Moore v. Hernandez, 10th Cir. (2005)

F I L E D
UNITED STATES COURT OF APPEALS
United States Court of Appeals

Tenth Circuit
FOR THE TENTH CIRCUIT
APR 5 2005
PATRICK FISHER
Clerk
ANTHONY A. MOORE,
Plaintiff - Appellant,
v.
JUAN HERNANDEZ; ROBERT
JONES; BERNICE MONTOYA;
DONA ANA COUNTY; UNKNOWN
DOES 1-10,
No. 04-2123
(D.C. No. CIV-02-1445 MCA/LAM)
(D. N.M.)
Defendants - Appellees.
ORDER AND JUDGMENT
Before LUCERO , PORFILIO , and BALDOCK , Circuit Judges.

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.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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. Moores employment with the Dona Ana County Sheriffs Department
started in 1997. He received a copy of the Countys 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 Countys 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.
-2-
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 evaluated Mr. Moores 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
Countys permanent ban on re-employing 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. Moores 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
-3-
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 courts 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 (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 (1972).
Our review of the district courts holding that the individual defendants are
entitled to qualified immunity differs from other summary judgment rulings.
Gross v. Pirtle, 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] satisf[y]
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 defendants unlawful conduct.
-4-
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-movants self-serving and conclusory assertions.
See Garrett v.
Hewlett-Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002). Moreover,
[a] lthough 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. Heartspring, Inc., 143 F.3d 550, 557 (10th Cir. 1998).
Analysis
We find no reversible error relative to Mr. Moores constructive-discharge
and qualified-immunity challenges. Accordingly, we affirm the summary
judgment for the same reasons stated in the district courts comprehensive
memorandum opinion and order dated April 27, 2004. There is no merit to
Mr. Moores complaint that the district court erred in considering the issues of
reasonable mistake, clearly established law, and due process. These are integral
components of qualified immunity law. Even though Mr. Moore is representing
-5-
himself, he is required to be aware of the substantive law.
Casper v. CIR , 805
F.2d 902, 906 n.3 (10th Cir. 1986). In addition, he has not
suggested how an
opportunity to respond to these issues would have enabled him to resist summary
judgment.
We also reject Mr. Moores contention of error relating to the Countys
permanent ban on rehiring him, because he did not bring such a claim. He relies
exclusively on a statement in his complaint that after he was released from jail, he
returned home to find a pink slip signed by a county commissioner stating he
could never be employed by Dona Ana County again. R. Vol. I, doc. 1, at 3; see
also Aplt. Br. at 5. We hold that this single factual assertion was insufficient to
raise a legal claim, and we decline to consider such a claim for the first time on
appeal. See Walker v. Mather (In re Walker)
, 959 F.2d 894, 896 (10th Cir. 1992)
Finally, we reject Mr. Moores attempt to have the court disqualify the
attorney for defendants based on an alleged conflict of interest among defendants.
A degree of skepticism is in order when one party seeks disqualification of
opposing counsel based on allegedly deficient representation of the opposing
party. . . . [I]n any event, [p]laintiff [has] failed to present any evidence
suggesting that [d]efendants attorney took action to benefit the [County] at the
individual [d]efendants expense.
Chavez v. New Mexico , 397 F.3d 826, 840
-6-
(10th Cir. 2005). Therefore, we find no error in the denial of Mr. Moores motion
to disqualify defendants attorney.
See id.
The judgment of the district court is AFFIRMED. The mandate shall issue
forthwith.
Entered for the Court
John C. Porfilio
Circuit Judge
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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

FOR THE TENTH CIRCUIT

Before LUCERO , PORFILIO , and BALDOCK , Circuit Judges.

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

notice of appeal was timely.

See Fed. R. App. P. 4(a)(1)(A) (notice of appeal

himself, he is required to be aware of the substantive law.

Casper v. CIR , 805

, 959 F.2d 894, 896 (10th Cir. 1992)

Chavez v. New Mexico , 397 F.3d 826, 840

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