                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           SEP 2 2004
                          FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

G. GREG VALDEZ,

             Plaintiff-Appellant,

v.                                                          No. 03-2187
                                                   (D.C. No. CIV-02-94 JC/KBM)
STATE OF NEW MEXICO; CITY OF                                 (D. N.M.)
LAS CRUCES; DONA ANA COUNTY;
THIRD JUDICIAL DISTRICT
ATTORNEY’S OFFICE; SUSANA
MARTINEZ, Third Judicial District
Attorney, individually and in her official
capacity; LAS CRUCES POLICE
DEPARTMENT, City of Las Cruces
Police Department; BILL BAKER, City of
Las Cruces Police Chief Bill Baker or His
predecessor, individually and in their
official capacity; DONA ANA COUNTY
SHERIFF’S DEPARTMENT; JUAN
HERNANDEZ, Dona Ana County Sheriff;
JOHN DOES I-III, being other unnamed
law enforcement officers employed by
defendants, individually and in their
official capacity; METRO NARCOTICS
AGENCY; METRO NARCOTICS TASK
FORCE,

             Defendants-Appellees.



                           ORDER AND JUDGMENT            *




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
                                                                       (continued...)
Before TACHA , Chief Judge, MURPHY , Circuit Judge, and             CAUTHRON , **
Chief District Judge.



       After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

       Plaintiff-appellant G. Greg Valdez appeals the district court’s dismissal of

his federal civil-rights conspiracy claims with prejudice, under Federal Rule of

Civil Procedure 12(b)(6), and dismissal of his state claims without prejudice,

based on the court’s declining to exercise supplemental jurisdiction,    see 28 U.S.C.

§ 1367(c)(3). We affirm, though our analysis departs somewhat from the

reasoning of the district court.

       Plaintiff, a former elected district attorney for the Third Judicial District,

New Mexico, and defendant Susana Martinez, the current district attorney, have

engaged in a long-standing rivalry, attributable to political, professional, and


*
 (...continued)
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.
**
       The Honorable Robin J. Cauthron, Chief District Judge, United States
District Court for the Western District of Oklahoma, sitting by designation.

                                            -2-
employment-related differences. According to the allegations in plaintiff’s

complaint, Martinez mobilized the individual defendants and various law

enforcement agencies to carry out a civil-rights conspiracy against him, “designed

to . . . place plaintiff in a bad public light so that he would not run against her in

the 2000 elections.” Aplt. App. at 30, ¶ 26.         1
                                                         Plaintiff alleges that defendants

also ensnarled his friends, Mike O. Gonzales, Sr., and Mike O. Gonzales, Jr.,

in the scheme.

       Plaintiff’s complaint contends that defendants’ actions: (1) violated his

Fourth Amendment right to be free from illegal search and seizure; (2) infringed

upon his rights to due process and “of liberty and to contract;” and (3) trampled

his First Amendment right “to assemble and participate in government and

politics.” Id. at 35-36, ¶ 51. In addition, the complaint alleged state claims under

the New Mexico Tort Claims Act, contract law, and “for tortious interference

with contractual relations, malicious prosecution, retaliation, civil conspiracy,

slander, libel and defamation.”    Id. at 25, ¶ 1.

       This court will uphold a district court’s dismissal under Rule 12(b)(6) “only

when it appears that the plaintiff can prove no set of facts in support of the claims

that would entitle him to relief, accepting the well-pleaded allegations of the



1
     The controlling allegations are set out in plaintiff’s Second Amended
Complaint, Aplt. App. at 24-42.

                                               -3-
complaint as true and construing them in the light most favorable to the plaintiff.”

Yoder v. Honeywell Inc ., 104 F.3d 1215, 1224 (10th Cir. 1997) (internal citations

omitted). The legal sufficiency of a complaint is a question of law; therefore,

a Rule 12(b)(6) dismissal is reviewed de novo.     Sutton v. Utah State Sch. for

the Deaf & Blind , 173 F.3d 1226, 1236 (10th Cir. 1999). We “are free to affirm

a district court decision on any grounds for which there is a record sufficient to

permit conclusions of law, even grounds not relied upon by the district court.”

