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Butler v. Board of County Commissioners of The County of Douglas

United States District Court, D. Colorado

March 26, 2018

GARY R. BUTLER, an individual, Plaintiff,
THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF DOUGLAS, a local government entity; and TONY G. SPURLOCK, Sheriff, Douglas County, State of Colorado, in his official and individual capacity, Defendants.


          R. Brooke Jackson United States District Judge.

         This matter is before the Court on defendants Board of County Commissioners of the County of Douglas's and Tony G. Spurlock's partial motion to dismiss plaintiff Gary R. Butler's complaint. ECF No. 12. Mr. Butler has subsequently filed a motion for a voluntary dismissal of specific claims and defendants. After considering these motions, I GRANT Mr. Butler's voluntary dismissal motion and defendants' partial motion to dismiss claims two through four of Mr. Butler's complaint.

         I. BACKGROUND

         Mr. Butler worked as a deputy sheriff and later as sergeant in the Douglas County Sheriff's Office (“Sheriff's Office”) from 1991 until July 10, 2015.[1] ECF No. 1 at 3. During this 24-year career, Mr. Butler had an exemplary record without any disciplinary issues. Id. Prior to his career with the Sheriff's Office, however, Mr. Butler was convicted of felony manslaughter in Utah in 1975. Id. at 4. In 1988, a Utah District Court judicially pardoned Mr. Butler for the homicide conviction. Id. In the pardon order, the Utah Court noted that Mr. Butler “may hereafter respond to any inquiries relating to conviction of crimes as though they never occurred.” Id. The pardon also stated that Mr. Butler's criminal records were sealed and could only be inspected “by the request of Mr. Butler and upon order of the court.” Id.

         Following the dictates of this judicial pardon, Mr. Butler did not disclose the homicide conviction when he applied for a job with the Sheriff's Office in 1991. Id. He eventually discussed the conviction with then-Douglas County Undersheriff, David Weaver, in 2003. Id. at 6. Undersheriff Weaver was apparently unbothered by this revelation, reportedly saying that “you have more than proven yourself to me” and taking no further action regarding this information. Id. Indeed, Mr. Butler continued to receive raises and positive performance evaluations after making this disclosure. Id.

         Eventually Undersheriff Weaver became Sheriff and then was elected to the Board of County Commissioners (“the County Board”), leaving the Sheriff position vacant. Id. at 7. Defendant Tony Spurlock became the new Sheriff in 2014. While it is unclear from the briefing how Sheriff Spurlock came to know of Mr. Butler's conviction, in July 2015 Sheriff Spurlock approached Mr. Butler regarding the Utah conviction. Id. Mr. Butler told him about the judicial pardon and the provision therein stating that Mr. Butler need not disclose the conviction when asked about his criminal record, and Mr. Butler also noted that he told now-Commissioner Weaver about the conviction over ten years prior. Id. Unsatisfied with Mr. Butler's explanation, Sheriff Spurlock and the Sheriff's Office apparently proposed to Mr. Butler that if he agreed to retire voluntarily there would be no further investigation into the conviction, and that the matter would not become public. Id. at 8. Mr. Butler accepted that offer. Id.

         However, Mr. Butler asserts that when he attempted to retire, the County Board refused to let him do so. Id. Instead, Sheriff Spurlock terminated Mr. Butler on July 10, 2015 via a termination letter. Upon receiving the termination letter, Mr. Butler reached out to the Sheriff's Office and Sheriff Spurlock on two occasions requesting a hearing regarding the decision to terminate him. Id. at 8. Both requests for a hearing were denied. Id. Sheriff Spurlock then went on a media tour of sorts, speaking on at least two news stations and stating that “[Mr. Butler] committed a felony. He committed a heinous crime, in my opinion. He should have disclosed that information to us when he was applying.” Id. at 9 (quoting statements made by Sheriff Spurlock in an August 11, 2015 interview with CBS Channel 4). Sheriff Spurlock also sent a written memorandum concerning Mr. Butler's termination to the hundreds of individuals employed by and/or associated with the Sheriff's Office and the County. Id. He did not mention the fact that Mr. Butler had been judicially pardoned in the interviews or in the memorandum. Id.

         Despite being 66 years old at the time he was terminated, Mr. Butler was able to find a new job within a month of his termination. Id. at 8, 10. However, Mr. Butler asserts that after Sheriff Spurlock spoke on the news and publicized information regarding Mr. Butler's conviction without also noting the judicial pardon, Mr. Butler was discharged from his new job. Id. at 10. Mr. Butler also asserts that he lost two other employment opportunities based upon Sheriff Spurlock's public statements. Id.

         Mr. Butler filed this suit on July 16, 2017 asserting four claims against Mr. Spurlock in his individual and official capacity as representative of the Sheriff's Office, as well as against the County Board. ECF No. 1. Mr. Butler first claims that the County Board and Mr. Spurlock, in his official and individual capacities, violated his Due Process rights with regard to his liberty interest in his reputation and continued employment. Id. at 10-14. Second, Mr. Butler asserts a Due Process claim regarding his property interest in his continued employment with the Sheriff's Office, again against the County Board and Mr. Spurlock in his official and individual capacities. Id. at 14-16. Third, Mr. Butler asserts a claim of promissory estoppel against the County Board and Mr. Spurlock in his official capacity for terminating Mr. Butler in 2015 despite defendants' being on “constructive notice” of his pardoned conviction since 2003 when he told then Undersheriff, now Commissioner Weaver. Id. at 16-18. Finally, Mr. Butler asserts a claim of promissory estoppel against the County Board and Mr. Spurlock in his official capacity for allegedly reneging on their promise to let him retire and to keep the conviction private. Id. at 18-20.

         On August 22, 2017 Defendants filed an answer and a partial motion to dismiss. ECF Nos. 11, 12. Defendants seek to dismiss claims two through four of the complaint, and to entirely dismiss the County Board as a defendant in this matter. ECF No. 12. On September 29, 2017 Mr. Butler filed an unopposed motion for voluntary dismissal of several claims. ECF No. 20. In particular, he moves to dismiss the County Board as a defendant on all claims and to dismiss claims two and three in their entireties. As such, under the terms of Mr. Butler's voluntary dismissal motion, only claims one (against Mr. Spurlock in his individual and official capacity) and four (against Mr. Spurlock in his official capacity alone) of Mr. Butler's complaint remain in this case.

         Because defendants' partial motion to dismiss, ECF No. 12, does not seek dismissal of Mr. Butler's first claim for relief at this stage, the only live issue before this Court is whether claim four against Mr. Spurlock in his official capacity should be dismissed.


         To survive a Rule 12(b)(6) motion to dismiss, the complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plausible claim is a claim that “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the Court must accept the well-pleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th Cir. 2002), conclusory allegations are not entitled to be presumed true, Iqbal, 556 U.S. at 681. However, so long as the plaintiff offers sufficient factual allegations such that the right to relief is raised above the speculative level, he has met the threshold pleading standard. See, e.g., Twombly, 550 U.S. at 556; Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008).

         III. ...

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