Moore v. Hernandez

128 F. App'x 39
CourtCourt of Appeals for the Tenth Circuit
DecidedApril 5, 2005
Docket04-2123
StatusUnpublished
Cited by2 cases

This text of 128 F. App'x 39 (Moore v. Hernandez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moore v. Hernandez, 128 F. App'x 39 (10th Cir. 2005).

Opinion

ORDER AND JUDGMENT *

PORFILIO, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Plaintiff Anthony A. Moore, proceeding pro se, appeals the summary judgment entered in defendants’ favor on his claims that his employment as a deputy sheriff with defendant Dona Ana County was terminated in violation of his federal rights. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

Background,

Mr. Moore’s employment with the Dona Ana County Sheriff’s Department started in 1997. He received a copy of the County’s personnel rules and policies. In 1998, the County suspended him without pay based on his procedure when stopping a driver he suspected was under the influence of alcohol. Mr. Moore invoked the County’s grievance procedure and was assisted by a union representative.

In November 1999, Mr. Moore was arrested and jailed on criminal charges in El Paso, Texas. After he had been in jail for several days, during which time he did not report to work, the individual defendants met with him in a conference room at the jail. During that meeting, Mr. Moore wrote and signed a letter of resignation and a waiver of his due process rights. He maintains the resignation was coerced because (1) he was upset and mentally unstable; (2) he understood that if he did not resign, his paycheck would be delayed; and (3) he was not offered a choice other than resignation or termination. He did not try to withdraw his resignation and he did not seek relief under the grievance procedure.

Mr. Moore filed suit under 42 U.S.C. § 1983, claiming he was deprived of his property interest in his continued employment without due process. All defendants denied liability, and the individual defendants raised the defense of qualified immunity. The district court thoroughly *41 evaluated Mr. Moore’s claims and granted summary judgment to defendants, in part based on its finding that the individual defendants were entitled to qualified immunity.

On appeal, Mr. Moore argues that the district court erred when it (1) concluded that he was not constructively discharged, but had resigned from his position as a deputy sheriff; (2) granted the individual defendants qualified immunity and based its ruling in part on findings of reasonable mistake, clearly established law, and due process, even though Mr. Moore had not had an opportunity to address those issues; (3) failed to address his claims based on the County’s permanent ban on reemploying him; and (4) refused to disqualify the attorney for all defendants on the ground that one attorney properly could not represent the individual defendants as well as the governmental defendant.

Timeliness of Notice of Appeal

Without explaining why, defendants assert that this court is without jurisdiction. We assume they argue that Mr. Moore’s notice of appeal was filed one day late. As the district court clerk has explained, the initial filing date was in error. The filing date was corrected and, pursuant to the correct filing date, the notice of appeal was timely. See Fed. R.App. P. 4(a)(1)(A) (notice of appeal must be filed “within 30 days after the judgment or order appealed from is entered”). Consequently, this court has appellate jurisdiction.

Standards of Review

“We review de novo the district court’s grant of summary judgment, viewing the record it the light most favorable to the party opposing summary judgment.” Southern Hospitality, Inc. v. Zurich Am. Ins. Co., 393 F.3d 1137, 1139 (10th Cir. 2004). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(c). Plaintiff is representing himself on appeal so his pleadings will be liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

Our review of the district court’s holding that the individual defendants are entitled to qualified immunity differs from other summary judgment rulings. Gross v. Pir-tle, 245 F.3d 1151, 1155 (10th Cir.2001). Once a defendant raises a the defense of qualified immunity, “the burden shifts to the plaintiff [to] satisffy] a heavy two-part burden.” Id. (quotation and citations omitted). First, the plaintiff must demonstrate that the defendant “violated a constitutional or statutory right.” Id. (quotation omitted). Second, he must show “that the right at issue was clearly established at the time of the defendant’s unlawful conduct.” Id. at 1156. If the plaintiff cannot make both showings, the defendant is entitled to qualified immunity. Id. If he can, the burden shifts to the defendant “to prove that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law.” Id. (quotation omitted).

Mr. Moore argues that the district court was required to accept as true his version of the facts. While it is true, as the district court recognized, that the court may not resolve disputed facts on summary judgment, it is not required to accept the non-movant’s self-serving and conclusory assertions. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002). Moreover, “[although we are required to view the evidence in the light most favorable to the nonmoving party, we must not refrain from examining the evidence altogether.” Heartsprings, Inc. v. *42 Heartspring, Inc., 143 F.3d 550, 557 (10th Cir.1998).

Analysis

We find no reversible error relative to Mr. Moore’s constructive-discharge and qualified-immunity challenges.

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Cite This Page — Counsel Stack

Bluebook (online)
128 F. App'x 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-hernandez-ca10-2005.