United States District Court, D. New Mexico
ORDER GRANTING IN PART DEFENDANTS' MOTION TO
R. SWEAZEA, UNITED STATES MAGISTRATE JUDGE
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
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.
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
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).
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).
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).
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).
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).
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
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.
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 ...