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Hollenbach v. Chris Burbank

United States District Court, D. Utah, Central Division

May 22, 2017

GREGORY HOLLENBACH, Plaintiff,
v.
CHRIS BURBANK in his individual capacity; MELODY GRAY in her individual capacity; and SALT LAKE CITY, through its Police Department and its Service Commission for the official s of the Defendants; Defendants.

          MEMORANDUM DECISION

          Dustin B. Pead United States Magistrate Judge.

         BACKGROUND

         The parties consented to the court's jurisdiction under 28 U.S.C. 636(c). (ECF No. 16.) The matter is presently before the court on Defendants' Motion to Dismiss. (ECF No. 18.) Plaintiff's Amended Complaint alleges four causes of action under § 1983. (ECF No. 17.) Plaintiff claims Defendants unlawfully interfered with his: rights under the Family and Medical Leave Act, due-process rights, First Amendment right to free speech, and First Amendment right to freely associate. (See id.) Plaintiff alleges Defendants unlawfully discriminated against him based on his affiliation with the Fraternal Order of Police.[1] Plaintiff claims he was passed over for promotion, disciplined more harshly, denied leave, and otherwise mistreated as a result of this affiliation. (Id.) On November 8, 2013, plaintiff received a letter notifying him of his termination for his conduct related to a certain burglary investigation. He appealed his termination. Plaintiff's appeal is still ongoing at the administrative level. (ECF No. 21 at 11.)

         STANDARD OF REVIEW

         To survive, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The court accepts factual allegations “as true and construe[s] those allegations, and any reasonable inferences that might be drawn from them” in a plaintiff's favor. Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Nonetheless, conclusory allegations without supporting factual allegations are insufficient to state a claim for relief. See Id. (“Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'”).

         ANALYSIS

         I. The claim against Defendant Gray must be dismissed

         a. Parties' Arguments

         Defendants argue that Plaintiff's claim against Defendant Gray fails because Plaintiff's Complaint alleges only a single event in which Defendant Gray personally participated. Specifically, Plaintiff alleges Defendant Gray “denied [Plaintiff] compensation while [he] was attending his disciplinary appeals without process.” (ECF No. 18 at 8.) Defendants contend this allegation is insufficient to state a claim against Defendant Gray for a deprivation of Plaintiff's federally-guaranteed rights because he was not entitled to compensation after his termination.

         Plaintiff argues he sufficiently alleged a claim against Defendant Gray by alleging that she denied Plaintiff compensation while he attended his disciplinary appeals. Plaintiff also argues the claim is sufficient because he alleges Defendant Gray “participated in” discriminatory practices.

         b. Plaintiff does not properly allege any claim against Defendant Gray

         Plaintiff fails to allege Defendant Gray participated in any unlawful conduct. First, Plaintiff must allege Defendants deprived him of a protectable property interest “to prevail on either a procedural or substantive due process claim . . . .” Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir. 2007) (affirming decision to dismiss a due-process claim where the complaint did not allege deprivation of a protectable property interest). While Plaintiff makes conclusory allegations that he was deprived of compensation without due process, Plaintiff fails to allege any facts that show he had any “legitimate claim of entitlement” to compensation after his termination. Id. Also, Plaintiff does not argue in his opposition that he had any protectable property interest in post-termination pay. Thus, his due-process claim against Grey fails because Plaintiff has identified no protectable property interest in post-termination pay.

         Rather than describe any legitimate claim of entitlement to compensation, Plaintiff instead cites Rule 8's liberal pleading standard. While the standard is no doubt liberal, it does not win the day for Plaintiff here.[2] Plaintiff alleges he was deprived of pay, but Defendants point out that Plaintiff had no property interest in that pay. Plaintiff cannot prevail by relying on the pleading standard. Instead, he must demonstrate the alleged denial is legally sufficient to support his due-process claim. Here, that means demonstrating he had a legitimate claim of entitlement to post-termination pay. Plaintiff fails to do so.

         Second, Plaintiff's argument that he alleged Defendant Gray “participated” in discriminatory policies also misses the mark. “The plaintiff must show the defendant personally participated in the alleged violation . . . and conclusory allegations are not sufficient to state a constitutional violation.” Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996). “When various officials have taken different actions . . . the plaintiff's facile, passive-voice showing that his rights ‘were violated' will not suffice.” Pahls v. Thomas, 718 F.3d 1210, 1225-26 (10th Cir. 2013) “Likewise insufficient is a plaintiff's more active-voice yet undifferentiated contention that “defendants” infringed his rights.” Id. Plaintiff makes only the single factual allegation against Defendant Gray discussed above, which Plaintiff has not shown to be legally relevant. Plaintiff makes no other factual allegation regarding Defendant Gray, other than to identify her as a party. Some of the remaining allegations refer generally to Defendants, but this does not sufficiently state a claim against Defendant Gray. Pahls condemns this very pleading ...


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