Smith v. Plati , 258 F.3d 1167, 1174 (10th Cir. 2001) (quoting   United States v.

Sandoval , 29 F.3d 537, 542 n.6 (10th Cir. 1994)). Because the alleged conspiracy

is complex and stretches from January through October 1999, this order and

judgment discusses each of plaintiff’s federal claims separately, in chronological

order. 2


Illegal Search and Seizure

       Plaintiff claims that in January 1999 defendants launched a criminal

investigation, with a focus on the Gonzaleses and plaintiff. Defendants placed

two undercover informants in the bar owned by the Gonzaleses, with instructions



2
       As a threshold matter, we determine that plaintiff’s complaint alleged
sufficient facts to demonstrate standing to raise his constitutional claims.
See Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248, 1255
(10th Cir. 2004) (listing the three elements of Article III standing: injury-in-fact,
causation, and redressability).

                                           -4-
to describe two television sets as stolen and to offer the sets for sale. In reality,

the televisions were purchased with funds from the Metro Narcotics Task Force or

Agency. The Gonzaleses, unaware of the investigation, purchased the televisions.

Before the Gonzaleses received the televisions, plaintiff asked Mike Gonzales Sr.

for information on renting a large-screen television for a planned Super Bowl

party. Gonzales offered to lend one of the televisions to plaintiff, who accepted

the offer. The informants delivered the television to plaintiff’s home for use at

his party.

       Based on these circumstances, plaintiff asserts a claim of illegal search and

seizure. He argues that a search occurred “when the informants crossed the

threshold of his premises,” delivered the television, and therefore learned that the

allegedly-stolen television was in his home. However, a wrongful search or

seizure conducted by a private party does not violate the Fourth Amendment.

And an informant working for law enforcement authorities is not necessarily an

agent or instrument of the government.     See Ghandi v. Police Dep’t of City of

Detroit , 823 F.2d 959, 963 (6th Cir. 1987);         United States v. Bazan , 807 F.2d

1200, 1202 (5th Cir. 1986) (citing   Coolidge v. New Hampshire , 403 U.S. 443,

487 (1971)).

       The courts have identified “‘two critical factors’” in determining the status

of an informant: “(1) whether the government knew of or acquiesced in the


                                               -5-
intrusive conduct, and (2) whether the party performing the search intended to

assist law enforcement efforts or to further his own ends.”      United States v.

Blocker , 104 F.3d 720, 725 (5th Cir. 1997);      United States v. McAllister , 18 F.3d

1412, 1417 (7th Cir. 1994);   United States v. Malbrough , 922 F.2d 458, 462

(8th Cir. 1990); United States v. Miller , 688 F.2d 652, 657 (9th Cir. 1982).

“Other considerations are whether the informant performed the search at the

request of the government and whether the government offered a reward.”

Malbrough , 922 F.2d at 462 (citing    United States v. Koenig , 856 F.2d 843, 847

(7th Cir. 1988)).

       Here, the complaint provides no indication that the informants’ delivery

efforts were conducted on behalf of, or with the knowledge of, law-enforcement

officials. It simply states that informants offered the televisions for sale, the

Gonzaleses purchased the televisions, the senior Gonzales offered to lend a

television to plaintiff, and “the informants themselves delivered the TV to

Plaintiff’s residence,” Aplt. App. at 31, ¶¶ 31. From the complaint, then, it

appears that the senior Gonzales and plaintiff arranged for the loan and delivery.

