties moving under Fed. R. Civ. P. 15 to amend a complaint must
attach the proposed amended complaint as an exhibit to the motion
for leave to file. A party who has been granted leave to file must
subsequently file the amended complaint with the court. The
amended complaint filed must be the same complaint proffered to
the court, unless the court has ordered otherwise.
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City opposes Smethurst’s request for leave to amend, arguing that the deficiencies in his pleading
cannot be cured. The court disagrees. Following the Monell framework, Smethurst may be able to
make out a claim for violations of his Fourteenth Amendment due process rights against the City.
Thus, notwithstanding its improper form, the court will grant Smethurst’s request for leave to
amend.
IV.
ORDER
The court GRANTS Defendant’s Motion to Dismiss Plaintiff’s first cause of action and
GRANTS Smethurst leave to amend. Smethurst’s second amended complaint is due within
twenty-one days from the date of this order, by September 6, 2019.
Signed August 16, 2019
BY THE COURT
______________________________
Jill N. Parrish
United States District Court Judge
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