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Flores v. City of Farmington

United States District Court, D. New Mexico

October 2, 2019

CITY OF FARMINGTON, FARMINGTON POLICE DEPARTMENT, STEVEN HEBBE, in his individual capacity, NICK BLOOMFIELD, in his individual capacity, MATTHEW VEITH, in his individual capacity, TOM SWENK, in his individual capacity, and TAFT TRACY, in his individual capacity, Defendants.


         THIS MATTER comes before the Court upon a Motion for Partial Dismissal of the First Amended Complaint for Failure to state a Claim, Based on Qualified Immunity, filed on June 14, 2019 by Defendants Steven Hebbe, Nick Bloomfield, Matthew Veith, Tom Swenk and Taft Tracy (collectively the “Individual Defendants”) and the City of Farmington (“the City”) (and collectively, “Defendants”) (Doc. 48). Having reviewed the parties' pleadings and the applicable law, the Court grants Defendants' motion in that (1) all of the individual Defendants are entitled to qualified immunity for Counts I, II, III and IV (constituting Plaintiffs' §1983 claims) and (2) Defendant City of Farmington is dismissed from Counts II, III and IV. The motion is denied in that the City of Farmington still remains as a party for Count I.


         This is an employment discrimination case. Plaintiffs Reyes and Pat Flores are brothers. They are both officers with the Farmington Police Department (“FPD”) and claim that Defendants subjected them to discrimination and retaliation at work because of their religious beliefs. Defendants seek to dismiss Counts I, II, III and IV of the Amended Complaint (Doc. 35) on the basis of qualified immunity for the individual defendants and also because the Amended Complaint (or “complaint” for purposes of this opinion) does not specify the wrongdoing of each Defendant.

         I. Factual Background

         Both Plaintiffs claim that they have “long held deep-rooted Christian beliefs.” The Farmington Police Department (“FPD”) and employees were aware of their Christian faith, and many people in FPD also held similar beliefs. Plaintiffs allege that they suffered adverse employment actions including but not limited to hostile work environment, unfair discipline, failure to promote, and loss of pay benefits. The individual Defendants appear to be employees of the FPD or the City of Farmington.

         A. Plaintiff Reyes Flores (“Reyes”)

         Reyes served a number of years on the SWAT team and during his career had also performed duties as an ethics instructor and field training officer (FTO).

         On September 6, 2016, Defendant Veith notified Plaintiff Reyes that an Internal Affairs (“IA”) investigation had been initiated against him. The notice did not provide any details on the allegations or alleged violations. On September 21, 2016, Lt. Crum notified Reyes that he was being transferred from the training division to the patrol division pending the results of the investigation. As part of the internal investigation, Defendant Veith interviewed Reyes at least four times, during which he referenced Reyes' religious beliefs, the expression of those beliefs in the work place, and the inappropriateness of sharing those religious beliefs in the workplace. Plaintiff Reyes led certain trainings as a Field Officer Trainer. Plaintiff Reyes believed he was being accused of forcing religious beliefs on his trainees or subordinates while in the workplace. The internal affairs investigation disclosed that Reyes did not force, coerce, compel, or require any department employee to follow his religious beliefs, but concluded that Reyes engaged in discriminatory conversations with trainees and subordinates. On November 15 2016, Reyes was presented with the proposed discipline as a result of the investigation, which included: (1) removal from his training position and revocation of his Field Officer Trainer status; (2) removal from the SWAT team; (3) a written reprimand (4) and other discipline. Plaintiff Reyes filed a grievance. The discipline was subsequently reduced to counseling. Plaintiff Reyes continued to pursue his grievance but was not successful. He alleges he has been denied subsequent opportunities based on this discipline and subsequently received the worst performance evaluation of his career.

         B. Plaintiff Pat Flores (“Pat”)

         Plaintiff Pat Flores was promoted to sergeant in January 2010. He has been applying for lieutenant positions since 2014. He alleges that other less qualified candidates, including ones he trained, were selected over him four times. On June 27, 2017, Pat had a feedback session with Defendant Tracy. Defendant Tracy allegedly told Pat that although his qualifications were better than those selected based on training and experience, he was not promoted because of his perceived strong religious beliefs and he would not be promoted unless he surrendered those beliefs.

         II. Procedural Background

         The initial complaint contained fourteen counts, consisting of various federal civil rights violations and state law claims. On August 3, 2018, Defendants moved to dismiss all of Plaintiffs' §1983 claims (Counts I, II, III, IV and V); portions of Plaintiffs' Title VII claims (Counts VI, VII and VIII); and portions of the claims brought under the New Mexico Human Rights Act, NMHRA §28-1-7(A) (Counts IX, X, XI). The Court granted Defendants' request in part, dismissing Counts I-III in the initial complaint, with leave to amend. Doc. 35. The Court agreed with Defendants that Plaintiffs “failed to specify which claims each defendant is alleged to have committed” and so it was “impossible for any of these individuals to ascertain what particular unconstitutional acts they are alleged to have committed.” Doc. 33 at 6. The Court also stated that it could not “conduct a qualified immunity analysis because it was unclear what actions are alleged to have violated which constitutional right.” Id. at 7. Plaintiffs were allowed to amend and re-file the complaint specifying “which facts support inclusion of a particular Defendant” under each claim or count. Id.

