Seeley v. BD. OF COUNTY COM'RS FOR La PLATA COUNTY, Civ. A. No. 86-K-1141.

• Decision Date: 09 March 1987
• Docket Number: Civ. A. No. 86-K-1141.
• Citation: 654 F. Supp. 1309
• Parties: Leslie G. SEELEY, Plaintiff, v. BOARD OF COUNTY COMMISSIONERS FOR La PLATA COUNTY, COLORADO; Alvin Brown, Sheriff of La Plata County, Colorado; and Sheriff's Department of La Plata County, Colorado, Defendants.
• Court: U.S. District Court — District of Colorado

654 F. Supp. 1309

Leslie G. SEELEY, Plaintiff, v. BOARD OF COUNTY COMMISSIONERS FOR La PLATA COUNTY, COLORADO; Alvin Brown, Sheriff of La Plata County, Colorado; and Sheriff's Department of La Plata County, Colorado, Defendants.

Civ. A. No. 86-K-1141.

United States District Court, D. Colorado.

March 9, 1987.

Sander N. Karp, Karp & Dodge, and Theodore A. Borrillo, Denver, Colo., for plaintiff.

Cathy S. Harris, Hall & Evans, Denver, Colo., Steven Zwick, Durango, Colo., for Bd. of Cty. Commissioners.

Michael E. McLachlan, Shand, McLachlan & Malick, Durango, Colo., for Alvin Brown & Sheriff's Dept.

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

This is a case based upon civil rights and contract claims. Jurisdiction is asserted under 28 U.S.C. §§ 2201 and 2202; 28 U.S.C. § 1342(3), (4); and 42 U.S.C. § 1983 (plaintiff's complaint, p. 1).

On July 24, 1986, defendants filed a motion to dismiss all claims against them under Rule 12, Fed.R.Civ.Proc. On July 25, 1986, defendants filed a motion for summary judgment under Rule 56, Fed.R.Civ. Proc. I now rule on these motions.

I. STATEMENT OF FACTS

Before June 6, 1985, Leslie G. Seeley was employed as a deputy sheriff by defendant Alvin Brown, La Plata County Sheriff. On June 5, 1985 Seeley allegedly assaulted a county jail inmate. On June 6, 1985 Seeley was placed on leave with pay, pending an investigation by the La Plata district attorney's office and the Colorado Bureau of Investigation.

The distict attorney's office filed criminal charges against Seeley on June 21, 1985. Sheriff Brown suspended Seeley the same day. His suspension was without pay. At Deputy Seeley's October 8, 1985 preliminary hearing probable cause was found to try him for assault of the inmate. Sheriff Brown terminated Seeley's employment on October 18, 1985.

Seeley's formal letter of termination from Sheriff Brown read, in part, as follows:

Under Section V, A, 6 of the Sheriff's Policy and Procedures Manual, all members shall observe and obey all rules and policies of this department. Under Section V, A, 7, the department does not have to establish the violation by formal conviction.¹

A copy of the Policy and Procedures Manual is attached to his affidavit as "exhibit 1". Section V, A, 6 requires all deputies to obey all laws, ordinances, departmental policies, rules, and orders. The section presumes that each deputy is familiar with the rules or policies contained in the Manual. Section V, A, 7 states:

ESTABLISHING ELEMENTS OF VIOLATION.

The existence of facts establishing a violation of the law or ordenance sic. is all that is necessary to support any allegation of such as a basis for a charge under Section VII. It is not necessary that a formal charge be filed or sustained. emphasis added

Section VII concerns discipline, suspension from duty, and investigation of complaints.

Seeley later stood trial on the criminal charges and was acquitted by a jury on December 13, 1985.

Seeley contends his termination from the La Plata County Sheriff's Department denied him of "liberty and property without due process of law and the right to equal protection of the laws ..."² He claims he has been unable to secure employment in the field of law enforcement because of his expulsion from the department. He prays for damages in the form of lost wages and income, diminution in earning capacity, loss of benefits, and other damages. He also requests injunctive relief and attorney fees.

II. STANDARD OF DECISION

The established litany tells us that summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.Proc. In determining the existence of any genuine issue of material fact, the record is construed in the light most favorable to the party opposing the motion. Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980). However, the adverse party "may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Rule 56(e).