As a result, the complaint allegations allow for no reasonable inference of

defendants’ engineering a delivery to plaintiff’s home, acquiescing in informants’

entry onto plaintiff’s property, or encouraging an illegal search. Accordingly, the

informants were not acting as governmental agents and the complaint does not


                                            -6-
state a violation of the Fourth Amendment. The district court properly dismissed

plaintiff’s search and seizure claim.


Constitutional Contract Claim

      The next event in the alleged conspiracy took place approximately nine

months later. On October 17, 1999, the Gonzaleses were arrested for receiving

stolen property. Plaintiff was their “family and business attorney,” retained “for

representation on various business, civil and other legal matters.” Aplt. App.

at 31, ¶ 34. Upon learning of the arrests, plaintiff went to the police station,

intending to provide the Gonzaleses with legal counsel. Defendants, based on

their assertion that plaintiff was implicated in the crime underlying the charges

against the Gonzaleses, obtained an order from a magistrate judge prohibiting

plaintiff from speaking to them. When denied access to the Gonzaleses, plaintiff

attempted to obtain a telephonic order from a district court judge rescinding the

magistrate judge’s ban. Defendants, aware of plaintiff’s efforts, transported the

Gonzaleses to a location sixty miles away to stave off communications.

      Later that day, defendant Martinez held a press conference to announce the

arrest of the Gonzaleses. In response to a question, she stated that she had not

decided whether or not to criminally indict plaintiff. On the following day,

Martinez allegedly commented to a reporter that plaintiff was accused of

knowingly receiving stolen property. The reporter did not publish the comment.

                                         -7-
Subsequently, Martinez’s office issued a criminal complaint that did not name

plaintiff as a defendant, but did allege his receipt of a planted television set.

      Although plaintiff’s argument on his federal contract claim is not entirely

clear, he appears to assert a violation of his constitutional right to substantive due

process. He maintains that defendants directly interfered with an on-going

professional relationship with the Gonzaleses and indirectly discouraged

prospective clients from seeking his advice by tainting his reputation.

Significantly, however, he does not allege that he has lost the right to practice law

or that his license to practice law has been maliciously revoked or suspended.

See Goulding v. Feinglass, 811 F.2d 1099, 1102-03 (7th Cir. 1987) (finding no

allegation amounting to a deprivation of a liberty or property interest where an

attorney’s rights were not “removed or significantly altered”).

      The Due Process Clause is not “a font of tort law to be superimposed upon

whatever systems may already be administered by the States.”       Daniels v.

Williams , 474 U.S. 327, 332 (1986) (quoting     Paul v. Davis , 424 U.S. 693, 701

(1976)); see also DeShaney v. Winnebago County Dep’t of Soc. Servs       ., 489 U.S.

189, 202 (1989) (stating that “the Due Process Clause of the Fourteenth

Amendment . . . does not transform every tort committed by a state actor into

a constitutional violation”). To make out a substantive due process claim,

      “a plaintiff must demonstrate a degree of outrageousness and a
      magnitude of potential or actual harm that is truly conscience

                                           -8-
      shocking. . . . The level of conduct required to satisfy this additional
      requirement cannot precisely be defined, but must necessarily evolve
      over time from judgments as to the constitutionality of specific
      government conduct.”

Livsey v. Salt Lake County , 275 F.3d 952, 957-58 (10th Cir. 2001) (quoting

Tonkovich v. Kan. Bd. of Regents   , 159 F.3d 504, 528 (10th Cir. 1998) (internal

quotations and citations omitted)). The “ultimate standard” is “whether the

challenged government action ‘shocks the conscience’ of federal judges.”        Ruiz v.

McDonnell , 299 F.3d 1173, 1183-84 (10th Cir. 2002) (citations and quotations

omitted). In making that determination, we consider “(1) the need for restraint in

defining the scope of substantive due process claims; (2) the concern that § 1983

not replace state tort law; and (3) the need for deference to local policymaking

bodies in making decisions impacting public safety.”      Id. at 1184.

