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Gygi v. City of Artesia

United States District Court, D. New Mexico

November 6, 2019

FREDRIC GYGI, Plaintiff,
v.
CITY OF ARTESIA; DON RALEY; JUAN REYES; and LINDELL SMITH, Defendants.

          ORDER GRANTING IN PART DEFENDANTS' MOTION TO DISMISS

          KEVIN R. SWEAZEA, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Fredric Gygi quit his job as a police officer with the Artesia Police Department (“APD”) in lieu of termination following an internal affairs investigation that Gygi claims falsely concluded he had used excessive force and lied. Gygi soon found work with the nearby Dexter Police Department (“DPD”). But while Gygi was between jobs, those responsible for the investigation, Defendants, reported the alleged false findings to the New Mexico Law Enforcement Academy (“LEA”), the state entity that credentials police officers. The LEA began revocation proceedings; and, after hiring Gygi, DPD learned of them. At that point, Gygi alleges, he had to resign from DPD and could no longer find work in his profession. After the LEA dismissed the misconduct complaint, Gygi filed this suit under 42 U.S.C. § 1983 claiming Defendants' “defamation” violated his due process and equal protection rights.

         Presently before the Court is Defendants' motion to dismiss Gygi's complaint. (Doc. 6). With the consent of the parties to conduct dispositive proceedings, see 28 U.S.C. 636(c), the Court has considered the parties' submissions and heard oral argument on the matter on October 7, 2019. Having done so, the Court concludes Gygi does not plead plausible claims for the deprivation of any constitutional right. Accordingly, the Court GRANTS the motion in part and DISMISSES the complaint.

         FACTS

         On July 18, 2015, while employed as a licensed law enforcement officer with APD, Gygi was dispatched to a call involving Felix Castillo. (Doc. 1, Compl., ¶ 12). Gygi ultimately arrested Castillo and transported him to the local jail. (Id. at ¶ 13). A jail official, however, accused Gygi of using excessive force against Castillo and lodged a complaint with APD. (Id. at ¶14). An internal investigation ensued. (Id. at ¶¶15-24).

         Juan Reyes, a fellow officer at APD, investigated. Reyes spoke by phone to use-of-force instructors in New Mexico and Michigan about Gygi. (Id. at ¶¶15-17). Reyes, however, failed to show the experts “the video of Gygi's interaction with Mr. Castillo which led to the . . . [the internal affairs] investigation of [Gygi's] alleged excessive use of force based on his alleged use of a choke hold.” (Id. at ¶18). In a subsequent report, Reyes concluded Gygi used excessive force and wrote “[b]ased on the information obtained from these (2) two known experts in the application of force and current standards of use of force in the police arena. [sic] Both agreed said Officer [Gygi] used the ‘Choke Hold' in lieu of other force options.” (Id. at ¶20).

         Reyes' findings prompted Officer Lindell Smith to investigate further. (Id. at ¶22). Smith also determined Gygi had used excessive force, and both officers additionally concluded Gygi lied during the investigation. (Id. at ¶ 23). Don Raley, the chief of police, was aware of and ratified the investigations of Reyes and Smith. (Id. at ¶24). Gygi was presented with the findings of the investigations, and Smith told Gygi he would be fired for using excessive force. (Id. at ¶¶25-25). Relying on the investigations, Raley decided to terminate Gygi's employment. (Id. at ¶27). On November 22, 2015, Gygi resigned in lieu of termination. (Id. at ¶28). For its part, APD issued Gygi a “Letter of Good Standing.” (Id.). By 2016, Gygi found work as a police officer with DPD. (Id. at ¶37).

         On December 14, 2015, before Gygi stated work at DPD, Raley, Smith, and Reyes “published to both the United States Department of Justice (“DOJ”) and DPS's Law Enforcement Academy, a[] LEA 90 charging that [Gygi] had used excessive force and was untruthful in the investigation of his alleged use of excessive force.” (Id. at ¶40). A LEA 90 Misconduct Report is the method by which a police department reports misconduct against a licensed law enforcement officer to the state's licensing authority. (Id. at ¶¶38-39). An LEA 90 may lead to discipline up to revocation of an officer's license. (Id.). Gygi insists the charges Raley, Smith, and Reyes leveled against him were false and done purposefully so that the DOJ would initiate federal criminal charges and DPS would revoke his license. (Id. at ¶40-47).

         On June 30, 2016, the LEA sent Gygi a “Notice of Contemplated Action to Suspend or Revoke Your Law Enforcement License” based on the allegations in the LEA 90. (Id. at ¶48). Gygi received the NCA on July 1, 2016. (Id. at ¶49). At some point, DPD learned of the revocation proceedings and informed Gygi “based upon the recommendation of the district attorney, [Gygi] could no longer fulfill all of his previously assigned duties as a DPD law enforcement officer.” (Id. at ¶50). Gygi “had no choice but to resign from his job, ” and left DPD. (Id. at ¶51). Since leaving DPD, Gygi has not found employment as a police officer despite applying for many positions. (Id. at ¶52). Gygi attributes this failure to the LEA 90. (Id. at ¶53).

         Following proceedings on the NCA, a hearing officer determined on February 18, 2018 that “Smith's charges that [Gygi] had used excessive force and that he had lied during the Internal Affairs investigation were unfounded.” (Id. at ¶55). In fact, Smith “admitted [] he was wrong in charging [Gygi] with using the [lateral vascular neck restraint], ” and the hearing officer concluded there was no proof of choking. (Id.). As a result, the “allegations and evidence against Respondent [did not] clearly establish that he committed acts of violence or brutality . . . or that he was not untruthful in his reporting of either incident.” (Id. at ¶57). On April 6, 2018, the LEA board adopted the hearing officer's decision and dismissed the complaint. (Id. at ¶58).

         Gygi sued Defendants on May 18, 2019. (Doc. 1). Gygi's two-count complaint alleges Defendants (1) deprived him of protected property and liberty interests under the Fourteenth Amendment by publishing defamatory statements, adversely affecting his ability to gain and retain employment as a police officer (Count I); and (2) violated his right to equal protection by treating him, “a class of one” differently than other employees when they published defamatory statements against him (Count II). (Id. at ¶¶69-81). The instant motion to dismiss followed.

         STANDARD

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a pleading within its four corners. Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). A complaint is sufficient when it “allege[s] facts that, if true, state a claim to relief that is plausible on its face.” Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2014) (internal quotation marks and citation omitted). “Plausibility” asks whether, under the substantive law that governs the claims alleged, the plaintiff has pleaded facts that “raise a right to relief above the speculative level.” Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012); Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008). In determining if a complaint survives a motion to dismiss, the Court must assume the truth of the facts in the pleading, take those facts in the light most favorable to the plaintiff, and assess whether they give rise to a reasonable inference that the defendant is liable in light of the applicable law. See Mayfield, 826 F.3d at 1255.

         DISCUSSION

         Defendants argue Gygi's complaint is time barred and fails to adequately plead the deprivation of any clearly establish constitutional right. They also raise the defense of privilege to Gygi's allegations of defamation. Because the Court concludes Gygi's complaint does not state a claim for ...


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