         Plaintiffs filed a First Amended Complaint (“Amended Complaint”) on March 4, 2019 (Doc. 35) which includes a paragraph at the end of each count which purportedly lists all the facts alleged in the complaint linking each defendant with each claim. Defendants contend that Plaintiff's amendment has still not cured the defects in the complaint and now seek dismissal of Counts I, II, III and IV based on qualified immunity of the individual defendants and because the Amended Complaint does not specify the wrongdoing of each Defendant:[1]

Count I: First Amendment (§1983);
Count II: Equal Protection / Hostile Work Environment (§1983)
Count III: Procedural Due Process Under the Fourteenth Amendment (§1983); and
Count IV: Equal Protection / Religious Discrimination Under Fourteenth Amendment (§1983).

         III. Legal Standard: Qualified Immunity on a Motion to Dismiss

         In considering (reviewing) a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court “accept[s] as true all well-pleaded factual allegations in a complaint and view[s] these allegations in the light most favorable to the plaintiff.” Schrock v. Wyeth, Inc., 727 F.3d 1273, 1280 (10th Cir. 2013) (citation and internal quotation omitted). “To survive [dismissal, ] a complaint must contain enough facts to state a claim to relief that is plausible on its face.” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (internal quotation omitted)). “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).

         Defendants raise the defense of qualified immunity. This defense shields government officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Once a defendant asserts a defense of qualified immunity, the burden shifts to the plaintiff to show that the law and facts at issue establish that qualified immunity does not apply. Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1026 (10th Cir. 1994). The plaintiff must come forward with sufficient evidence to show that the defendant violated a constitutional or statutory right, and that the right was clearly established at the time of the conduct. See McBeth v. Himes, 598 F.3d 708, 716 (10th Cir. 2010).

         The Tenth Circuit has held that a right is clearly established if there is “a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts holds that such a right exists.” Medina v. City & County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992). If there is no previous decision that is “materially factually similar or identical to the present case, ” then “the contours of the right must be sufficiently clear that a reasonable official would understand what he is doing violates that right.” Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014); Lawrence v. Reed, 406 F.3d 1224, 1230 (10th Cir. 2005) (“The essential inquiry is whether an objectively reasonable official have known that his conduct was unlawful.”). This is a “‘heavy, two-part burden'” that must be met by a plaintiff. Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001) (citation omitted). If the plaintiff does not meet this heavy burden, then the government official is “properly spared the burden and expense of proceeding any further, ” and should be granted qualified immunity.

         The Court applies the same standard in evaluating the merits of a motion to dismiss in qualified immunity cases as to dismissal motions generally: a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face, under the Iqbal-Twombly standard. See Shero v. City of Grove, Okl., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In resolving a motion to dismiss based on qualified immunity, a court must consider whether the facts that a plaintiff has alleged in a complaint “make out a violation of a constitutional right, ” and “whether the right at issue was clearly established at the time of defendant's alleged misconduct.” Leverington v. City of Colorado Springs, 643 F.3d 719, 732 (10th Cir. 2011).[2]


         Defendants contend that Plaintiffs still fail to link the individual Defendants' acts to violations of clearly established constitutional rights. In its previous opinion dismissing Counts I, II and III without prejudice, the Court required that for each claim in the Amended Complaint, Plaintiffs should identify which Defendants they assert that claim against, and identify which facts support inclusion of a particular Defendant. Doc. 33 at 7. At the end of each claim in the Amended Complaint, Plaintiffs include a paragraph listing specific factual paragraphs for each individual Defendant linking that Defendant to the count. For purposes of this discussion, the Court assumes that the facts added in the last paragraph of Count I (¶94) apply to all Defendants.[3]

         I. First Amendment Claim: Count I

         Plaintiffs claim that their exercise of free speech resulted in various employment actions taken against them, including unjustified disciplinary actions, failures to promote and hostile work environments. They allege that they in exercising their free speech rights, they were speaking out “on matters of public concern” that are “incorporated into federal and state statutes and laws as matters of public concern requiring mediation and resolution.” Id., ¶84.

         Plaintiff Reyes claims that he exercised his First Amendment rights of free speech by raising matters related to character qualities and religious beliefs “in the context of questions and inquiries from other FPD employees. Am. Compl., ¶81. He states that he “often spoke out on issues related to character, ethics, morals, religion, and a number of other matters related to the proper comportment and responses of FPD officers when in public.” Id., ¶79. The Amended Complaint does not offer many facts pertaining to Pat's “speech.” Plaintiffs allege that “Pat had well-recognized and well-respected religious beliefs, at least among the majority of FPD ...

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