      Our review of the allegations in plaintiff’s complaint in light of the

relevant three factors leads us to conclude that it does not allege an actionable

substantive due process violation. Neither the disruption of a continued

attorney-client relationship with the Gonzaleses nor Martinez’s comments shock

the conscience. At most, Valdez has a state claim      for tortious interference with

contract, and he may not avail himself of federal constitutional principles for

vindication. Dismissal was the appropriate disposition of plaintiff’s federal

contract claim.



                                          -9-
Constitutional Defamation Claim

       Plaintiff’s federal defamation claim has much in common with his contract

claim. He alleges that Martinez’s press conference statement and later comment

to the reporter were defamatory and caused his loss of the Gonzaleses as clients

and also discouraged potential clients.   However, “‘defamation, standing alone,

[is] not sufficient to establish a claim for deprivation of a liberty interest.’”

Stidham v. Peace Officer Standards & Training, 265 F.3d 1144, 1153 (10th Cir.

2001) (quoting Renaud v. Wyo. Dep’t of Family Servs., 203 F.3d 723, 726-27

(10th Cir. 2000)). To be actionable under the constitution, the defamatory

statements (1) “must impugn the good name, reputation, honor, or integrity”

of the individual, (2) must be false, (3) “must be published” and (4) “must occur

in the course of terminating” employment. Id.

       There is no need for us to address the first three elements of this claim

because plaintiff’s allegations plainly do not meet the requisite fourth element. 3

The case of Workman v. Jordan, 32 F.3d 475 (10th Cir. 1994), which discussed

a procedural due process claim, is instructive on the issue. An individual has



3
        In addition, there is no need to resolve the parties’ argument concerning
whether plaintiff is a public figure who may not recover damages for false and
defamatory statements without demonstrating that the statements were made with
actual malice. See Quigley v. Rosenthal, 327 F.3d 1044, 1058 (10th Cir. 2003)
(describing consequences in a defamation case of public-figure status),
cert. denied , 124 S. Ct. 1507 (2004).

                                          -10-
“a liberty interest in his good name and reputation as it affects his protected

property interest in continued employment.” Id. at 480. However, a plaintiff

must show that the “false stigmatizing statements [were] entangled with his

interest in employment.” Id. at 481. Alleging a “loss of future positions [is]

too speculative” and “‘too intangible to constitute a deprivation of a liberty . . .

interest.’” Id. (quoting Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1269

(10th Cir. 1989)). See also Paul v. Davis, 424 U.S. at 711 (requiring an alteration

in legal status).

       Here, plaintiff does not allege that he was retained to represent the

Gonzaleses on criminal matters. Even in his appellate brief, he argues only that

“[a]s a former district attorney . . . [he] would have been the most obvious choice

[of] his ‘long-time client.’” Aplt. Br. at 14. Further, he alleges no other specific

employment opportunities lost as the result of Martinez’s statements. Any

damage to plaintiff’s reputation “‘may be recoverable under state tort law but it is

not recoverable in a [federal] action.’” Stidham, 265 F.3d at 1154 (quoting

Siegert v. Gilley, 500 U.S. 226, 234 (1991)).


First Amendment Retaliation

       Plaintiff alleges that defendants’ entire series of actions violated the First

Amendment by denying him “the right to associate with the political party of his

choice and to assemble with others who supported [plaintiff] in running against

                                          -11-
Martinez for the office of district attorney.” Aplt. Br. at 28. The First

Amendment protects the right to associate for the purpose of engaging in speech,

assembly, petition for the redress of grievances, and the exercise of religion.

“[W]hen the State interferes with individuals’ selection of those with whom they

wish to join in a common endeavor, freedom of association . . . may be

implicated.” Boy Scouts of Am. v. Dale, 530 U.S. 640, 678 (2000) (internal

quotations and citations omitted).

      “For there to have been a violation of First Amendment rights, the

defendant’s action must have had a deterrent, or ‘chilling’ effect on the plaintiff’s

speech.” Eaton v. Meneley, No. 03-3215, 2004 WL 1730370, at *3 (10th Cir.