For the defendant to prevail on a motion to dismiss under Rule 12(b)(6), Fed.R.Civ. Proc., it must appear "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Mitchell v. King, 537 F.2d 385, 386 (10th Cir.1976). All facts must be construed in favor of the plaintiff. Gardner v. Toilet Goods Ass'n, 387 U.S. 167, 172, 87 S.Ct. 1526, 1528, 18 L.Ed.2d 704 (1967). So long as the plaintiff may offer evidence to support a legally recognized claim for relief, the motion to dismiss should be denied. Brezinski v. F.W. Woolworth, 626 F.Supp. 240, 241-242 (D.Colo.1986); Conley.

III. CONCLUSIONS OF LAW

This case requires me to determine whether an elected Colorado County Sheriff may terminate one of his deputies without a formal hearing. Necessarily, I must determine whether a deputy sheriff in Colorado has a protectable liberty or property interest in his position sufficient to invoke protection under the Fourteenth Amendment to the United States Constitution.

A. Strict scrutiny standard is inapplicable.

Equal protection issues warrant strict scrutiny of a classification only when the right interfered with is fundamental, or the group of persons adversely effected are members of a suspect class. San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Plaintiff's situation does not involve a suspect classification. Further, it is settled the right to government employment is not fundamental per se. Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). Seeley's right to employment with the La Plata County Sheriff's Department is not a fundamental right.

B. Plaintiff's liberty interest.

Seeley's first claim is that he has a protectable liberty interest in his former position as a deputy sheriff in La Plata County. Seeley cites Codd v. Velgar, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977) (per curiam) in support of his protectable liberty interest proposition. Seeley contends his discharge from the sheriff's department has stigmatized him in the eyes of law enforcement agencies, making employment difficult to secure.

In Codd, a policeman's employment was terminated by the New York Police Department because he had allegedly put a gun to his head in an apparent suicide attempt. The incident was mentioned in his personnel file. The plaintiff later secured employment in another police department. The second department then terminated the officer when it received his personnel file from the NYPD pursuant to a valid release. The United States Supreme Court denied plaintiff's claim that due process considerations entitled him to a hearing. The Court found that the only purpose of such a hearing would be to provide the plaintiff with an opportunity to clear his name if the substantial truth of the allegation was in question. If the substantial truth of the allegation is not in question, no hearing is required. Codd, supra.

The Tenth Circuit cites Codd for the proposition that:

In order to state a claim for deprivation of a liberty interest under 42 U.S.C. § 1983, the plaintiff must allege that the stigmatizing or defamatory statement was false.

Lentsch v. Marshall, 741 F.2d 301, 303 (10th Cir.1984) (citing Codd, supra).

In analyzing Mr. Seeley's claim that a protectable liberty interest has been abbrogated in the form of employment stigmatization, two factors are important. First, both parties have supplied exhibits which consistently indicate Sheriff Brown terminated Seeley because he was formally bound over for trial on criminal charges, not because he felt Seeley was guilty of the charges. Plaintiff does not refute this fact in any of his briefs. In fact, the briefs and exhibits show Sheriff Brown testified on Seeley's behalf during his criminal trial. Plaintiff's exhibit 4 — the letter of termination from Sheriff Brown to Mr. Seeley — states that Seeley is being discharged because a judge found probable cause to try him on criminal charges. Plaintiff offers a newspaper article which states, "Brown said he was following department policy by firing Seeley once he was bound over for trial." Pine River Times, October 24, 1985, (offered as plaintiff's exhibit 6). These public statements by Sheriff Brown are not stigmatizing since they are not false accusations. Plaintiff admits he was, in fact, bound over for trial on criminal charges. No one likes the man who is the bearer of bad news.³ The issue before me is not whether Seeley actually committed criminal assault. That issue was the subject of the plaintiff's criminal trial. Rather, the issue is whether Sheriff Brown made false statements concerning Mr. Seeley. He did not.

Secondly, Seeley was effectively allowed a due process opportunity to "clear his name" publicly (Codd, 429 U.S. at 627, 97 S.Ct. at 884, 51 L.Ed.2d at p. 96). His jury trial constituted this opportunity. He cleared his name when he was exonerated of the criminal charges on December 13, 1985. Clearly any stigma which exists can be effectively mitigated if Mr. Seeley alerts potential employers to the results of his jury trial. Seeley's liberty interests have, therefore, not suffered with the contemplation of the Codd, supra, and Lentsch, supra, decisions.

C. Plaintiff's property interest in his employment.

Nowhere is support found for Seeley's contention that he has a property interest in his position as a deputy sheriff in La Plata County. In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the plaintiff was an...