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Hollenbach v. Burbank

United States District Court, D. Utah

November 17, 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, 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 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”).

         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). 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 factual enhancement.'”).

         ANALYSIS

         I. Due Process claim

         a. Parties' Arguments

         Defendants 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).

         Plaintiff 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 violation.

         b. Plaintiff properly alleges a due-process claim

         1. Property Interest

         Plaintiff 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.

         Defendants 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 ...


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