Garcia v. State of New Mexico Office of Treasurer

959 F.Supp. 1426

Joseph O. GARCIA, Plaintiff, v. STATE OF NEW MEXICO OFFICE OF THE TREASURER and David W. King, Individually, Defendants.

No. CIV. 96-581 LH/JHG.

United States District Court, D. New Mexico.

April 7, 1997.

Peter J. Adang, Peter J. Adang, P.C., Albuquerque, for plaintiff.

Douglas A. Baker, Martha G. Brown, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, for defendant King.

Judith C. Herrera, Herrera, Long & Pound, P.A., for defendant State of New Mexico Office of the Treasurer.

MEMORANDUM OPINION

HANSEN, District Judge.

THIS MATTER is before the Court on Defendant David W. King's Motion to Dismiss Plaintiff's Second Amended Complaint or Alternatively for Summary Judgment (Docket No. 48), filed September 18, 1996. Plaintiff Garcia brought his claim under 42 U.S.C. § 1983 and additionally makes several pendent state law claims, as well as a request for injunctive relief. Having reviewed the motion and memoranda submitted by the parties and having considered the arguments of counsel, the Court finds that Defendant's motion to dismiss is well-taken and shall be granted. Plaintiff's Motion for Partial Summary Judgment (Docket No. 29) and Defendant King's Motion to Strike Plaintiff's Second Amended Complaint (Docket No. 43) are moot and shall be dismissed.

BACKGROUND

The substance of Plaintiff's Complaint is as follows.¹ In 1985, Plaintiff Garcia became a consultant to the State of New Mexico Office of the Treasurer. Six months later he was hired as the Director of the Collateral Compliance Division, a position from which he could only be removed for just cause. (Second Amended Complaint (hereinafter SAC) ¶ 6.) Defendant King was the State Treasurer and Plaintiff's "ultimate superior" from 1991 to 1993. (Id. ¶ 8.) Beginning in or about early 1993, Defendant began pressuring Plaintiff to solicit cash donations from Magfinco, an investment firm which at that time was seeking a multimillion-dollar bond contract with the State Treasurer's Office. (Id. ¶¶ 9-12.) Over the next several months Defendant continually approached Plaintiff and Magfinco, each time repeating his request for a cash donation in return for award of the bond contract. (Id. ¶ 13.)

Plaintiff alleges that by late April 1993, "King had been rebuffed" by both Magfinco and Plaintiff in "his efforts to solicit a bribe of $50,000." (Id. ¶ 14.) Realizing that his solicitation efforts "had gone too far," Plaintiff contends that Defendant crafted a scheme whereby he would engage Plaintiff in secretly-taped conversations and make it appear as if it were Plaintiff who had attempted to engage Defendant in bribery. (Id. ¶¶ 18-19.)

After several secretly-taped sessions, Plaintiff allegedly grew wise to King's plot and informed him that "he was aware that King had been wearing a `wire.'" (Id. ¶¶ 19-20.) Within twenty-four hours a criminal investigation was launched against Plaintiff by the New Mexico Organized Crime Commission. (Id.) On May 11, 1993, Plaintiff was notified by the State Treasurer's Office of contemplated disciplinary action against him. (Id.) He was advised of the charges against him, the evidence relied on to sustain those charges, as well his right to review that evidence and to respond to the charges in writing or orally. (Def. King's Reply Br. in Supp. Second Mot. Dismiss or Summ. J. (hereinafter King's Reply Br.) Ex. 2, Notice of Contemplated Action.)

Plaintiff responded to the Notice of Contemplated Action on May 18, 1993, denying all charges. (Id. Ex. 3, Letter from Joseph Garcia to State Treasurer's Office.) Nonetheless, on May 22, 1993, Plaintiff's employment with the State Treasurer's Office was terminated. (SAC ¶ 21.) Plaintiff appealed to the State Personnel Board on July 14, 1993.

Plaintiff alleges that in or about August 1993, Defendant began "`going public' with the false allegation that the Plaintiff had attempted to solicit a bribe from him," and that "Plaintiff's reputation and integrity were pilloried in the newspapers and other media." (Id. ¶ 23.) Plaintiff was eventually indicted for attempted bribery of a public official and brought to trial. (Id. ¶¶ 24-25.) After an eight day trial, Plaintiff was acquitted of the charge March 13, 1995. (Pl.'s Mem. in Opp'n to Def. King's Mot. Dismiss or Summ. J. (hereinafter Pl.'s Mem.) Ex. C.)

