Camuglia v. City of Albuquerque, CIV. 04-0048 JB/LFG.

375 F.Supp.2d 1299

Rick CAMUGLIA, d/b/a Paisano's Restaurant, Plaintiff, v. The CITY OF ALBUQUERQUE and the Albuquerque Environmental Health Department and Guy Worthington, in his individual capacity and as an employee of the City of Albuquerque, Defendants.

No. CIV. 04-0048 JB/LFG.

United States District Court, D. New Mexico.

April 28, 2005.

COPYRIGHT MATERIAL OMITTED

David M. Berlin, Duhigg, Cronin, Spring, Berlin & Bencoe, P.A., Albuquerque, NM, for Plaintiff.

Robert M. White, City Attorney, City of Albuquerque, Peter S. Auh, Assistant City Attorney, Albuquerque, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendants Guy Worthington and Jay Cousins' Motion for Summary Judgment and Memorandum of Law in Support, filed August 20, 2004 (Doc. 55).¹ The Court held a hearing on this motion on December 21, 2004.² The primary issues are: (i) whether Worthington afforded Camuglia an adequate level of process; and (ii) whether Worthington's actions violated Camuglia's substantive due process rights. Because the Court concludes that Worthington gave Camuglia adequate process and did not violate his substantive due process rights, the Court will grant the motion for summary judgment and dismiss the claims against Worthington.

FACTUAL BACKGROUND

While the parties dispute some facts, there are many facts undisputed. And there is no dispute about a material fact.

Plaintiff Rick Camuglia is an owner and operator of Paisano's, a restaurant located at 1935 Eubank NE, Albuquerque, New Mexico. Defendant Albuquerque Environmental Health Department ("EHD") is a department of the Defendant City of Albuquerque, and has as one of its responsibilities the monitoring and inspection of restaurants for health and safety violations. At all times relevant to this action, Worthington was an employee of the City of Albuquerque within EHD. See Affidavit of Guy Worthington ¶ 1, at 1 (executed August 19, 2004)(hereinafter "Worthington Aff."). Worthington's primary responsibility within EHD was to inspect restaurants for threats to customer safety. See id.

On February 19, 2003, Worthington inspected Paisano's premises. See id. ¶ 2, at 1. Worthington found several violations of the Food and Beverage Ordinance, including roaches. See id. Worthington instructed Camuglia to promptly address the violations. See id. ¶ 3, at 1. Camuglia indicated that he would remedy the violations and asked Worthington to return the next day. See id.

The following day, Worthington returned to Paisano's and observed Glen Waters, an exterminator for AACTION using a spray fogger to emit pesticide in the restaurant. See id. ¶ 4, at 1. Worthington concluded that the chemicals were not being applied in a proper manner. See id. ¶¶ 4, 5, at 2-3. See id. Worthington contacted his supervisor and together they decided to temporarily suspend Paisano's permit. See id. ¶ 6, at 2. Later that day, Worthington returned to his office and prepared an inspection summary. See id. In accordance with EHD practice, he sent by facsimile transmission a copy of the inspection summary to the media. See id. ¶ 7, at 2. Subsequently, members of the news media arrived at Paisano's to report on the matter. See First Amended Complaint for Deprivation of Property Without Due Process ¶ 12, at 2, filed March 25, 2004 (Doc. 24)(hereinafter "First Amended Complaint").

On February 21, 2003, Steve Baca, an inspector for the New Mexico Department of Agriculture, conducted an investigation of Paisano's. See Incident No. 03-11, Report Nos. 003030, 003006, February 21, 2003. Baca took swab samples from the interior of the restaurant. See id.; See Deposition of Steve Baca at 21:5 — 22:25 (executed July 16, 2004)(hereinafter "Baca Depo."). Two of the three samples contained the pesticide used in the restaurant. See Baca Depo. 24:14 — 25:7.

PROCEDURAL BACKGROUND

On December 17, 2003, Camuglia filed in state court a Complaint for Deprivation of Property Without Due Process. See Petition for Removal, filed January 16, 2004 (Doc. 1). Camuglia filed in federal court a First Amended Complaint for Deprivation of Property Without Due Process, naming the City of Albuquerque, EHD, Worthington, and John Roe as defendants. See First Amended Complaint, at 1. The Complaint also contained state due process and libel and slander claims. Worthington and John Roes were named in their individual capacities and as employees of the City of Albuquerque. Camuglia later amended his complaint, replacing Roe with Defendant Jay Cousins. See Second Amended Complaint for Deprivation of Property Without Due Process, April 29, 2004 (Doc. 31). Worthington and Cousins, pursuant to rule 56 of the Federal Rules of civil Procedure, move the Court for summary judgment on all claims. At the hearing on the motion for summary judgment, Camuglia represented that he was dismissing the libel and slander claim. See Transcript of Hearing, at 4:6-9 (December 21, 2004)(hereinafter "Transcript").³ On December 23, 2004, Camuglia filed a Stipulation to Dismiss All Claims Against Defendant Cousins With Prejudice (Doc. 71).

SUMMARY JUDGMENT AND QUALIFIED IMMUNITY

Under the doctrine of qualified immunity, "government officials performing discretionary functions generally are shielded 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, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Once a defendant raises the qualified immunity defense, the plaintiff must "come forward with facts or allegations sufficient to show both that the defendant's alleged conduct violated the law and that [the] law was clearly established when the alleged violation occurred." Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 646 (10th Cir.1988). If the plaintiff meets this two-part burden, the defendant "assumes the normal summary judgment burden of establishing that no material facts that would defeat his claim for qualified immunity remain in dispute." Woodward v. City of Worland, 977 F.2d 1392, 1396-97 (10th Cir.1992).

In ruling on a summary judgment motion, the court examines the factual record and all reasonable inferences therefrom in the light most favorable to the nonmoving party. See Allen v. Muskogee, Oklahoma, 119 F.3d 837, 839-40 (10th Cir.1997). The court's role on a motion for summary judgment is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "`Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.'" Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir.1995)(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986))(internal quotations omitted).

"[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-48, 106 S.Ct. 2505. "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S.Ct. 2505 (citing 10A Charles A. Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2725, at 93-95 (1983)). "If the evidence is merely colorable, ... or is not significantly probative," summary judgment is appropriate. See Anderson v. Liberty Lobby, Inc. 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted).

RULE 56(f)

Rule 56(f) of the Federal Rules of Civil Procedure provides:

Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

Fed.R.Civ.P. 56(f). "The general principle of Rule 56(f) is that `summary judgment [should] be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.'" Price v. Western Resources, Inc., 232 F.3d 779, 783 (10th Cir.2000)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 250 n. 5, 106 S.Ct. 2505). The Supreme Court has instructed district courts to be mindful that qualified immunity protects government officials from discovery. See Harlow v. Fitzgerald, 457 U.S. at 817-18, 102 S.Ct. 2727 ("[W]e conclude today that bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery.... Until this threshold immunity question is resolved, discovery should not be allowed."). "Rule 56(f) is not a license for a fishing expedition, especially when summary judgment is urged based on a claim of qualified immunity." Lewis v. City of Ft. Collins, 903 F.2d 752, 759 (10th Cir.1990). In response to a summary judgment motion based on qualified immunity, a plaintiff's rule 56(f) affidavit must demonstrate "`how discovery will enable them to rebut a defendant's showing of objective reasonableness' or, stated alternatively, demonstrate a `connection between the information he would seek in discovery and the validity of the [defendant's] qualified immunity assertion.'" Id. at 758 (quoting Jones v. City and County of Denver, Colo., 854 F.2d...