United States District Court, D. Utah
B. Pead, Magistrate Judge
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 Second
Amended Complaint for Failure to State a Claim.” (ECF
No. 27). Plaintiff's Second Amended Complaint alleges a
single FMLA claim and three causes of action under §
1983 related to alleged deprivations of Plaintiff's right
to due process, free speech and free association. (ECF No.
24). Plaintiff alleges Defendants unlawfully discriminated
against him based on his affiliation with his police union,
the Fraternal Order of Police (“FOP”).
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). In making this determination, the court accepts
factual allegations “as true and construe[s] those
allegations, and any reasonable inferences that might be
drawn from them, in the light most favorable to the
plaintiff.” 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
Due Process claim
argue that Plaintiff fails to allege any
constitutionally-protected property interest for mileage
reimbursements or pay for off-duty time spent attending
Plaintiff's administrative appeal because such
compensation is discretionary. (ECF No. 27 at 13-14). Next,
Defendants argue that Plaintiff has not adequately pled facts
to demonstrate that Chief Burbank was a biased decision maker
because Plaintiff only concludes Chief Burbank was biased
without pleading facts to support that conclusion.
(Id. at 15). Alternatively, Defendants argue Chief
Burbank's alleged bias is insufficient to support
Plaintiff's claims because another unbiased reviewer,
Chief Deputy Coleman, conducted an initial internal affairs
investigation before Chief Burbank imposed discipline.
Likewise, Defendants point out, the Civil Service Commission
(“CSC”) upheld the discipline imposed by Chief
Burbank. Finally, Defendants argue that Plaintiff cannot
bring a claim for post-termination deprivation of due process
because the delay caused by the CSC's rejection of
Plaintiff's appeal as untimely (later reversed by the
Utah Court of Appeals) does not provide a basis for a
due-process claim. (Id. at 17).
responds by arguing that constitutionally-protected property
interests can be created by unwritten policies such as the
one he alleges entitled him to mileage reimbursements and pay
for time spent attending administrative appeals. (ECF No. 30
at 15-17). Plaintiff also contends he alleged sufficient
facts for the court to infer Chief Burbank was biased.
(Id. at 17-18). As to Defendants' alternative
argument, Plaintiff argues the court cannot determine whether
other individuals performed proper reviews without delving
into factual matters not subject to resolution given the
present posture of this case. (Id. at 18-19).
Finally, Plaintiff argues the department's role in the
CSC's rejection of his appeal constitutes a due-process
Plaintiff properly alleges a due-process claim
alleges a sufficient property interest to support his
due-process claim. 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). Unwritten policies can create an
entitlement. See Perry v. Sindermann, 408 U.S. 593,
599 (1972); see Schulz v. City of Longmont,
Colorado, 465 F.3d 433, 444 (10th Cir. 2006)
(“State law sources for property interests can include
statutes, municipal charters or ordinances, and express or
implied contracts.”). Plaintiff alleges that he was
denied compensation without due process because he was denied
compensation while attending his disciplinary appeals
contrary to department policy. (ECF No. 24 at 4). Plaintiff
also alleges he was denied a mileage reimbursement contrary
to department policy. (Id.) Accordingly, Plaintiff
adequately alleges he was deprived of property in the form of
wages and reimbursements owed to him.
believe that Plaintiff should have included additional
factual detail to support his claim that the alleged policy
existed. Yet Defendants have not cited any authority to
support their ...