Simon v. Taylor

• Decision Date: 07 November 2019
• Docket Number: No. 17-2088,17-2088
• Parties: RICHARD SIMON; JANELLE SIMON, Plaintiffs - Appellants, and ERIC CURTIS; JOSE VEGA, Plaintiffs, v. HEATH TAYLOR; JERRY WINDHAM; PAT WINDHAM; MARTY COPE; ARNOLD J. RAEL; B. RAY WILLIS; THOMAS FOWLER; LARRY DELGADO; THE NEW MEXICO RACING COMMISSION, Defendants - Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

RICHARD SIMON; JANELLE SIMON, Plaintiffs - Appellants,andERIC CURTIS; JOSE VEGA, Plaintiffs, v. HEATH TAYLOR; JERRY WINDHAM;PAT WINDHAM; MARTY COPE;ARNOLD J. RAEL; B. RAY WILLIS;THOMAS FOWLER; LARRY DELGADO;THE NEW MEXICO RACING COMMISSION, Defendants - Appellees.

No. 17-2088

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

November 7, 2019

RICHARD SIMON; JANELLE SIMON, Plaintiffs - Appellants,

and

ERIC CURTIS; JOSE VEGA, Plaintiffs,

v.

HEATH TAYLOR; JERRY WINDHAM; PAT WINDHAM; MARTY L. COPE; ARNOLD J. RAEL; B. RAY WILLIS; THOMAS FOWLER; LARRY DELGADO; THE NEW MEXICO RACING COMMISSION, Defendants - Appellees.

ORDER

Before BACHARACH, EBEL, and MORITZ, Circuit Judges.

This matter is before the court sua sponte. On November 7, 2019, the court issued its Order & Judgment in this matter. After the Order & Judgment was issued, an inadvertent clerical error was discovered in footnote 3 on page 8 of the dissent. In order to correct that clerical error, the Clerk of Court shall reissue Order & Judgment with the attached corrected version of the dissent, effective nunc pro tunc to the date that the original Order and Judgment was filed.

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk

/s/

by: Chris Wolpert

Chief Deputy Clerk

(D.C. No. 1:12-CV-00096-JB-WPL)

(D.N.M.)

ORDER AND JUDGMENT^*

Before BACHARACH, EBEL, and MORITZ, Circuit Judges.

This appeal concerns the outcome of a New Mexico horse race that took place over a decade ago. Plaintiffs Richard and Janelle Simon own the horse that crossedthe finish line in second place.¹ The Simons allege that the New Mexico Racing Commission and its individual commissioners (collectively, the Commission) deprived them of procedural due process when the Commission refused to let them participate in a disciplinary proceeding against Heath Taylor, the trainer of the horse that crossed the finish line in first place. The Simons also brought various tort claims against Taylor and the owners of the first-place horse, Jerry and Pat Windham. The district court granted the Commission's motion to dismiss and later awarded summary judgment to Taylor and the Windhams. For the reasons discussed below, we affirm.

Background

Jet Black Patriot, the Simons' horse, crossed the finish line in second place in the 2008 All American Futurity horse race. Stolis Winner, the Windhams' horse, crossed the finish line in first place, just ahead of Jet Black Patriot. This first-place finish came with a $1 million prize; for second place, the prize was $285,000.

After the race, a licensed veterinarian collected blood and urine samples from each participating horse, including Jet Black Patriot and Stolis Winner. Stolis Winner's samples tested positive for a small amount of caffeine, which was a banned substance under the Commission's regulations.

This positive test result prompted the race stewards, who supervise races andenforce racing regulations, to conduct a disciplinary hearing. At that hearing, the stewards ruled against Stolis Winner and Taylor and entered two orders. The first order assessed penalties against Taylor and revoked the first-place prize money. The second order disqualified Stolis Winner, reordered the race finishers, listed Jet Black Patriot in first place, and ordered the prize money redistributed. Taylor appealed to the Commission, and the Commission appointed a three-person panel to conduct the disciplinary appeal.

The Simons filed a motion to participate in the disciplinary appeal. The three-person panel concluded that the Simons' "sole interest [was] in the distribution of the purse." App. vol. 2, 315. But the aim of the Commission's "quasi-criminal" disciplinary proceeding was "to penalize individuals who violate Commission rules and regulations." Id.; see also N.M. Code R. § 15.2.1.9(C)(1)(d) (providing that "non[]party to a proceeding who wishes to appear in a contested case pending before the [C]ommission must prove that he/she has an [a]ffected interest sufficient to create standing in the case"). As such, the panel denied the Simons' motion to participate, and the Commission adopted that ruling.

