                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            APR 5 2005
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                  Clerk


    ANTHONY A. MOORE,

               Plaintiff - Appellant,

     v.                                                   No. 04-2123
                                               (D.C. No. CIV-02-1445 MCA/LAM)
    JUAN HERNANDEZ; ROBERT                                 (D. N.M.)
    JONES; BERNICE MONTOYA;
    DONA ANA COUNTY; UNKNOWN
    DOES 1-10,

               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      This order and judgment is not binding precedent, except under the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. 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.


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      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. 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 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. 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


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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 (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 court’s 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 defendant’s unlawful conduct.”


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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,

“[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. Moore’s constructive-discharge

and qualified-immunity challenges. Accordingly, we affirm the summary

judgment for the same reasons stated in the district court’s comprehensive

memorandum opinion and order dated April 27, 2004. There is no merit to

Mr. Moore’s 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


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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. Moore’s contention of error relating to the County’s

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. Moore’s 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




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(10th Cir. 2005). Therefore, we find no error in the denial of Mr. Moore’s 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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