During the pendency of Plaintiff's criminal trial, his appeal before the State Personnel Board was held in abeyance. (SAC ¶ 26.) After his acquittal, Plaintiff pursued his appeal and entered into a stipulation whereby the Board admitted that "[t]he termination of Appellant was without just cause as defined in the Rules and Regulations of the New Mexico State Personnel Board" and whereby Plaintiff agreed not to seek any further remedy before the State Personnel Board. (Pl.'s Mem., Ex. C.)

Plaintiff's Second Amended Complaint alleges violations of the Due Process and Equal Protection clauses of the Fourteenth Amendment to the United States Constitution, in violation of 42 U.S.C. § 1983. He also alleges several pendent state-law claims: breach of contract, retaliatory discharge, defamation, perjury, malicious prosecution, intentional infliction of emotional distress, and prima facie tort.

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1342(4). The Court may exercise supplemental jurisdiction over Plaintiff's state-law claims pursuant to 28 U.S.C. § 1367.

DISCUSSION

Generally, motions to dismiss for failure to state a claim are viewed with disfavor and are therefore rarely granted. 5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357 (1990). In ruling on a motion to dismiss, the Court must construe the complaint in the light most favorable to the plaintiff and take the allegations asserted in the complaint as true. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). A court should not grant a motion to dismiss for failure to state a claim unless it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Therefore, "the issue is not whether a plaintiff will ultimately prevail but whether claimant is entitled to offer evidence to support the claims." Scheuer, 416 U.S. at 236, 94 S.Ct. at 1686. The Court first considers the Defendant's motion to dismiss and concludes that Plaintiff has failed to allege circumstances giving rise to a federal cause of action. The parties' remaining motions are, therefore, moot.

I. The Due Process Claims

The Due Process Clause of the Fourteenth Amendment prohibits states from "depriving any person of life, liberty, or property, without due process of law...." U.S. CONST. amend. XIV. It has a procedural, as well as a substantive, component. "The two components are distinct from each other because each has different objectives, and each imposes different constitutional limitations on government power." As explained in Howard v. Grinage:

A procedural due process limitation, unlike its substantive counterpart, does not require that the government refrain from making a substantive choice to infringe upon a person's life, liberty, or property interest. It simply requires that the government provide "due process" before making such a decision....

Substantive due process, on the other hand, serves the goal of preventing "governmental power from being `used for purposes of oppression,'" regardless of the fairness of the procedures used.

82 F.3d 1343, 1349 (6th Cir.1996) (quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986)).

Plaintiff alleges that his termination from employment by the State of New Mexico Office of the Treasurer violated both his procedural and substantive due process rights. (SAC ¶ 36.) The Court will first address Plaintiff's procedural due process claim.

A. Procedural Due Process

Plaintiff alleges that Defendant King failed to provide him with a pre-termination hearing prior to Plaintiff's May 22, 1993, termination and that when Plaintiff requested documentary evidence supporting the charges against him, Defendant refused to provide them. (SAC ¶37.) This, Plaintiff argues, constituted a deprivation of his procedural due process rights. (Id.)

Plaintiff's procedural due process claim "depends on [his] having had a property right in continued employment." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985) (citations omitted). If he did, then "the State could not deprive [him] of this property without due process." Id. (citations omitted); see also Conaway v. Smith, 853 F.2d 789, 793 (10th Cir.1988) (holding that "[a] plaintiff must first establish ... that there is a protected [property] interest at stake").

"Property interests are not created by the Constitution, `they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law ...'." Loudermill, 470 U.S. at 538, 105 S.Ct. at 1491 (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)). The State Personnel Board Rules involved here plainly create such an interest in Plaintiff. Plaintiff was a "classified state employee," (SAC ¶ 5), and could be "dismissed only for just cause." (King's Reply Br., Ex. 2.) Thus, the Court concludes that Plaintiff had a property right in his job subject to the procedural protections afforded by the Due Process Clause. Having made this finding, "`the question remains what process is due.'" Loudermill, 470 U.S. at 541, 105 S.Ct. at 1493 (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)).

"An essential principle of due process is that a deprivation of life, liberty, or property `be preceded by notice and opportunity for hearing appropriate to the nature of the...