The panel conducted the disciplinary appeal over three days in May 2010. It first explained that the positive caffeine test was merely "prima facie evidence" that Taylor was responsible for the drug's presence in Stolis Winner's system. App. vol. 2, 335 (quoting N.M. Code R. § 15.2.6.11(A)). And it found that Taylor successfully rebutted the prima facie case by showing that (1) there was "substantial evidence of caffeine contamination of the equine environment to which Stolis Winnerwas exposed"; and (2) "[t]he amount of caffeine detected in the post[]race testing was de minimis and insufficient to constitute a violation in many jurisdictions." Id. at 335-36. As a result, the panel recommended that the Commission rule in Taylor's favor, reverse the stewards' orders, and reinstate Stolis Winner's first-place finish. The Commission later adopted the panel's decision in full.²

The Simons then filed this action in federal district court.³ As relevant here, they alleged that the Commission violated their right to procedural due process. Specifically, the Simons asserted that the Commission deprived them of a protected property interest without due process of law when it reversed the stewards' orders without allowing the Simons to participate in the disciplinary appeal. The district court concluded that the Simons failed to establish a protected property interest in the first-place prize money. It therefore granted the Commission's motion to dismiss.

The Simons also asserted a variety of tort claims against Taylor and the Windhams. They based these claims on the theory that Taylor and the Windhams either intentionally or negligently drugged Stolis Winner, thereby causing Jet Black Patriot to finish second. Taylor and the Windhams filed a motion to dismiss, whichthe district court largely denied. But after the parties cross-moved for summary judgment, the district court granted summary judgment in favor of Taylor and the Windhams.

The Simons appeal both the due-process ruling and the tort rulings.

Analysis

I. Due-Process Claim

The Simons contend that the district court erred in dismissing their due-process claim against the Commission. We review that ruling de novo. See Scarlett v. Air Methods Corp., 922 F.3d 1053, 1057 (10th Cir. 2019).

The Fourteenth Amendment to the United States Constitution guarantees that a state won't deprive a person of "property[] without due process of law." U.S. Const. amend. XIV, § 1. In practice, this means that a state can't take away a person's property "unless fair procedures are used in making that decision." Mitchell v. City of Moore, 218 F.3d 1190, 1198 (10th Cir. 2000) (quoting Archuleta v. Colo. Dep't of Insts., Div. of Youth Servs., 936 F.2d 483, 490 (10th Cir. 1991)). But to prevail on a due-process claim, "a plaintiff must first establish that a defendant's actions deprived plaintiff of a protect[ed] property interest." Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir. 2000) (emphasis added).

Protected property interests "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). That is, to establish a property interest, a plaintiff must point to "an independent source such asstate law." Id. And that independent source must provide something "more than a unilateral expectation" of receiving a benefit; it must establish "a legitimate claim of entitlement" to a benefit. Id. In other words, the relevant state law must be couched in language that "is so mandatory that it creates a right to rely on that language[,] thereby creating an entitlement that could not be withdrawn without due process." Cosco v. Uphoff, 195 F.3d 1221, 1223 (10th Cir. 1999); see also Martin Marietta Materials, Inc. v. Kan. Dep't of Transp., 810 F.3d 1161, 1178 (10th Cir. 2016) ("[A] benefit is not a protected entitlement if government officials may grant or deny it in their discretion.").

Here, the Simons point to two related sources for the existence of their alleged property interest in the first-place prize money: (1) the statute and accompanying regulations that govern horse racing in New Mexico, and (2) the stewards' orders disciplining Taylor and placing Jet Black Patriot in first place. In particular, the Simons contend that "Stolis Winner's positive caffeine result and the Commission's clear zero[-]tolerance policy for caffeine" required the stewards to disqualify Stolis Winner and award first place to Jet Black Patriot. Aplt. Br. 26. To begin, we question whether that is an accurate characterization of the regulations; indeed, the district court found to the contrary and concluded that the stewards have discretion when enforcing the zero-tolerance policy and imposing penalties. But even if we assume the Simons are correct that the regulations required disqualification, we would nevertheless find no property interest here.

That's because even if the regulations required the stewards to disqualifyStolis Winner and award the purse to Jet Black Patriot, as the stewards in fact did, such a decision isn't final. Rather, the stewards' orders plainly state that they are appealable. The one reordering the finishers provides a 20-day deadline for filing the appeal "at the main [C]ommission offices or with the [s]tewards who issued the ruling." App. vol. 2, 352. The same language appears in the disciplinary order against Taylor. And the notices in the orders align with New Mexico law. By statute, "[a] decision or action of a steward may be reviewed or reconsidered by the [C]ommission." N.M. Stat. Ann. § 60-1A-12. Similarly, race regulations provide that a stewards' order "shall inform the person of the person's right to appeal the ruling to the Commission." § 15.2.1.9(B)(7)(e) (emphasis added). Further, and perhaps most...