United States District Court, D. Colorado
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.
Brooke Jackson United States District Judge.
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.
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. 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
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.
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.
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.
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.
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
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
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.
STANDARD OF REVIEW
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).