Aug. 3, 2004). The “standard for evaluating that chilling effect is objective, not

subjective.” Id. And the standard is a “vigorous” one. Id. at *5. “[N]ot all

insults in public debate become actionable under the Constitution.” Id. Because

public debate is “rough and tumble,” plaintiffs “are expected to cure most

misperceptions about themselves through their own speech and debate.” Id.

We have explicitly held that “‘injury to one’s reputation is not enough to defeat

constitutional interests in furthering ‘uninhibited, robust’ debate on public

issues.’” Id. (quoting Phelan v. Laramie County Cmty. Coll. Bd. of Trs., 235 F.3d

1243, 1248 (10th Cir. 2000) (further citation omitted)).




                                         -12-
      The result of Eaton illustrates the rigorousness of our standard. In that

case, we faced a § 1983 claim against a county and county sheriff, brought by

petition-drive organizers who alleged that the sheriff deprived them of their free

speech rights by running criminal history checks on them when they attempted to

remove him from office through the electoral process. We “strongly

disapprov[ed]” of the sheriff’s actions. Id. at *5. Nevertheless, “[d]espite

anything the sheriff had done, the plaintiffs were very much ‘free to express [their]

views publicly and to criticize’ the sheriff’s conduct.” Id. (quoting Phelan,

235 F.3d at 1248). We ultimately determined that the organizers’ allegations did

not state a violation of their constitutional rights.

      Similarly, we hold here that plaintiff has failed to state a claim of First

Amendment retaliation. Plaintiff’s allegations concerning the delivery of the

television set, the prohibition of contact with the Gonzaleses, the press conference

reference to his possible connection with the reverse sting, the comment to the

reporter, and the criminal complaint’s mention of his name do not meet the

subjective standard for a chilling effect. Plaintiff remained free to express his

version of events, either in a political campaign or in contacts with the press.

Indeed, plaintiff “had several telephone conversations with the reporter” who was

supposedly told that plaintiff was accused of a crime. Aplt. App. at 33, ¶ 41.




                                           -13-
In sum, plaintiff has not stated a claim that would support a finding that his First

Amendment rights have been violated. 4


Conspiracy

      Plaintiff also argues that all defendants should be liable for damages

because they joined in a conspiracy to violate his constitutional rights. To plead

such a claim, a plaintiff must allege facts sufficient to show both a conspiracy and

the actual deprivation of a federally protected right. Dixon v. City of Lawton,

898 F.2d 1443, 1449 (10th Cir. 1990). Because we have concluded that plaintiff

has not successfully pleaded the violation of a federal right, we uphold the

dismissal of plaintiff’s conspiracy claim.


Remaining Issues

      The parties’ briefs also contain argument relating to the individual

defendants’ entitlement to qualified immunity, Martinez’s entitlement to absolute

immunity, and the municipality’s liability. In addressing qualified immunity

issues, the court must first consider whether the plaintiff alleged a deprivation of

an actual constitutional right and, if so, whether the plaintiff showed the right was


4
       In his brief, plaintiff appears to maintain that he has alleged a direct denial
of First Amendment rights and also a retaliation claim.     See Aplt. Br. at 28-29.
Under the alleged circumstances of this case, we discern no distinction between
the two claims and conclude that plaintiff has not stated a First Amendment claim
in any context.

                                         -14-
clearly established at the time of the alleged violation. See Conn v. Gabbert,

526 U.S. 286, 290 (1999). Here, we have concluded that plaintiff did not allege

a violation of constitutional rights, so we do not reach the second inquiry. For the

same reason, we do not parse Martinez’s claimed entitlement to absolute immunity

for various alleged offenses and we do not separately analyze the liability of the

municipality.

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court



                                                    Robin J. Cauthron
                                                    Chief District Judge




                                         -15-
